Criselda Ann Sotelo AKA Chris Ann Sotelo v. State
07-14-00165-CR
| Tex. App. | Dec 22, 2015Background
- Appellant Criselda Ann Sotelo pled guilty in open court to possession with intent to deliver methamphetamine (4–200 grams) and received 15 years' confinement.
- Trial court's written judgment assessed $140 restitution, but restitution was not orally pronounced at sentencing.
- Appellant claimed the court failed to admonish her about possible deportation as required by Tex. Code Crim. Proc. art. 26.13(a)(4).
- The pre-sentence investigation (PSI) report—reviewed by judge, State, and defense counsel—indicated Appellant was a U.S. citizen; counsel discussed the PSI with Appellant at sentencing.
- Appellant did not object at sentencing or in a motion for new trial to the lack of a deportation admonishment.
- The State conceded restitution should be deleted from the judgment; it also argued record evidence supported Appellant’s citizenship and any admonishment error, if any, was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to give deportation admonishment under art. 26.13(a)(4) | Sotelo: trial court erred by not admonishing her about possible deportation | State: PSI shows probable U.S. citizenship; any failure was harmless | Error was statutory; record supports inference of citizenship and harmlessness; issue overruled |
| Inclusion of restitution in written judgment without oral pronouncement | Sotelo: restitution in judgment is improper because not orally pronounced | State: concedes restitution should be deleted | Court sustains issue and reforms judgment to delete restitution |
Key Cases Cited
- Fakeye v. State, 227 S.W.3d 714 (Tex. Crim. App. 2007) (statutory admonishment error reviewed for harm to substantial rights)
- Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006) (standard for harmlessness inquiry when admonishment omitted)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (restitution is a form of punishment)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (restitution characterized as punishment requiring proper pronouncement)
- Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) (oral pronouncement controls inclusion of restitution in written judgment)
- Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) (when oral sentence and written judgment conflict, oral pronouncement controls)