Whitten v. State

This is an appeal from a conviction for burglary, and punishment, enhanced by proof of one prior conviction, was assessed by a jury at twenty years.

Appellant was charged in a multi-count indictment with three burglaries. After the jury was selected the prosecutor read the three charges of burglary in sequence, and after each of the first two appellant announced his plea of not guilty. After the third charge of burglary was read, appellant announced he was pleading guilty. This apparently took the court by surprise. The jury was removed so that appellant could be admonished pursuant to Article 26.13, V.A.C.C.P. before his guilty plea was accepted by the court. In admonishing appellant there was a complete failure to inform him of the punishment range affixed to the offense. Appellant complains of this fact in his first ground of error.

The State argues that appellant was adequately informed of the punishment range because he was present during the jury selection process, at which the prosecutor informed the prospective jurors of the applicable punishment range. That was not sufficient to satisfy the requirements of the Code of Criminal Procedure. In Murray v. State, Tex.Cr.App., 561 S.W.2d 821, the Court held:

“The statute provides that it is the trial court which must admonish the accused of the range of punishment attached to the offense. The statute is mandatory: It does not allow the defense attorney, or the prosecutor, or the clerk of the court, or anyone but the judge himself, to admonish the accused of the range of punishment.”

This case is controlled by Murray v. State, supra, and Walker v. State, Tex.Cr.App., 524 S.W.2d 712.

The judgment is reversed and the cause remanded.

Before the Court en banc.