Wilson v. State, No. 10-08-00130-CR (Tex. App. 12/17/2008)
| Decision Date | 17 December 2008 |
| Docket Number | No. 10-08-00130-CR.,10-08-00130-CR. |
| Parties | MARCUS ANTHONY WILSON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 272nd District Court, Brazos County, Texas, Trial Court No. 07-00049-CRF-272.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA .*
Wilson appeals his convictions for sexual assault and for burglary of a habitation with intent to commit sexual assault. See TEX. PENAL CODE ANN. § 22.011(a), (f) (Vernon Supp. 2008), § 30.02(a), (d) (Vernon 2003). We affirm.
Plea.
In Wilson's first two issues, he complains concerning his plea of nolo contendere. "[T]he legal effect of a plea of nolo contendere is the same as a plea of guilty insofar as the criminal prosecution is concerned." Young v. State, 8 S.W.3d 656, 664 (Tex. Crim. App. 2000) (quoting Chavarria v. State, 425 S.W.2d 822, 823 (Tex. Crim. App. 1968)); accord Aguillar v. State, 170 Tex. Crim. 189, 190, 339 S.W.2d 898, 898 (1960).
Statutory Admonishments. In Wilson's first issue, he complains that the trial court failed to admonish Wilson pursuant to Texas Code of Criminal Procedure Article 26.13. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2008). Article 26.13 requires, in relevant part:
Prior to accepting a . . . plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
. . .
(4) the fact that if the defendant is not a citizen of the United States, a plea of . . . 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; [and]
(5) the fact that the defendant will be required to meet the registration requirements of Chapter 62, if the defendant is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter . .
. . .
TEX. CODE CRIM. PROC. ANN. art. 26.13(a); see TEX. CODE CRIM. PROC. ANN. arts. 62.001-62.405 (Vernon 2006 & Supp. 2008).
Wilson argues that the trial court failed to admonish him on the range of punishment, and on the deportation, exclusion, and naturalization and sex-offender—registration consequences of Wilson's plea.
As to Article 26.13(a)(5) and the admonishment on sex-offender registration requirements, Wilson's complaint is not cognizable. Code of Criminal Procedure Article 26.13(h) provides, "The failure of the court to comply with Subsection (a)(5) is not a ground for the defendant to set aside the conviction, sentence, or plea." TEX. CODE CRIM. PROC. ANN. art. 26.13(h). Article 26.13(h) means what it says. See James v. State, 258 S.W.3d 315, 317-318 (Tex. App.-Austin July 2, 2008, no pet.); Standifer v. State, Nos. 05-06-00078-CR & 05-06-00079-CR, 2006 Tex. App. LEXIS 9358, at *7 (Tex. App.-Dallas Oct. 30, 2006, no pet.) (not designated for publication).
As to the sex-offender registration consequences, Wilson thus does not show error. Otherwise, the State concedes that the trial court erred.1 We assume without deciding that the trial court failed to admonish Wilson pursuant to Code of Criminal Procedure Article 26.13(a), Subsections 1 and 4, and thus erred.
"When there is insufficient admonition, whether by total failure to admonish or an admonition that is not in substantial compliance, the violation of Article 26.13 comes within the" harmless-error "standard of Rule of Appellate Procedure 44.2(b): `Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.'" Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006) (quoting TEX. R. APP. P. 44.2(b)) (alteration in Anderson); accord Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999); see TEX. CODE CRIM. PROC. ANN. art. 26.13; TEX. R. APP. P. 44.2(b); Bessey v. State, 239 S.W.3d 809, 813-14 (Tex. Crim. App. 2007). "[T]he critical question is, `[C]onsidering the record as a whole, do we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him?'" Vannortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007) (quoting Anderson at 919) (1st alteration added).
As to Article 26.13(a)(1) and the admonishment on the range of punishment, Wilson concedes that any error was harmless. An appellant suffers no harm from the trial court's failure to admonish on the range of punishment where the appellant heard the venire panel examined on the punishment range. Gamble v. State, 199 S.W.2d 619, 622 (Tex. App.-Waco 2006, order), disp. on merits, No. 10-05-00044-CR, 2007 Tex. App. LEXIS 5876, at *2-3 (Tex. App.-Waco July 25, 2007, pet. ref'd) () (mem. op.); Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.-Waco 1998, pet. ref'd); Slaughter v. State, No. 2-07-050-CR, 2007 Tex. App. LEXIS 8452, at *16 (Tex. App.-Fort Worth Oct. 25, 2007, no pet.) (not designated for publication) (mem. op.); cf. Aguirre-Mata, 125 S.W.3d 473, 476-77 (Tex. Crim. App. 2003) (). Here, for example, the State examined the venire panel in Wilson's presence as follows:
The punishment range in this case is: It's a 1st degree felony, it's a huge punishment range.
The way it reads in the Penal Code, if a person is found guilty of a 1st degree felony, the punishment range is not less than 5 years or more than 99 years or life in Institutional Division of the Texas Department of Criminal Justice.
It's a huge range, 5 to 99. And also up to a $10,000 fine. And then you can extend the range further.
Probation is a possibility if the person is eligible.
(3 R.R. at 34); see TEX. PENAL CODE ANN. § 12.32 (Vernon 2003).
As to Article 26.13(a)(4) and the admonishment on the deportation, admission, and naturalization consequences of Wilson's plea, the State argues that the trial court's failure to admonish Wilson was harmless. "[W]hen the record shows a defendant to be a United States citizen, the trial court's failure to admonish him on the immigration consequences of his guilty plea is harmless error"; "such a defendant is not subject to deportation."Vannortrick, 227 S.W.3d at 709; see generally 8 U.S.C.S. §§ 1101-1537 (1997-2007 & Supp. 2008). Where there is evidence that the defendant was born in the United States, and evidence that the defendant has lived in the United States "a long time," the record does affirmatively show that the defendant is a citizen of the United States. Gamble, 2007 Tex. App. LEXIS 5876, at *2-3. The State points to evidence that Wilson's "mother testified that [he] was born in Bryan, Texas and had lived in the Brazos Valley his entire life." (Br. at 30 (citing 5 R.R. 152).) Wilson thus suffered no harm from the trial court's failure to admonish him on the immigration and naturalization consequences of the plea.
CONCLUSION. Wilson does not show harmful error from failure by the trial court to give Wilson statutory admonishments. We overrule Wilson's first issue.
Due Process.
In Wilson's second issue, he complains under due process.2 Wilson argues primarily under Boykin v. Alabama. See Boykin v. Alabama, 395 U.S. 238, 243 (1969).
The Fourteenth-Amendment Due-Process Clause provides,
No State shall . . . deprive any person of life, liberty, or property, without due process of law . . .
U.S. CONST. amend. XIV, § 1. "When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees." Unites States v. Ruiz, 536 U.S. 622, 628 (2002) (citing Boykin, 395 U.S. at 243). Boykin holds, "It [i]s error, plain on the face of the record, for the trial judge to accept [a] petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." Boykin at 242. "Given the seriousness of the matter, the" Due-Process Clause "insists, among other things, that the defendant enter a guilty plea that is `voluntary' and that the defendant must make related waivers `knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.'" Ruiz, 536 U.S. at 629 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)) (alterations in Ruiz); see Parke v. Raley, 506 U.S. 20, 28-29 (1992); Marshall v. Lonberger, 459 U.S. 422 (1983); Bordenkircher v. Hayes, 434 U.S. 357 (1978); Anderson, 182 S.W.2d at 917-18. "The standard . . . remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Raley, 506 U.S. at 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
The due-process "constitutional standard does not require a court to admonish a guilty-pleading defendant `about every possible consequence of his plea, direct or collateral, only about those direct consequences that are punitive in nature.'" Anderson, 182 S.W.3d at 918 (quoting Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)). "Generally, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences." State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (citing Brady v. United States, 397 U.S. 742, 755 (1970)). "A consequence has been defined as `direct' where it is `definite, immediate, and largely automatic.'" Id. at 888 n.5 (quoting United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir. 1997)). "It will not be rendered involuntary by lack of knowledge as to some collateral consequence." Jimenez, 987 S.W.2d at 888 (citing, e.g., United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985)). "A consequence has been defined as `collateral' where `it lies within the discretion of the court whether to impose it,' or where `its...
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