HIGH v. STATE (1999)

OPINION ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS

Charles Ray High, the appellant, pleaded guilty before a jury to aggravated robbery, and the judge assessed punishment of sixty years.   In the original appeal, we reversed the conviction because the judge did not admonish the appellant about the range of punishment pursuant to Code of Criminal Procedure Article 26.13(a)(1).¹  High v. State, 962 S.W.2d 53 (Tex.App.-Houston [1st Dist.] 1997), rev'd, 964 S.W.2d 637, 638 (Tex.Crim.App.1998).   We held that, under Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980), a complete failure to admonish a defendant on the range of punishment for an offense does not constitute substantial compliance under Article 26.13(c) and, therefore, is fundamental, reversible error without regard to whether the defendant was harmed.  High, 962 S.W.2d at 56.

The State filed a petition for discretionary review, arguing we erred by reversing the conviction without conducting a harm analysis.   The Court of Criminal Appeals reversed for a harm analysis under Texas Rule of Appellate Procedure 44.2.  High, 964 S.W.2d at 638.   The Court of Criminal Appeals reaffirmed its statement in Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997), that the “absence of substantial compliance” with the requirements of Article 26.13 is not an error that is immune from a harm analysis.  High, 964 S.W.2d at 638.

Harm Analysis

The following exchange occurred between the trial court and the appellant:

Q. Mr. High, let me just admonish you as to several matters before we proceed.   You understand upon your plea of guilty the court will instruct the jury to find you guilty and return a verdict of guilty?   You fully understand that?

A.  Yes.

Q. Okay. You, of course, have discussed this with Mr. Davis?

A.  Yes.

Q. And are you-you're presently competent?   Are you mentally competent?

A.  Yes.

Q. Do you understand the nature of this proceeding?

A.  Yes, sir.

Q. You have discussed any defenses you have with Mr. Davis in aiding him in representing you?

A.  Yes, sir.

The trial court never mentioned the range of punishment attached to the offense to which the appellant pleaded guilty.   Nevertheless, the State contends the trial court did admonish the appellant on the range of punishment and the appellant understood the applicable range of punishment because (1) the jury charge stated “the Court, as required by law, has admonished him of the consequences” and (2) the competency evaluation reflects the appellant “was unsure of the maximum sentence that he could receive.   He stated that he has been told that he can receive anywhere from five years to life in prison.”

We do not agree with the State that boiler plate language in a jury charge or the statement of the psychologist in a competency evaluation indicates the trial court admonished the appellant about the range of punishment.   See Murray v. State, 561 S.W.2d 821, 822 (Tex.Crim.App.1977) (article 26.13(a) provides that it is the trial court that must admonish the defendant of the punishment range attached to the offense);  see also Aguirre-Mata v. State, 962 S.W.2d 264, 266 (Tex.App.-Houston [1st Dist.] 1998, pet. pending) (statute is mandatory:  it does not allow the defense attorney, the prosecutor, the clerk of the court, or anyone but the judge himself, to admonish the defendant of the range of punishment).   Further, we will not revisit our earlier determination that the trial court erred by not admonishing the appellant on the range of punishment.  High, 962 S.W.2d at 55.   Instead, we determine only whether the appellant was harmed by the error.

The harm analysis under Rule 44.2 requires a threshold determination of whether the error was constitutional in nature.   If the error is constitutional, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.   Tex.R.App. P. 44.2(a).   If the error is not constitutional, we reverse only if the error did not affect substantial rights.  Tex.R.App. P. 44.2(b).

A guilty plea is not constitutionally valid unless the defendant understands both the charges against him and the consequences of his plea.   Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).   Guilty pleas must be free and voluntary because, when a defendant makes such a plea, he waives several federal constitutional rights, including the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, which is applicable to the states by reason of the Fourteenth Amendment.  Boykin, 395 U.S. at 243, 89 S.Ct. at 1712.

In an effort to assist a trial court in determining whether a defendant who pleads guilty understands both the charges against him and the consequences of his plea, the Texas Legislature codified due process requirements in Texas Code of Criminal Procedure article 26.13(a).  Ex Parte Evans, 690 S.W.2d 274, 276 (Tex.Crim.App.1985).   The requirements were codified to ensure that each defendant who pleads guilty understands the charges against him and the consequences of his plea.  Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App.1980).  Article 26.13 admonishments ensure that only a constitutionally valid guilty plea is entered and accepted by the trial court.  Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.1998).

In State v. Jimenez, 987 S.W.2d 886 (Tex.Crim.App.1999), the Court distinguished between “direct consequences” and “collateral consequences.”   A consequence is direct when it is definite, immediate, and largely automatic.   Id. at 889, n. 5. A consequence is collateral when it is within the court's discretion to impose it or when its imposition is controlled by an agency that operates beyond the trial court's direct authority.  Id. at 889, n. 6. A defendant's plea is involuntary if the defendant was not made fully aware of the direct consequences of his plea.  Id. at 888. A plea is not rendered involuntary by lack of knowledge about a collateral consequence.  Id.

In Jimenez, the Court of Criminal Appeals held that deportation resulting from a guilty plea is generally considered a collateral consequence.  Id. In Carranza, the Court held the trial court's failure to admonish the defendant regarding his deportation status was non-constitutional error.   Id. at 656.   Because we hold that punishment is a direct consequence of a guilty plea, we do not agree with Justice Taft in his dissent that the holding in Carranza should be extended to a failure to admonish a defendant regarding the range of punishment.   When a defendant pleads guilty, all that remains is for the trial court to determine punishment and render judgment.   Therefore, when a defendant enters a guilty plea without knowing the punishment range, he does not enter the plea with a full understanding of what the plea connotes and of its consequence.   See Boykin, 395 U.S. at 244, 89 S.Ct. at 1712;  see also Jimenez, at 888-89.   For this reason, we hold that it is constitutional error not to admonish a defendant about the range of punishment.   Therefore, we analyze whether the error was harmful under the standard of Rule 44.2(a).

Here, there is no affirmative showing that the appellant had full knowledge of the punishment range.   The psychologist's statement is evidence that the appellant “was unsure” of the maximum possible punishment.   The appellant apparently thought he could receive as few as five years confinement.²  We must reverse when “constitutional errors” occur unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.  Tex.R.App. Proc. 44.2(a).   There is nothing in the record to prove beyond a reasonable doubt that the error was harmless, that is, the appellant would have pleaded guilty even had he known the punishment range.

We sustain point of error one.

We reverse the trial court's judgment and remand.

I agree with Justice O'Connor that this case should be reversed and that Carranza v. State, 980 S.W.2d 653 (Tex.Crim.App.1998), does not control our inquiry into harm.

I believe this case is governed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).   Here, as in Boykin, there is no record of any admonishment, except the judge's statement that the jury would find appellant guilty.   Specifically, as in Boykin, there is no record of any admonishment concerning the range of punishment.   I emphasize the missing punishment admonishment throughout this opinion because this record contains some evidence of harm from its absence.¹  Faced with a similar record, the Boykin Court held:

It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.

395 U.S. at 242, 89 S.Ct. at 1711 (emphasis added).

The seven-judge majority in Boykin was emphatic that the prerequisites of a valid guilty plea cannot be presumed;  they must be shown on the record:

The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation ․ Presuming waiver from a silent record is impermissible.   The record must show ... that an accused was offered counsel but intelligently and understandingly rejected the offer.   Anything less is not a waiver.

We think that the same standard must be applied to determining whether a guilty plea is voluntarily made.

395 U.S. at 242, 89 S.Ct. at 1712 (emphasis added).

The Court repeated its insistence on a record of the constitutionally required admonishments:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.   When the judge discharges that function, it leaves a record adequate for any review that may later be sought ․

395 U.S. at 243, 89 S.Ct. at 1712 (emphasis added).   The court concluded that there was reversible error “because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.”  395 U.S. at 244, 89 S.Ct. at 1713 (emphasis added).

The Court quoted with approval the Pennsylvania Supreme Court:

A majority of criminal convictions are obtained after a plea of guilty.   If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which shall include ․ the permissible range of sentences.

395 U.S. at 244, n. 7, 89 S.Ct. at 1713, n. 7 (emphasis added).

I believe Boykin means that the defendant not only must be admonished, but the admonishment-including the range of punishment-must be on the record.   Otherwise, reversal is required, as occurred in Boykin.   The Supreme Court has unanimously reaffirmed this rule from Boykin.  “In Boykin, the Court found reversible error when a trial judge accepted a defendant's guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary.”  Parke v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992) (emphasis added).   The Parke court stated that Boykin created a “presumption of invalidity” if no record of admonishments existed, and it stated that “Boykin colloquies have been required for nearly a quarter of a century.”  506 U.S. at 30, 113 S.Ct. at 524 (emphasis added).   There was no Boykin colloquy here.

According to the two dissenting justices in Boykin, the majority required reversal “solely” because no admonishments were in the record.  395 U.S. at 245-46, 89 S.Ct. at 1713.   Moreover, the majority did so even though Boykin never even alleged, much less proved, his guilty plea was involuntary or that he did not know the consequences.   The dissenters were especially upset that Boykin had never contended-not in the trial court, not in the Alabama Supreme Court, not in his petition, brief, or argument in the United States Supreme Court-that his plea was coerced or that he did not know its consequences.  395 U.S. at 245-46, 89 S.Ct. at 1713-14.

The dissent is important and deserves to be read because of the light it sheds on the broad holding of the Boykin majority:

The Court today holds that petitioner Boykin was denied due process of law and that his robbery convictions must be reversed outright, solely because “the record [is] inadequate to show that petitioner ․ intelligently and knowingly pleaded guilty” ․ Moreover, the Court does all this at the behest of a petitioner who has never at any time alleged that his guilty plea was involuntary or made without knowledge of the consequences.   I cannot possibly subscribe to so bizarre a result․

Petitioner was not sentenced immediately after the acceptance of his plea․   That proceeding occurred some two months after the petitioner pleaded guilty.   During that period, petitioner made no attempt to withdraw his plea․   Petitioner heard the judge state ․ that ․ [he] might be sentenced to death.   Again, petitioner made no effort to withdraw his plea.

On his appeal to the Alabama Supreme Court, petitioner did not claim that his guilty plea was made involuntarily or without full knowledge of the consequences.   In fact, petitioner raised no questions concerning the plea.   In his petition in this court, and in oral argument by counsel, petitioner has never asserted that the plea was coerced or made in ignorance of the consequences.

․ This result is wholly unprecedented․   This petitioner makes no allegations of actual involuntariness.

The Court's reversal is therefore predicated entirely upon the failure of the arraigning state judge to make an “adequate” record․

I would hold that petitioner Boykin is not entitled to outright reversal of his conviction simply because of the “inadequacy” of the record pertaining to his guilty plea.

395 U.S. at 244-49, 89 S.Ct. at 1713-15.   This argument was rejected by a large majority in Boykin.   There was no inquiry into harm in Boykin for a simple reason-Boykin never claimed he was harmed.   He never claimed his plea was involuntary.

I think Boykin means that (1) failure to admonish regarding the consequences of a guilty plea, including the range of punishment,² is constitutional error, (2) the error occurs when the constitutionally required admonishments are not spread upon the record, and (3) the absence of that record constitutes plain error that requires reversal without allegation, much less proof, of harm.   Appellant did not receive the admonishment on punishment required by Boykin.   Therefore, under Boykin, reversal is required without regard to harm.

Nevertheless, the Court of Criminal Appeals has ordered us to conduct a harm analysis.  High v. State, 964 S.W.2d 637, 638 (Tex.Crim.App.1998).   In my opinion, that is contrary to the constitutional law of the United States as declared in Boykin.   The authority cited for this in High is Cain v. State, 947 S.W.2d 262 (1997), but Cain was not a case of failure to give a punishment admonishment.  Cain was about the failure to warn a United States citizen that non-citizens could be deported.   The absence of that admonishment in Cain was obviously harmless, unlike the lack of a punishment warning in this case.   In addition to that important factual difference, there is an equally important legal difference:  The right to be told the range of punishment when pleading guilty is constitutionally required, Boykin, 395 U.S. at 244, n. 7, 89 S.Ct. at 1713, n. 7, but there is no constitutional right to be told about deportation.  State v. Jimenez, 987 S.W.2d 886, at 889 (Tex.Crim.App.1999).

In Carranza, the Court again held, correctly in my view, that harm is required before reversing for failure to warn about deportation.  980 S.W.2d at 656-58.   As in Cain, that was all that had to be said because there was no other defect in the admonishment, but the court used language suggesting to Justice Taft that all admonishments are the same.   They are not the same.   Some are constitutionally required, and some are not.   That is the difference between Boykin v. Alabama and State v. Jimenez.

The Carranza court did not mention Boykin.   Instead, it cited McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), for the proposition that “the admonishment itself is not constitutionally required,” but merely “aids the trial court” in determining whether the plea was voluntary.  980 S.W.2d at 656.   If “the admonishment itself” language in Carranza referred to the punishment admonition, the Court of Criminal Appeals finds little support in McCarthy.   No constitutional issue was before the Supreme Court in McCarthy:

This decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts;  we do not reach any of the constitutional arguments petitioner urges ․

394 U.S. at 464, 89 S.Ct. at 1169 (emphasis added).   Moreover, none was decided:

We hold that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided in Rule 11.

394 U.S. at 463-64, 89 S.Ct. at 1169.

And while the Court of Criminal Appeals quoted McCarthy for the proposition that “the procedure embodied in Rule 11 has not been held to be constitutionally mandated,” 980 S.W.2d at 656, that was true for only 61 more days after McCarthy was decided.   It became untrue on June 2, 1969, when the Supreme Court decided Boykin.   As the Boykin dissenters pointed out, Boykin imposed Rule 11's requirements on the states as a matter of constitutional law.  395 U.S. at 247, 89 S.Ct. at 1714 (“ ․ What is now in effect being held is that the prophylactic procedures of Criminal Rule 11 are substantially applicable to the States as a matter of federal Constitutional due process.”).

Finally, McCarthydoes not say that harm is required before reversing for lack of a punishment admonition.   It says the opposite.  McCarthy established a per se rule of reversal without harm in federal courts for failure to put a Rule 11 admonishment on the record.   The government argued that it should be allowed remand in order to conduct a hearing to show the error was harmless.   That argument “completely ignores the two purposes of Rule 11,” nine justices declared.  394 U.S. at 465, 89 S.Ct. at 1170.   The Supreme Court emphatically rejected the idea that, if no admonishment is on the record, the government should still win if it could show circumstantially that the plea was, in fact, voluntary.  “We reject the Government's contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge.”  394 U.S. at 467, 89 S.Ct. at 1171.  “There is simply no adequate substitute for demonstrating on the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.”  394 U.S. at 470, 89 S.Ct. at 1173.  “We thus conclude that prejudice inheres in a failure to comply with Rule 11 ․ A defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew․”  394 U.S. at 471-72, 89 S.Ct. at 1173-74 (emphasis added).   The unanimous McCarthycourt concluded:

It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.

394 U.S. at 472, 89 S.Ct. at 1174.

That is a per se rule of reversal without harm under Rule 11, and it has been the federal statutory law of the land since April 2, 1969.  Boykin established the same rule as a matter of federal constitutional law 61 days later.

The dissenters in Boykin recognized this and stated it plainly:

The Court's reversal is therefore predicated entirely upon the failure of the arraigning state judge to make an “adequate” record.   In holding that this is a ground for reversal, the Court quotes copiously from McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), in which we held earlier this Term that when a federal district judge fails to comply in every respect with the procedure for accepting a guilty plea which is prescribed in Rule 11 of the Federal Rules of Criminal Procedure, the plea must be set aside and the defendant permitted to replead, regardless of lower-court findings that the plea was in fact voluntary.

Boykin, 395 U.S. at 247, 89 S.Ct. at 1714 (emphasis original and added).

In Cain, the Court of Criminal Appeals did not mention Boykin v. Alabama or any Supreme Court case, except Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).   The Court cited Fulminante for the proposition that only constitutional errors labeled “structural” by the United States Supreme Court require reversal without proof of harm.  Cain, 947 S.W.2d at 264.   It concluded that failure to warn of deportation was not “structural,” and, thus, harm must be shown to obtain relief.

There are two reasons why Fulminante (and Cain ) do not require a harm analysis in this particular case.   First, neither case had anything to do with a punishment admonishment.  Fulminante had nothing to do with any admonishment.   It had nothing to do with guilty pleas.   It decided whether the harmless error rule would apply to involuntary confessions.   Naturally, it did not mention, much less overrule, Boykin v. Alabama.   According to the United States Supreme Court, Boykin is good law.³  See Parke v. Raley, supra.   To argue that Fulminante limits Boykin would be, simply and respectfully, wrong.  Fulminante contains a laundry list of constitutional errors labeled “trial error”-errors that require proof of harm-and Boykin error is conspicuously absent from that list.   Fulminante, 499 U.S. at 306, 111 S.Ct. 1246.  Fulminante also lists several “structural” errors that require reversal without harm;  Boykin is absent from that list, too.   That does not help the State, however.   If, as I believe, the issue before us is the scope of Boykin v. Alabama, I believe the opinion to read is Boykin, not Arizona v. Fulminante.   Unless Boykin v. Alabama has been overruled, and my Shepard's citator says it hasn't, I believe the Court of Criminal Appeals' opinion in High ⁴ has created a rule that, as applied to a punishment admonition, conflicts with the United States Constitution as construed in Boykin.

What is my duty?   I took an oath to protect, preserve, and defend the Constitutions and laws of the United States and of this State.   Thus, even though I think it violates the rule in Boykin, I believe I am bound to do as the Court of Criminal Appeals has ordered and conduct a harm analysis.   The harm standard, of course, is that for constitutional error.  Tex.R.App. P. 44.2 (a).   This is constitutional error.  Boykin, supra.

Was appellant harmed?   On January 5, 1995, appellant told the psychologist he was “unsure” of the maximum sentence, but he had been told the punishment range was 5 years to life.   That was correct then.   Later, on June 27, 1995, appellant pled true to the enhancement paragraph, and that raised the minimum sentence to 15 years.   Moreover, appellant expressed no doubt on January 5, 1995 about the minimum punishment, which was then 5 years, as he had been told.

The standard of review is decisive in this case.   We must reverse unless we are convinced beyond a reasonable doubt that the error made no contribution to the conviction.  Tex.R.App. P. 44.2(a).   I cannot say that with confidence beyond a reasonable doubt.   If, as the record shows, appellant thought the maximum risk might be less than life, that could have influenced him to accept that lower level of risk by pleading guilty.   If he had known for sure that the actual risk was a life sentence, he may have been unwilling to accept, by pleading guilty, that level of risk and instead tried to avoid exposure to it by pleading not guilty.   Either would have been a rational choice.   The purpose of an admonishment is to make sure the choice is made knowingly.   This record does not convince me beyond a reasonable doubt that it was.

My colleagues have written two very fine opinions.   Finding myself in disagreement, however, I respectfully dissent.   I would hold that the failure to admonish regarding the range of punishment is not constitutional error covered by rule 44.2(a) of the Texas Rules of Appellate Procedure.  Applying the non-constitutional harmless error analysis of rule 44.2(b), I would hold the error is harmless.

A. What is Constitutional Error?

Rather than determine on a case-by-case basis what constitutional error is, I suggest that a definition of constitutional error would make the task easier for all cases.   I suggest that constitutional error should be limited to direct violations of constitutional provisions.   Constitutional error should not include violations of procedural safeguards designed to protect constitutional rights, or error that “implicates” a constitutional right or is “of constitutional magnitude.”

1. Distinguish constitutional rights from their safeguards

A clear illustration of the difference between constitutional rights and their procedural safeguards is the difference between the Fifth Amendment privilege against self-incrimination and the right to be read one's Miranda ¹ rights.   The Court of Criminal Appeals recognized the difference in Griffin v. State:  “But failure to give Miranda warnings, while violative of prophylactic measures designed to safeguard the accused's Fifth Amendment right, is not in itself a constitutional violation.”  765 S.W.2d 422, 429 (Tex.Crim.App.1989).

In Carranza v. State, the Court of Criminal Appeals employed the distinction between constitutional rights and their procedural safeguards in addressing whether the failure to give an admonishment about deportation consequences was constitutional error.  980 S.W.2d 653, 656 (Tex.Crim.App.1998) (“So, although the admonishment itself is not constitutionally required, it aids the trial court in making the determination that the relinquishment of rights, constitutional or otherwise, by the defendant is both knowing and voluntary.”) (emphasis added).

Justice O'Connor's opinion relies on State v. Jimenez, 987 S.W.2d 886 (Tex.Crim.App.1999) to limit the application of the rationale used by the Court of Criminal Appeals in Carranza.   The Carranza rationale is broader than its holding, and the rationale applies to all admonishments required by article 26.13 of the Code of Criminal Procedure.  Jimenez relied on the rationale that deportation consequences are collateral so that admonishments regarding them are not constitutionally required.²  Justice O'Connor's opinion does not recognize that Carranza and Jimenez are based on different rationales, nor does it address the Carranza rationale.   It simply jumps to the conclusion that the Jimenez rationale controls.   While the fact that range of punishment is a direct consequence of a plea makes the case stronger for giving an admonishment regarding the range of punishment, it does not follow that admonishments are the only manner by which the Constitution allows a defendant to be made aware of the range of punishment.

Justice Cohen's opinion sees the order of the Court of Criminal Appeals to conduct a harmless error analysis in this case as violative of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).   It understands Boykin, as did the dissenters in Boykin, as requiring the states to employ the prophylactic procedures of federal rule 11 admonishments as a matter of federal constitutional due process.  Id., 395 U.S. at 247, 89 S.Ct. at 1714 (Harlan, J. dissenting).   A close reading of the majority opinion in Boykin, however, reveals that it is an insufficient record case.   Its holding is that there was an insufficient record showing that the defendant voluntarily and understandingly entered his pleas of guilty.  Id. 395 U.S. at 244, 89 S.Ct. at 1713.   The rationale of Boykin lies in the rule that waivers of constitutional rights must be affirmatively shown by the record.  Id. 395 U.S. at 242-43, 89 S.Ct. at 1712.   The Court was concerned that a plea of guilty involved the waiver of several federal constitutional rights:  (1) the privilege against self-incrimination;  (2) the right to trial by jury;  and (3) the right to confront one's accusers.  Id. 395 U.S. at 243, 89 S.Ct. at 1712.   In Boykin, the defendant was sentenced to death after pleading guilty with no admonishments whatsoever.   Significantly, there is no mention in Boykin of an admonishment regarding the range of punishment.

It is important to distinguish between the constitutional right that a defendant knowingly enter a plea of guilty and procedural safeguards of the constitutional right, such as admonishments.   The constitutional right can easily be honored without fulfilling the admonishment safeguards when, for example, the defendant is well aware of his rights by other means.   Similarly, Boykin 's requirement that the record affirmatively show that a defendant's plea of guilty was made knowingly can also be satisfied by means other than a trial court's admonishments.   The Constitution requires a knowing plea;  it does not prescribe a single means by which a knowing plea can be achieved.

2. Distinguish errors implicating constitutional rights

Nearly every rule of procedure in criminal practice could be said to implicate the constitutional right to due process.   Many statutes, such as the one applicable to admonishments, are designed to protect constitutional rights.   If every violation of a right somehow implicating a constitutional right were constitutional error, there would be no need for rule 44.2(b) relating to non-constitutional error.

A clear example of distinguishing constitutional errors from those implicating constitutional rights for purposes of harmless error review is the right to counsel.   The Sixth Amendment clearly guarantees the right to counsel, and no one would deny that a defendant who was deprived of his right to counsel has been the victim of constitutional error.   Indeed, such error is structural constitutional error that is not even subject to a harmless error analysis.   See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991).   Nevertheless, ineffective assistance of counsel, which implicates the constitutional right to counsel, is treated very differently for harmless error analysis.   A defendant must show harm to gain relief from ineffective assistance of counsel.   See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   Thus, the United States Supreme Court treats error that clearly implicates a constitutional right, or is of constitutional magnitude, much more like rule 44.2(b) (non-constitutional error) than like rule 44.2(a) (constitutional error).

3. Does the Constitution mandate admonishments?

There is nothing in the federal or Texas constitutions that mandates admonishments.   Any rules regarding admonishments have been made by legislatures or courts, not by the framers of the constitutions.   Accordingly, I would hold that the failure to give admonishments is not constitutional error.

B. Application to Other Error

Rule 44.2(b) of the Texas Rules of Appellate Procedure provides as follows:  “Any other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”   Tex.R.App. P. 44.2(b).   We have concluded that the burden of showing harm under rule 44.2(b) is upon the appellant.  Merritt v. State, 982 S.W.2d 634, 637 (Tex.App.-Houston [1st Dist.] 1998, no pet. h.).

The record shows that, nearly six months before his plea of guilty, when asked what range of punishment he faced, appellant told the doctor examining him for competency that he was unsure of the maximum, but he had been told the punishment range was five years to life.   This was the unenhanced range of punishment that was raised to a minimum of 15 years by one enhancement in this case.   There is nothing in the record showing appellant was misled to plead guilty based on his lack of knowledge of the range of punishment.   The record tends to show the contrary.   Accordingly, I would hold that appellant has not shown that the failure to admonish him of the range of punishment affected his substantial rights.

C. Conclusion

Because appellant did not show his substantial rights were affected by the lack of a punishment range admonishment, I would overrule this argument in appellant's first point of error and proceed to review the other arguments in appellant's first point of error and his other four points of error.   To the majority's decision to reverse for constitutional error, I respectfully dissent.

FOOTNOTES

1.   Article 26.13(a)(1) provides:  “Prior to accepting a plea of guilty or nolo contendere, the court shall admonish the defendant of:  (1) the range of the punishment attached to the offense․”  Tex.Code Crim. Proc. art. 26.13(a)(1).

2.   Because the appellant pled true to an enhancement paragraph, the actual punishment range was 15 years to life.   See Tex. Penal Code §§ 12.42(c)(1), 29.03(b).

1.   Appellant was not admonished of his right to counsel and to a jury trial, but he was not harmed because he had both.   He was not told of his right against self-incrimination, but he was not harmed because he did not testify.   As stated below, I believe Boykin requires this case to be reversed without a harm analysis, as Boykin was.   I cannot believe, however, that Boykin would require reversal for failing to admonish a defendant of rights that he asserted, such as those appellant asserted (jury, counsel, self-incrimination).

2.   See Boykin, 395 U.S. at 244, n. 7, 89 S.Ct. at 1713, n. 7, quoted above in this opinion.

3.   I realize that Federal Rule of Criminal Procedure 11 now has a harmless error provision that did not exist when Boykin was decided.   Fed.R.Crim.P. 11(h).   See United States v. Johnson, 1 F.3d 296 (5th Cir.1993) (explaining harmless error standard of Rule 11).   Moreover, the Supreme Court has held that harm is required to obtain relief in a collateral attack brought to cure a Rule 11 violation.  United States v. Timmreck, 441 U.S. 780, 783-85, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979).   The Timmreck opinion did not mention, much less overrule, Boykin.  Rule 11, of course, cannot overrule a decision of the United States Supreme Court that, like Boykin, is based on federal constitutional law.  Rule 11(h) has apparently overruled McCarthy v. United States, supra, a case decided based on Rule 11, not on the United States Constitution.

4.   And its opinion in Carranza, if that case means what Justice Taft says it means.

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   While the Jimenez opinion appears to be plowing new ground, the Court of Criminal Appeals had already addressed lack of awareness of collateral consequences' not rendering a plea involuntary in Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997).

MICHOL O'CONNOR, Justice.

Justice COHEN concurring. Justice TAFT dissenting.