Ramon Perez v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00347-CR
Ramon Perez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0941105, HONORABLE LARRY FULLER, JUDGE PRESIDING

Appellant entered a plea of guilty before a jury to the offenses of aggravated sexual assault of a child (Count I), Tex. Penal Code Ann. 22.021(a)(1)(B) (West 1989), and indecency with a child by contact (Count II), Tex. Penal Code Ann. 21.11(a)(1) (West 1980). The jury assessed punishments of forty years and twenty years respectively. Appellant's two points of error concern the alleged failure of the trial court to admonish appellant pursuant to article 26.13 of the Texas Code of Criminal Procedure prior to accepting his guilty plea. We will sustain appellant's points of error, reverse the judgment of conviction and remand the cause to the trial court.

No plea bargain agreement was reached in the instant cause. Nor did the trial court admonish appellant in writing. Consequently, the pertinent portions of article 26.13 provide:

 

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

 

(1) the range of punishment attached to the offense;

 
* * * * *

(4) 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.

 

(b) 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 the plea is free and voluntary.

 

(c) In admonishing the defendant as herein provided, substantial compliance by the court 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.

 

Tex. Code Crim. Proc. Ann. art. 26.13 (West 1989).

Following announcements of ready, appellant, his counsel, and the prosecutors conferred with the trial court out of the presence of the jury. Appellant advised the trial court that he wanted to enter a plea of guilty to both counts and have a jury decide his punishment. No article 26.13 admonishments were given at this conference.

After the jury had been selected, defense counsel voir dired appellant relative to his entering a plea of guilty. Appellant answered in the affirmative to his counsel's question about discussions they had about different strategies that might be taken at trial and the fact that they had concluded that it would be better for appellant to enter a plea of guilty to the indictment. In response to defense counsel's questions, appellant acknowledged that he was comfortable with the reasons for entering the guilty plea; that he understood the penalty range for the first degree felony, aggravated sexual assault of a child, was confinement from five to ninety-nine years or life; and that the penalty for the second degree felony, indecency with a child by contact, was confinement from two to twenty years. At this point, the trial court asked appellant if he understood that the only way he could receive probation was if the jury assessed penalties of ten years or less.

After appellant stated that he understood the law concerning probation, the jury was returned to the courtroom and sworn. The indictment was read, appellant entered a plea of guilty and testimony began. Before accepting his plea, the trial court did not admonish appellant relative to the provisions of article 26.13 on the range of punishment for the offenses. Nor did the trial court admonish him that if he were not a citizen of the United States, a plea of guilty might result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. Appellant asserts that he did not enter a knowing and voluntary plea of guilty because of the trial court's failure to give the foregoing admonishments. While other issues are raised in appellant's two points of error, we find that the foregoing alleged failures of the trial court constitute the pivotal questions for us to resolve.

The State points to the fact that defense counsel's questions were directed to appellant in the presence of the trial court. In response to defense counsel's questions, appellant stated that he understood the range of punishment for both offenses and that he was comfortable with the reasons for entering a plea of guilty. The State also notes that the trial court questioned him about the fact that he was not eligible for probation unless the jury assessed punishment of ten years or less; and that the trial court asked him if he understood each and every allegation of the indictment after it was read. With respect to appellant's contention that the trial court did not admonish him about the immigration consequences of his guilty plea, the State points to defense counsel's statement during voir dire examination of the jury panel that appellant was born in Laredo, Texas.

Whitten v. State, 587 S.W.2d 156, 157 (Tex. Crim. App. 1979), held the following with regard to the necessity of the trial court to admonish an accused as to the range of punishment:

 

The statute provides that it is the trial court which must admonish the accused of the range of punishment attached to the offense. The statute is mandatory; it does not allow the defense attorney, or the prosecutor, or the clerk of the court, or anyone but the judge himself, to admonish the accused of the range of punishment.

 

(citations omitted) (emphasis in original).

In Whitten, on motion for rehearing, the court rejected the State's contention that the prosecutor explained the punishment range to the jury during voir dire examination, stating: "For a question of such significance, we refuse to create a presumption that defendants listen to, acknowledge, and understand what a prosecutor, or even the court, chooses to say to the jury." Id. at 159. The court also noted that when the trial court does not participate in the admonishment and the admonishment was not directed to the defendant, there can be no substantial compliance with the provisions of article 26.13. The State calls our attention to the trial court's participation in the admonishment on the range of punishment in the instant cause and the fact that defense counsel directed his statement about the range of punishment to appellant.

In Taylor v. State, 591 S.W.2d 826 (Tex. Crim. App. 1980) (on motion for reh'g), the trial court admonished the defendant that the penalty range for the offense was five years to life. The prosecutor interjected that if the defendant were found to be the same person alleged to have two prior convictions after he was found guilty of the primary offense, "it would be automatic life." The trial court asked the defendant if he "understood all about that, and you still want to plead guilty"? The defendant answered in the affirmative and the trial court stated it would accept his plea. Id. at 837. The court stated that the admonishment was not to be condoned, but that there was substantial compliance with the statute, stating:

 

Substantial compliance will also be found where a required admonishment is given, but is given in a different form than that prescribed by the statute yet which effectively satisfied the statutory requirements. [citations omitted.] . . . [T]here are two essential elements in these tolerated admonishments that are present in every case. First, the trial court gives the admonishment and second, it is given directly to the defendant.

 

In Art. 26.13, the legislature mandated that the trial court be responsible for giving the admonishment . . . . The trial court, not the prosecutor, must satisfy itself as to the propriety of guilty pleas and defendants should properly look to the trial court, not the prosecutor, for admonishments on the law. The necessary participation of the trial court is a consistent requirement.

 

The defendant must also be the object of the admonishment. To comply with both Texas law and federal due process, the defendant must hear and understand the admonishments.

 

Id. at 830 (emphasis added).

In Goodie v. State, 735 S.W.2d 871 (Tex. App.--Houston [14th Dist.] 1987), cited by the State, the trial court questioned the defendant about whether he understood the hazards attendant to the trial court granting his request for deferred adjudication. The court notes that at this point that "the admonishments were read by the prosecutor for the convenience of the trial court after all parties consented." The court held that the trial court did not err in failing to grant the defendant's subsequent request to withdraw his plea of guilty, stating that while the admonishment was not to be condoned, the admonishments were directed to the defendant and the trial court adopted them, and participated in the admonishment. Id. at 38. The Court of Criminal Appeals denied review with the following disclaimer:

 

Our refusal to grant the petition for discretionary review should not be construed as approval of a practice of having someone other than the trial judge deliver the admonishments to a defendant. Article 26.13(a). V.A.C.C.P., states in pertinent part: "Prior to accepting a plea of guilty or nolo contendere, the court shall admonish the defendant . . . .

 

With this disclaimer, we refuse appellant's petition for discretionary review.

 

745 S.W.2d 379 (Tex. Crim. App. 1988) (citations omitted) (emphasis in original). In light of the disclaimer by the Court of Criminal Appeals, we do not find Goodie to be persuasive authority.

In Hughes v. State, 833 S.W.2d 137 (Tex. Crim. App. 1992), the court considered when "substantial compliance" with Article 26.13 would be applicable, stating: "[S]ubstantial compliance will only be found where a trial court has undertaken to admonish the defendant, the sentence given was within the range prescribed by law, and the defendant has failed to affirmatively show harm. Conversely, it will not be found where a trial court wholly fails to admonish the defendant on punishment." Id.

 

With respect to the trial court's failure to admonish appellant relative to the consequences of a guilty plea if he were not a citizen of the United States, the State cites Cain v. State, 893 S.W.2d 681 (Tex. App.--Fort Worth 1995, pet. granted). In Cain, a record from the Texas Department of Corrections (in evidence) showed that the defendant was born in Parker County, Texas. Id. at 685, n.4. Although the trial court failed to admonish appellant as to the consequences of a plea of guilty if he were not a citizen of the United States, the court reasoned that since the record affirmatively proved that his birth in the United States made him a citizen of this country under the United States Constitution (U.S. Const. amend. XIV), the burden shifted to the defendant to show that he was harmed. Id. at 685. In the instant cause, the State urges that defense counsel's statement during voir dire of the jury panel that appellant was born in Laredo, Texas, shifted the burden to appellant to show harm.

Morales v. State, 872 S.W.2d 753 (Tex. Crim. App. 1994), held that the complete failure of the trial court to admonish a defendant about the consequences of a plea of guilty by one who is not a citizen of this country constituted reversible error without the necessity of the defendant affirmatively showing harm. Id. at 755. The court stated that the trial court's failure to give this admonishment was indistinguishable from a trial court's failure to admonish a defendant on the range of punishment. A concurring opinion in Morales made the following observation about the mandatory requirement of the statute:

 

If the Legislature had written that such an admonishment was to be given only to citizens of other countries, our own docket might soon be crowded with cases contesting the factual determination that certain persons needed no admonishment because they were not citizens of the United States. Under such conditions, it would soon become apparent that giving the admonishment in all cases is much the better solution. Perhaps the Legislature thought so too, and had enough foresight to avoid the whole difficulty in advance by making admonishment mandatory in every case without regard to the defendant's citizenship. We should be mindful of this when construing the statute, and eschew any interpretation of it which holds for naught the obvious effect of its unambiguous language, which might very well have been chosen precisely because it has the advantage suggested here when read according to ordinary rules of English grammar.

 

Id. (Meyers, J., concurring).

In the instant cause, there was a complete failure on the part of the trial court to admonish appellant on the range of punishment. Nor did the trial court admonish appellant relative to a person who is not a citizen of this country entering a plea of guilty. While opinions on Article 26.13 admonishments lack a degree of consistency, the latest pronouncement of the Court of Criminal Appeals in Morales appears to make it clear that it is the duty of the trial court to admonish an accused on the range of punishment and the consequences of a plea by a person who is not a citizen of this country. Moreover, Morales places no burden on an accused to show harm when such failures occur.

To permit counsel rather than the trial court to give the admonishments in question would effectively relieve the trial court of duties mandated by the Legislature. While the vast majority of those who stand charged with offenses have no legal training, they most certainly look to the trial judge as the final arbiter of the law governing their fate. We will not presume that an accused listens to or understands the significance of what counsel may say in voir dire of the jury panel. See Whitten, 587 S.W.2d at 159. We cannot accept that these requirements represent much of a burden on the trial level of the judiciary. See Morales, 872 S.W.2d at 756 (Meyers, J., concurring). Appellant's two points of error are sustained.

 

The judgment of conviction is reversed and the cause remanded.

 

Tom G. Davis, Justice

Before Chief Justice Carroll, Justices Aboussie and Davis*

Reversed and Remanded

Filed: May 29, 1996

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

w harm.

Morales v. State, 872 S.W.2d 753 (Tex. Crim. App. 1994), held that the complete failure of the trial court to admonish a defendant about the consequences of a plea of guilty by one who is not a citizen of this country constituted reversible error without the necessity of the defendant affirmatively showing harm. Id. at 755. The court stated that the trial court's failure to give this admonishment was indistinguishable from a trial court's failure to admonish a defendant on the range of punishment. A concurring opinion in Morales made the following observation about the mandatory requirement of the statute:

 

If the Legislature had written that such an admonishment was to be given only to citizens of other countries, our own docket might soon be crowded with cases contesting the factual determination that certain persons needed no admonishment because they were not citizens of the United States. Under such conditions, it would soon become apparent that giving the admonishment in all cases is much the better solution. Perhaps the Legislature thought so too, and had enough foresight to avoid the whole difficulty in advance by making admonishment mandatory in every case without regard to the defendant's citizenship. We should be mindful of this when construing the statute, and eschew any interpretation of it which holds for naught the obvious effect of its unambiguous language, which might very well have been chosen precisely because it has the advantage suggested here when read according to ordinary rules of English grammar.

 

Id. (Meyers, J., concurring).

In the instant cause, there was a complete failure on the part of the trial court to admonish appellant on the range of punishment. Nor did the trial court admonish appellant relative to a person who is not a citizen of this country entering a plea of guilty. While opinions on Article 26.13 admonishments lack a degree of consistency, the latest pronouncement of the Court of Criminal Appeals in Morales appears to make it clear that it is the duty of the trial court to admonish an accused on the range of punishment and the consequences of a plea by a person who is not a citizen of this country. Moreover, Morales places no burden on an accused to show harm when such failures occur.

To permit counsel rather than the trial court to give the admonishments in question would effectively relieve the trial court of duties mandated by the Legislature. While the vast majority of those who stand charged with offenses have no legal training, they most certainly look to the trial judge as the final arbiter of the law governing their fate. We will not presume that an accused listens to or understands the significance of what counsel may say in voir dire of the jury panel. See Whitten, 587 S.W.2d at 159. We cannot accept that these requirements represent much of a burden on the trial level of the judiciary. See Morales, 872 S.W.2d at 756 (Meyers, J., concurring). Appellant's two points of error are sustained.

 

The judgment of conviction is reversed and the cause remanded.

 

Tom G. Davis, Justice

Before Chief Justice Carroll, Justices Aboussie and Davis*

Reversed and Remanded

Filed: May 29, 1996

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See