Matchett v. State

• Decision Date: 06 November 1996
• Docket Number: No. 71664,71664
• Citation: 941 S.W.2d 922
• Parties: Farley Charles MATCHETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 922

941 S.W.2d 922

Farley Charles MATCHETT, Appellant, v. The STATE of Texas, Appellee.

No. 71664.

Court of Criminal Appeals of Texas En Banc.

Nov. 6, 1996.

Rehearing Denied Jan. 22, 1997.

Robert A. Morrow, Brent E. Newton, Houston, for appellant.

Rikke Burke Graber, Assist. District Attorney, Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

OVERSTREET, Judge.

In February 1993, appellant pled guilty and was convicted under Texas Penal Code § 19.03(a)(2) for a robbery murder committed in July 1991. The jury affirmatively answered the two special issues submitted under Article 37.071(b). ¹ Appellant was sentenced to death as mandated by Article 37.071(e). Article 37.071(h) provides direct appeal to this court. Appellant raises thirty-seven points of error. We affirm.

In his first point of error appellant alleges that the trial court reversibly erred in failing to comply with Article 26.13. ² Appellant argues under Morales v. State, 872 S.W.2d 753 (Tex.Crim.App.1994), the trial court reversibly erred in failing to admonish him in accordance with Article 26.13(a)(2-4). The State counters that the trial court substantially complied with Article 26.13(a) and alternatively, that any error was harmless beyond a reasonable doubt.

According to the record, immediately prior to the commencement of trial, appellant pled guilty to the offense of capital murder (S.F.XVI, 8-9). Neither party disputes that appellant was admonished about the range of punishment in accordance with Article 26.13(a)(1) or that the trial court failed to admonish appellant according to the requirements of Article 26.13(a)(2--4). Except for the failure of the trial court to admonish appellant in accordance with Article 26.13(a)(2--4), there is no allegation that appellant's guilty plea was anything less than knowing and voluntary. ³

The State argues that because the admonishments required were "immaterial" in appellant's case, the instructions given substantially complied under Article 26.13(c) with the requirements of Article 26.13(a)(2-4). ⁴ This understanding of substantial compliance was disavowed in Morales, 872 S.W.2d at 755. c.f. Whitten v. State, 587 S.W.2d 156, 158 (Tex.Crim.App.1979)(here an admonishment was not given but the admonishment was immaterial to the plea, such as where the trial court failed to admonish on the non-binding character of prosecutorial recommendations and no prosecutorial recommendation had been made, there is substantial compliance). Quoting Hughes v. State, 833 S.W.2d 137, 140 (Tex.Crim.App.1992), we held in Morales that substantial compliance "will not be found where the trial court wholly fails to admonish the defendant." Id. This holding is in harmony with both the plain meaning ⁵ of substantial compliance and with the internal structure of Article 26.13(c). By contrast, the State's definition of substantial compliance contradicts both the plain meaning and structure of Article 26.13(c); it is a legal fiction concocted "to avoid the plain effect of laws enacted by our Legislature." Morales 872 S.W.2d at 756 (Concurring Opinion). In wholly failing to instruct appellant under Article 26.13(a)(2--4), the trial court erred; it was not in substantial compliance as contemplated in Article 26.13(c). Id.

Appellant argues that Morales held that the failure to admonish a defendant under Article 26.13(a) is reversible error not subject to a harm analysis. Id. In Morales we held:

The trial judge wholly failed to admonish appellant as required under Article 26.13(a)(4). Therefore a prima facie case [of substantial compliance] was not made and there is no requirement that appellant show harm. See McAtee, supra, and Hughes, supra.

872 S.W.2d at 755.

Article 26.13(c) states "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." The above cited language in Morales clearly stands for the narrow proposition that when there is no substantial compliance under Article 26.13(c), the court's failure to comply with Article 26.13(a) is not subject to the harm analysis contained in Article 26.13(c). This language does not preclude application of an 81(b)(2) harm analysis to the error under review. See also Ex Parte Ruben Tovar, 901 S.W.2d 484 (Tex.Crim.App.1995) and Ex Parte Mujahid Rashad Akhtab, 901 S.W.2d 488 (Tex.Crim.App.1995) (Applying a harm analysis to the failure of the trial court to comply with Article 26.13 in habeas cases).

We also disavow any interpretation of Marin v. State, 851 S.W.2d 275, 280 -282 (Tex.Crim.App.1993), which suggests that a Rule 81(b)(2) harm analysis is inappropriate when an absolute legislative mandate like Article 26.13(a) is violated. ⁶ Marin can be understood, as appellant argues, to hold that a harm analysis under Rule 81(b)(2) is not appropriate when absolute requirements like those of Article 26.13(a) are violated. The reasoning is that certain types of error by their nature resist meaningful harm analysis and thus are categorically precluded from a harm analysis review. ⁷ Quoting Sodipo v. State, 815 S.W.2d 551 (Tex.Crim.App.1990), Marin stated

[O]ur precedents stand for the proposition that certain kinds of error are such "that it is extremely difficult to know whether they might have affected the outcome, or the likelihood that they have influenced the outcome is so strong that it is not worth expending the judicial resources necessary to evaluate the effect of the error in particular cases." Sodipo, 815 S.W.2d at 551.

851 S.W.2d at 281. See also Warmowski v. State, 853 S.W.2d 575, 578 (Tex.Crim.App.1993). In so far as Marin suggests that, regardless of the facts of a particular case, the application of a Rule 81(b)(2) harm analysis is a waste of judicial resources in whole categories of errors, such as those presently before us, it is exposed by appellant's case as plainly wrong. A meaningful harmless error analysis is possible even though, according to appellant's broad interpretation of Marin, it should not be.

That the nature of some legislative mandates and fundamental rights will resist creation of a record from which to meaningfully assess the effects of their violation, does not justify precluding attempts by the State to establish that under the facts of a particular case, the error was in fact harmless beyond a reasonable doubt.

[T]he discrimination required [to conduct a harm analysis] is one of judgment transcending confinement by formula or precise rule. That faculty cannot ever be wholly imprisoned in words, much less upon such a criterion as what are only technical, what substantial rights; ... What may be technical for one is substantial for another; what minor and unimportant in one setting crucial in another.

Kotteakos v. United States, 328 U.S. 750, 761, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557 (1946)(discussing the nature of harm analysis). 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. ⁸ Where the effects of a particular error are not discernable with reasonable certainty, the presumption of harm will, in fact, be unrebutted. Warmowski, 853 S.W.2d at 578. Appellant's case does not present such a situation.

In the present case, the trial court erred in failing to admonish appellant according to the dictates of Article 26.13(a)(2) and (3), but because these admonishments are wholly inapplicable to a capital murder case in which the death sentence is sought, this error had absolutely no effect on appellant's conviction or punishment. We can thus conclude beyond a reasonable doubt that the failure to admonish appellant under 26.13(a)(2) and (3) was harmless.

We reach the same conclusion regarding the court's failure to admonish appellant regarding deportation under Article 26.13(a)(4). The record shows that appellant was born on November 19, 1962 in Houston, Texas; therefore, evidencing that appellant is an undeportable citizen of the United States; therefore, the deportation provision was immaterial to appellant's guilty plea. The court's failure to provide appellant with the immaterial admonishment mandated under Article 26.13(a)(4) could not have effected or contributed to his conviction or punishment. ⁹

In Morales v. State, 872 S.W.2d 753 (Tex.Crim.App.1994), we held that failure to give the article 26.13(a)(4) admonishment was reversible error, even without a showing of harm. The record in Morales was completely silent as to appellant's citizenship, however, it is possible to distinguish Morales from the present case where there is no question that appellant is a United States citizen. It is suggested, in Judge Meyers' concurring opinion in Morales, that in writing article 26.13(a)(4), the Legislature did not intend to require defendants pleading guilty or nolo contendere to litigate the issue of their citizenship at trial so that trial judges could determine whether the article 26.13(a)(4) admonishment had to be given. Therefore, the Legislature mandated that all such defendants receive the admonishment. Morales, at 755. This interpretation of legislative intent is logical, and the article 26.13(a)(4) admonishment must be given in every case.

In Boykin, we held that when we interpret a statute, we seek to effectuate the intent of the Legislature which enacted the legislation. "When attempting to discern this collective legislative intent or purpose, we necessarily focus our attention on the literal text of the statute in question and...