Valdez v. State

¶1OPINION

¶2This appeal is from a conviction for the offense of robbery by assault. The pun*928ishment was assessed by the court at 8 years.

¶3By his first ground of error appellant contends that he was not properly admonished of the consequences of his plea of guilty as required by Article 26.13, Vernon’s Ann.C.C.P.1

¶4Article 1408, Vernon’s Ann.P.C., fixes the punishment for robbery by assault at “confinement in the penitentiary for life, or for a term of not less than five years.”

¶5The court admonished the appellant that the punishment for such offense is: “ . . . any term in the penitentiary not less than five years . . . ”; thus, omitting “life” as a possible punishment. Other than this omission, the admonishment met the requirements of Article 26.13, supra.

¶6We conclude that the admonishment in the instant case was error, but hold that it was harmless error. Clearly, the admonishment was sufficient to inform appellant that the consequences of his plea could include a sentence of any term in excess of five years. The omission in the admonishment could not have misled him to his detriment.

¶7Ground of error number one is overruled.

¶8Appellant’s second ground of error alleges :

“The sufficiency of the evidence to support the Defendant’s plea of guilty, inasmuch as a conviction cannot stand absent the Defendant’s judicial confession, which, on its face, shows that it was not obtained voluntarily and in compliance with Miranda v. Arizona.” 2

¶9A Miranda warning is not applicable to a judicial confession.

¶10The judicial confession was admitted into evidence and is sufficient under the requirements of Article 1.15, V.A.C.C.P., to support the conviction. E. g., Rose v. State, 465 S.W.2d 147 (Tex.Cr.App.)

¶11Ground of error number two is overruled.

¶12By his third ground of error, appellant complains of the court’s error in not giving him credit for the time he spent in confinement prior to sentence. While the appellant used the term “good time” instead of “jail time” in his ground of error, it is obvious from the authorities cited that he used the terms synonymously. The state recognizes this in its brief. Appellant’s complaint stems from the fact that when the court orally pronounced sentence, it stated that “such sentence is to date from the date you were first placed in custody.” 3 When the formal sentence was entered, no such credit was accorded. The failure to grant such pre-sentence credit may have resulted from an oversight or omission. The appellant complains that the “credit” was withdrawn after he gave notice of appeal, and the state’s brief hints that this may be true. The record before this court now does not support such a conclusion.

¶13If the failure to credit the appellant for the time spent in confinement *929prior to sentence was an oversight or omission, the sentence may be corrected by nunc pro tunc proceedings in the trial court following receipt of the mandate of this court.

¶14If “credit” for appellant’s pre-sentence confinement was withdrawn because he gave notice of appeal, then a serious question may well be involved.

¶15A defendant who appeals his conviction has a constitutional right to credit on his sentence for the time spent in jail pending the appeal. See Ex parte Griffith, 457 S.W.2d 60 (Tex.Cr.App. 1970) ; Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Such rule does not affect the discretion vested in the trial court as to credit for time served prior to sentence. See Ex parte Griffith, supra; Gremillion v. Henderson, 425 F.2d 1293 (5th Cir. 1970). As noted in footnote #3, p. 65, of Ex parte Griffith, supra,

“. . . It is conceivable, however, that trial judge’s discretion as to granting credit for pre-sentence custody could be employed in such a manner as to deter an accused’s right of appeal. If it is, then a constitutional question may well be presented.”

¶16In Robinson v. Beto, supra, the court said:

“Due process requires that a state, once it establishes avenues of appellate review, must keep those avenues free of unreasoned distinctions that impede open and equal access to the courts. North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. A defendant’s right of appeal must be free and unfettered. Id. . . . ”

¶17If the trial court sought to “chill” appellant’s right of appeal by withdrawing pre-sentence credit previously granted, then a serious constitutional question is presented. As noted earlier, the record presently before this court does not support such a conclusion.

¶18Ground of error number three is overruled.

¶19As to appellant’s fourth contention that in addition to straight pre-sentence credit on his sentence he should have been given certain “good time” credit on his sentence at the time sentence was imposed, we adhere to the decision reached in State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971). We are aware of two lower federal courts’ decisions to the contrary but this court is not bound thereby. Pruitt v. State, 476 S.W.2d 693 (Tex.Cr. App.1972).

¶20Ground of error number four is overruled.

¶21Ground of error number five asserts that the trial court did not intelligently advise appellant of his “allocution rights” under Article 42.07, V.A.C.C.P.

¶22We note that the sentence herein states: “. . . the said defendant was asked by the court whether he had anything to say why sentence should not be pronounced against him, and he answered nothing in bar thereof.”

¶23Ground of error number five is overruled.

¶24The judgment is affirmed.