REVERSE and REMAND; Opinion Filed December 4, 2015.




                                            In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                     No. 05-15-00199-CR
                                     No. 05-15-00221-CR

                         ROBERT WORLEY KYRIAS, Appellant

                                              V.

                             THE STATE OF TEXAS, Appellee

                         On Appeal from the County Court at Law
                                  Kaufman County, Texas
                        Trial Court Cause Nos. 31131CC, 12CL-1053

                              MEMORANDUM OPINION
                        Before Justices Fillmore, Myers, and Whitehill
                                  Opinion by Justice Myers

       Robert Worley Kyrias waived a jury and pleaded guilty to felony theft of property valued

at less than $1,500 and criminal mischief. See TEX. PENAL CODE ANN. §§ 28.03(a), 31.03(a)

(West Supp. 2015). The trial court sentenced appellant to two years’ confinement in a state jail

on the theft and 180 days’ confinement in the county jail on the criminal mischief. In a single

issue, appellant contends his guilty pleas were involuntary because he was never admonished on

the range of punishment for the offenses. The State agrees that no admonishment was given, but

asserts that appellant was not harmed. For the reasons that follow, we reverse the trial court’s

judgment.
       Article 26.13(a)(1) of the Texas Code of Criminal Procedure requires the trial court to

give a defendant certain admonishments before accepting a plea of guilty or nolo contendere.

See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1)–(5) (West Supp. 2015). The article 26.13

admonishments that must be given include admonishments on the applicable range of

punishment for the offenses.     See id. art. 26.13(a)(1).    The purpose of the article 26.13

admonishments is to ensure that only a constitutionally valid plea is entered by the defendant and

accepted by the trial court. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998); see

also VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007). Substantial compliance

with article 26.13 is sufficient unless the defendant affirmatively shows he was not aware of the

consequences of his plea and that he was misled by the admonishments given. See TEX. CODE

CRIM. PROC. ANN. art. 26.13(c). Substantial compliance creates a prima facie showing the plea

was voluntary, and the burden shifts to the defendant to show he did not understand the

consequences of his plea and that he was harmed or misled by the admonishment given. See id.;

Aguirre-Mata v. State, 125 S.W.3d 473, 480 (Tex. Crim. App. 2003). However, if a trial court

fails to give the defendant an article 26.13 admonishment entirely, that does not constitute

substantial compliance. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

       After searching the record before us, we find nothing to show the trial court admonished

appellant, either orally or in writing, in accordance with article 26.13. Thus, we conclude the

trial court did not substantially comply with the statutory requirement to admonish appellant

before accepting his pleas.

       We now turn to the issue of harm. In determining whether appellant was harmed, we

review the record under the non-constitutional harm analysis set out in Texas Rule of Appellate

Procedure 44.2(b). See VanNortrick, 227 S.W.2d at 708; Anderson v. State, 182 S.W.3d 914,



                                               -2-
918 (Tex. Crim. App. 2006). The question to decide is whether, considering the record as a

whole, we have a fair assurance the defendant’s decision to plead guilty would not have changed

had the court admonished him. VanNortrick, 227 S.W.3d at 709; Anderson, 182 S.W.3d at 919.

       Appellant asserts the trial court committed reversible error by failing to admonish him on

the applicable range of punishment for the offenses. Appellant further argues that because the

trial court made no ruling on the State’s “notice to enhance punishment,” he could not accurately

determine whether part of his punishment would be for a state-jail felony or as an habitual

criminal. The State responds that in light of appellant’s testimony and his “extensive criminal

history,” the record does not support an inference that appellant was unaware of the

consequences of his pleas or that he would not have pleaded guilty but would have gone to trial.

       In cause no. 05-15-00199-CR, appellant was indicted for the state-jail felony offense of

theft of property valued at less than $1,500, having two prior theft convictions. See TEX. PENAL

CODE ANN. § 31.03(e)(4)(D). The prior theft convictions are elements of the charged offense,

used to elevate the offense level from a misdemeanor to a state jail felony. See Moore v. State,

916 S.W.2d 537, 539 (Tex. App.––Dallas 1995, no pet.).            They were not enhancement

paragraphs under section 12.42 of the penal code used to elevate the punishment. See id. In

cause no. 05-15-00221-CR, appellant was indicted for criminal mischief, a Class B misdemeanor

offense. See TEX. PENAL CODE ANN. § 28.03(b)(2). The record does not show the State filed a

notice to enhance the punishment in either case. Therefore, appellant’s assertion he did not

know whether he was being sentenced as an habitual offender is without merit.

       During the plea hearing held on July 14, 2014, the trial court did not admonish appellant,

either orally or in writing, as to the punishment ranges for the offenses. At the hearing, the

parties discussed a plea agreement that appellant and the State had entered. Appellant testified



                                               -3-
he understood the terms of a plea bargain agreement with the State in which he agreed to plead

guilty to the offenses and the trial court would reschedule the cases for sentencing on August 25,

2014. If appellant paid $490.07 before the sentencing hearing, he would be allowed to withdraw

both guilty pleas and the State agreed to dismiss both cases. Appellant’s signed jury waivers and

stipulations of evidence were made part of the record at the hearing.

       A sentencing hearing was held seven months later, on February 11, 2015. During that

hearing, the trial court took judicial notice of the record from the plea hearing and “plea papers”

filed on July 14, 2014. Once again, the trial court did not admonish appellant, either orally or in

writing, about the punishment ranges for the offenses. There was discussion that the offenses

involved a state jail felony and a Class B misdemeanor. Before being sentenced, appellant

testified that he was guilty of committing the offenses, admitted he had prior theft convictions,

and testified about his lengthy criminal history.

       The State relies on appellant’s extensive criminal record as evidence he was not harmed

by the trial court’s failure to admonish him on the punishment ranges. However, contrary to the

State’s position, we cannot conclude that simply because appellant has a criminal history, he

knew the punishment ranges for the offenses for which he was before the trial court in these

cases. Therefore, we cannot have a fair assurance that appellant’s decision to plead guilty would

not have changed had the trial court admonished him properly. See Anderson, 182 S.W.3d at

919. We conclude the trial court’s complete failure to admonish appellant as to the punishment

ranges for the offenses was not harmless. Accordingly, we sustain appellant’s issue.




                                                    -4-
       We reverse the trial court’s judgment in each case and remand the cases to the trial court

for further proceedings.



                                                    /s/ Lana Myers
                                                    LANA MYERS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150199F.U05




                                              -5-
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                     JUDGMENT


ROBERT WORLEY KYRIAS, Appellant                   Appeal from the County Court at Law of
                                                  Kaufman County, Texas (Tr.Ct.No.
No. 05-15-00199-CR       V.                       31131CC).
                                                  Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee                      Justices Fillmore and Whitehill
                                                  participating.



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

and the cause REMANDED for further proceedings.




      Judgment entered this 4th day of December, 2015.




                                            -6-
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                     JUDGMENT


ROBERT WORLEY KYRIAS, Appellant                   Appeal from the County Court at Law of
                                                  Kaufman County, Texas (Tr.Ct.No.
No. 05-15-00221-CR       V.                       12CL-1053).
                                                  Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee                      Justices Fillmore and Whitehill
                                                  participating.



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

and the cause REMANDED for further proceedings.




      Judgment entered this 4th day of December, 2015.




                                            -7-
