DONALD LEWIS DABBS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

DONALD LEWIS DABBS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–01167–CR

Decided: June 20, 2012

Before Justices Morris, Moseley, and Myers

MEMORANDUM OPINION

Opinion By Justice Morris

In this case, Donald Lewis Dabbs waived a jury, pleaded guilty to delivery of less than one gram of cocaine, and pleaded true to one enhancement paragraph.   The trial court assessed punishment at ten years' imprisonment.   In a single point of error, appellant contends the trial court's improper admonishments undermine the validity of his sentence.   We affirm the trial court's judgment.   The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

In his sole point of error, appellant complains the trial court's incorrect admonishments on the punishment range applicable to his case undermine the validity of his sentence.  Article 26.13 of the Texas Code of Criminal Procedure provides that before accepting a plea of guilty or nolo contendere, a trial court shall admonish the defendant on the range of punishment.   See Tex.Code Crim. Proc. Ann. art. 26.13(a)(1) (West Supp.2012);  Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007).   Substantial compliance is sufficient unless a defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the court's admonishment.  Tex.Code Crim. Proc. Ann. art. 26.13(c).

Appellant was indicted for the state jail felony offense of delivery of less than one gram of cocaine.   See Tex. Health & Safety Code Ann. § 481.112(a), (b) (West 2010).   The indictment also alleged appellant had a previous conviction for aggravated robbery with a deadly weapon.   The punishment range for a state jail felony enhanced by one previous non-state jail felony conviction is that of a third-degree felony.   See Tex. Penal Code Ann. § 12.35(c)(2).   The punishment range for a third-degree felony is imprisonment for two to ten years and an optional fine not to exceed $10,000.   Id. § 12.34. During the plea hearing, the trial court admonished appellant that the offense, as enhanced, was punishable as a second-degree felony, with a punishment range of two to twenty years' imprisonment and an optional fine not to exceed $10,000.   The trial court repeated this admonishment during the sentencing hearing.

A trial court substantially complies with article 26.13, however, when the assessed sentence lies within the actual punishment range and the erroneous range given.   See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998).   Thus, the trial court substantially complied with article 26.13 in this case when it sentenced appellant to ten years' imprisonment.   Moreover, nothing in the record shows appellant was unaware of the consequences of his plea nor does it affirmatively show he was harmed or misled by the admonishment actually given.   See id.   We overrule appellant's sole point of error.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DONALD LEWIS DABBS, Appellant

No. 05–11–01167–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court

No. 7 of Dallas County, Texas.  (Tr.Ct.No.F11–51871–Y).

Opinion delivered by Justice Morris, Justices Moseley and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 20, 2012.

/Joseph B. Morris/

JOSEPH B. MORRIS

JUSTICE

JOSEPH B. MORRIS JUSTICE

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