finding that a court has no duty to advise an individual of ineligibility for probation; even where the court has volunteered incorrect information about such, the defendant must still produce affirmative evidence that he was misled or harmed by the inaccurate advisement
How later courts described this case
- finding that a court has no duty to advise an individual of ineligibility for probation; even where the court has volunteered incorrect information about such, the defendant must still produce affirmative evidence that he was misled or harmed by the inaccurate advisement
- holding defendant who actively sought probation during plea negotiations and filed probation application after being told by trial court that he would be placed on probation was harmed by trial court’s incorrect admonishment that he was entitled to probation
- finding that although trial court is not under mandatory duty to admonish defendant on probation, trial court places itself under duty to provide accurate information when it volunteers such information prior to accepting defendant’s plea
- recognizing that once a judgment of conviction is appealed, an appellate court has jurisdiction and authority either to reverse and remand, affirm, or reform and correct the judgment as the law and nature of the case may require
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
That part of Article 26.13, V.A.C.C.P., primarily implicated by this postconviction writ of habeas corpus is simple and straightforward: “the court shall admonish the defendant of ... the range of punishment attached to the offense.” However, though the statute is mandatory, Murray v. State, 561 S.W.2d 821, 822 (Tex.Cr.App.1977), what constitutes substantial compliance with its mandate became a “troubled area of the law,” Whitten v. State, 587 S.W.2d 156, 157 (Tex.Cr.App.1979), and the Court then insisted that the trial court be responsible for giving the admonishment directly to an accused, explaining:
“The trial court ... must satisfy itself as to the propriety of guilty pleas and defendants should properly look to the trial court ... for admonishments on the law.”
Whitten v. State, supra, at 159. When this Court and all other courts in the criminal justice system strictly adhere to that maxim, we do not need to search for answers to other questions unless Article 26.13(c) is implicated.
Abstractly at least, there may be included within range of punishment for a given offense “regular” probation contemplated by § 6 of former probation law and recently revised § 5 of Adult Probation Law, Acts 1985, 69th Leg., ch. 427, p. 2895, 9 Vernon’s Texas Session Law Service (1985) 2895, 2907. Therefore, when before trial begins an accused properly files a written sworn motion for probation and persists in pleading guilty or nolo contendere in order to have a jury assess punishment, or when an accused waives trial by jury in favor of a trial before the court, pleads guilty or nolo contendere and timely requests the judge of the trial court to place him on probation, before accepting either plea the judge must correctly admonish him whether in the circumstances of the case probation is, as a matter of law, really within the range of punishment attached to the offense. 1
*779 “[W]here the admonishment is relevant to the voluntariness of the plea, as is true here with the admonishment on the range of punishment, substantial compliance cannot be satisfied merely because other required admonishments were provided.” Whitten, supra, at 158 .
Here the trial judge did not admonish appellant whether in the circumstances of his case probation was, as a matter of law, really within the range of punishment attached to the offense of aggravated robbery. In law it is not. Article 42.12, § 3f(a)(l)(D), V.A.C.C.P. 2 Had the trial judge correctly admonished appellant that the court was without authority to place him on “regular” probation (instead of assuring him that the court was placing him on probation for a period of ten years), appellant would then have been accurately informed by the court of the range of punishment attached to the offense. Since the judge did not, the question of substantial compliance is not in the case.
On that basis I join the Court in granting relief.
. The objective of thus construing Article 26.-13(a)(1) is prophylactic while that which the majority proposes is more remedial in nature. The former is reasonably derived from a common understanding that “regular" probation is a form of punishment; the latter judicially creates *779 a “duty” that may be selfimposed by a trial court. Neither is precluded by prior decisions of the Court, however.
The Court has indeed stated generally that Article 26.13 does not require an admonishment as to right of an accused to probation. However, considering the genesis of that proposition and a lack of explication, one cannot rightly regard such statement as a holding by the Court. It may be traced to Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1968), and Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972), as did Shields v. State, 608 S.W.2d 924, 927 (Tex.Cr.App.1980). But in 1968 and 1972 Article 26.13 did not in terms require "the range of punishment attached to the offense" be included in an admonishment. That was mandated by Acts 1975, 64th Leg., Ch. 341, p. 909, § 3, effective June 19, 1975. No other case cited was decided after the 1975 requirement became effective.
. Regardless of eligibility of appellant, “regular" probation was not within the range of punishment because the trial court was without authority to place him on probation. The authority granted by §§ 3 and 3c of Article 42.12 is effectively withdrawn by § 3f(a) in situations it prescribes. To be distinguished, of course, is deferred adjudication under § 3d; it is not punishment in the usual sense of our statutes, but “an alternative 'allowed by law,”’ Harrison v. State, 688 S.W.2d 497, 501 (Tex.Cr.App.1985) (Concurring Opinion).