Malone, Bruce Beethoven v. Texas, the State Of ( 1997 )

n
Court of Appeals
mtilj Itstrtrt of Wexnz at lallas
JUDGMENT
BRUCE BEETHOVEN MALONE, Appeal from the 363rd Judicial District
Appellant Court of Dallas County, Texas. (Tr.Ct.No.
F-91-61877-JW).
No. 05-91-01851-CR V. Opinion delivered by Justice Bridges,
Justices Kinkeade and Moseley also
THE STATE OF TEXAS, Appellee participating.
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered January 27, 1997.
OS c.
DAVID L. BRIDGES
JUSTICE
AFFIRMED, and Opinion Filed January 27, 1597
In The
(Uourt of Appeals
iHftlj Stsirtrt of Gkxas at lalias
No. 05-91-01851-CR
BRUCE BEETHOVEN MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-91-61877-JW
OPINION
Before Justices Kinkeade, Moseley, and Bridges
Opinion By Justice Bridges
Bruce Beethoven Malone appeals his conviction for possession of less than twenty-
eight grams of cocaine. In one point of error, appellant complains that his guilty plea was
involuntary because the trial court did not inform him of all possible consequences of a
probation violation as required by article 42.12, section 5(a) of the Texas Code of Criminal
Procedure. We affirm the trial court's judgment.
Following a negotiated plea bargain, appellant pleaded guilty to the offense of
possession of cocaine in an amount less than twenty-eight grams in exchange for four years
of deferred adjudication probation and a $750 fine. The trial court admonished appellant
orally and in writing of his rights under article 26.13 of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). The trial court
also told appellant that if he violated his probation he would be entitled to a hearing at
which the court could adjudicate him and find him guilty. In addition, the trial court told
appellant that he could not appeal the adjudication of guilt and that he could be sentenced
to a maximum of twenty years in prison.
However, the trial court did not inform appellant that if he violated his probation (1)
he could be arrested and detained; (2) the hearing to which he would be entitled would be
limited to a determination by the court as to whether it would proceed to an adjudication
of guilt; and (3) after adjudication of guilt all proceedings, including assessment of
punishment, sentencing, granting of probation, and appellant's appeal continue as if the
adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. Ann. art.
42.12(5)(b) (Vernon Supp. 1997). See Act of May 29, 1989, 71st Leg., R.S., ch. 785, §
4.17, 1989 Tex. Gen. Laws 3471, 3500 (subsequent amendments omitted) (current version
at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1997)).
The trial court accepted appellant's guilty plea and found the evidence substantiated
his guilt. The trial court followed the plea bargain agreement, deferred adjudication of
appellant's guilt, and placed appellant on probation for four years. Additionally, the trial
court assessed a $750 fine. Less than two months later, the State moved to adjudicate
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appellant's guilt. Appellant pleaded true to the State's allegations. The trial court
adjudicated appellant's guilt and assessed a ten-year sentence.
In his sole point of error, appellant argues that his guilty plea was involuntary
because the trial court did not inform him of all possible consequences of a probation
violation as required by article 42.12, section 5(a) of the Texas Code of Criminal Procedure.
The State asserts that appellant's plea was not involuntary because the trial court
substantially complied with article 42.12, section 5(a).
This Court previously concluded that the trial court's failure to give the information
required by article 42.12, section 5(a) in a felony case cannot render a defendant's guilty
plea involuntary. Brown v. State, 915 S.W.2d 533, 538 (Tex. App.-Dallas 1995, pet.
granted); see also Ray v. State, 919 S.W.2d 125, 127 (Tex. Crim. App. 1996). We
determined that, because the legislature placed the "informational" requirement after the
"acceptance of the plea" language, it did not intend the informational requirement to be a
condition precedent to a voluntary plea. Brown, 915 S.W.2d at 537; see also Tex. Code
Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1997). In this appeal, appellant raises
the same argument we addressed in Brown. Accordingly, we overrule appellant's point of
error. See Brown, 915 S.W.2d at 538.
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We affirm the trial court's judgment.
OL^
DAVID L. BRIDGE;
JUSTICE
Do Not Publish
Tex. R. App. P. 90
911851F.U05