      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00472-CR



                                   Jefferson Carter, Appellant

                                                 v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 51,957, HONORABLE JOE CARROLL, JUDGE PRESIDING



               Appellant Jefferson Carter pleaded guilty to aggravated sexual assault of a child. The

district court adjudged him guilty and assessed punishment at imprisonment for twenty-six years. See

Tex. Pen. Code Ann. § 22.021 (West Supp. 2002). Appellant contends the court reversibly erred by

failing to admonish him before accepting his plea that he would be required to register as a sex

offender. Although we agree that the court erred, we conclude that the error was harmless and

therefore will affirm the conviction.


Jurisdiction

               The State asserts that appellant’s general notice of appeal was not sufficient to invoke

this Court’s jurisdiction. See Tex. R. App. P. 25.2(b)(3). Under rule 25.2(b)(3), there is a limited

right to appeal when a defendant is convicted on his plea of guilty and “the punishment assessed did

not exceed the punishment recommended by the prosecutor and agreed to by the defendant.” Id. If

the notice of appeal in such a case does not state that the appeal falls within one of three permitted
categories, it does not invoke the appellate court’s jurisdiction. Whitt v. State, 45 S.W.3d 274, 275

(Tex. App.—Austin 2001, no pet.); see Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001)

(rule 25.2(b)(3) limits appeal in every plea bargain, felony case).

               There was a plea bargain in this case. In exchange for appellant’s guilty plea, the State

promised “not to indict with enhancement paragraphs.” The State asserts that had it alleged and

proved one or more previous felony convictions, appellant would have been subject to an automatic

life sentence under the terms of Texas Penal Code section 12.42(c)(2). The State urges that the plea

agreement therefore “capped” the punishment to which appellant was subject. See Delatorre v. State,

957 S.W.2d 145, 148-49 (Tex. App.—Austin 1997, pet. ref’d) (rule 25.2(b)(3) applies when plea

agreement sets maximum punishment below which court may exercise discretion in setting

punishment).

               The State’s argument fails in two respects. First, a defendant convicted of aggravated

sexual assault is subject to an automatic life sentence only if he has a previous conviction for one of

a few specified sex-related offenses. Tex. Pen. Code Ann. § 12.42(c)(2) (West Supp. 2002). The

only evidence regarding appellant’s criminal record is his own testimony, in which he admitted prior

convictions for involuntary manslaughter and theft of a motor vehicle. Neither of these convictions

warranted an automatic life sentence in this cause. See id. § 12.42(c)(2)(B). Second, even if

appellant had been subject to the terms of section 12.42(c)(2), the State’s agreement would have

affected only the minimum punishment to which he was subject; the maximum would have been life

in any case. See Taplin v. State, No. 03-01-00306-CR, slip op. at 2-3, 2001 Tex. App. LEXIS 7625,

at *3 (Tex. App.—Austin Nov. 15, 2001, no pet.) (agreement to abandon enhancement allegations

in first degree felony prosecution did not fall within terms of rule 25.2(b)(3)). Because there was no

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agreed punishment recommendation within the meaning of rule 25.2(b)(3), appellant’s general notice

of appeal was sufficient to invoke our jurisdiction.


Admonishment

               Before accepting appellant’s guilty plea, the district court failed to admonish him that

he would be required to meet the requirements of the sex offender registration program. Tex. Code

Crim. Proc. Ann. art. 26.13(a)(5) (West Supp. 2002); see id. arts. 62.01-.13 (Texas Sex Offender

Registration Program). The court’s failure to substantially comply with article 26.13(a)(5) was

nonconstitutional error subject to harm analysis under Texas Rule of Appellate Procedure 44.2(b).

Shankle v. State, 59 S.W.3d 756, 761 (Tex. App.—Austin 2001, pet. granted). Under rule 44.2(b),

an error that does not affect substantial rights must be disregarded. If a trial court fails to

substantially comply with an article 26.13 admonishment requirement, a substantial right is affected

if the conviction based on the guilty plea results in harm to the defendant directly related to the

subject of the omitted admonishment. Id.

               In Shankle, this Court reversed a conviction for aggravated sexual assault because the

trial court failed to admonish the defendant regarding the sex offender registration requirement. Id.

at 762. In that case, however, there was no evidence that the defendant was otherwise informed or

aware of the registration requirements. In the present cause, on the other hand, appellant was

questioned by his attorney about the possible conditions of deferred adjudication community

supervision, including sex offender registration:


       Q. Have we been over all the terms and conditions in the presentence report?

       A. Yes, sir.

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       Q. And you’ve also been over those with the probation department?

       A. Yes, sir.

       Q. Do you understand all those terms and conditions?

       A. Yes, sir.

       Q. Let me ask you, in particular, have we been over the sex offender registration
          requirements?

       A. Yes, sir.

       Q. You understand how tough those are?

       A. Yes, sir.

       Q. That you would be required to put a sign on your property that says you’re a sex
          offender, child molester.

       A. Yes, sir.

       Q. That would be hard to do. Can you do that?

       A. Yes, sir.

       Q. Also, if you got a job, you would have to tell your employer what you were
          charged with?

       A. Yes, sir.

       Q. All right. Do you understand you would have limitation on your contact with
          people that are underage? You couldn’t visit your stepchildren, people like that?

       A. Yes, sir.


               The supervision plan contained in appellant’s presentence report is in the record. The

plan refers to the sex offender registration act and contains notice and reporting requirements similar

to those prescribed by the act.


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                The record demonstrates that appellant discussed the sex offender registration

requirements with his attorney and understood them. Appellant argues that this discussion was not

shown to be an adequate substitute for the required statutory admonishment because “not one of the

specific effects of sex offender registration . . . was directly mentioned on the record.” On its face,

however, article 26.13(a)(5) provides only that a defendant must be informed that he “will be required

to meet the registration requirements of Chapter 62.” Tex. Code Crim. Proc. Ann. art. 26.13(a)(5).

The statute does not require that a defendant be admonished regarding the specific details or effects

of registration. In any case, the supervision plan prepared for appellant specified when, where, and

how often appellant would be required to register.

                We conclude that appellant is shown by the record to have had sufficient information

regarding sex offender registration to make an informed decision whether to plead guilty. As a

consequence, the district court’s failure to substantially comply with article 26.13(a)(5) did not affect

appellant’s substantial rights. The point of error is overruled.

                The judgment of conviction is affirmed.




                                                Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: February 28, 2002

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