
NO. 07-05-0088-CR
NO. 07-05-0089-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 10, 2006

______________________________


SHANNON DEWAYNE THOMPSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NO. 49,282-B & 49,283-B; HONORABLE JOHN BOARD, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
	Following open pleas of guilty, appellant Shannon Dewayne Thompson was
convicted of indecency with a child and aggravated sexual assault of a child.  Punishment
was assessed at 20 years confinement.  Presenting a sole issue, appellant contends the
trial court erred in failing to accurately admonish him on probation prior to accepting his
pleas.  We affirm.
	Appellant was convicted of offenses for which probation 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.

ernon 2005); Ford v. Texas Dep't of
Criminal Justice, No. 09-98-0509-CV, 1999 Tex. App. Lexis 2623 at 3-4 (Tex.
App.-Beaumont April 8, 1999, pet. denied); Wheat v. Texas Dep't of Corrections, 715
S.W.2d 362, 363 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (involving the loss of
a prisoner's law books, watch, and radio).  Since Ford does not claim that the operation of
a motor driven vehicle or motor driven equipment was instrumental in the loss of his
personalty, the Texas Tort Claims Act is of no benefit to him.  Wheat v. Texas Dep't of
Corrections, supra.  Thus, we overrule this issue too.
	Lastly, we are asked to hold that the trial court erred because Ford asserted a viable
cause of action for declaratory relief.  We disagree and overrule the issue for the dispute
does not fall within the scope of the Texas Declaratory Judgments Act.  According to the
latter, a person "interested under a deed, will, written contract, or other writings constituting
a contract or whose rights . . . are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question . . . arising under the instrument, statute,
ordinance, contract, or franchise . . . ."  Tex. Civ. Prac. & Rem. Code Ann. §37.004(a)
(Vernon 1997).  Ford did not allege that his claims implicate or arise under a deed, will,
written contract, statute, ordinance, or franchise.  At most, they involve the application of
a rule enacted by the Texas Department of Criminal Justice.  Yet, not even that entitles him
to declaratory relief.  See Bohannan v. Texas Board of Criminal Justice, 942 S.W.2d 113,
117 (Tex. App.-Austin 1997, writ denied) (holding that an inmate may not use the
Declaratory Judgments Act to obtain a declaration regarding the validity of a rule applicable
to an inmate).   
	Having overruled each of Ford's issues, we affirm the order of dismissal.

							Brian Quinn 
						          Chief Justice
1. Comparison of Ford's original petition with his appellate briefs illustrates that the former contains
more claims than addressed in the latter.  In other words, he does not contend that all of the claims raised
below were improperly dismissed.  Given this, we consider whether the trial court abused its discretion in
dismissing only those claims mentioned in his appellate brief and supplement to it.
2. In his original petition, Ford alleged that he was deprived of property without due process of law.  Yet,
he now informs us that "[i]n the relief of appellants' [sic] Original Petition reflect [sic] that he neither [sic]
claimed deprivation of property under §1983" but that "he did claim Indemnification of Property under
§§104.001 [and] 104.002, Tex. Civ. Prac. & Rem. Code against Defendant TDCJ."  We interpret this statement
as his concession that he no longer wishes to pursue the claims involving the deprivation of property without
due process. 
