Richard Paul Kay v. State
12-16-00073-CR
| Tex. App. | Oct 25, 2017Background
- Richard Paul Kay was indicted for aggravated assault on a public servant and evading arrest or detention; an enhancement alleged a prior felony.
- Kay pleaded not guilty to aggravated assault and guilty to evading arrest or detention; a jury acquitted him of aggravated assault and convicted him of evading.
- The jury assessed punishment at 10 years’ imprisonment and a $5,000 fine.
- The trial court did not give the Article 26.13(a)(4) immigration admonition (neither orally nor in writing) before accepting Kay’s guilty plea to evading.
- Kay appealed, arguing (1) the court failed to properly admonish him regarding immigration consequences and (2) trial counsel was ineffective for not requesting or giving that admonition.
- The appellate court reviewed the admonition error for harm, inferred Kay was a U.S. citizen from the record, and rejected both issues, affirming the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court failed to admonish re: immigration consequences under Tex. Code Crim. Proc. art. 26.13(a)(4) | Kay: court erred by not giving mandatory immigration admonition before plea | State: any error harmless because record indicates Kay is a U.S. citizen | Error occurred but was harmless because record supports a reasonable inference Kay is a U.S. citizen; no reversal |
| Ineffective assistance for not requesting or giving Article 26.13(a)(4) admonition | Kay: counsel was deficient for failing to request or provide the admonition, prejudicing his plea decision | State: record does not show deficient performance or prejudice; counsel may have advised off the record; citizenship inference shows no harm | Claim rejected: record insufficient to show deficient performance or prejudice; ineffective-assistance claim denied |
Key Cases Cited
- VanNortrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007) (admonition failure is nonconstitutional error; harmlessness when record shows citizenship)
- Fakeye v. State, 227 S.W.3d 714 (Tex. Crim. App. 2007) (courts may draw reasonable inferences from the record about citizenship)
- Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006) (harmless-error review focuses on whether plea decision would have changed)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise a defendant about deportation risk from guilty plea under prevailing professional norms)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) (nonconstitutional error review under rule 44.2(b))
- Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) (ineffective-assistance claims are speculative on undeveloped records)
- Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) (reasonable-probability standard for prejudice under Strickland)