                          NO. 07-10-00132-CR; 07-10-00133-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   OCTOBER 25, 2010


                             CEDRICK WOODS, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;

                       NO. 09-00301-CRF-272, 09-00302-CRF-272;

                       HONORABLE TRAVIS B. BRYAN III, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION

      Appellant, Cedrick Woods, entered an open plea of guilty1 to two counts of

burglary of a habitation2 and one count of evading arrest.3 The punishment range for

the burglary of a habitation offenses was enhanced by the allegation of conviction of a



      1
       An open plea is one entered without any agreement with the State as to
punishment.
      2
          See TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003).
      3
          See id. § 38.04(a), (b)(2)(A) (Vernon Supp. 2010).
prior felony offense.4 Appellant entered a plea of true to the enhancement allegation

contained in the burglary indictment. The issue of punishment was decided by the trial

court and, after hearing the testimony, the trial court assessed punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-

TDCJ) for a period of 30 years for one count of burglary and 10 years for evading

arrest.5 Appellant appeals through three issues contending, in issues one and two, that

the trial court’s failure to properly admonish appellant should require this Court to

reverse the convictions, and, in issue three, that the evidence was legally insufficient to

support the trial court’s order for restitution. We will reverse the trial court’s judgments

and remand the cases for a new trial.


                                  Factual and Procedural Background


          On January 22, 2009, appellant was indicted in trial court cause number 09-

00301-CRF on two counts of burglary of a habitation. The indictment contained an

enhancement paragraph alleging appellant had previously been convicted of a felony

offense. On that same day, appellant was also indicted in trial court cause number 09-

00302-CRF for the offense of evading arrest using a motor vehicle. The indictment

further alleged that appellant had previously been convicted of the offense of evading

arrest.


          On September 18, 2009, appellant executed a written waiver of the right to trial

by jury. On January 27, 2010, appellant appeared before the trial judge and entered
          4
              See id. § 12.42(b) (Vernon Supp. 2010).
          5
        The other count of burglary of a habitation is not referred to in the judgment or
otherwise referred to after the plea of guilty was received.
                                                2
pleas of guilty to both counts of burglary of a habitation and to one count of evading

arrest using a motor vehicle, and entered pleas of true to the enhancement paragraph in

each indictment.6 After hearing all of the evidence, including the testimony of appellant,

the trial court assessed punishment at confinement in ID-TDCJ for 30 years on one of

the counts of burglary and 10 years for evading arrest.


       Appellant appeals contending that the failure of the trial court to admonish

regarding the consequences of his pleas of guilty should result in reversal of the

judgments for two reasons.      First, appellant contends that the failure to admonish

pursuant to article 26.13 of the Code of Criminal Procedure has resulted in harm and,

therefore, requires reversal. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp.

2010).7    Second, appellant contends that the trial court’s failure to admonish him

regarding the consequences of his pleas of guilty violated his due process rights under

the United States Constitution and, accordingly, require reversal of the judgments of

guilt entered against him.      By a third issue, appellant contends that there was

insufficient evidence to assess restitution against him. We will reverse the judgment of

conviction and remand the causes to the trial court for a new trial.




       6
         The “enhancement paragraph” contained in the evading arrest indictment is
actually an element of the offense and not a true enhancement of punishment.
       7
          Further reference to the Code of Criminal Procedure will be by reference to
“art.” or “article.”

                                             3
                                         Failure to Admonish


       Each of appellant’s first two contentions deal with the failure of the trial court to

properly admonish him regarding his various constitutional and statutory rights prior to

the trial court receiving his pleas of guilty.


Article 26.13 admonishments


       Appellant contends that, because the trial court did not admonish him pursuant to

article 26.13 prior to the entry of his pleas of guilty, the trial court erred.    Further,

appellant contends that such error harmed him. Accordingly, appellant contends that as

a result of the harm, this Court should reverse and remand the causes back to the trial

court for another trial.


Standard of Review


       Admonishments pursuant to article 26.13 are designed to provide assurance that

when a defendant waives certain of his constitutional rights, he does so voluntarily and

with knowledge of the consequences of the act. See VanNortrick v. State, 227 S.W.3d

706, 708 (Tex.Crim.App. 2007). However, the admonitions contained in article 26.13

are not constitutionally required. See id. Therefore, any error found in the trial court’s

failure to properly give the admonitions required by the statute is reviewed as a non-

constitutional error.      See id.   When we review the record for compliance with the

statutory requirement, we look for substantial compliance. Id. However, when the trial

court wholly fails to admonish the appellant, there is not substantial compliance, and to

assert such is nothing more than a legal fiction. See Cain v. State, 947 S.W.2d 262,

                                                 4
264 (Tex.Crim.App. 1997).           Here, the trial court in no way complied with the

requirements of article 26.13. See art. 26.13(a). We, therefore, review the record

before us for harm pursuant to Texas Rule of Appellate Procedure 44.2(b). See TEX. R.

APP. P. 44.2(b).8 Rule 44.2(b) directs us to disregard any error reflected in the appellate

record, other than constitutional error, that does not affect the substantial rights of the

appellant. See id.; Bessey v. State, 239 S.W.3d 809, 813 (Tex.Crim.App. 2007). In

applying rule 44.2(b) in a failure to admonish case, the question becomes, after

considering the record as a whole, do we have fair assurance that the appellant’s

decision to plead guilty would not have changed had the trial court admonished him.

See Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006).


Analysis


          The record reflects, and both parties agree, that the only article 26.13(a)

admonition that is at issue is the range of punishment. Appellant was indicted for two

counts of burglary of a habitation in trial court cause number 09-00301-CRF. See TEX.

PENAL CODE ANN. 30.02(a)(1).9 As indicted, the primary charge is a second-degree

felony.       § 30.02(c)(2).   A second-degree felony is punishable by confinement for a

period of not more than 20 years and not less than two years in the ID-TDCJ. See §

12.33 (Vernon Supp. 2010). However, the indictment for the burglary charges also

carried an enhancement paragraph that alleged appellant had previously been


          8
        Further reference to the Texas Rules of Appellate Procedure will be by
reference to “rule ___” or “Rule ____.”
          9
        Further reference to the Texas Penal Code shall be by reference to “§ ____” or
“section ____.”
                                               5
convicted of the felony offense of burglary of a habitation. This results in appellant’s

punishment range being elevated to a first-degree offense. See § 12.42(b). A first-

degree felony has a possible punishment range of confinement in the ID-TDCJ for life or

for any term of not more than 99 years or less than five years. See § 12.32.


       The record also reflects that in trial court cause number 09-00302-CRF, appellant

was indicted for the offense of evading arrest using a motor vehicle. See § 38.04(b)(1).

Evading arrest using a motor vehicle is a state-jail felony and is punishable by

confinement in a state-jail facility for any period of not more than two years or less than

180 days.    § 12.35(a).    The indictment contained what is labeled “Enhancement

paragraph” that alleges appellant had previously been convicted of evading arrest. If

such allegation is proven, the punishment range for appellant is elevated to third-degree

felony status. See § 38.04(b)(2)(A).10 As a third-degree felony, the punishment range

applicable to appellant is confinement in the ID-TDCJ for any term of not more than 10

years or less than two years. See § 12.34.


       In trial court cause number 09-00301-CRF appellant was sentenced to 30 years

confinement in the ID-TDCJ. This was within the punishment range for a first-degree

felony. In trial court cause number 09-00302-CRF appellant was sentenced to 10 years

confinement in the ID-TDCJ. This sentence was within the range of punishment for a

third-degree felony.




       10
          Although the State characterized the prior evading offense as an enhancement,
it is actually an element of § 38.04(b)(2)(A). See Calton v. State, 176 S.W.3d 231, 234
(Tex.Crim.App. 2005).
                                             6
       As we review the entire record, it is very apparent that the State had a significant

amount of evidence of appellant’s guilt for the offenses charged. This is a factor we

may consider in determining whether any of appellant’s substantial rights may have

been affected by the failure to admonish.          See Bessey, 239 S.W.3d at 813.

Additionally, however, we must bear in mind that neither party has the burden to

demonstrate harm when we are conducting a rule 44.2(b) analysis in a failure to

admonish situation. See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002).

In Burnett, the Texas Court of Criminal Appeals pointed out that to warrant a reversal in

a failure to admonish case, the record must support an inference that appellant did not

know the consequences of his plea. See id. The court then went on to say that a silent

record would support such an inference. Id. That is exactly what we find in the record

before us: silence as to the applicable range of punishment. Therefore, as a reviewing

court, we cannot be assured that appellant’s decision to plead guilty would not have

changed had the trial court admonished him properly. See VanNortrick, 227 S.W.3d at

709 (citing Anderson, 182 S.W.3d at 919). Accordingly, we sustain appellant’s issue

regarding the failure to admonish pursuant to article 26.13 and find that such failure did

affect the substantial rights of appellant.


Due Process Violation


       Having determined that the failure to admonish appellant regarding the range of

punishment did affect appellant’s substantial rights, we need not consider appellant’s

remaining issue regarding the contention that such failure to admonish was also a

violation of his due process rights.      See Ward v. State, 188 S.W.3d 874, 875 n.1

                                              7
(Tex.App—Amarillo 2006, pet. ref’d); see also Jimenez v. State, 32 S.W.3d 233, 239 n.

23 (Tex.Crim.App. 2000) (recognizing that constitutional issues should not be

addressed if the case can be resolved on nonconstitutional grounds).


                     Sufficiency of the Evidence Regarding Restitution


         Appellant’s last issue deals with the sufficiency of the evidence to order

restitution. Because we have held that the judgments should be reversed, we do not

reach the issue of evidentiary support for the restitution ordered by the trial court’s

judgments. See Rule 47.1.


                                        Conclusion


         Having sustained appellant’s issue regarding failure to admonish on the range of

punishment, we reverse the judgments of the trial court and remand both cases for new

trial.




                                                        Mackey K. Hancock
                                                             Justice


Do not publish.




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