LOXLEY GEORGE REID, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01075-CR
............................
LOXLEY GEORGE REID, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 265th District Court
Dallas County, Texas
Trial Court Cause No. F87-89580-LR
.................................................................
O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Whittington
        Appellant, Loxley George Reid, pleaded nolo contendere to the charge of unlawful possession of cocaine with intent to deliver. The trial court found appellant guilty and assessed punishment at ten years' confinement in the Texas Department of Corrections, probated for ten years, and a $750 fine. Thereafter, appellant filed a motion to withdraw plea and for new trial. The court denied appellant's motion on both grounds. In two points of error, appellant contends that the trial court erred in denying his motion to withdraw plea and for new trial in that: (1) the admonition required by article 26.13(a)(4) of the Texas Code of Criminal Procedure, FN:1 (Vernon Supp. 1989), regarding the effect of a plea on defendant's immigration status, was not given; and (2) due to the defense attorney's lack of knowledge in the area of immigration law, appellant was denied effective assistance of counsel. For the reasons given below, we affirm the trial court's judgment.
        In his first point of error, appellant, a Jamaican citizen, maintains that the trial court erred in failing to admonish him about the effect of a nolo contendere plea on his immigration status as required by article 26.13(a)(4). The gist of appellant's complaint appears to be that the court did not read the admonition listed under article 26.13(a)(4) to appellant in open court. Article 26.13(a)(4) requires that the court admonish the defendant of:
 
            the fact 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.
        Pursuant to article 26.13, no plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and that the plea is voluntary. To this end, article 26.13(a) sets forth several admonitions that must be given by the court to the defendant prior to accepting his plea. The purpose of the admonitions is to assure that the defendant does not plead guilty or nolo contendere, except with full understanding of the charges against him and the consequences of his plea. See Bashman v. State, 608 S.W.2d 677, 678 (Tex. Crim. App. 1980). Upon review on appeal, substantial compliance with the requirements of article 26.13 is sufficient unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Article 26.13(c); see Gamez v. State, 506 S.W.2d 618, 619 (Tex. Crim. App. 1974).
        The record reveals that the trial court questioned appellant carefully before accepting his plea. Specifically, the court inquired whether appellant understood the charges alleged in the indictment, whether appellant understood the english language and had reviewed with his attorney all the papers that he filed and signed in the matter, whether appellant understood the consequences of his plea and whether appellant's plea was voluntary. Appellant responded affirmatively to the court's inquiry. The court also inquired of appellant's attorney if he thought that appellant was mentally competent to enter the plea of nolo contendere. Appellant's attorney responded affirmatively. The court then accepted appellant's plea.
        The trial court did not orally admonish appellant about the effect of his plea on his immigration status. However, the record on appeal contains a copy of the "Court's Admonition of Statutory and Constitutional Rights" which is signed and acknowledged by appellant and his trial attorney. This document recites the admonition under article 26.13(a)(4), regarding the effect of a guilty or nolo contendere plea on a defendant's immigration status. Moreover, the acknowledgement in this document states that:
 
            I have read the above and foregoing admonitions, and I understand and am aware of the consequences of my plea. Furthermore, my lawyer has explained to me all the admonitions given by the Court in this document.
        Article 26.13(d) provides that the court may give the admonitions to the defendant orally or in writing. See Blanco v. State, 771 S.W.2d 598, 599 (Tex. App.--Corpus Christi 1989, no writ). In the present case, the trial court elected to give the statutory admonishment to appellant in writing. Appellant does not dispute the fact that he reviewed and signed the "Court's Admonitions of Statutory and Constitutional Rights." Appellant has not met his burden of proof in showing that he was unaware of the consequences of his plea or that he was misled or harmed by the court's admonishment. See Briones v. State, 596 S.W.2d 546 (Tex. Crim. App. 1980). We hold that appellant was properly admonished by the court as required by article 26.13. We overrule appellant's first point of error.
        In his second point of error, appellant contends that he was denied effective assistance of counsel because his trial attorney was not trained in immigration law and was not aware of the consequences of the nolo contendere plea on a defendant's immigration status. The record shows that the trial court conducted a hearing on appellant's motion to withdraw plea and for new trial. At this hearing, appellant's trial attorney testified that he and appellant reviewed and signed the "Court's Admonitions of Statutory and Constitutional Rights" which contains the admonition regarding the impact of a nolo contendere plea on a defendant's immigration status. The attorney further testified that he was not proficient in immigration law and was only capable of advising appellant to the extend of the admonishment given by the court. Based on the evidence presented at the hearing, the trial court denied appellant's motion to withdraw plea and for new trial.
        A defendant in a criminal case is entitled to reasonably effective assistance of counsel. Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). The right to effective counsel is not the right to error-free counsel. Hernandez v. State, 726 S.W.2d 53, 58-59 (Tex. Crim. App. 1986). When an appellant attacks a plea on the ground of ineffective assistance of counsel, he has the burden of showing that the plea was unknowingly and involuntarily entered. See Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986). Ineffective assistance claims are examined by a two-part test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, appellant must show that his attorney's performance was deficient or not "within the range of competence demanded of attorneys in criminal cases," and secondly, appellant must show a reasonable probability that but for the attorney's unprofessional errors, he would not have pled nolo contendere and would have insisted on going to trial. See Strickland, 466 U.S. at 687-88; see also Hill v. Lockhart, 474 U.S. 52, 58-60 (1985); Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988). Appellant's claim will be found to have merit only if the record firmly establishes the ineffectiveness of counsel after examining the totality of the representation rather than isolated acts or omissions of trial counsel. Hernandez, 726 S.W.2d at 58; Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983).
        In the present case, appellant challenges his trial attorney's competence on the ground that the attorney was not trained in immigration law and therefore could not properly advise him on the effect of his plea on his immigration status. We conclude that appellant has failed to meet his burden of proof under the Strickland standard of review. The mere fact that an attorney is not proficient in immigration law is not sufficient to establish ineffective assistance of counsel. The written admonition from the court, signed by the appellant, expressly states that his nolo contendere plea may have an adverse effect upon immigration proceedings which he may be pursuing. With this warning and based upon the record which evinces the totality of the representation, we hold that appellant was not denied effective assistance of counsel. We overrule appellant's second point of error.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881075F.U05
 
 
FN:1 All references to articles hereafter are to those contained in the Texas Code of Criminal Procedure, unless otherwise stated.
File Date[12-19-89]
File Name[881075F]