Carranza v. State

• Decision Date: 25 November 1998
• Docket Number: No. 0931-95,0931-95
• Citation: 980 S.W.2d 653
• Parties: Juan Antonio CARRANZA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 653

980 S.W.2d 653

Juan Antonio CARRANZA, Appellant, v. The STATE of Texas.

No. 0931-95

Court of Criminal Appeals of Texas En Banc.

Nov. 25, 1998.

John H. Hagler, Dallas, for appellant.

Elizabeth A. Friday, Asst. Dist. Atty., Dallas, Matthew Paul, State's Atty., Austin, for the state.

Before the court en banc.

OPINION

PRICE, J., delivered the opinion of the Court, in which McCORMICK, P.J., and OVERSTREET, MEYERS, HOLLAND and WOMACK, JJ., joined.

Following a plea of guilty to the offense of involuntary manslaughter under former section 19.05 of the Texas Penal Code, a jury assessed Appellant's punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine. A deadly weapon finding was included in the judgment. Appellant filed a notice of appeal. The Dallas Court of Appeals reversed and remanded the case finding that the trial court wholly failed to admonish Appellant of the consequences of a guilty plea on his citizenship status. Carranza v. State, No. 05-94-00129-CR, 1995 WL 379512 (Tex.App.--Dallas May 30, 1995, pet. granted) (not designated for publication), 1995 WL 379512. We granted the State's petition for discretionary review to determine if the Court of Appeals erred in holding that the trial court's failure to admonish Appellant in accordance with art. 26.13(a)(4) of the Code of Criminal Procedure was reversible error. We will affirm.

Relevant Facts

Appellant testified that he was born in Monterey, Mexico and came to the United States in 1990. He also testified that he had a "green card" but that it had expired. The record reflects that Appellant was not a citizen of the United States at the time of his plea. The State acknowledges that, in the instant case, although the trial judge did admonish Appellant as to the applicable range of punishment, he did not admonish Appellant either orally or in writing that he could be deported if he pled guilty.

The Court of Appeals' Decision

Relying on our opinions in Morales v. State, 872 S.W.2d 753 (Tex.Crim.App.1994), and Ex parte Cervantes, 762 S.W.2d 577 (Tex.Crim.App.1988), the Dallas Court of Appeals reasoned that since the trial court wholly failed to give Appellant the statutorily required admonishment on citizenship, it had not substantially complied with art. 26.13. Carranza, slip op. at 5, 1995 WL 379512, at * 2. It held that the complete failure to admonish required reversal without a harm analysis. Id. at 3, 1995 WL 379512, at * 1.

Arguments of the Parties

The State argues that by admonishing Appellant on the range of punishment for the offense, the trial court substantially complied with art. 26.13. ¹ It urges that once it shows substantial compliance, the burden then shifts to Appellant to show harm from the failure to admonish him on the possibility of deportation. The State insists that Appellant has not met that burden, because he has not shown that he was harmed or misled in any way by the Court's admonishments or lack thereof, or that he was not aware of the consequences of his plea. Furthermore, the State urges that since Appellant was in the United States illegally at the time of trial and therefore already subject to the possibility of deportation, he could not possibly have been harmed by the trial court's failure to admonish him.

In support of its position, the State contends that this case is analogous to those cases in which courts have held that a failure to admonish a defendant regarding deportation is not reversible error when the record shows that the defendant is a United States citizen. See Cain v. State, 947 S.W.2d 262, 264-264 (Tex.Crim.App.1997); Matchett v. State, 941 S.W.2d 922, 927 (Tex.Crim.App.1996), cert. denied, --- U.S.----, 117 S.Ct. 2487, 138 L.Ed.2d 994 (1997); ² Dixon v. State, 891 S.W.2d 783, 785 (Tex.App.--Austin 1995, no pet.). It argues that because Appellant was automatically subject to deportation under federal statutes as an illegal alien regardless of his conviction of this or any other crime, there could be no harm, actual or theoretical, to him.

Appellant counters that the literal text of art. 26.13(a)(4) and (c) require that his guilty plea be set aside because there was no substantial compliance with the statute. He likens the relevant facts of this case to those in Morales, where this court said: "The trial judge wholly failed to admonish Appellant as required under art. 26.13(a)(4). Therefore a prima facie case was not made and there is no requirement Appellant show harm." Morales, 872 S.W.2d at 755. See also Cervantes, 762 S.W.2d at 578. Appellant bolsters this argument with reliance on language in our recent opinions of Matchett and Cain. In Matchett, a plurality of this Court reiterated the Morales court's interpretation of the meaning of the term "substantially complied" as used in art. 26.13 and found that there cannot be substantial compliance when there is no compliance. Matchett, 941 S.W.2d at 927. We also found that the language used in art. 26.13(c) did not preclude the application of a Rule 81(b)(2) harm analysis to the error under review. Id. at 927-928. In regard to meaningful harm analysis, we said:

Rather than foreclose the application of a harm analysis to whole categories of error on grounds that it is theoretically impossible to conduct a meaningful harm analysis, we believe it wiser to allow for a case by case determination of whether in fact a meaningful harm analysis is possible. The presumption that all errors are harmful along with the accompanying burden to rebut the presumption are sufficient to safeguard rights of a truly unreviewable nature. Where the effects of a particular error are not discernable with reasonable certainty, the presumption of harm will, in fact, be unrebutted.

Id. at 928-929 (footnote and citation omitted). We went on to explain in a footnote that if Appellant's status were unknown or if he were in fact deportable, it would be impossible to determine the effects of the trial court's error and presumption of harm would be almost irrebuttable. Id. at 929 n. 9.

We reasoned that because the defendant Matchett was a citizen of the United States, and therefore not subject to deportation, the deportation admonishment as applied to him was irrelevant. Id. at 929-930. Therefore we concluded that the failure to admonish him regarding art. 26.13(a)(4) was harmless beyond a reasonable doubt. Id. at 930. But, we also stated that where the record is silent regarding the citizenship of a defendant then the legislature's intent must be followed and that failure to fully admonish a defendant regarding possible immigration consequences constitutes reversible error. Id.

Appellant argues that his particular situation is precisely the type anticipated by the aforementioned language in Matchett. He further argues that our more recent opinion in Cain also anticipated precisely his type of situation when we said, "Of course, where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless beyond reasonable doubt under Rule 81(b)(2)." Cain, 947 S.W.2d at 264. Here, Appellant urges that because the evidence that he is an illegal alien is undisputed, the error involved "defies any meaningful harmless error analysis."

We recognize that Texas cases are somewhat confusing on the issue of a trial court's failure to give art. 26.13 admonishments. Recently, in Cain we formally rejected the "substantial compliance through immateriality doctrine" which was being used by some appellate courts to affirm convictions where the record established that the defendant was a U.S. citizen. Id. at 264. We explained that to claim that a court is in substantial compliance with 26.13, even though a particular admonishment was never given, would be a legal fiction. Id. But we also explained that the absence of substantial compliance does not end the inquiry. Id. We adopted the reasoning and holding of the plurality opinion in Matchett and concluded that a failure to admonish under art. 26.13(a)(4) was subject to a Rule 81(b)(2) harmless error analysis and that the error was harmless beyond a reasonable doubt if the record contains evidence that the defendant is a U.S. citizen. Id.

Applying the aforementioned principles to the present case then, we find that the trial court did not substantially comply with art. 26.13(a)(4) when it failed to admonish Appellant either orally or in writing regarding the deportation consequences of his plea. We must next determine whether or not this error was of constitutional or non-constitutional magnitude, and from there, whether or not it was harmless. Rule of Appellate Procedure 44.2, which supercedes and replaces 81(b)(2), now governs how harm is assessed after error is found in criminal cases.

Harm Analysis

A careful reading of Rule 44.2 and our relevant case law reveals several types of error that can occur in criminal cases: (1)constitutional error that is not subject to harmless error analysis (i.e., structural error); ³ (2) constitutional error that is harmful; ⁴ (3) constitutional error that is harmless; ⁵ (4) non-constitutional error that is harmful (i.e., affects a substantial right); ⁶ (5) non-constitutional error that is harmless (i.e., does not affect a substantial right). ⁷

Therefore, when conducting a rule 44.2 harm analysis our first task is to determine whether the failure to substantially comply under 26.13 is an error of constitutional magnitude or an error which affects a substantial right. In McCarthy v.United States, 394 U.S. 459, 465-466, 89 S.Ct. 1166, 1170-1171, 22 L.Ed.2d 418 (1969), the Supreme Court considered the purpose of plea admonishments:

First, although the procedure embodied in [admonishment] has not been held to be constitutionally mandated, it is designed to assist the district judge in making the...