In law, must and shall are important words. Must and shall indicate that an action is required, it has to happen, it is a part of the process, proceeding, or hearing that can’t be ignored. Contrast that with “may”, which implies that it doesn’t matter if the thing happens or not.
One thing that is supposed to happen in a criminal case, is that the Judge must inform the defendant about the range of punishment before he pleads guilty. That is, the defendant must know how much time he’s look at before he says “I’m guilty”. Here is the shall if you want to read it-
Texas Code of Criminal Procedure 26.13
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
This is normally accomplished by filing out plea forms that indicate the range of punishment. But what if you plead guilty during a trial? And you don’t have any plea forms? The Dallas Court of Appeals recently considered that issue in Phelps vs. State. Phelps was on trial, and after jury selection, he entered a plea of guilty. The judge did not tell him what the punishment range was before he plead guilty. The action required with the magic shall language, didn’t happen. So Phelps appealed.
Article 26.13 of the Texas Code of Criminal Procedure provides before a court accepts a guilty plea, it must admonish a defendant about the range of punishment attached to the offense. See TEX. CODE CRIM. PROC. § 26.13(a)(1). A trial court’s failure to give a proper admonition under Article 26.13 is subject to a Rule 44.2(b) harm analysis. See Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. 1999) (“[A]ppellant claimed a violation of article 26.13(a)(1). Therefore, consistent with our reasoning and holding in Carranza, we conclude the error was subject to a harm analysis under Rule 44.2(b) because it is statutory, not constitutional.”).
The problem Phelps faced on appeal was that harm analysis. Where a court agrees that the defendant’s rights were violated, but then looks to see if the violation harmed the defendant.
In Phelps case the court said since Phelps was in court when the judge told the jury what the range of punishment was, then it was implied that Phelps knew. Phelps had the jury sentence him, and no objection was made by the defense when the sentencing charge was read to the jury. It was an enhanced sentencing range, based on Phelp’s prior criminal history, so the idea is that if Phelps or his lawyer were surprised by the punishment range they would have objected.