Everett L. Hartwell v. State of Texas

Nos. 04-00-00518-CR & 04-00-00519-CR Everett HARTWELL, Appellant v. The STATE of Texas, Appellee From the County Court at Law Number 8, Bexar County, Texas Trial Court Nos. 716064 & 718578 Honorable Henry Schuble, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Catherine Stone, Justice Delivered and Filed: April 25, 2001 AFFIRMED Everett Hartwell plead no contest to misdemeanor offenses of criminal mischief and theft by check, pursuant to a plea bargain. The trial court assessed punishment at 90 days in the Bexar County Jail and a $500 fine on the criminal mischief charge and placed Hartwell on probation for two years on the theft by check charge. Hartwell claims in two points of error that his pleas were involuntary because the trial court failed to properly admonish him according to Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) and (3) (Vernon 1989), and because the trial court did not make a determination on mental competency according to article 26.13(b). Texas courts have consistently held that trial courts are not required to provide misdemeanor defendants with article 26.13 admonishments. Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App. 1981) (op. on reh'g); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). Simply put, article 26.13 requires admonishments only in felony cases and does not apply to misdemeanor cases. In Johnson, Judge Teaque wrote: However commendable it may be for a trial judge to admonish one accused of a misdemeanor offense, as he must where a person is charged with a felony, see Article 26.13, V.A.T.C.C.P., ... there is no requirement in Texas law for a trial court to admonish an accused person of anything if the offense is classified as a misdemeanor. Johnson, 614 S.W.2d at 120 n.1. In the instant case, the trial court gave some admonishments, though it was not required to do so. The court asked Hartwell if his attorney had gone over the admonitions with him. Hartwell responded affirmatively. Because the trial court was not required to admonish Hartwell, we overrule issue one. In issue two, Hartwell complains that the trial court failed to make a determination of mental competency as required under Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). However, Article 26.13 applies only to felony pleas of guilty or nolo contendere. See State v. Jimenez, 987 S.W.2d 886, 889 (Tex. Crim. App. 1999); Alvear v. State, 25 S.W.3d 241, 246 (Tex. App.-San Antonio 2000, no pet.). Even if 26.13(b) applied, Hartwell still failed to raise the issue of mental competency at the time of the plea. See Hall v. State, 935 S.W.2d 852, 855 (Tex. App.-San Antonio 1996, no pet.) (stating that "[u]nless an issue of an accused's mental competency is raised at the time of the plea, the trial court need not inquire into the accused's mental competency, and it is not error for the trial court to accept the plea"). In the instant case, the trial court was able to observe Hartwell and converse with him and stated that he appeared mentally competent in the judgment. Hartwell did not object to the court's finding nor did he raise the issue of mental competency. Therefore, if we applied 26.13 to misdemeanor cases, the trial court did comply with Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). We overrule issue two. The judgments of the trial court are affirmed. Catherine Stone, Justice DO NOT PUBLISH