Zachary Wayne Goshen v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-07-00189-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ZACHARY WAYNE GOSHEN, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Zachary Wayne Goshen appeals from his conviction for aggravated sexual assault of a child. In three issues, he argues that his conviction must be reversed because the trial court did not properly admonish him before it accepted his plea of guilty. We reverse and remand for a new trial.

Background

Appellant pleaded guilty as charged to the felony offense of aggravated sexual assault of a child. He elected to have a jury assess punishment. During voir dire, and before Appellant s plea, the district attorney explained to the venire that the range of punishment for this offense was between five and ninety-nine years of imprisonment or life imprisonment, that Appellant was entitled to the presumption of innocence even though it was anticipated that he would plead guilty, that the burden of proof was beyond a reasonable doubt, and that a defendant had a right not to testify.

A jury was selected, and the district attorney read the indictment. The court asked Appellant s counsel for Appellant s plea, and counsel said he pleaded guilty. The court accepted the plea, and the trial on punishment began. Appellant testified during the punishment trial that he was receiving treatment from a counselor for issues related to this case. He testified that he had pleaded guilty, and he affirmed that he had basically been following the sex-offender registration guidelines while on pretrial release. He admitted he committed the acts alleged in the indictment, and testified that he had confessed to the police. The jury considered the evidence, found Appellant guilty, and assessed punishment at fifteen years of imprisonment and a fine of $10,000. This appeal followed.

Procedures Related to the Acceptance of a Guilty Plea

In three issues, Appellant argues that the guilty plea must be set aside because his attorney entered his plea for him, because he was not admonished of his constitutional rights before pleading guilty, and because he was not given statutory warnings about the possible immigration consequences of his plea or the requirement that he register as a sex offender. Recent court of criminal appeals precedent compels us to reverse this conviction for the failure to admonish Appellant of the immigration consequences of his plea. Therefore, we do not reach Appellant s other complaints, and we anticipate that the trial court will admonish Appellant as required by law should Appellant decide to plead guilty on remand.1

Prior to accepting a defendant s plea of guilty, a trial court is required to admonish him that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2007).2 The trial court did not make such an admonishment in this case. This kind of error is subject to harmless error analysis. See Tex. R. App. P. 44.2(b); Vannortick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007). In our harmless error analysis, the question is whether we have a fair assurance that the defendant s decision to plead guilty would not have changed had the court admonished him. Id. at 709; Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998). Whether Appellant s plea has any impact on his right to be in the United States is, it seems to us, a fairly straightforward question to which he knows the answer, and we do not.3 The State concedes that the record is silent with respect to whether Appellant is a citizen.4 According to recent precedent from the court of criminal appeals, where the record is silent on the issue of citizenship, or the record is insufficient to determine citizenship, harm is established if the statutory admonishments are not given and the case must be reversed. Vannotrick, 227 S.W.3d at 714.

The State concedes that Vannotrick is contrary to its position, but argues that we can conclude Appellant would have pleaded guilty even if the trial court had properly admonished him because the record is so compelling as to his guilt. The State further argues that [i]n viewing the testimony of the defendant in asking for probation, [this court] can conclude beyond a reasonable doubt that this defendant in this case would have [pleaded] guilty even if he was not a citizen and even if he had been admonished properly concerning deportation. The two arguments conflict. A desire for community supervision is consistent with an expectation that the person will remain in the country. But that expectation is probative on the issue of whether the person will be able to remain in the country only if the person understands the potential immigration consequences of the plea. Where, as here, no admonishment is given, it is impossible to know if the expectation to remain is because the person is a citizen or because the person is mistaken about the immigration consequences of the plea.

The State s argument that guilt can be so overwhelming that a conclusion could be drawn that a defendant would have pleaded guilty even if properly admonished is not unreasonable. Indeed, defendants do plead guilty even though they know they will be deported at the end of their sentence, and evidence of guilt can be considered when it comes to the failure to admonish about sex offender registration. See Anderson v. State, 182 S.W.3d 914, 920-921 (Tex. Crim. App. 2006). However, in Vannotrick, the unanimous court foreclosed this avenue for the failure to admonish about immigration consequences when it held that [r]egardless of the strength of the evidence of guilt, we have no fair assurance that the appellant would not have changed his guilty plea had he been properly admonished. Id. at 713.5 And even if the evidence could be so overwhelming that we could conclude that a defendant would have pleaded guilty even if properly admonished, the evidence in this case is no more compelling than it was in Vannotrick. In each case the defendant pleaded guilty, the defendant had made a confession, and the complaining witness testified. Id. at 713. The court was not persuaded in Vannotrick that such evidence was sufficient to conclude that the defendant would have pleaded guilty even if properly admonished, and we are bound by that conclusion in this case.

The record is silent as to whether Appellant is a citizen. Because the trial court did not inform Appellant of the immigration consequences of his plea, we are obliged by Vannotrick to conclude that the trial court s failure to admonish Appellant is harmful error and to reverse the conviction and remand for a new trial.

Disposition

Having sustained part of Appellant s third issue, we reverse and remand for a new trial.

SAM GRIFFITH

Justice

Opinion delivered March 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 We note that it is permissible, though not preferable, for a defendant s lawyer to enter his plea for him in certain circumstances. See Costilla v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004).

2 The State argues that the third issue is multifarious because it combin[es] more than one contention in a single point of error or argument . . . We disagree. Appellant complains in issue three that the trial court did not give two of the admonishments required by article 26.13. His argument addresses the violation of a single statute, and we are able to separate his claims regarding the failure to admonish regarding immigration consequences and the failure to admonish regarding sex offender registration.

3 If Appellant is a citizen and is taking advantage of the trial court s failure to admonish him, he runs some risk that the assessed sentence will be longer on retrial. See Alabama v. Smith, 490 U.S. 794, 798-800, 109 S. Ct. 2201, 2204-05, 104 L. Ed. 2d 865 (1989); Texas v. McCullough, 475 U.S. 134, 139-40, 106 S. Ct. 976, 979-80, 89 L. Ed. 2d 104 (1986).

4 There is circumstantial evidence that Appellant is a citizen. He has worked for large corporations for many years, and he held a driver s license. We conclude, as the State likely did, that this is the same kind of circumstantial evidence that the court found to be unavailing in Vannotrick. See Vannotrick, 227 S.W.3d at 713 (Evidence that defendant had been to prison would support an inference that he would have been deported if he were not a citizen, but it was not the only conclusion to be drawn.).

5 Applying Vannotrick in an unpublished opinion, the court of criminal appeals held that when the trial court failed to admonish the appellant properly and the record contained no other references to any of the immigration consequences of conviction, it could not infer that the appellant knew about the consequences of his guilty plea, and need not discuss the evidence against the appellant. Reed v. State, PD-0590-06, PD-0591-06, 2007 Tex. Crim. App. Unpub. LEXIS 399, at *10 (Tex. Crim. App. Oct. 10, 2007) (mem. op., not designated for publication).