Affirmed and Memorandum Opinion filed March 21, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00387-CR

                  STEPHEN ANDREW LINTON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1241689

                         MEMORANDUM OPINION


      Appellant Steven Andrew Linton pled guilty to possession with intent to
deliver heroin, over 400 grams, without an agreed recommendation as to
punishment.    The trial court deferred adjudication and placed appellant on
community supervision. Subsequently, the State filed a motion to adjudicate guilt.
Following a hearing, the trial court assessed his punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
twenty-five years.       Appellant asserts in one issue that the record fails to
demonstrate that he was admonished as to the punishment range applicable to his
plea of guilty or that he otherwise understood the direct consequences of that plea.
We affirm.

                                     I.         Background

       On December 9, 2010, appellant pleaded guilty, without an agreed
recommendation, to possession with intent to deliver heroin, over 400 grams. The
range of punishment for this first-degree felony offense was imprisonment for life
or between fifteen and ninety-nine years, and a fine not to exceed $250,000. See
Tex. Health & Safety Code § 481.112(f). The trial court deferred adjudication and
placed appellant on community supervision for six years.

       The record reflects the State moved to adjudicate guilt based on appellant’s
failure to abide by several conditions of his community supervision. 1 After a
hearing, the trial court found the appellant guilty of the charged offense and signed
a judgment adjudicating guilt, sentencing appellant to twenty-five years in prison.
From the May 7, 2018 judgment, appellant filed a timely notice of appeal.

                                          II.    Analysis

       In his sole issue, appellant contends the trial court abused its discretion by
accepting appellant’s guilty plea without properly admonishing him as to the
consequences of the plea. Appellant argues that he “was not admonished in
substantial compliance with article 26.13 of the Texas Code of Criminal Procedure



       1
         Appellant’s issues do not necessitate a discussion of the facts of the offense. See Tex.
R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the
appeal.”).

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in writing because his initials were “noticeably absent” alongside the range of
punishments on the plea paperwork.

      Article 26.13 requires a trial court to give certain admonishments, including
the punishment range attached to the offense, before accepting a guilty plea. See
Tex. Code Crim. Proc. art. 26.13(a)(1). The court may admonish the defendant
orally or in writing. See id., art. 26.13(d). If the admonishments are made in
writing, the court must receive a statement signed by the defendant and his lawyer
that the defendant understood the admonitions and was aware of the consequences
of the guilty plea. See id.

      Where the record reveals that the court gave statutory admonishments, it
constitutes a prima facie showing that the defendant knowingly and voluntarily
pleaded guilty. Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985);
see also Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.—Dallas 1997, pet, ref’d).
Following such a showing, the “burden then shifts to the defendant to show that he
entered the plea without understanding the consequences of his action and thus was
harmed.” Id.

      Failure to admonish a defendant about the range of punishment before
accepting a guilty plea is subject to harmless error analysis under Texas Rule of
Appellate Procedure 44.2(b). See Tex. R. App. P. 44.2(b); Aguirre–Mata v. State,
125 S.W.3d 473, 474 (Tex. Crim. App. 2003); Moore v. State, 278 S.W.3d 444,
447–48 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In conducting the harm
analysis, we must disregard the error unless it affected appellant’s substantial
rights. Tex. R. App. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim.
App. 2002). “In the context of a guilty plea, an error affects substantial rights
when, considering the record as a whole, we do not have a fair assurance that the
defendant’s decision to plead guilty would not have changed had the trial court

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properly admonished him.” Moore, 278 S.W.3d at 448 (citing Anderson v. State,
182 S.W.3d 914, 919 (Tex. Crim. App. 2006)).

      The clerk’s record contains a five-page document entitled “FOR PLEA:
ADMONISHMENTS, STATEMENTS AND WAIVERS/REV. 1-1-96 FOR
OFFENSES SEPTEMBER 1, 1997 AND AFTER,” which was signed by
appellant, his attorney, the prosecutor, and the trial judge. Underneath the heading,
“Admonishments,” appellant wrote his initials “JL” next to a handwritten
statement acknowledging the offense for which he was charged. A line was drawn
over approximately two pages of punishment ranges that were inapplicable in this
case. On page three of five, under “OTHER,” the proper punishment range is
handwritten as “a term of confinement in TDCJ-ID for not less than 15 years nor
more than 99 years or life and a fine not to exceed $250,000.00.” Appellant’s
initials do not appear in the space beside “OTHER” and range of punishment.
Immediately following the range of punishment, appellant initialed every space
beside every admonishment, including:

      (2)    I understand the admonishments of the trial court set out herein;
      (3)    I hereby WAIVE the right to have the trial court orally
             admonish me;
      (4)    I WAIVE the right to have the court reporter record my plea;
                                         …
      (7)    I understand that if the Court grants me deferred
             adjudication…, I may be arrested and detained as provided by
             law.…If the Court determines that I violated a condition of
             probation,…the Court may assess my punishment within the
             full range of punishment for this offense.…
                                         …
      (9)    I fully understand the consequences of my plea herein, and after
             having fully consulted with my attorney, request that the trial
             court accept said plea;

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                                        …
      (12) Joined by counsel, I state that I understand the foregoing
           admonishments and I am aware of the consequences of my
           plea.…
The document as a whole is then signed by appellant, his attorney, and the
presiding judge.

      There is no requirement in article 26.13 that the defendant initial each
written acknowledgement paragraph. See Tex. Code Crim. Proc. art. 26.13(d)
(requiring the judge receive article 26.13(d) statement that is “signed” by
defendant and his counsel); see Armstrong v. State, 911 S.W.2d 133, 135 (Tex.
App.—Houston [1st Dist.] 1995, pet. ref’d) (holding requirement that judgment
“receive” the article 26.13(d) statement is satisfied when the judge and the clerk
file the statement).

      Here, in addition to the signed document referenced above, the record also
contains a two-page document entitled, “WAIVER OF CONSITUTIONAL
RIGHTS, AGREEMENT TO STIPULATE, AND JUDICIAL CONFESSION,”
signed by appellant, his attorney, the prosecutor, and the trial judge. On page two
of the document, appellant acknowledges that he was satisfied with his
representation and had “fully discussed this case with [his attorney].” The trial
judge signed a statement that “[a]fter [the court] admonished the defendant of the
consequences of his plea, [the court] ascertained that he entered it knowingly and
voluntarily after discussing the case with his attorney.” The record, therefore,
reflects that the trial court properly admonished appellant as required by article
26.13(a). See Tex. Code Crim. Proc. art. 26.13(a).

      Moreover, appellant does not allege any harm he suffered as a result of the
trial court’s purported failure to properly admonish him. See Tex. R. App. P.
44.2(b). The failure to admonish a defendant is not automatic reversible error and

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is subject to harm analysis. See Aguirre-Mata, 992 S.W.2d at 474. The record
contains references to the correct punishment range and there is nothing in the
record that shows appellant was unaware of the consequences of his plea or that he
was misled or harmed; therefore, even if the trial court erred, appellant’s
substantial rights were not violated. Moore, 278 S.W.3d at 448. As such, we find
no abuse of discretion.

      Appellant’s issue is overruled.

                                 III.   Conclusion

      The judgment of the trial court is affirmed.



                                        /s/       Margaret “Meg” Poissant
                                                  Justice



Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish—Tex. R. App. P. 47.2(b).




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