Derrick Dewayne Wynn v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-010 CR ____________________ DERRICK DEWAYNE WYNN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D-040681-R MEMORANDUM OPINION Derrick Dewayne Wynn appeals his conviction and sentence for the state jail felony offense of forgery. See Tex. Pen. Code Ann. § 32.21(d) (Vernon Supp. 2006). On appeal, Wynn claims the trial court failed to admonish him as to the proper range of punishment and failed to determine Wynn's mental competency and the voluntariness of his plea. We affirm. Wynn pled guilty to the trial judge on September 16, 2005. Wynn acknowledged reading and understanding the written plea admonishments and stated that he understood the offense was punishable by up to two years' confinement in the state jail and a $10,000 fine. See Tex. Pen. Code Ann. § 12.35(a), (b) (Vernon 2003). The written admonishments Wynn received that day substantially comply with the admonishments required by statute. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2006). In that hearing, the parties presented agreed punishment recommendations that Wynn be placed on regular community supervision. In a hearing conducted October 31, 2005, the trial court noted that the presentence investigation report revealed prior convictions, refused the plea bargain agreement, and permitted Wynn to withdraw his plea. On December 19, 2005, Wynn pled guilty before a jury. Wynn acknowledged that he had an absolute right to have the jury determine his guilt or innocence, and executed a written waiver of jury trial. Wynn also acknowledged that he had the right to require the State to produce the witnesses and prove his guilt beyond a reasonable doubt. During jury selection, both the prosecutor and defense counsel mentioned the punishment range for the offense. The jury assessed punishment at fifteen months of confinement in a state jail facility and a fine of $1,506.31. Wynn filed a motion for new trial "in the interests of justice" but did not mention the issues raised in his appellate brief. On appeal, Wynn contends the trial court totally failed to admonish him on the range of punishment applicable to the offense, as required by Article 26.13(a)(1). See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1). Two recent opinions by the Texarkana Court of Appeals hold that a trial-level objection is required to preserve the issue for appellate review. See Bessey v. State, 199 S.W.3d 546, 552 (Tex. App.--Texarkana 2006, pet. granted); Rhea v. State, 181 S.W.3d 478, 484 (Tex. App.--Texarkana 2005, pet. ref'd), cert. denied, 126 S.Ct. 2357, 165 L.Ed.2d 283 (2006) (citing Tex. R. App. P. 33.1; Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)). The Court of Criminal Appeals granted petition for review in Bessey, and Wynn's case fits squarely within the other holding in Rhea; namely, that any error in failing to admonish the appellant was harmless. See Rhea, 181 S.W.3d at 485-86. We will assume that Wynn's complaints may be raised for the first time on appeal and address the issue on its merits. Article 26.13 requires the trial court to admonish the defendant prior to accepting the plea of guilty. Tex. Code Crim. Proc. Ann. art. 26.13(a). Wynn cites no authority that requires the admonishments be provided at the same time the defendant enters his plea. In this case, the trial court informed Wynn of the punishment range both orally and in writing prior to accepting the plea of guilty. Wynn's unstated complaint is that the trial court failed to admonish him again when Wynn waived his right to have the jury determine his guilt and pled guilty to the jury. The only admonishment Wynn claims the trial court failed to provide is the admonishment regarding the punishment range for the offense. Neither the passage of time nor the switch to punishment by jury affected the applicable punishment range. We hold the trial court substantially complied with Article 26.13 by providing the Article 26.13(a)(1) admonishment to the appellant on September 16, 2005. Assuming the trial court erred in failing to repeat the admonishment regarding the punishment range when Wynn pled guilty a second time, the error is harmless. A trial court's total failure to comply with the Article 26.13(a)(1) requirement to admonish a defendant regarding the proper range of punishment is subject to a harm analysis. Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App. 2003). Because the failure to admonish is a statutory, rather than constitutional, error, we may reverse only if we determine from our examination of the record that the error affected the appellant's substantial rights. Id.; Tex. R. App. P. 44.2(b). "The question for us to decide in applying Rule 44.2(b) to the failure to give an admonition is, considering the record as a whole, do we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him?" Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006) (failure to admonish on sex offender registration requirement). In this case, Wynn was already aware of the punishment range, since it was provided to him orally and in writing at an earlier hearing, the punishment range was discussed in jury selection, and nothing in the record indicates Wynn was unaware of the applicable punishment range. Issue one is overruled. In his second issue, Wynn contends the trial court erred by failing to properly follow the Article 26.13 requirement that no plea of guilty shall be accepted by the court "unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex. Code Crim. Proc. Ann. art. 26.13(b). Wynn does not challenge his actual competence or the voluntariness of his plea, but confines his complaint to the trial court's failure to inquire about his competence and to ask him when he entered his plea of guilty before the jury if his plea was voluntary. If the trial court properly admonished the defendant before entry of the plea, there is a prima facie showing that the plea was knowing and voluntary, and the burden shifts to the defendant to establish that he pled guilty without understanding the consequences of his plea and, consequently, suffered harm. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Wynn received all of the required Article 26.13(a) admonishments on September 16, 2005, and at that time signed a statement that he was mentally competent. Although the trial court did not specifically inquire about Wynn's competency and the voluntariness of his plea on December 19, 2005, "it is not necessary for the trial court to specifically ask a defendant whether his plea is being entered freely and voluntarily." Manoy v. State, 7 S.W.3d 771, 777 (Tex. App.--Tyler 1999, no pet.). In this case, the trial court questioned Wynn extensively regarding his right to a jury trial and his waiver of that right. Furthermore, "unless an issue is made of an accused's present insanity or mental competency at the time of the plea the court need not make inquiry or hear evidence on such issue." Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976). In this case, there is no evidence in the record to indicate that Wynn's plea was involuntary or that he lacked the requisite mental competence at the time of trial. Wynn spoke coherently and intelligently with the trial court about his understanding of the proceedings and his desire to proceed with a guilty plea. Issue two is overruled. The judgment is affirmed. AFFIRMED. _______________________________ STEVE McKEITHEN Chief Justice Submitted on April 13, 2007 Opinion Delivered May 16, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.