Opinion
No. 01-09-00206-CR
Opinion issued October 1, 2009. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 3rd District Court Anderson County, Texas, Trial Court Cause No. 29279.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
MEMORANDUM OPINION
Appellant, Kelly Jeanette Saxton, pleaded guilty, without an agreed punishment recommendation from the State, to the offense of possession of a controlled substance, namely methamphetamine, weighing less than one gram by aggregate weight. Following a presentence investigation, the trial court sentenced appellant to two years in prison. This appeal followed. In one issue, appellant asserts that her guilty plea was "not voluntary because she was not informed of her potential range of punishment at the time of [the] plea." A guilty plea will be accepted as constitutionally valid only with an affirmative showing that such a plea was entered knowingly and voluntarily. See Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004). Texas Code of Criminal Procedure article 26.13 requires, inter alia, that the trial court admonish a defendant of the applicable range of punishment before a plea of guilty or a plea of nolo contendere. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon 2009). Here, appellant pleaded guilty to the offense of possession of a controlled substance, namely methamphetamine, weighing less than one gram by aggregate weight, which is a state jail felony. See TEX. HEALTH SAFETY CODE ANN. § 481.102(6) (Vernon Supp. 2008) (classifying methamphetamine as penalty group 1 drug); § 481.115(a), (b) (Vernon 2003) (providing that possession of penalty group 1 drug, weighing less than one gram, is a state jail felony). The punishment range for a state-jail felony is confinement in a state jail for not more than two years or less than 180 days, and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.34 (Vernon 2003). The record reflects that the trial court admonished appellant orally and in writing regarding the applicable punishment range. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (providing that admonishments may be oral or written). The trial court orally informed appellant that she was eligible for "probation" but could receive a maximum sentence of two years in state jail. Appellant orally acknowledged that she understood the punishment range. Plea papers signed by appellant informed appellant that the punishment range for the subject offense was "180 days to 2 years State Jail." Appellant was not informed that a guilty plea also subjected her to an optional fine of $10,000. When admonishing a defendant, a trial court's substantial compliance with article 26.13 is sufficient. See id. art. 26.13(c); see also Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). If the record shows the trial court delivered an incorrect admonishment regarding the range of punishment, and the actual sentence lies within both the actual and misstated maximum, then substantial compliance with article 26.13 is attained. Martinez, 981 S.W.2d at 197. The admonishment does not substantially comply when the defendant receives a greater sentence than the court informed the defendant was possible for the charged offense, see Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980), or when the sentence actually imposed is outside the range allowed by the statute. Hodges v. State, 604 S.W.2d 152, 156 (Tex. Crim. App. 1980). Here, the trial court sentenced appellant to two years in state jail. The trial court did not assess a fine as part of appellant's punishment. This sentence is within the maximum range of punishment of which appellant was informed and is within the statutory range. Thus, with respect to punishment, we conclude that the trial court substantially complied with article 26.13. See Martinez, 981 S.W.2d at 197; cf Williams v. State, 770 S.W.2d 81, 84 (Tex. App.-Dallas 1989, no pet.) (concluding trial court did not substantially comply with statute because defendant received greater sentence than court informed him was possible-correct punishment range included a fine, court failed to admonish defendant of fine, and court imposed fine as part of punishment). The trial court's substantial compliance with article 26.13 established a prima facie showing that appellant entered a knowing and voluntary plea. See Martinez, 981 S.W.2d at 197. The burden then shifted to appellant to show that she entered the plea without knowing its consequences and was thereby harmed. See id.; see also TEX. CODE CRIM. PROC. ANN. art. 26.13(c). In her brief, appellant makes no claim or showing that she entered her plea without knowing its consequences or that she was harmed. We overrule appellant's sole issue and affirm the judgment of the trial court.
See TEX. HEALTH SAFETY CODE ANN. § 481.102(6) (Vernon Supp. 2008) § 481.115(a), (b) (Vernon 2003).
Pursuant to Government Code section 73.001, the Supreme Court of Texas has transferred this cause from the Twelfth Court of Appeals to the First Court of Appeals. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).