
NO. 07-02-0147-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 21, 2002

______________________________


IN THE INTEREST OF L.A.A.; T.L.A.; J.B.A. AND L.S.A., MINOR CHILDREN

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

NO. 2001-513,986; HONORABLE DRUE FARMER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	On May 20, 2002, the appellant filed a Motion to Withdraw Notice of Appeal averring
that he no longer wished to pursue the appeal and that the appeal should be dismissed.
	Without passing on the merits of the case, the appellant's  Motion to Dismiss Appeal
is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.1(a)(1).  All costs are
assessed to the parties incurring the same.  Having dismissed the appeal at the appellant's
request and because the appellee is not opposed to such a request, no motion for
rehearing will be entertained and our mandate will issue forthwith. 
							Phil Johnson
Do not publish.					    Justice

ion is not available. (1) See Tex.
Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C) & (E) (Vernon Pamph. Supp. 2005). 
Pursuant to a plea of guilty, the trial court must admonish a defendant, among other things,
on the range of punishment.  See id. at art. 26.13(a)(1) (Vernon Supp. 2005).  The range
of punishment does not include probation.  Price v. State, 866 S.W.2d 606, 610
(Tex.Cr.App. 1993).  If, however, a court volunteers an admonishment on the availability
of probation, it imposes a duty upon itself to accurately admonish the defendant.  Ex Parte
Williams, 704 S.W.2d 773, 775 (Tex.Cr.App. 1986).  Error has been found when a trial
court improperly admonishes a defendant regarding probation, and the record
demonstrates the defendant was seeking probation.  Harrison v. State, 688 S.W.2d 497,
499 (Tex.Cr.App. 1985).
	Appellant argues the trial court erred in misstating his eligibility for probation thereby
making him unaware of the consequences of his plea because he was seeking probation. 
The State contends, and we agree, that when taken in its entire context, the plea hearing
demonstrates appellant was hoping for deferred adjudication probation, for which he was
eligible.
	In part, appellant was admonished as follows:
	The Court: Do you understand - well, there is no recommendation in these
cases, so do you understand that pursuant to your plea, I have a number of
things that I could do?  I could put you on probation, I could defer
adjudication, I could find you guilty and sentence you up to those ranges of
punishment that we talked about in this case - you understand those are kind
of the ranges of the things that could happen today?
	[Appellant]: Yes, sir. 

Taken out of context, the court's admonishment appears to offer regular probation. 
However, a review of the entire plea proceeding and the record from the motion for new
trial hearing demonstrate appellant testified in hope of, and defense counsel argued for,
deferred adjudication probation.  The offenses appellant was charged with did not preclude
his eligibility for deferred adjudication community supervision.  See Tex. Code Crim. Proc.
Ann. art. 42.12, § 5(a). 	
	Prior to hearing punishment evidence, the trial court announced, "I do accept your
plea[s] of guilty.  I find the evidence is sufficient to sustain a finding of guilt, but I will reserve
my final judgment until such time as I have heard the punishment evidence . . . ." 
(Emphasis added).  During the punishment phase, appellant testified as follows:
	Q. You're here today because you want to ask the Judge to put you on
deferred probation.
	A.  Yes.
* * *
	Q.  That's the plans [sic] you have in the near future should the Judge grant
your desire for deferred probation?
	A.  Yes.
	Q. Now, we've talked about the requirements that you are going to have -
whether you are found guilty and then convicted . . . .
	A. Yes.

Following presentation of the punishment evidence, the trial court announced it found
appellant guilty in both causes and sentenced appellant to 20 years confinement.
	At the hearing on the motion for new trial, defense counsel pleaded with the trial
court to postpone its decision and give appellant another chance.  Counsel stated, "[i]f you 
put him on deferred adjudication, you would still have the full range of punishment."
	A review of the proceedings in the underlying causes demonstrates the trial court
did not erroneously admonish appellant that he was eligible for regular probation.  Also, we
have found nothing in the record showing appellant misunderstood the consequences of
his plea.  Appellant's sole issue is overruled.
	Accordingly, the trial court's judgments are affirmed.

						Don H. Reavis
						    Justice

 

Do not publish.
1. The Legislature replaced the term probation with the phrase "community
supervision" in 1993.  See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex.
Gen. Laws 3586, 3716.
