Juan Antonio Garcia v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

No. 04-00-00116-CR

Juan Antonio GARCIA,

Appellant

v.

The STATE of Texas,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 98-CR-3509

Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

Pursuant to a plea bargain, appellant pled guilty to indecency with a child, and he was sentenced to five years confinement. In a single issue on appeal, appellant asserts the trial court committed reversible error because it did not admonish him verbally about the deportation consequences of his plea. Because the trial court substantially complied with Texas Code of Criminal Procedure article 26.13, we affirm.

BACKGROUND

Before the plea hearing, appellant signed the court's admonishments, which included the following statement: "If you are not a U.S. citizen, a plea of guilty or nolo contendere may result in deportation, exclusion from admission to this country or denial of naturalization under federal law." During the plea hearing, the court asked appellant whether he was an American citizen, and appellant replied, "Yes, sir." At the hearing on his motion to withdraw his guilty plea, appellant stated he was a resident alien, but he said he did not tell his attorney. Appellant's trial attorney testified appellant and appellant's wife told her that appellant was an American citizen.

On appeal, appellant contends that his citizenship was not conclusively shown because he did not understand much of what was happening, he relied on his attorney who told him to plead without any explanation, and his affirmative response to the court's question was "merely a nervous response guided by his trust that counsel was aware of his immigration status."

The Texas Code of Criminal Procedure requires that, before accepting a plea of guilty or a plea of nolo contendere, the court shall 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 . . . ." Tex. Code Crim. P. art. 26.13(a)(4) (Vernon Supp. 2000).

Article 26.13(d) allows the trial court to make the admonitions either orally or in writing. Tex. Code Crim. P. art. 26.13(d) (Vernon 1989). If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea. Id. If the defendant is unable or refuses to sign the statement, the court shall make the admonitions orally. Id. The admonishments embodied in Article 26.13(a) are not constitutionally required because their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998).

Article 26.13 requires no more than substantial compliance. Tex. Code Crim. P. art. 26.13(c) (Vernon 1989). Here, appellant was admonished in writing about the deportation consequences of his plea. Further, appellant told the trial court he was an American citizen. A trial court substantially complies with Article 26.13(a)(4) by inquiring into a defendant's citizenship and receiving the defendant's assurance on the record that he is a United States citizen. Thomas v. State, 932 S.W.2d 128 (Tex. App.--San Antonio 1996, no pet.). A trial court is not required to gratuitously inform a defendant that if he were not a citizen, his guilty plea might result in his deportation or the denial of naturalization. We hold that the trial court substantially complied with Article 26.13.

Because the trial court substantially complied with Article 26.13, the burden shifted to appellant to show affirmatively "that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Carranza, 980 S.W.2d at 657-58; Tex. Code Crim. P. art. 26.13(c) . Appellant has not shown that he was unaware of the consequences of his plea or that he was misled or harmed by the trial court's failure to verbally admonish him.

We affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH