                                        NO. 07-02-0468-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL C

                                   NOVEMBER 12, 2003
                             ______________________________

                                    LLOYD WAYNE LOTSON,

                                                                Appellant

                                                   v.

                                    THE STATE OF TEXAS,

                                                   Appellee
                           _________________________________

           FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

                  NO. 85,657; HON. CHARLES D. CARVER, PRESIDING
                          _______________________________

                                  Memorandum Opinion
                            _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

        Lloyd Wayne Lotson (appellant) appeals his felony conviction for burglary of a

habitation. Despite the absence of a plea bargain, appellant pled no contest to the

charges and waived his right to a jury. However, the trial court did not admonish him as

required by art. 26.13(a) of the Texas Code of Criminal Procedure.1 Instead, it accepted


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        Requiring the trial court to admonish the defendant of various matters, including the range of
punishment, when the defendant pleads guilty or nolo contendere. TEX. CODE CRIM . PROC . ANN. art. 26.13
(Vernon Supp. 2004).
his plea and proceeded to try the issue of guilt, a topic appellant actually disputed. That

is, the State presented evidence of his guilt via witnesses. Appellant not only cross-

examined them but also moved for a directed verdict, testified in his own defense and

presented his own witness, all in apparent effort to secure an acquittal or a favorable

sentence. The trial court eventually found appellant guilty and sentenced him to 30 years

imprisonment. Appellant then appealed. The two issues before us concern the failure of

the trial court to admonish appellant about the applicable range of punishment. According

to him, this circumstance not only warrants reversal but also constitutes a denial of due

process. We affirm the judgment.

                   Issue One–Failure to Comply with art. 26.13(a)

       Through his first issue, appellant contends that the trial court reversibly erred

because it did not admonish him about the range of punishment applicable to the offense

after he pled no contest. We overrule the issue.

       As previously mentioned, art. 26.13(a) of the Texas Code of Criminal Procedure

obligates the trial court to admonish one who pleads guilty or nolo contendere of various

matters. Included within them is the range of punishment attached to the offense. TEX .

CODE CRIM . PROC . ANN . art. 26.13(a)(1) (Vernon Supp. 2004). And, though admonishment

is required, the failure to do so does not arise to constitutional magnitude. Instead, it

implicates statute and breach of statutory edict. Thus, harm, if any, accompanying the

error is analyzed under Texas Rule of Appellate Procedure 44.2(b). Aguirre-Mata v. State,

No. 2115-00, 2003 WL 21077447 (Tex. Crim. App. May 14, 2003).

       Here, the State concedes that the trial court erred in omitting the admonishments.


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Yet, it believes that the error was harmless. We agree.

       Unlike the usual circumstances accompanying a guilty plea or a plea of no contest,

the appellant actually disputed his guilt. Furthermore, a trial was conducted to decide that

issue. At the proceeding, the prosecutor endeavored to prove guilt via three witnesses

while appellant mounted a defense based upon his cross-examination of those witnesses,

his own testimony and the testimony of his mother.

       Furthermore, nothing of record illustrates that appellant was actually unaware of the

range of punishment that he faced or the consequences of his plea. Nor does he assert

that he was unaware of those things in his appellate brief. Instead, he 1) states that the

failure of the trial court to admonish him constituted error, 2) alludes to the trial court’s

general obligation to assure that a plea is voluntary and knowing, 3) states that he made

no statements indicating that he understood that he could be sentenced to 30 years

imprisonment, and 4) posits that his counsel’s statement that his sentence could range

from 25 years to life did not constitute substantial compliance with art. 26.13(a)(1). Yet,

again, nowhere does he deny knowing of the applicable punishment range or that his

sentence could be life imprisonment. Similarly absent is any evidence permitting one to

reasonably infer that had the trial court admonished appellant per art. 26.13(a) he would

have entered some other plea. See Carranza v. State, 980 S.W.2d 653, 658 (Tex. Crim.

App. 1998) (stating that to secure reversal the appellant must show that he was unaware

of the consequences of his plea and that he was misled or harmed).

       In short, we have an odd situation before us. Despite representing that he did not

contest the charges, appellant contested them. So too was he afforded and did participate


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in a trial on the merits of those charges. This, coupled with the absence of evidence

illustrating that appellant was actually ignorant of the consequences of his plea (whatever

those consequences may have been given the circumstances at bar) or would have acted

differently had he been admonished per art. 26.13(a), leaves us to conclude that his

substantial rights were not affected. Thus, he did not suffer the type of harm prerequisite

to securing reversal. See TEX . R. APP . P. 44.2(b) (stating that any error, other than

constitutional error, must be disregarded if it did not affect substantial rights).

                                Issue Two – Due Process

       We next address whether the failure to admonish appellant about the range of

punishment deprived him of his United States Constitutional right to due process.

Appellant contends that it did. We disagree and overrule the issue.

       Recently, the Texas Court of Criminal Appeals held that federal constitutional

notions of due process do not mandate that a defendant pleading guilty be informed of the

applicable range of punishment. Aguirre-Mata v. State, No. 2115-00, 2003 WL 21077447

(Tex. Crim. App. May 14, 2003). Thus, the failure to admonish someone who pleads guilty

about the range of punishment does not constitute the denial of due process. Id. We see

no reason to deviate from this holding when the defendant (like that before us) pled no

contest. Nor has appellant suggested any.

       The judgment is affirmed.



                                                  Brian Quinn
                                                    Justice



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Do not publish.




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