Santiago, Edwin v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed August 21, 2003

Affirmed and Memorandum Opinion filed August 21, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00538-CR

NO. 14-02-00539-CR

NO. 14-02-00540-CR

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EDWIN SANTIAGO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause Nos. 898915, 898,914 & 898,917

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M E M O R A N D U M O P I N I O N

Edwin Santiago appeals a marijuana and two cocaine possession convictions on the grounds that the trial court erred in: (1) failing to admonish him on the ranges of punishment and potential deportation consequences of his guilty pleas; and (2) consolidating the three offenses for a single trial. We affirm.

Failure to Admonish

Standard of Review

Because appellant s complaint regarding the trial court s failure to admonish him was presented to, and ruled upon by, the trial court in appellant s motion for new trial, appellant s first three issues present a challenge to the trial court s denial of that motion. A denial of a motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001), cert. denied, 534 U.S. 855 (2001). The decision will be upheld on appeal if it is correct under any applicable theory of law. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). Where there is conflicting evidence on an issue in a motion for new trial, there is no abuse of discretion in overruling it. Salazar, 38 S.W.3d at 148.

Punishment Ranges

Appellant s first issue argues that his guilty pleas were involuntary because the trial court failed to admonish him on the punishment ranges of the charged offenses. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2003). It is undisputed that the trial court did not formally admonish appellant on the applicable punishment ranges.

Appellant argues that such a failure to admonish violates due process, requiring reversal without regard to a showing of harm. However, neither decision he cites so holds; instead, as pertains to this case, each stands only for the proposition that a voluntary waiver cannot be presumed from a completely silent record regarding voluntariness. Parke v. Raley, 506 U.S. 20, 29 (1992) and Boykin v. Alabama, 395 U.S. 238, 242-43 (1969).[1]

Alternatively, appellant claims that the trial court s failure to admonish him constitutes constitutional error under Aguirre-Mata v. State, 992 S.W.2d 495 (Tex. Crim. App. 1999). However, that opinion holds that a failure to admonish a defendant of the punishment range is statutory, not constitutional, error. Id. at 498-99.[2] Because appellant has thus cited no authority supporting his argument that a failure to admonish him on the punishment range amounts to constitutional error, we overrule his first issue.

Appellant s second issue contends that the trial court s failure to admonish him as to the respective punishment ranges, as required by article 26.13, was harmful and thus reversible statutory error. Under Rule 44.2(b),[3] statutory error is disregarded unless it affected appellant s substantial rights. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). Therefore, a conviction should not be overturned unless, after examining the record as a whole, we conclude that such an error may have had a substantial influence on the outcome of the proceeding. Id. If we have a grave doubt that the result was free from the substantial influence of the error, then we must treat the error as if it did. Id. Because neither appellant nor the State has any formal burden to show harm or harmlessness under Rule 44.2(b), we must independently examine the record and determine whether appellant was aware of the consequences of his plea and whether he was mislead or harmed by the trial court s failure to admonish him of the punishment ranges. Id. at 638.

In this case, appellant entered his guilty pleas after trial had begun and several witnesses had testified. During voir dire, the trial court had explained the applicable punishment ranges for all three offenses in detail, and the State had twice repeated the range for the greater cocaine offense.

However, in the affidavit attached to his motion for new trial, appellant stated (in English) that: (1) he did not know the ranges of punishment for the three offenses; (2) had he understood them, he would not have pleaded guilty; and (3) he could not understand what had been said because he did not speak English and was too nervous to pay attention. Nevertheless, the record reflects that a translator was present and translating for appellant during trial.[4] In addition, during the pretrial motions, discussion of the guilty pleas, and sentencing, appellant addressed the court coherently in English. Based on this record, it was within the trial court s discretion to conclude that appellant had either been able to understand, or received a translation of, the ranges of punishment stated during trial such that he was informed of the consequences of his plea and not mislead or harmed by the trial court s failure to admonish him of the punishment ranges. Therefore, the trial court did not abuse its discretion in denying the motion for new trial on this ground.

Deportation Consequences

Appellant s third issue asserts that the trial court erred in failing to admonish him as to the potential deportation consequences of his guilty pleas. Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2003). Although it is undisputed that the trial court did not admonish appellant in this regard, such an error is harmless if the record contains evidence that appellant is a United States citizen. See Cain v. State, 947 S.W.2d 262, 264 (Tex. 1997). Although appellant stated in the affidavit attached to his motion for new trial that he was born in the Dominican Republic, the record contains evidence that he: (1) claimed in a pretrial services interview and on an application for a Texas identification card to be a U.S. citizen born in Puerto Rico on April 3, 1971;[5] and (2) presented a Puerto Rican birth certificate with that application. Because the record therefore contains conflicting evidence as to whether appellant is a U.S. citizen, the trial court did not abuse its discretion in denying his motion for new trial based on the failure to admonish him of the deportation consequences of his plea. Therefore, his third issue is overruled.

Consolidation

Appellant s fourth issue contends that the trial court erred in consolidating his three charged offenses into a single trial proceeding because they were not connected, part of a common scheme, plan, or course of conduct, or a repeated commission of the same or similar offenses. See Tex. Health & Safety Code Ann. 481.132(a), (b) (Vernon 2003). A trial court s ruling on consolidating offenses under section 481.132 is reviewed for abuse of discretion. Howard v. State, 888 S.W.2d 166, 170-71 (Tex. App. Waco 1994, pet. ref d).

Appellant s two cocaine possession offenses were a repeated commission of similar offenses; and one of those cocaine possession offenses was connected [6] to the marijuana possession offense in that both were committed the same day at the same place. Under these circumstances, appellant s fourth issue does not demonstrate that the trial court failed to comply with section 481.132 by consolidating his cases. Accordingly, that issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2003.

Panel consists of Chief Justice Brister and Justices Yates and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] In this regard, the Supreme Court noted in Boykin that a trial court is best advised to conduct an on-the-record examination of the defendant to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences. 395 U.S. at 244 n.7.

[2] The Court has since reiterated that a failure to admonish a defendant on the direct consequences of his guilty plea is statutory, rather than constitutional, error. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

[3] See Tex. R. App. P. 44.2(b).

[4] Appellant s counsel stated during voir dire, You may have noticed by now up to this point that somebody is translating for Mr. Santiago.

[5] See 8 U.S.C.A. 1402 (West 1999) ( All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth. ).

[6] See Tex. Health & Safety Code Ann. 481.132(a)(1).