Ruffin v State

• Decision Date: 09 September 1999
• Citation: 3 S.W.3d 140
• Parties: <!--3 S.W.3d 140 (Tex.App.-Houston 1999) CURTIS LEVON RUFFIN, Appellant V. THE STATE OF TEXAS, Appellee NO. 14-97-00546-CR In The
• Court: Texas Court of Appeals

Page 140

3 S.W.3d 140 (Tex.App.-Houston [14th Dist.] 1999)

CURTIS LEVON RUFFIN, Appellant

V.

THE STATE OF TEXAS, Appellee

NO. 14-97-00546-CR

In The

Fourteenth Court of Appeals

September 9, 1999.

On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 96CR0922

[Copyrighted Material Omitted]

Charles F. Baird, Justice

Panel consists of Justices Hudson, Fowler, and Baird.^*

Affirmed

O P I N I O N

Appellant was charged by indictment with the offense of sexual assault. He pled guilty to the charged offense and the trial court assessed punishment at ten years confinement in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six points of error. We affirm.

I. Ineffective Assistance of Trial Counsel

In his first point of error, appellant contends trial counsel was ineffective in failing to inform appellant that as a consequence of his plea, he would be required to register as a sex offender.¹ Appellant argues his guilty plea entered on April 7, 1997, was involuntary because trial counsel "failed to properly advise him, on the record either orally or in writing, that as a direct and irreversible consequence of his plea of guilty to sexual assault, attached the requirement that he abide by the onerous guidelines of Registered Sex Offender statute." Appellant concedes that at the sentencing hearing on May 6, 1997, a written document entitled "Sexual Offender Notification and Certification," which explains the reporting requirements, was signed by the trial court and appellant.

The Sixth Amendment guarantee of reasonably effective assistance of counsel applies at the time a defendant enters a plea to the charging instrument. See McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct 1441, 1448-49, 25 L.Ed2d 763 (1970). When a defendant enters a plea of guilty or nolo contendere upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). The Sixth Amendment's guarantee does not extend to collateral aspects of the prosecution. See Morrow, 952 S.W.2d at 536 (citing Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992)). In other words, counsel is required by the Federal Constitution to advise a defendant of the direct consequences but not the collateral consequences of the plea. See id. at 537 (citing United States v. Campbell, 778 F.2d 764 (11th Cir. 1985)).² The consequences were distinguished in Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973): "The distinction between direct and collateral consequences of a plea . . . turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." See also II LAFAVE, CRIMINAL PROCEDURE 20.4(d).³ The defendant bears the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Riascos v. State, 792 S.W.2d 754,758 (Tex. App.--Houston [14th Dist] 1990, pet. ref'd). A claim of ineffective assistance of counsel mustbe determined upon the particular facts and circumstances of each individual case. See Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App.--San Antonio 1991, pet. ref'd). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Jimenez, 804 S.W.2d at 338.

We now consider whether the requirement to register as a sex offender is a direct or collateral consequence of a plea. The Sexual Offender Registration Program requires a person convicted of an enumerated offense to register with local law enforcement authority in any municipality in which the person expects to reside for longer than seven days. See TEX. CODE CRIM. PROC. ANN. art. 62.02(a) (Vernon Supp.1999). In the instant case, appellant will be required to so register when he is discharged or paroled. See id. at art. 62.02(b)(4). Failure to comply with the requirements of this chapter constitutes a state jail felony. See id. at art. 62.10(b).

Under the present statutory scheme, appellant is not required to register until some unknown date in the future, which is contingent upon his release from confinement in the Texas Department of Criminal Justice--Institutional Division. Further, there is no additional penalty or punishment for appellant related to the registration requirement unless he fails to comply with the statute. We find that these two factors do not represent "a definite, immediate and largely automatic effect" on appellant's range of punishment. See Cuthrell, 475 F.2d at 1366. Indeed, they have no impact on the range of punishment for the instant offense and represent only the possibility of punishment should appellant fail to comply with the terms of the program upon his release from confinement. Therefore, we hold the requirement to register as a sex offender is not a direct consequence of a plea of guilty to the offense of sexual assault. This position is consistent with In re B.G.M., 929 S.W.2d 604, 606-07 (Tex. App.--Texarkana 1996, no writ), which holds the Sexual Offender Registration Program is "to be remedial rather than punitive and the consequences of registration to be collateral rather than direct."

For these reasons, we hold trial counsel was not required under the Sixth Amendment to the United States Constitution to inform appellant that as a consequence of his plea he would be required to register as a sex offender.⁴ We overrule appellant's first point of error.

II. Admonishments of the Trial Court

In an argument similar to that advanced in the previous point, appellant contends in points of error two, three, and four that his plea was involuntary because the trial court failed to admonish appellant that as a consequence of his plea of guilty to the offense of sexual assault he would be required to register as a sex offender.⁵ We will address these points of error together.

Article 26.13(a) of the Texas Code of Criminal Procedure mandates that before accepting a guilty plea, the trial court must admonish a defendant of: (1) the punishment range; (2) the fact that the State's sentencing recommendation is not binding on the court; (3) the limited right to appeal; and, (4) the possibility of deportation. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon 1989). The admonishments may be made either orally or in writing. See id. at art. 26.13(d). If the admonishments are made in writing, the defendant and his lawyer must file a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. See id.

The purpose and function of article 26.13 is to ensure only a constitutionally valid plea is entered by the defendant and accepted by the trial court. See Meyers v. State, 623 S.W.2d 397 (Tex. Crim. App. 1981); Ex parte Shuflin, 528 S.W.2d 610, 615 (Tex. Crim. App. 1975). To be constitutionally valid, a guilty plea must be knowing and voluntary. See Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The trial court's substantial compliance with article 26.13 establishes a prima facie case that the plea was valid. See art. 26.13(c); Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). The burden then shifts to the defendant to affirmatively show that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment, or lack thereof. See art. 26.13(c); Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985). To substantially comply with article 26.13, the trial court need not advise the defendant of everyaspect of law relevant to his case or sentencing, only the direct consequences of entering a guilty plea. See State v. Vasquez, 889 S.W.2d 588, 590 (Tex. App.--Houston [14th Dist.] 1994, no pet.). In this context, direct consequences of a plea are generally held to be those listed in the article 26.13 admonishments. See Vasquez, 889 S.W.2d at 590.

A guilty plea is voluntary if the defendant is advised of all direct consequences of the plea; his ignorance of a collateral consequence does not render the plea involuntary. See Brady, 397 U.S. at 755; Vasquez, 889 S.W.2d at 590. As we held in part I, supra, the requirement to register as a sex offender is not a direct consequence of a plea of guilty to the offense of sexual assault. Therefore, we hold the trial court's failure to admonish appellant of the registration requirement did not render his plea of guilty involuntary. We overrule the second, third, and fourth points of error.

III. Presentence Investigation Report

In points of error five and six, appellant contends the trial court erred in not ordering the preparation of a presentence investigation report (PSI) as required by article 42.12, section 9 of the Texas Code of Criminal Procedure.⁶ See TEX. CODE CRIM. PROC. ANN. art. 42.12, 9(a) (Vernon Supp. 1999). The State responds that a PSI was prepared and timely submitted but is not a part of the appellate record because neither the State nor appellant offered or objected to the report at the punishment hearing.

Appellate courts are permitted to supplement the appellate record if a relevant item as been omitted. See TEX. R. APP. P. 34.5(c). Accordingly, we directed the District Clerk of Galveston County to supplement the clerk's record in this case with the PSI, if one...