Kerry Bruce Yarbrough v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00271-CR
Kerry Bruce Yarbrough, Appellant
v.
The State of Texas, Appellee
FROM THE CRIMINAL DISTRICT COURT 2 OF DALLAS COUNTY
NO. F9970949-I, HONORABLE EDWIN V. KING, JR., JUDGE PRESIDING
Appellant Kerry Yarbrough was convicted of failing to register with the Dallas
Police Department as a sexual offender after residing in Dallas for a period of greater than seven
days. See Tex. Code Crim. Proc. Ann. art. 62.02 (West Supp. 2001). Yarbrough pleaded guilty
to the state jail felony offense and was sentenced to 365 days in prison and a $500 fine. See id.
art. 62.10 (West Supp. 2001). We will affirm.
DISCUSSION
On appeal, Yarbrough argues that because the court did not inform him of its
authority to impose punishment permissible for a Class A misdemeanor for his state jail felony,
he did not enter his plea knowingly, voluntarily, and intelligently. See Tex. Penal Code Ann.
§ 12.44 (West Supp. 2001). We disagree.
It is axiomatic that a constitutionally valid guilty plea must be freely, knowingly,
and voluntarily made. Brady v. United States, 397 U.S. 742, 748 (1970). A guilty plea is
voluntary if the defendant is advised of all direct consequences of the plea, although the trial court
need not advise the defendant of every aspect of law relevant to the case or sentencing. Id. at
755; State v. Vasquez, 889 S.W.2d 588, 590 (Tex. App.—
Houston [14th Dist.] 1994, no pet.).
Direct consequences of a plea are generally held to be the admonishments listed in article 26.13
of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26. 13 (West
1989 & Supp. 2001); Meyers v. State, 623 S.W.2d 397, 402 (Tex. Crim. App. 1981) (purpose
and function of article 26. 13 is to ensure only constitutionally valid plea is accepted by trial
court). If the record reveals that the trial court admonished the defendant in substantial
compliance with article 26. 13, the State establishes a prima facie showing that the plea was
knowing and voluntary. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.—
San Antonio 1994,
no pet.). Once the prima facie showing is made, the burden shifts to the defendant to show that
he pleaded guilty without understanding the consequences of his guilty plea, and consequently
suffered harm. Tex. Code Crim. Proc. Ann. art. 26.13(c); Fuentes v. State, 688 S.W.2d 542,
544 (Tex. Crim. App. 1985).
The required admonitions may be made orally or in writing. Tex. Code Crim.
Proc. Ann. art. 26.13(d). If made in writing, the defendant and defense counsel must file a
statement that the defendant understood the admonishments and was aware of the consequences
of the guilty plea. Id. One of the requirements mandated by article 26.13 is that the trial court
admonish a defendant of the punishment range for the charged offense. Id. art. 26.13(a). In this
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case, the record reveals that the trial court admonished the defendant by giving the range of
punishment for the charged offense in writing and the admonishments were signed by both the
defendant and defense counsel. Appellant cites no authority and we have found none that requires
a trial court to additionally admonish the defendant that it may impose a sentence permissible for
a Class A misdemeanor in lieu of the punishment for a state jail felony. Moreover, the record
does not affirmatively show that Yarbrough was not otherwise informed, either by the prosecutor
or defense counsel, that the trial court could have imposed a punishment permissible for a Class
A misdemeanor. Yarbrough has failed to satisfy his burden of demonstrating that he did not
understand the consequences of his guilty plea.
Even if we were to find error in the trial court’s failure to inform Yarbrough of its
authority under section 12.44, appellant fails to demonstrate harm. In his brief, Yarbrough argues
that if he had known that he could be punished for a Class A misdemeanor instead of a state jail
felony and could have received no prison time, he might not have agreed to the terms of the
agreement. However, Yarbrough testified that the State offered him a sentence of probation with
no prison time, and that the offer remained available until the morning of his guilty plea.
Yarbrough elected to serve 365 days instead.
Finally, the sentence imposed on Yarbrough was within the range of punishment
permissible for a Class A misdemeanor. 1 Thus, he has failed to demonstrate how he was harmed,
1
Section 12. 21 of the Texas Penal Code provides:
An individual adjudged guilty of a Class A misdemeanor shall be punished by
(1) a fine not to exceed $4,000;
3
and we conclude beyond a reasonable doubt that any error did not contribute to the conviction or
punishment. See Tex. R. App. P. 44.2(a). 2 Yarbrough’s first point of error is overruled.
By his second point, Yarbrough complains that the trial court erred in failing to
grant his motion for reduction of punishment and charge. Rule 25.2(b)(3) of the Texas Rules of
Appellate Procedure provides:
[I]f the appeal is from a judgment rendered on the defendant’s plea of guilty or
nolo contendere under Code of Criminal Procedure article 1.15, and the
punishment assessed did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant, the notice must:
(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion and ruled
on before trial; or
(C) state that the trial court granted permission to appeal.
(2) confinement in jail for a term not to exceed one year; or
(3) both such fine and confinement.
Tex. Penal Code Ann. § 12.21 (West 1994).
2
The State argues that appellant’s alleged error is nonconstitutional error reviewable for harm
pursuant to Texas Rule of Appellate Procedure 44.2(b). See Aguirre-Mata v. State, 992 S.W.2d
495, 499 (Tex. Crim. App. 1999). We express no opinion on the State’s assertion because
appellant has failed to show harm under either harmless error analysis. See Tex. R. App. P.
44.2(a), (b).
4
In this case, Yarbrough filed a general notice of appeal, failing to satisfy any of the prerequisites
set forth in rule 25.2. 3 Thus, he has preserved nothing for our review, and his second point of
error is overruled.
CONCLUSION
Having overruled both of appellant’s points of error, we affirm his conviction.
Mack Kidd, Justice
Before Justices Kidd, Yeakel and Puryear
Affirmed
Filed: March 29, 2001
Do Not Publish
3
We note that Rule 25.2 does not preclude review of Yarbrough’s involuntary guilty plea
claim because the rule contemplates a valid, voluntary plea of guilty or nolo contendere. See
Flowers v. State, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996) (construing predecessor to
Rule 25.2); Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App.— Austin 1999, pet. ref’d)
(applying Flowers to rule 25.2).
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