Ex Parte Taylor

ON PETITIONER’S MOTION FOR REHEARING

ONION, Presiding Judge

(dissenting).

In the opinion on original submission of this post-conviction habeas corpus proceeding it was conceded that at the time of petitioner’s trial upon his plea of guilty he was not informed of the proper range of penalty, which was mandatorily required by the provisions of Article 501, Vernon’s Ann.C.C.P. 1925 (now 26.13, Vernon’s Ann.C.C.P.).

This court has long held that the failure of the court to properly admonish a defendant of the consequences of his plea, 1 when he enters a guilty plea or plea of nolo contendere, is reversible error, Loudd v. State, 474 S.W.2d 200 (Tex.Cr.App.1971); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Ex parte Battenfield, 466 S.W.2d 569 (Tex. Cr.App.1971); Crawford v. State, 466 S. W.2d 319 (Tex.Cr.App.1971); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972), and further, that failure to comply with the provisions of Article 501, supra (now Article 26.13), may be raised after conviction at any time upon collateral attack. May v. State, 151 Tex.Cr.R. 534 , 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53 , 288 S.W.2d 779 (1956); Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970) (Concurring Opinion), and cases there cited; Ex parte Battenfield, supra.

On original submission the opinion stated that no longer could a petitioner collaterally attack a conviction for failure to comply with Article 501 (now 26.13) unless there was a showing that the petitioner was prejudiced or injured by the trial court’s failure to comply with the mandatory statute.

*482 The opinion stated the reasoning was based “in part” upon Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967). The other part of the reasoning was not revealed. In Meadows the court was confronted with a collateral attack upon a conviction for failure to comply with the provisions of Article 494, Vernon’s Ann. C.C.P. 1925 [now Article 26.04(b)]. That statute required that appointed counsel shall have a ten day preparation period following appointment unless waived in writing. The earlier version required waiver by the attorneys, and the later amendment required the joinder of the accused. The provisions were held mandatory. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964). For some time this court held that failure to comply with such mandatory statute could be the ground for collateral attack upon the judgment of conviction. See Ex parte Austin, 410 S.W.2d 439 (Tex.Cr.App.1967); Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966); Ex parte Brown, 404 S.W.2d 590 (Tex.Cr. App.1966); Ex parte Cooper, 388 S.W.2d 939 (Tex.Cr.App.1965).

In Meadows the foregoing cases were overruled, and it was held that a petitioner was not entitled to relief on collateral attack if the failure to comply with the mandatory statute did not result in injury to the petitioner such as would deprive him of a fair trial or deny him a constitutional right.

Meadows did not attempt to undermine or diminish the mandatory nature of former Article 494 [now 26.04(b)], and a failure to comply will call for reversal on direct appeal. See, i. e., Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967).

In joining the opinion on original submission it was my hope the same approach could be utilized with regard to claimed violations of Article 26.13, supra, particularly since the opinion stated:

“By our holding today, we do not in any way diminish the requirement of complying with Article 26.13. . . . ”

Further, the said opinion in footnote # 2 said:

“Our holding does not apply to cases on direct appeal.”

Nevertheless, since the opinion on original submission has been handed down, the majority, who have since 1973 sought to emasculate the provisions of Article 26.13, supra, but who have not been able to consistently agree upon any logical ground for doing so, have seized upon the opinion on original submission as a basis for further emasculation, diminution and judicial repeal of Article 26.13, supra, advancing the theory that the opinion, despite the language to the contrary, supports the non-review on direct appeal of a violation of the mandatory provisions of Article 26.13, supra, if it be unassigned error. See Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.) (this day decided). The majority, then using the instant case (Taylor) and Williams as a bootstrap in Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.) (this day decided), extends the so-called rule of Taylor and Williams to authorize a rule that unless there is a showing that the accused is prejudiced or injured by the failure of the trial court to fully comply with the “mandatory” statute and no objection is made to such non-compliance at the time of the plea or by motion for new trial, no appellate review will follow. This flies into the very teeth of the language of the opinion on original submission. I vigorously dissent to the overruling of the motion for rehearing. Williams v. State, supra (Dissenting Opinion); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.) (this day decided) (Dissenting Opinion); Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion).

. The consequences of a guilty plea or plea of nolo contendere have long been held to be “the punishment provided by law for the offense charged and the punishment which could be inflicted under this plea.” Alexander v. State, 163 Tex.Cr.R. 53 , 288 S.W.2d 779 (1956); Ex parte Battenfield, 466 S.W.2d 569, 571 (Tex.Cr.App.1971); Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).