William Duncan Ellison v. The State of Texas--Appeal from County Court at Law of Hood County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2008 » William Duncan Ellison v. The State of Texas--Appeal from County Court at Law of Hood County

State: Texas

Court: Texas Northern District Court

Docket No: 07-08-00287-CR

Case Date: 12/11/2008

Plaintiff: Martin Segura

Defendant: The State of Texas--Appeal from 290th Judicial District Court of Bexar County

Preview:Martin Segura v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County
Nos. 04-99-00227-CR & 04-99-00748-CR Martin SEGURA, Appellant v. The STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court Nos. 93-CR-3086 & 93-CR-2832-B Honorable Sharon MacRae, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Tom Rickhoff, Justice Alma L. L pez, Justice Sarah B. Duncan, Justice Delivered and Filed: June 28, 2000 AFFIRMED Martin Segura appeals his convictions for possession of cocaine and aggravated possession of cocaine, arguing the trial court failed to properly warn him of the consequences of violating the terms of his deferred adjudication probation. We hold that any error by the court in failing to warn Segura was harmless and affirm the judgments. On August 26, 1993, Segura pleaded no contest to charges of possession and aggravated possession of cocaine pursuant to a plea bargain. In return, the State recommended a sentence of no more than twenty years for each charge. The court accepted Segura's plea and granted Segura's application for deferred adjudication, placing Segura on probation for ten years for both charges. Three years later, the State moved to revoke Segura's probation for failing to report to his probation officer. The court granted the motion, found Segura guilty of possession and aggravated possession of cocaine, and sentenced him to twenty and thirty years in prison respectively. Segura appeals, arguing the trial court erred in failing to admonish him of the consequences of violating deferred adjudication probation, and asks that he be given another opportunity to plead to the charges of possession and aggravated possession of cocaine. Under article 42.12, section 5(a) of the Texas Code of Criminal Procedure, a judge who places a defendant on deferred adjudication probation is required to inform the defendant orally or in writing of the possible consequences of violating a condition of community supervision. At the time of the alleged offenses, section 5(b) delineated the following consequences of violating community supervision: (1) "the defendant may be arrested and detained as provided in Section 24 of this article"; (2) "[t]he defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge"; (3) "[n]o appeal may be taken from this determination"; (4) "[a]fter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred."

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12988.html[8/20/2013 7:26:08 PM]

See Act of May 7, 1975, 64th Leg., R.S., ch. 231, 1, sec. 3d, 1975 Tex. Gen. Laws 572, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 785, 4.17, sec. 5, 1989 Tex. Gen. Laws 3498, 3500-01. Segura complains that neither the judge who accepted his pleas nor the judge who granted his application for deferred adjudication warned Segura of these consequences. However, even if we determined that the trial court erred in failing to admonish Segura of the consequences of violating his probation, we must still review the error for harm. The failure to admonish a defendant of the consequences of violating probation under section 5 is nonconstitutional error, subject to harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b); Brown v. State, 943 S.W.2d 35, 36 (Tex. Crim. App. 1997); Price v. State, 866 S.W.2d 606, 611 (Tex. Crim. App. 1993). That is, the court's failure to admonish the defendant under section 5(b) will constitute reversible error only if the error affected the substantial rights of the defendant. Tex. R. App. P. 44.2(b). Here, even though there is no indication the trial court admonished the defendant before or after taking his plea or granting his application for deferred adjudication, Segura acknowledged that he was aware of the consequences of violating his probation in his "Application for Deferred Adjudication or Adult Probation." Specifically, Segura acknowledged in separate applications for each charge that he had been advised of the following: on violation of any condition of probation I may be arrested and detained just as any other alleged probation violator, and I will be entitled to a hearing limited to the determination by the Court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred. Under these circumstances, we cannot conclude that Segura was harmed by the trial court's failure to admonish him of the consequences of violating probation, and we therefore affirm the trial court's judgments. Sarah B. Duncan, Justice Do not publish

file:///C|/Users/Peter/Desktop/opinions/PDFs1/12988.html[8/20/2013 7:26:08 PM]

Download 12988.pdf