Opinion issued April 24, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00186-CR
                           ———————————
                NIGEL MOHAMMED HAMPTON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1354259


                                  OPINION

      Nigel Mohammad Hampton was charged with the felony offense of

aggravated robbery with a deadly weapon. 1 After waiving his right to a jury trial,

Hampton pleaded guilty to the charge without an agreed punishment


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      TEX. PENAL CODE ANN. § 29.03 (West 2013).
recommendation from the State. Following a presentence investigation hearing,

Hampton was sentenced to 25 years’ confinement. In his sole issue, Hampton

contends the trial court erred by improperly admonishing him as to the availability

of probation, rendering his guilty plea involuntary. We affirm.

                                   Background

       Hampton was arrested for robbing a Walgreens store. He pleaded guilty to

aggravated robbery with a deadly weapon. In connection with his guilty plea,

Hampton confirmed to the trial court in the plea colloquy that he was guilty, no

one had made any promises to him or threatened him to influence his decision to

plead guilty, he understood that by pleading guilty he gave up his rights to a jury

trial and to appeal his conviction, and he understood that punishment could be

“anywhere from deferred adjudication and life in prison.”

       In addition to the statements made orally to the judge, Hampton also signed

the trial court’s written admonishments before entering his plea. The written

admonishments included the following:

   •   The punishment range is confinement in prison for 5 years to life and a fine
       of up to $10,000.

   •   The only type of community supervision that the court can give you is
       deferred adjudication. Shock probation and regular community supervision
       are not available.

By signing the written admonishments, Hampton confirmed each of the following

written statements as well:

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   • I am mentally competent. I understand the charge(s) against me, and I
     understand the nature of these proceedings. I am freely and voluntarily
     pleading guilty.

   • I have read, and I understand the admonishments set out above. I understand
     my plea’s consequences.

   • I have consulted my attorney and freely and voluntarily executed this
     document in open court.
Hampton’s attorney also signed the written admonishments. The guilty plea did not

include a sentencing recommendation from the State. Hampton filed a motion

seeking community supervision. The sentencing hearing was set for two months

later.

         At the sentencing hearing, the trial court heard evidence of two prior felony

offenses: a theft for which Hampton was given two-years’ probation, and a

burglary of a building for which he was sentenced to one year in state jail. The trial

court also received testimony from police officers about two incidents that had

occurred during the two-month period between Hampton’s guilty plea and the

sentencing hearing. Specifically, the officers testified that Hampton was detained

while riding as a passenger in a stolen vehicle and, separately, that he was detained

in connection with a burglary of a habitation after a police officer saw him fleeing

the residential area. The trial court found Hampton guilty of aggravated robbery

and sentenced him to 25 years’ confinement.

         The trial court granted Hampton permission to appeal, and he timely filed.


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                     Deferred Adjudication Admonishment

      In his sole issue on appeal, Hampton argues that the trial court erred by

admonishing him on deferred adjudication without “inquir[ing] with Hampton

further about his understanding of the availability of probation,” given the

circumstances of his crime and his past criminal record. He claims that the

incomplete admonishment rendered his guilty plea involuntary.

A.    Standard of review

      A defendant’s decision to enter a guilty plea and forgo a jury trial is afforded

constitutional protections, including a requirement that the plea result from a

voluntary and knowing relinquishment of a known right. McCarthy v. United

States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969); Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006). To be voluntary, a guilty plea must not be

induced by threats, misrepresentations, or improper promises. Kniatt, 206 S.W.3d

at 664. The plea must be the expression of the defendant’s own free will. See id.

      Article 26.13 of the Texas Code of Criminal Procedure specifies the

admonishments that a trial court must provide before accepting a guilty plea. TEX.

CODE CRIM. PROC. ANN. art. 26.13 (West Supp. 2013); Harrison v. State, 688

S.W.2d 497, 499 (Tex. Crim. App. 1985). Substantial compliance with the statute

is sufficient to constitute an adequate admonishment by the trial court. TEX. CODE




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CRIM. PROC. ANN. art. 26.13(c); Robinson v. State, 739 S.W.2d 795, 801 (Tex.

Crim. App. 1987) (en banc).

      When the record reveals that admonishments were given, it constitutes a

prima facie showing that the defendant knowingly and voluntarily pleaded guilty.

TEX. CODE CRIM. PROC. ANN. art. 26.13; Harrison, 688 S.W.2d at 499. A

defendant who attests that he understands the nature of his plea and that his plea

was voluntary carries a “heavy burden” on appeal to show that his plea was

involuntary. See Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st

Dist.] 1996, no pet.). To meet that burden, the defendant must affirmatively show

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

harmed by the trial court’s erroneous admonishment. TEX. CODE CRIM. PROC. ANN.

art. 26.13(c); Richard v. State, 788 S.W.2d 917, 919–20 (Tex. App.—Houston [1st

Dist.] 1990, no pet.) (explaining burden shift).

      An erroneous plea admonition is a non-constitutional error requiring reversal

only if the failure affected the defendant’s substantial rights. See Burnett v. State,

88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002) (explaining substantial-rights

standard in voluntariness-of-plea case); Aguirre-Mata v. State, 992 S.W.2d 495,

498–99 (Tex. Crim. App. 1999) (holding that failure to admonish is not

constitutionally-based error and, instead, should be reviewed for harm under

substantial-rights standard). The reviewing court must examine the entire record to


                                          5
determine whether, on its face, it suggests that the defendant did not know the

consequences of his plea. Burnett, 88 S.W.3d at 638. A record that is silent on the

issue of the range of punishment—information that must be included in the trial

court’s admonishment before accepting a guilty plea—would reasonably support

an inference that the defendant did not know the consequences of his plea. Id.

      Harm can be established if the record supports a conclusion that the

defendant would not have pleaded guilty had he known the actual range of

punishment. See, e.g., In re T.W.C., 258 S.W.3d 218, 222–23 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (concluding plea was involuntary because

defendant was given incorrect punishment range of up to 40 years when applicable

maximum sentence was 20 years and defendant later testified that he pleaded

guilty based on incorrectly stated range).

      Thus, the first step in our analysis is to determine whether the trial court

substantially complied with the statutory admonishments required under article

26.13. TEX. CODE CRIM. PROC. ANN. art. 26.13. Only if the trial court did not,

would we consider whether Hampton has established that he entered his plea

without understanding the consequences or that he was harmed as a result.

B.    Admonishments were accurate

      Trial courts are required to admonish defendants as to the applicable range

of punishment for every offense charged before accepting guilty pleas. TEX. CODE


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CRIM. PROC. ANN. art. 26.13(a)(1); see also Tabora v. State, 14 S.W.3d 332, 334

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (“[P]rior to accepting a plea of

guilty or no contest, the trial court shall admonish the defendant as to the range of

punishment . . . .”). Admonishing on the “range of punishment” for purposes

of article 26.13 does not include a requirement that the trial court discuss the

possibility of probation; there is no duty to admonish a defendant as to his

eligibility for probation. See Harrison, 688 S.W.2d at 499. However, if the trial

court volunteers an admonishment on probation, the court has a duty to admonish

the defendant accurately. See Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim.

App. 1986).

      Here, the trial court provided an admonishment concerning deferred

adjudication when it orally informed Hampton that the range of punishment was

“anywhere from deferred adjudication [to] life in prison.” The court further

admonished him, in writing, that the punishment range was confinement between

five years and life but that “the court can give you . . . deferred adjudication.”

      Hampton concedes that “[t]he Judge did not provide inaccurate

information.” The punishment range for aggravated robbery is 5 years to life, and a

defendant convicted of that offense is eligible for deferred adjudication. See TEX.

PENAL CODE ANN. § 29.03 (aggravated robbery is a first-degree felony); TEX.

PENAL CODE ANN. § 12.32 (West 2013) (first-degree felony punishable by


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imprisonment for a term of life or not less than 5 years); see also TEX. CODE CRIM.

PROC. ANN. art. 42.12(3g)(1)(F) (West Supp. 2013) (aggravated robbery not

eligible for traditional community supervision); TEX. CODE CRIM. PROC. ANN. art.

42.12(5) (West 2014) (explaining deferred adjudication form of community

supervision). Further, a trial court may grant a defendant deferred adjudication

even if the defendant has prior convictions and the trial court finds related

enhancement paragraphs to be true. See TEX. CODE CRIM. PROC. ANN. art.

42.12(5)(d) (listing offenses and circumstances that bar grant of deferred

adjudication but not including repeat or habitual felony offenders as basis for bar).

Thus, the trial court properly admonished Hampton by stating that the range of

punishment began with deferred adjudication—for which he was eligible—and

ended with life imprisonment.

      While admitting that the admonishment given was accurate, Hampton argues

that the trial court’s deferred-adjudication admonishment created an additional

duty on the court to provide more complete information on the possibility of

receiving deferred adjudication. Specifically, he complains that the trial judge

erred by “fail[ing] to inquire with Hampton further about his understanding of the

availability of probation for him, given the nature of the charge and his prior felony

convictions.” He suggests that deferred adjudication for a charge of aggravated

robbery, particularly with a history of two prior felony convictions, was unlikely.


                                          8
We construe Hampton’s contention as alleging that the trial court erred by not

explaining to him that it was unlikely he would be granted deferred adjudication.

This argument fails for at least two reasons.

      First, Hampton agreed to enter a guilty plea without an agreed

recommendation from the State on punishment. Thus, he cannot convincingly

contend that his decision to plead guilty was somehow tied to an agreement that he

would be granted deferred adjudication. See Joyner v. State, 882 S.W.2d 59, 61

(Tex. App.—Houston [14th Dist.] 1994), aff’d, 921 S.W.2d 234 (Tex. Crim. App.

1996) (holding that “there seems to be little connection between an initial guilty

plea and a later decision by the judge [on] deferred adjudication” after noting that

article 42.12(5)(a) provides that judge determines whether to defer proceedings

only after receiving guilty plea).

      Second, Hampton does not identify any authority imposing a duty on the

trial court to inform a defendant of the likelihood he will actually receive

community supervision before the judge receives the presentence investigation

report. See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986) (stating that

“plea is not involuntary just because the sentence exceeded what appellant

expected . . . .”); Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App.—San Antonio

1996, pet. ref’d) (determining that appellant cannot claim plea was involuntary just

because he received jail time instead of probation). Moreover, the trial court did


                                          9
not make any statements indicating it was likely that Hampton would actually

receive deferred adjudication. Malley v. State, 9 S.W.3d 925, 929 (Tex. App.—

Beaumont 2000, pet. ref’d), abrogated by Pfeiffer v. State, 363 S.W.3d 594, 603

(Tex. Crim. App. 2012) (concerning cross-appeals by State); see also Myers v.

State, No. C14-87-00930-CR, 1988 WL 114066, at *1 (Tex. App.—Houston [14th

Dist.] Oct. 27, 1988, writ ref’d) (not designated for publication) (holding that

statement by trial counsel that defendant was eligible for deferred adjudication that

was not followed up by admonition on likelihood of deferred adjudication was not

error and stating, “Appellant may have expected deferred adjudication in the

instant case, but it was not an expectation encouraged by the court, which fully

admonished appellant as to the range of punishment.”).

      Hampton relies on Ex parte Williams to support his contentions. 704 S.W.2d

at 773. That case, however, is distinguishable. In Williams, the defendant pleaded

guilty to aggravated robbery after the trial court promised that, upon the acceptance

of his guilty plea, the court would “give [him] a sentence of ten years in the Texas

Department of Corrections probated for a period of ten years.” Id. at 774–75. Three

years after accepting the guilty plea, the trial court discovered that probation was

not within the punishment range for aggravated robbery. Id. at 775; see also TEX.

CODE CRIM. PROC. ANN. art. 42.12(3g)(a)(F) (excluding aggravated robbery from

offenses eligible for traditional community supervision). Therefore, the trial court


                                         10
revoked Williams’s probation and reassessed punishment at ten years’

confinement. Williams, 704 S.W.2d at 775. The Court of Criminal Appeals held

that Williams did not knowingly and voluntarily plead guilty. Id. at 773. While the

trial court “did not initially have a duty under Art. 26.13(a)(1) to admonish the

defendant[] on the availability of probation,” the trial court volunteered

admonishments concerning probation and, as a result, imposed upon itself a duty to

provide “accurate information concerning whether probation was within the range

of punishment allowed by law for aggravated robbery.” Id. at 776–77. Thus, the

trial court erred by inaccurately stating that probation was an available option,

thereby “leaving applicant unaware of the consequences of his plea.” Id. at 777.

      In contrast, the trial court provided Hampton with accurate information

regarding the applicable range of punishment when it stated that his punishment

could be anywhere between “deferred adjudication and life in prison.” Hampton

has agreed that the statement was accurate. Further, the written admonishments

clearly and correctly limited the type of probation available to “deferred

adjudication,” specifically excluding regular community supervision from the

punishment range. Hampton’s guilty plea was not rendered involuntary because the

actual sentence imposed exceeded his expectation of receiving deferred

adjudication. See West, 702 S.W.2d at 633.




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      The trial court substantially complied with the statutory admonishments

required when accepting a guilty plea; therefore, we conclude that Hampton’s plea

was voluntary.

                                    Conclusion

      We overrule Hampton’s sole issue and affirm the trial court’s judgment.



                                             Harvey Brown
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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