This case is here on discretionary review a second time. Previously, this Court unanimously held that a trial court's error in failing to show on the record that it admonished a guilty-pleading defendant on the range of punishment is nonconstitutional error, subject to the harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Cr.App. 1999) (admonishments embodied in Article 26.13(a), Texas Code of Criminal Procedure, are not constitutionally required). We exercised our discretionary authority to revisit that unanimous holding which we now reaffirm. We also exercised our discretionary authority to review the Court of Appeals' Rule 44.2(b) harm analysis. ⁽¹⁾

It is undisputed that the trial court erred in failing to show on the record that it admonished appellant on the range of punishment when appellant pled guilty to the charged offense. See Aguirre-Mata, 992 S.W.2d at 496. On direct appeal, the Court of Appeals, in reversing appellant's conviction, decided that this was constitutional error subject to the harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure, which, according to the Court of Appeals, would usually require a reversal in cases like this. See Aguirre-Mata v. State, 992 S.W.2d at 496; Aguirre-Mata v. State, 962 S.W.2d 264, 267 (Tex.App.-Houston [1^st Dist.] 1998). On discretionary review of that decision, we unanimously held that this was nonconstitutional error subject to the harm analysis under Rule 44.2(b), and we remanded the case to the Court of Appeals to conduct this harm analysis. See Aguirre-Mata, 992 S.W.2d at 499.

On remand, the Court of Appeals, in affirming appellant's conviction, reluctantly applied this harm analysis and decided that the trial court's error in failing to show on the record that it admonished appellant on the range of punishment was harmless under Rule 44.2(b). See Aguirre-Mata v. State, 26 S.W.3d 922, 925-26 (Tex.App.-Houston [1^st Dist.] 2000); see generally Burnett v. State, 88 S.W.3d 633 (Tex.Cr.App. 2003). The lead opinion in the Court of Appeals, however, believed that our prior unanimous decision in this case directly conflicted with the Supreme Court's decision in Boykin v. Alabama, 89 S.Ct. 1709 (1969). See Aguirre-Mata, 26 S.W.3d at 924. A concurring opinion in the Court of Appeals agreed and also asserted that our prior unanimous decision in this case was "embarassing[ly]" inconsistent with other Supreme Court precedent. See Aguirre-Mata, 26 S.W.3d at 927-29 (O'Connor, J., concurring). The Court of Appeals invited this Court to reconsider its prior unanimous decision in this case. We accepted this invitation.

The beginning point of the analysis is the Supreme Court's decision in Boykin v. Alabama. There the defendant was sentenced to death by an Alabama jury after he pled guilty to five indictments charging common-law robbery. See Boykin, 89 S.Ct. at 1710-11. The record was completely silent "concerning [the] plea." See Boykin, 89 S.Ct. at 1710 ("so far as the record show[ed], the judge asked no questions of [the defendant] concerning his plea, and [the defendant] did not address the court"). The defendant claimed in the Supreme Court that imposition of the death penalty for common-law robbery was cruel and that permitting an Alabama jury to sentence him to death without any standards to guide its discretion was a denial of due process. See Boykin, 89 S.Ct. at 1711 and at 1715 n.3 (Harlan, J., dissenting). The defendant made no claim concerning the validity of his guilty plea. See id.

The Supreme Court, however, decided that it was a violation of due process of law for the trial court to have accepted the defendant's guilty plea without an affirmative showing "spread on the record" that the guilty plea was "intelligent and voluntary." See Boykin, 89 S.Ct. at 1711-12 ("intelligent and voluntary" guilty plea will not be presumed from a silent record) and at 1714 (Harlan, J., dissenting) (court's decision predicated solely upon the state court's failure to make an "adequate" record that defendant's guilty plea was "intelligent and voluntary"). ⁽²⁾ The Supreme Court also decided that this constitutional error in failing to make an "adequate" record required an outright reversal of the defendant's conviction meaning that no harm analysis was conducted on whether the defendant's guilty plea was in fact intelligent and voluntary. See Boykin, 89 S.Ct. at 1712-13 and at 1714 (Harlan, J., dissenting).

Boykin did not specifically set out what due process requires to be "spread on the record" ⁽³⁾ except to say generally that state courts should make sure that a guilty-pleading defendant "has a full understanding of what the plea connotes and of its consequence." See Boykin, 89 S.Ct. at 1710, 1712; ⁽⁴⁾ see also Libretti v. United States, 116 S.Ct. 356, 368 (1995) (noting that the Advisory Committee's Notes to the federal equivalent of Article 26.13(a) ⁽⁵⁾ characterized Boykin as holding that a defendant must be apprised of the fact that he relinquishes certain constitutional rights by pleading guilty). ⁽⁶⁾ Boykin clearly did not hold that due process requires the equivalent of the Article 26.13(a) admonishments or an admonishment on the range of punishment. ⁽⁷⁾

On the contrary, the Supreme Court in McCarthy v. United States, which was decided during the same term as Boykin, expressly stated that the admonishments in the federal equivalent ⁽⁸⁾ of Article 26.13(a) have "not been held to be constitutionally mandated" and that these admonishments are "designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary." See McCarthy v. United States, 89 S.Ct. 1166, 1170-71 (1969). ⁽⁹⁾ No subsequent Supreme Court decision has held that these admonishments are "constitutionally mandated."

There is, therefore, no reason to be "embarrassed" for relying on McCarthy for the proposition that these admonishments have "not been held to be constitutionally mandated" since that is what McCarthy stated. ⁽¹⁰⁾ In addition, the Supreme Court's recent decision in United States v. Vonn undermines another contention made in the Court of Appeals that Boykin "requires reversal without proof of harm." See Aguirre-Mata, 26 S.W.3d at 924 (claiming that Boykin "requires reversal without proof of harm" in cases like this). Vonn applied a similar harm standard to the one we have decided applies in cases like this. ⁽¹¹⁾ See United States v. Vonn, 122 S.Ct. 1043, 1046-54 (2002); ⁽¹²⁾ see also United States v. Cross, 57 F.3d 588 (7^th Cir), cert. denied, 116 S.Ct. 406 (1995)

Finally, the Court of Appeals apparently read footnote 7 of Boykin to hold that "the right to be told the range of punishment when pleading guilty is constitutionally protected." ⁽¹³⁾ See Boykin, 89 S.Ct. at 1713 n.7. Neither Boykin nor any other Supreme Court decision has so held. Footnote 7 of Boykin by its express language is only advisory ⁽¹⁴⁾ and it is also dicta; it has no binding effect. Footnote 7 of Boykin is also inconsistent with more recent developments such as the congressional enactment of Federal Rule 11(h) and the Supreme Court's decision in Vonn.

We also cannot say that the Court of Appeals erroneously determined that the trial court's failure to admonish appellant on the range of punishment did not affect appellant's substantial rights under Rule 44.2(b). The record contains references to the correct punishment range and there is nothing in the record that shows appellant was unaware of the consequences of his plea or that he was misled or harmed. See Aguirre-Mata, 26 S.W.3d at 925-26 (record contained references to the correct punishment range and there was nothing in record that showed appellant did not know the punishment range and that, if he had known it, he would have pled not guilty); see also Burnett, 88 S.W.3d at 639-41 (record contained references to correct punishment range and there was nothing in record that showed defendant was unaware of the range of punishment); Carranza v. State, 980 S.W.2d 653, 658 (Tex.Cr.App. 1998) ("conviction must be reversed on direct appeal if the record shows that a defendant was unaware of the consequences of his plea and that he was misled or harmed by the trial court's failure to admonish him regarding the range of punishment"); cf, Vonn, 122 S.Ct. at 1054-55 (appellate court not limited to "four corners of the transcript of the plea hearing and Rule 11" admonishments and may consult entire record when considering whether error in trial court's guilty plea admonishments affected defendant's substantial rights).

The judgment of the Court of Appeals is affirmed.

Hervey, J.

Date Delivered: May 14, 2003

Publish

1. The sole ground for review in appellant's discretionary review petition states:

This petition should be granted to review the conclusion of the First Court of Appeals that the trial court's total failure to admonish the appellant as to the range of punishment was non-constitutional error and harmless error because it did not affect the appellant's substantial rights.

2. See Brady v. United States, 90 S.Ct. 1463, 1468 n.4 (1970) (the new element added in Boykin to the substantive requirement that a plea of guilty must be intelligent and voluntary is the procedural "requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily").

3. We note that the dissenting opinion in Boykin expressed some confusion on what the majority opinion in Boykin was holding. See Boykin, 89 S.Ct. at 1714 (Harlan, J., dissenting) ("[s]o far as one can make out from the Court's opinion, what is now in effect being held is ... " and "[i]f this is the basis upon which [the defendant's] conviction is being reversed ... ").

4. Admonishing a guilty-pleading defendant that the consequences of a guilty plea are the admission of the factual elements of the charged crime and a waiver of various constitutional rights without admonishing the defendant on the range of punishment literally satisfies this test.

5. See Fed. R. Crim. P. 11(b).

6. The constitutional rights Boykin mentions as being waived by a guilty plea are the right to counsel, the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. See Boykin, 89 S.Ct. at 1712.

7. We have found no Supreme Court case holding that due process requires a trial court to admonish a guilty-pleading defendant on the range of punishment or holding that a trial court's failure to admonish a guilty-pleading defendant on the range of punishment renders the guilty plea invalid. Supreme Court case law seems primarily to be concerned with insuring that a guilty-pleading defendant understand the nature of the charges to which he is pleading and with insuring that a defendant not be coerced, forced or threatened into pleading guilty. See, e.g., Henderson v. Morgan, 96 S.Ct. 2253, 2259 (1976) (defendant's guilty plea involuntary because he did not receive adequate notice of the charges to which he pled guilty); Brady, 90 S.Ct. at 1469 n.6 (importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of Boykin); Smith v. O'Grady, 61 S.Ct. 572, 573-74 (1941) (defendant's guilty plea to an aggravated burglary offense for which he received a 20 year sentence invalid because defendant thought (based on an agreement with the government) that he was pleading guilty to a simple burglary offense for which he would be sentenced to three years).

8. See Federal Rule 11(b).

9. McCarthy also decided that a trial court's failure to comply with these nonconstitutional procedural requirements was not subject to a harm analysis. See McCarthy, 89 S.Ct. at 1169; Boykin, 89 S.Ct. at 1714 (Harlan, J., dissenting) (trial court's failure to comply with Federal Rule 11 requires setting aside the plea regardless of lower court findings that the plea was in fact voluntary).

10. But see Aguirre-Mata, 26 S.W.3d at 928-29 (O'Connor, J., concurring).

11. Also compare Fed. R. Crim. P. 11(h) (any "variance from the procedures required by this rule which does not affect substantial rights shall be disregarded"), with, Texas Rule 44.2(b) (any nonconstitutional error or "variance that does not affect substantial rights must be disregarded").

12. We further note that Congress adopted the Federal Rule 11(h) harm standard in 1983 to reject McCarthy's "extreme sanction of automatic reversal." See Vonn, 122 S.Ct. at 1055-57 (Stevens, J., concurring in part and dissenting in part) (discussing the history and purpose of Federal Rule 11(h). If, as the Court of Appeals claims, Boykin was meant to "require reversal without proof of harm" in cases like this as a matter of federal constitutional law, then Congress could not have adopted this harm standard. See Dickerson v. United States, 120 S.Ct. 2326, 2332 (2000) (Congress may not legislatively supersede constitutional decisions of the United States Supreme Court).

13. See Aguirre-Mata, 26 S.W.3d at 929 (O'Connor, J., concurring).

14. See Boykin, 89 S.Ct. at 1713 n.7 (stating what trial courts are "advised" to do).