AFFIRM; and Opinion Filed February 28, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00617-CR

                         STEVEN EDWARD VILLNAVE, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F13-22214-U

                              MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Lewis
                                 Opinion by Justice Lang-Miers
       Appellant Steven Edward Villnave waived a jury and pleaded not guilty before the court

to the charge of felony driving while intoxicated. The court found appellant guilty and assessed

punishment, enhanced by two prior felony convictions, at 50 years in prison.             On appeal,

appellant argues that his waiver of the right to a jury trial was involuntary because the trial court

erroneously admonished him about his eligibility for community supervision. We issue this

memorandum opinion because the issue is settled. TEX. R. APP. P. 47.4. We affirm the trial

court’s judgment.

                                           Background

       The State indicted appellant for felony DWI and alleged two prior felony DWIs for

enhancement of punishment. Prior to trial, the State offered appellant a plea bargain of 10 years

in prison; he rejected it. At a pretrial hearing, the trial court advised appellant about the charge
against him and the two prior felony convictions alleged for enhancement of punishment, and

stated, “The minimum, if you’re convicted in this case, the minimum is 25 years. I believe

Friday [the State] had a plea bargain offer of ten years. It’s no longer on the table. And after

more facts have been relayed to the Court as well, I would not accept a plea bargain at this point.

My understanding though is you are now wishing to waive a jury; is that correct?” Appellant

said yes. He said he understood he had a right to a jury trial and wanted to waive that right and

have the trial court decide whether he was guilty. The trial court said, “Okay. So understanding

if I find you guilty, the option I have is either straight probation, because a jury cannot give you

probation. Straight probation or 25 to life. You understand that, correct?” Appellant said he

did. The trial court said, “So let’s do this then, let’s go ahead and do a written jury waiver.” The

court again asked appellant whether he was “sure that’s what [he] want[ed] to do”; he said yes.

Appellant signed a waiver of jury form stating, “Comes now defendant in the above cause,

standing accused of a felony offense herein, and in open Court waives his right to trial by jury

herein, and requests that the Court consent to and accept his waiver of right of trial by jury.” The

waiver is also signed by appellant’s lawyer, the prosecutor, and the trial court.

       The day after the pretrial hearing, the trial court granted the State’s motion to strike from

the indictment the two prior convictions for felony DWI alleged for enhancement of punishment.

The State then filed notice of its intent to enhance the punishment range with a prior conviction

for felony theft and a prior conviction for felony DWI. A couple of weeks later, the trial court

conducted the trial after which it found appellant guilty. During the punishment phase of the

trial, the State presented evidence that appellant had ten prior convictions, including four for

felony DWI. The court found the two prior convictions alleged for enhancement true and

sentenced appellant to 50 years in prison.




                                                –2–
                                                              Discussion

          Appellant argues that his waiver of the right to a jury trial was rendered involuntary

because the trial court admonished him that he was eligible for “straight probation” from the

court when he was not. To prevail on this issue, appellant must show that the admonition was

inaccurate and that it misled or harmed him. Ex parte Williams, 704 S.W.2d 773, 776–77 (Tex.

Crim. App. 1986); Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985); Prado v.

State, Nos. 05-05-00175-CR & 05-05-00525-CR, 2006 WL 1792736, at *1–2 (Tex. App.—

Dallas 2006, no pet.) (mem. op., not designated for publication).

          A trial court may order community supervision when the sentence imposed is 10 years or

less. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(e)(1) (West Supp. 2013). But appellant argues

that the minimum punishment in his case was 25 years because of the two prior felony

convictions alleged for enhancement and, consequently, he was not eligible for community

supervision at all. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2013) 1 (establishing

punishment for repeat and habitual felony offenders). However, it is undisputed that the indicted

offense (felony DWI) was punishable as a third degree felony. Id. § 49.09. It is also undisputed

that a trial court may order community supervision for a felony DWI. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, §§ 3, 3g, 13. The 25-year minimum punishment did not apply to

appellant until the State proved beyond a reasonable doubt that the prior convictions existed and

appellant was linked to those convictions. See Flowers v. State, 220 S.W.3d 919, 921 (Tex.

Crim. App. 2007). Until then, the court had the option of ordering community supervision for

the indicted offense of felony DWI after it found appellant guilty. See Rodriguez v. State, 933

S.W.2d 702, 705 (Tex. App.—San Antonio, pet. ref’d) (whether court would make affirmative


     1
       The penal code was amended after the offense in this case occurred. However, the substantive law that applies here did not change, and
we cite the current version of the statute.



                                                                   –3–
finding of use of deadly weapon eliminating defendant’s eligibility for community supervision

was open question at time of plea hearing and, as a result, admonition regarding defendant’s

eligibility for community supervision at time of plea was accurate). And there is no indication in

the record that the trial court was going to find the enhancement paragraphs true when appellant

waived his right to a jury trial or when the court found appellant guilty of the indicted offense.

See id. We conclude that the trial court’s admonition to appellant about his eligibility for

“straight probation” was accurate at the time it was given. See id.

       But even assuming arguendo that the admonition was inaccurate, appellant has not shown

how he was misled or harmed. Ex parte Williams, 704 S.W.2d at 775 (error subject to harmless

error review); Harrison, 688 S.W.2d at 499. The record does not show that appellant advised the

trial court at any time that he was seeking community supervision. And a jury could not have

recommended community supervision because appellant had a prior felony conviction. See TEX.

CODE CRIM. PROC. ANN. § 4(e) (to be eligible for community supervision from jury, defendant

must file sworn statement that he has never been convicted of a felony). Additionally, in the

middle of the trial the court stopped the trial and asked appellant whether he was sure he did not

“want to take 10 years right now”; he declined. Even if we assume error in the admonition, we

conclude that appellant has not shown he was harmed. We resolve appellant’s issue against him.

                                               Conclusion

       We affirm the trial court’s judgment.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
Do Not Publish                                       JUSTICE
TEX. R. APP. P. 47.2(b)

130617F.U05
                                               –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

STEVEN EDWARD VILLNAVE,                             On Appeal from the 291st Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F13-22214-U.
No. 05-13-00617-CR        V.                        Opinion delivered by Justice Lang-Miers,
                                                    Justices Francis and Lewis participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 28th day of February, 2014.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE




                                             –5–
