Carlos Javier Sanchez v. The State of Texas--Appeal from 49th Judicial District Court of Zapata County

MEMORANDUM OPINION
No. 04-02-00584-CR
Carlos Javier SANCHEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 1,287
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 12, 2003

AFFIRMED

Appellant Carlos Javier Sanchez appeals his convictions for aggravated assault and retaliation. Sanchez pled guilty to the charges and chose to have the jury assess punishment. The jury sentenced him to twelve years on the offense of aggravated assault and ten years on the offense of retaliation. The trial court entered a judgment sentencing Sanchez to twelve years in the Texas Department of Criminal Justice - Institutional Division with sentences to run concurrently. On appeal, Sanchez contends that his guilty plea was involuntary as a result of the trial court's failure to admonish him about the range of punishment and the possibility of deportation when he entered his plea. We overrule this issue, and affirm the judgment of the trial court.

Factual and Procedural Background

Jury selection in this case began on March 18, 2002. Sanchez was present. During jury selection, the trial court informed the jury of the offenses for which Sanchez was indicted. The trial court also informed the jury about the range of punishment for each offense, specifically stating that aggravated assault had a range of punishment of two to twenty years and that retaliation carried a range of punishment of two to ten years. The trial court instructed the jury that it had to consider these ranges when determining punishment. During questioning of prospective jurors, the State also reminded the jury of the range of punishment for each offense. Sanchez's defense counsel also questioned the jury about whether they could follow the appropriate range of punishment and repeated those ranges. Shortly after the jury was selected and sworn in, Sanchez entered a guilty plea to both charges. After the indictment was read to Sanchez, the trial court admonished him as follows:

THE COURT: Do you understand the indictment against you, Mr. Sanchez?

(Through interpreter Ina Pool.)

THE DEFENDANT: Yes, sir.

THE COURT: And how do you plea [sic] to the indictment counts one and two? Guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: Are you pleading guilty because you really are guilty?

THE DEFENDANT: Yes, I am.

THE COURT: Has anyone forced you or threatened you to plea [sic] guilty?

THE DEFENDANT: No, sir.

THE COURT: Are you pleading guilty then freely and voluntarily?

THE DEFENDANT: Yes, sir.

THE COURT: And you are pleading guilty after you have consulted with your attorney?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that you have a right to plea [sic] not guilty even though you may feel that you are guilty? Do you understand that?

THE DEFENDANT: Oh, yeah. I do. I'm guilty.

THE COURT: Now, also I want you to understand that you have a right to have a jury just like one that has been selected here now to determine the issue of guilt or innocence. That's an absolute right that you have. Did your attorney explain that right to you?

THE DEFENDANT: Yes, sir.

THE COURT: Are you still pleading guilty now before this jury in this court; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Also, do you understand that you are actually waiving your right to have a jury consider the evidence and decide whether you are guilty or not guilty?

THE DEFENDANT: Yes.

THE COURT: Now, the only thing that will be left for the jury to decide on what the punishment should be for the offense as charged against you?

THE DEFENDANT: Yes, sir.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yes, sir.

THE COURT: All right. The Court will accept your plea of guilty. You may be seated.

The record reflects that an interpreter was provided to Sanchez when he entered his guilty plea.

On March 19, 2002, during the punishment phase of trial, the trial court realized it had not informed Sanchez about the possibility of deportation. The trial court also informed Sanchez about the range of punishment. During the punishment phase, the following discussion occurred outside the presence of the jury:

THE COURT: Let me explain, Mr. Sanchez, yesterday when the indictment was read to you after the jury had been selected, you entered a plea of guilty and I admonished you as to your rights to plead not guilty and I also asked whether you were doing this freely and voluntarily. I also want to explain to you that if you are convicted of this offense and you are not a citizen of this country, as a result of this conviction, the federal government can ask that you be deported back to the country that you came from.

THE DEFENDANT: (By the Interpreter) And what am I going to do with my family?

THE COURT: Well, I just want you to understand that if you are convicted, as a result of this conviction, the federal government can ask that you be deported, and if they deport you, they can also deny you the right to re-enter this country legally. If you're not deported, they can still deny an application that you might decide to make to become a United States citizen, and I am explaining this to you so that you'll understand the consequences of being convicted for the offense of aggravated assault or the other count of retaliation. Do you understand?

THE DEFENDANT: (By the Interpreter) Yes, sir.

THE COURT: Knowing everything that I have just explained to you, do you still want to plead guilty to the Court?

THE DEFENDANT: (By the Interpreter) Well, yes, I am.

THE COURT: All right, sir.

[DEFENSE COUNSEL]: For the record, You Honor, there was an offer extended from the State prior to trial which was four years to serve on both counts with legal credit for time served, and that offer was extended to Mr. Carlos Sanchez, was deliberated, and I believe that offer was rejected. Is that correct, Mr. Sanchez?

THE DEFENDANT: (By the Interpreter) Yes. But I want to know if - that's why I wanted to talk to the jury to see if there's a pardon. I am completely sorry. I have never done anything like this.

[DEFENSE COUNSEL]: (To the Defendant) You also have the right to remain silent.

THE COURT: I don't want you to be confused about this procedure. The only thing that it appears that your attorney is doing is making a record of that fact that you were given the opportunity to waive a jury and take four years to serve with credit for time served and that you have understood that offer and that you have declined it, and that you are willing instead to have the case presented to the jury and have the jury decide what the punishment should be.

THE DEFENDANT: (By the Interpreter) And that offer still exists?

THE COURT: Well, that's up to the State. But I just want to make sure that you understand that you have the option to go to trial, as you have done, and take your chances that the jury may decide to grant probation in your case or may decide to punish you with a lesser number of years, which in this case the minimum is two, or may decide to punish you within the range of punishment allowed by law. In one of the charges, the range of punishment is not less than two years and not more than twenty years. And, in the other charge, the minimum is two years and not more than ten years. However, you should be aware that if you are convicted and the jury assesses a punishment for both charges that those charges would run concurrent one with the other. I don't want you thinking that you're going to be pressured into doing something because the years could be stacked, that is not going to happen. But do you understand the consequences of rejecting the offer and going to trial before the jury?

THE DEFENDANT: (By the Interpreter) Yes, sir.

THE COURT: Do you understand that because you have violated the law and have pled guilty, that you will receive some punishment?

THE DEFENDANT: (By the Interpreter) Exactly, yes.

THE COURT: Do you understand that the punishment could be a minimum of two years and a maximum of either ten years on one charge or up to twenty years in the other charge?

THE DEFENDANT: (By the Interpreter) Yes, sir.

THE COURT: And nevertheless, you still want to go before the jury and ask that they decide your punishment rather than taking the plea bargain offer?

THE DEFENDANT: (By the Interpreter) Well, yes.

THE COURT: All right.

Sanchez was ultimately sentenced by the jury to ten years incarceration on the charge of retaliation and twelve years incarceration on the charge of aggravated assault. The trial court's judgments, entered on April 26, 2002, ordered that the sentences on both charges were to run concurrently. Sanchez filed a motion for new trial asserting he was misled to believe that his plea would lead to probation. That motion was overruled by operation of law. Sanchez appealed his conviction to this Court.

Analysis

A guilty plea is voluntary if the defendant is aware of the direct consequences of that plea. See Brady v. State, 397 U.S. 742, 755 (1970). Direct consequences of a plea are generally those listed under article 26.13 of Texas Code of Criminal Procedure. Article 26.13(a) requires that the trial court admonish the defendant of the range of punishment and possibility of deportation before accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) & (4) (Vernon Supp. 2002). However, the failure to admonish a defendant is not automatic reversible error and is subject to a harm analysis. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002); Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999). The failure to admonish a defendant on the direct consequences of his guilty plea is statutory rather than constitutional error. Burnett, 88 S.W.3d at 637. Under this harm analysis of statutory error, we disregard the error unless it affected appellant's "substantial rights." See Tex. R. App. P. 44.2(b). When a reviewing court has "grave doubt" that the result was free from the "substantial influence of the error, then the court must conclude that the error had a substantial influence on the outcome of the proceedings." Burnett, 88 S.W.3d at 637. "Grave doubt" means that " 'in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.' " Id. (quoting O'Neil v. McAninch, 513 U.S. 432, 433 (1995)).

Recently, the Texas Court of Criminal Appeals explained that neither the appellant nor the State has any formal burden to show harm under this analysis. Burnett, 88 S.W.3d at 638. Rather, as the reviewing court, we must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range or other admonishments. Id. As the reviewing court, we examine the entire record to determine whether, on its face, it suggests that a defendant did not know the consequences of his plea. Id. We also consider record facts that the defendant did know the consequences of his plea. Id. It is ultimately this Court's responsibility to determine whether the record supports or negates a defendant's assertion of harm. Id. at 639.

The record reflects that when Sanchez first entered his guilty plea, the trial court failed to admonish him as to the applicable range of punishment or the possibility of deportation. Accordingly, the trial court did not substantially comply with article 26.23(a)(1). See Burnett, 88 S.W.3d at 637. Therefore, we must consider whether the trial court's failure to properly admonish Sanchez affected his decision to plead guilty to the charges against him. After reviewing the record, we conclude that there is more evidence to suggest that Sanchez was aware of the range of punishment and deportation consequence than not.

As noted above, Sanchez was present during the jury selection process. At that time, the trial court, the State, and his own defense counsel reiterated the charges against him to the jury and informed the jury of the range of punishment associated with each charge. Therefore, Sanchez himself was made aware of the range of punishment. See Burnett, 88 S.W.3d at 639-40 (holding that record was replete with evidence that appellant was aware of the range of punishment because the trial court, the State, and defense counsel referenced the range of punishment at jury selection). In his brief to this court, Sanchez references the fact that the record reflects an interpreter was not noted as translating the proceedings until he entered his guilty plea before the trial court. However, Sanchez does not assert that he was unaware or misunderstood what was being stated at voir dire. Moreover, the record does not reflect or suggest that Sanchez was unaware or misunderstood what was being stated at voir dire. (1) Thus, we are left with the conclusion that Sanchez was aware of the range of punishment.

We also consider the fact that the trial court gave Sanchez the opportunity to reconsider his plea when it admonished him about the possibility of deportation and range of punishment later in the proceedings. The record reflects that notwithstanding the knowledge that he could be deported as a result of a conviction and that the jury would assess some punishment, Sanchez remained with his decision to plead guilty and have the jury assess punishment. Any harm that could have resulted from the trial court's failure to admonish appellant about punishment and deportation was later cured. Accordingly, we cannot find that the trial judge's failure to admonish Sanchez regarding the range of punishment and deportation misled or harmed appellant. We overrule Sanchez's sole issue and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. Sanchez could have made such a showing through his motion for new trial. Instead, Sanchez alleged that he "was misled to believe that his plea would lead to probation on the case. Therefore, his plea was involuntary, since he [sic] was entered under the impression that a certain result would occur."