Opinion issued March 8, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00249-CR
                           ———————————
                   TODD ARLAND MITCHELL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1438321


                       MEMORANDUM OPINION

      Appellant Todd Arland Mitchell pleaded guilty to the offense of driving while

intoxicated and “true” to a prior conviction for intoxication manslaughter, without
an agreed recommendation as to punishment.1 After a pre-sentence investigation

(PSI) hearing, the trial court assessed appellant’s punishment at ten years’

incarceration in the Texas Department of Criminal Justice, Institutional Division. On

appeal, appellant argues that: (1) the trial court erred when it improperly admonished

him as to the range of punishment prior to entry of his plea, and (2) the trial court’s

failure to properly admonish him rendered his guilty plea involuntary. We affirm.

                                    Background

      Appellant was involved in a minor car accident and was later arrested and

charged by indictment with driving while intoxicated with a prior conviction for

intoxication manslaughter. Appellant subsequently pleaded guilty to the offense and

true to the prior conviction paragraph, without an agreed recommendation as to

punishment.

      As part of his plea, appellant signed a “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession,” in which he “waive[d] the right

of trial by jury[,] the appearance, confrontation, and cross-examination of witnesses,

and [his] right against self-incrimination.” Appellant also signed and initialed

written “Admonishments” which informed him that he was charged with “DWI 3rd.”

The form was also signed by appellant’s attorney and the trial judge. Appellant

initialed next to some “x” marks in the form, but not others, and there is an “x” mark


1
      See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(1) (West Supp. 2015).


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next to the punishment-admonishment paragraph for “third degree felony,” but the

paragraph itself contains only an “x” mark instead of appellant’s initials. The

punishment range for “third degree felony with one enhancement,” however, is

circled and linked to a handwritten notation at the bottom of the page that was

initialed by the trial judge, stating that appellant was “admonished as to this

punishment range,” which is not more than twenty years’ confinement. However,

the punishment range for a conviction of driving while intoxicated with a prior

conviction for intoxication manslaughter is that of a third-degree felony, not more

than ten years’ confinement.

      Although the plea proceedings were not recorded, the docket sheet notes that

appellant was “admonished by the Court of the consequences of said plea.”

      During the PSI hearing, the State offered testimony from the surviving

complainant from appellant’s 1997 intoxication manslaughter case and the officer

who investigated the accident. Appellant and appellant’s friend testified for the

defense at the hearing. At the conclusion of the hearing, the trial court assessed

appellant’s punishment at ten years’ incarceration in the Texas Department of

Criminal Justice, Institutional Division.

                               Plea Admonishments

      In his first issue, appellant argues that the trial court failed to properly

admonish him as to the correct range of punishment prior to the entry of his guilty



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plea. Specifically, appellant argues that although he pleaded guilty to a third-degree

felony offense, the trial court admonished him as to the punishment range for a

third-degree felony with one enhancement.

A.    Applicable Law

      Prior to accepting a plea of guilty, a trial court must admonish the defendant

as to the range of the punishment attached to the offense. TEX. CODE CRIM. PROC.

ANN. art. 26.13(a)(1) (West Supp. 2014). The court may make the admonitions either

orally or in writing. Id. art. 26.13(d). If it does so in writing, it must receive a

statement signed by the defendant and the defendant’s attorney that the defendant

understands the admonitions and is aware of the consequences of his plea. Id.

      Substantial compliance with Article 26.13 is sufficient, unless the defendant

affirmatively shows that he was not aware of the consequences of his plea and that

he was misled or harmed by the admonishment of the court. Id. art. 26.13(c).

Substantial compliance creates a prima facie showing that the plea was voluntary,

which shifts the burden to the defendant to show he did not understand the

consequences of his plea and that he was harmed or misled by the admonishment

given. See id.; Aguirre–Mata v. State, 125 S.W.3d 473, 480 (Tex. Crim. App. 2003).

“When a record shows that the trial court delivered an incorrect admonishment

regarding the range of punishment, and the actual sentence lies within both the actual

and misstated maximum, substantial compliance is attained.” Martinez v. State, 981



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S.W.2d 195, 197 (Tex. Crim. App. 1998) (citing Robinson v. State, 739 S.W.2d 795

(Tex. Crim. App. 1987)). A trial court’s failure to properly admonish a defendant

about the range of punishment before accepting a guilty plea is subject to harmless

error analysis. See TEX. R. APP. P. 44.2(b); Aguirre–Mata, 125 S.W.3d at 474.

B.    Analysis

      Appellant was charged by indictment with the third-degree felony offense of

driving while intoxicated with a prior conviction for intoxication manslaughter. TEX.

PENAL CODE ANN. §§ 49.04, 49.09(b)(1) (West Supp. 2015). The charged offense

carries a punishment range of two to ten years’ confinement, and a possible fine not

to exceed $10,000. Id. § 12.34 (West 2011). Because the plea proceedings were not

recorded, the record is silent as to whether appellant received any oral

admonishments from the trial court prior to his plea. The clerk’s record, however,

demonstrates that appellant was incorrectly admonished in writing as to the range of

the punishment attached to his offense. Specifically, the clerk’s record indicates that

the trial judge admonished appellant of the punishment range for a third-degree

felony with one enhancement, which carries a punishment range of two to twenty

years’ confinement, and a possible fine not to exceed $10,000. Id. § 12.33 (West

2011), § 12.42(a) (West Supp. 2015). The trial court assessed appellant’s

punishment at ten years’ confinement.




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      Because appellant’s ten-year sentence falls within the punishment ranges for

both a third-degree felony and a third-degree felony with one enhancement, the trial

court’s admonishment substantially complied with Article 26.13. See Martinez, 981

S.W.2d at 197. Appellant argues that he could not have been aware of the

consequences of his plea because he was improperly admonished as to the correct

range of punishment. Appellant, however, does not argue that he was misled or

harmed by the trial court’s incorrect punishment-range admonishment nor has he

pointed the court to any record evidence that would support such a finding. See TEX.

CODE CRIM. PROC. ANN. art. 26.13(c) (requiring defendant to affirmatively show that

he was not aware of consequences of his plea and that he was misled or harmed by

court’s admonishments). Without such an affirmative showing, appellant has not met

his burden under art. 26.13(c). Id.

      We overrule appellant’s first issue.

                           Voluntariness of Guilty Plea

      In his second issue, appellant argues that the trial court’s failure to properly

admonish him as to the correct range of punishment rendered his guilty plea

involuntary in violation of his due process rights.

A.    Applicable Law

      A guilty plea constitutes a waiver of three constitutional rights: (1) the right

to a jury trial, (2) the right to confront one’s accusers, and (3) the right not to



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incriminate oneself. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712

(1969). Accordingly, a guilty plea, to be consistent with due process of law, must be

entered knowingly, intelligently, and voluntarily. Id. at 242, 89 S. Ct. at 1712–13;

McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969). To be

“voluntary,” a guilty plea must be the expression of the defendant’s own free will

and must not be induced by threats, misrepresentations, or improper promises. Brady

v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970).

      Although Article 26.13 was intended to facilitate the entry of adequately

informed guilty pleas, the Court of Criminal Appeals has recognized that due process

does not require “the equivalent of the Article 26.13(a) admonishments or an

admonishment on the range of punishment.” Aguirre-Mata, 125 S.W.3d at 475–76;

see also Davison v. State, 405 S.W.3d 682, 692 (Tex. Crim. App. 2013) (stating that

“[w]e have found no Supreme Court case . . . holding that a trial court’s failure to

admonish a guilty-pleading defendant on the range of punishment renders the guilty

plea invalid.”) (citation omitted). “So long as the record otherwise affirmatively

discloses that the defendant’s guilty plea was adequately informed, due process is

satisfied.” Davison, 405 S.W.3d at 687.

      Appellant argues that because he “was not properly admonished as to the

actual correct range of punishment that he faced, and in the absence of any other

evidence in the record to the contrary, it is simply impossible for [him] to have



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entered his plea of guilty with full knowledge and understanding of the consequences

that he faced. Without this necessary understanding, [his] plea of guilty was not

voluntarily made in violation of his due process rights.” Here, the appellate record

reflects that appellant signed a waiver acknowledging that he was admonished with

respect to each of the constitutional rights mentioned in Boykin that a defendant

pleading guilty necessarily waives—trial by jury, confrontation, and the privilege

against self-incrimination. Appellant also initialed the admonishments, affirmatively

stating that he “fully underst[ood] the consequences of [his] plea,” he “freely,

knowingly, and voluntarily executed this statement in open court with the consent

of and approval of [his] attorney,” and that he was “aware of the consequences of

[his] plea . . . and [his] plea [was] freely and voluntarily made.” Thus, the record is

not silent with respect to whether appellant understood the consequences of his plea

and entered his plea voluntarily. See Davison, 405 S.W.3d at 692.

      Furthermore, because appellant was admonished in substantial compliance

with the requirements of Article 26.13, the burden shifted to appellant to show he

did not understand the consequences of his plea and that he was harmed or misled

by the admonishment given. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c);

Martinez, 981 S.W.2d at 197. As previously discussed, appellant failed to meet his

burden. Appellant was sentenced within the correct punishment range and has not

“demonstrated that he relied on the incorrect portion of the admonishment in



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choosing to enter a plea of guilty. Thus, he fails to sustain his claim that his plea was

not voluntary.” Martinez, 981 S.W.2d at 197.

      We overrule appellant’s second issue.

                          HYBRID REPRESENTATION

      Appellant filed a pro se supplemental brief raising three additional issues even

though appellate counsel had already filed a brief. A criminal defendant is not

entitled to hybrid representation on appeal. Robinson v. State, 240 S.W.3d 919, 922

(Tex. Crim. App. 2007). Consequently, we will not address the issues raised in the

pro se supplemental brief. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex.

Crim. App. 2006) (refusing to address issues raised in pro se brief filed after

defendant’s counsel filed brief on appeal).

                                      Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice


Panel consists of Justices Bland, Brown, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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