Flanders, Christopher v. State ( 2000 )

NUMBER 13-98-350-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

CHRISTOPHER FLANDERS,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 347th District Court of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Yañez

Appellant, Christopher Flanders, pleaded guilty to the offense of aggravated robbery,⁽¹⁾ and a jury assessed punishment at fifteen years imprisonment and a $10,000 fine. Appellant raises two points of error, complaining of the trial court's failures to admonish him as to the full range of punishment and to charge the jury about the basic conditions of community supervision. We affirm.

In his first point of error, appellant alleges it was reversible error for the trial court to fail to admonish him he could be assessed a fine not to exceed $10,000. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon & Supp. 1999). It is undisputed the trial court admonished him the range of punishment for aggravated robbery is no less than five years, no more than 99 years or life. At one time a total failure by the trial court to admonish the defendant concerning the range of punishment was reversible error, without regard to whether the defendant was harmed. Weekly v. State, 594 S.W.2d 96, 97 (Tex. Crim. App. 1980); Stewart v. State, 580 S.W.2d 594, 595 (Tex. Crim. App. 1979). However, when there was substantial compliance with the admonishments required by article 26.13(a)(1), the defendant had to affirmatively show he was not aware of the consequences of his plea and that he was harmed by the admonishment of the court. See Tex. Code Crim. Proc. art. 26.13(c)16 (Vernon 1989). When the

defendant has received an admonishment with respect to punishment, although not a complete one, there is a prima facie showing of a knowing and voluntary plea of guilty. The burden then shifts to the defendant to show that he entered in the plea without understanding the consequences of his action and thus was harmed.

Ex parte McAtee, 599 S.W.2d 335, 336 (Tex. Crim. App. 1980) (citing Weekly, 594

S.W.2d 96).

The rule in Weekly that even a complete failure to admonish is automatic reversible error without regard to harm has been overruled by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), which holds that virtually no error, except for certain federal constitutional errors, is categorically immune to harmless error analysis. Aguirre-Mata v. State, 992 S.W.2d 495, 497-98 (Tex. Crim. App. 1999)(citing High v. State 964 S.W.2d 637, 638 (Tex. Crim. App. 1998)). Under the present rule, when an incomplete admonishment on the range of punishment has been provided, this Court must apply a harm analysis. Id. at 498. Any error in admonishing the appellant under art. 26.13(a)(1) that does not affect the appellant's substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Aguirre-Mata, 992 S.W.2d at 498.

Appellant states that he was harmed because he was fined $10,000 without being informed of this possibility. Appellant does not argue, however, that his lack of awareness of the fine affected the voluntariness of his plea or that he would not have pleaded guilty had he been admonished of the fine. Moreover, the record affirmatively shows appellant had some knowledge that the punishment included a fine.

Point of error number one is overruled.

In his second point of error, appellant alleges that the trial court failed to include the basic conditions of community supervision in the jury charge, thus denying appellant a fair trial. No objection to the charge was made, therefore appellant must show that the trial court committed a "fundamental" error which was so egregious as to prevent appellant from having a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

A trial court is not required to include in the charge all of the basic conditions of community supervision listed in the code of criminal procedure. Yarbrough v. State, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989)(pet dism'd, improvidently granted). Failure to do so is not fundamental error and did not prevent appellant from having a fair and impartial trial.

Point of error number two is overruled.

We AFFIRM the Judgment of the trial court.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 11^th day of May, 2000.

1. See Tex. Pen. Code Ann. § 29.03(b) (Vernon 1994).