Brenda Julian Cox v. State

Cox-BJ v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-161-CR

     BRENDA JULIAN COX,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 249th District Court

Somervell County, Texas

Trial Court # 185

O P I N I O N

      Cox pleaded guilty to two counts of delivery of a controlled substance. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 1992). The court sentenced her to forty years imprisonment. In one point of error, Cox claims that the trial court failed to properly admonish her prior to her guilty plea because the court did not inquire into the existence of a plea-bargain agreement. We affirm.

      Article 26.13 of the Code of Criminal Procedure requires that, prior to accepting a plea of guilty, the court admonish the defendant of the range of punishment, that the recommendations of the prosecutor are not binding on the court, inquire about any plea agreement, inform the defendant whether the court will accept or reject any such agreement, and warn the defendant that the right to appeal will be limited if the punishment assessed does not exceed that agreed to in the plea agreement. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). "[S]ubstantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Id. art. 26.13(c)

       Cox claims that the court "never inquired as to the existence of a plea bargain agreement." However, the court did ask Cox, "Have any promises or threats been made to induce or cause you to enter your guilty plea?" Cox answered this question, "No, sir." "Plea bargaining is a process which implies a preconviction bargain between the State and the accused whereby the accused agrees to plead guilty or nolo contendere in exchange for . . . a promise of a recommendation from the prosecutor to the trial judge as to punishment." Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987). Thus, a plea-bargain agreement is a "promise" made to "induce or cause [a defendant] to enter [a] guilty plea." We conclude that the court substantially complied with article 26.13's requirement that the court inquire into the existence of a plea bargain.

      When the record demonstrates that the court substantially complied with the requirements, the defendant must demonstrate on appeal that she entered the plea without understanding its consequences and was harmed as a result. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992). "Consequences of the plea" is interpreted to mean "the punishment provided by law for the offense and the punishment which could be inflicted under [the] plea." Eubanks v. State, 599 S.W.2d 815, 816 (Tex. Crim. App. [Panel Op.] 1980).

      During the plea hearing, the court told Cox that she was subject to punishment of five to ninety-nine years or life imprisonment and a $20,000 fine. She answered "yes" to her attorney's question, while she was under oath, whether she understood that the judge could sentence her anywhere within the range of five to ninety-nine years. Finally, during the court's admonishments, the court asked Cox if she understood the range of punishment of "life or for any term not more than 99 years or less than 5 years," as well as a fine not to exceed $20,000. Cox acknowledged that she understood this range. At the conclusion of the punishment hearing, the court sentenced Cox to forty years in prison. She did not object to this punishment as violating a plea-bargain agreement, as she is now claiming.

      On the record presented in this court, Cox has failed to affirmatively show that she entered her plea of guilty without understanding the consequences of her plea. There is no evidence to contradict her affirmative responses when questioned regarding her understanding of the range of punishment she was exposed to as a result of her guilty plea.

      The judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 9, 1994

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