Bessey v. State
239 S.W.3d 809
Tex. Crim. App.
2007
Check Treatment

David John BESSEY, Appellant v. The STATE of Texas.

No. PD-1401-06.

Court of Criminal Appeals of Texas.

Nov. 14, 2007.

239 S.W.3d 809

could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive?31 If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.32

We therefore hold that the trial court did not abuse its discretion in admitting Nailah‘s prior consistent statements to Bishop Iglehart and Yvonne. The judgment of the court of appeals is reversed, and the case remanded for the court of appeals to address appellant‘s remaining claims.

Appellant argues, in his Reply Brief that the “temporal requirement” of the rule also was not met because Nailah had already repeated her story to several people before she told the elders at the official church meeting and thus she had a motive to continue to repeat it for the sake of consistency. This is not the motive to fabricate that he ascribed to Nailah at trial. At trial, appellant expressly argued that Nailah fabricated the dates of their sexual encounters to wreak revenge for her recently dismissed civil lawsuit. The civil lawsuit was, of course, dismissed years after she had made her out-of-court statements to either Bishop Iglehart during the elders’ meeting or to Yvonne during her freshman year in high school.

Tim Cone, Gilmer, for Appellant.

Robert L. Cole, Jr., Assistant District Atty., Gilmer, Jeffrey L. Van Horn, State‘s Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The issue in this case is whether an appellant may raise the issue of improper admonishments regarding a plea of guilty without having made an objection or raising the issue at trial. Appellant was charged by indictment with three counts of sexual assault and one count of injury to a child.1 Appellant initially pled not guilty, but changed his plea to guilty after the jury had been sworn. The trial court admonished Appellant regarding the punishment range for the offenses and the effects a guilty plea might have on a non-citizen, but failed to fully admonish him regarding the consequences of his guilty plea. The jury found Appellant guilty on all counts, and Appellant appealed. The court of appeals affirmed the conviction, holding that the trial court‘s incomplete admonishment could not be raised for the first time on appeal. . We granted review to clarify this area of the law. We affirm the decision, but not the reasoning of the court of appeals.

FACTS

Appellant was charged with three counts of aggravated sexual assault of a child, a first-degree felony, and one count of injury to a child, a second-degree felony. Prior to accepting Appellant‘s pleas, the trial court admonished Appellant as to the range of punishment for his charges and the effects a guilty plea might have on a non-citizen. Appellant chose to remain silent during the arraignment proceedings, so the trial court entered not guilty pleas on Appellant‘s behalf. After the jury was sworn and empaneled, Appellant changed his plea to guilty for each of the counts. The trial court accepted Appellant‘s pleas, and the issue of punishment was submitted to the jury. The jury found appellant guilty on all counts and sentenced him to imprisonment for life and a $10,000 fine for each count of sexual assault and to twenty years’ imprisonment and a $10,000 fine for the count of injury to a child. The trial judge ordered that the sentences be served consecutively.

Appellant raised several points of error on appeal, including that the trial court failed to properly admonish him regarding the consequences of his plea, specifically the sex-offender registration requirement. The court of appeals acknowledged that the trial court had failed to fully comply with the requirements of Texas Code of Criminal Procedure Article 26.13,2 but held that such error must be preserved in the trial court by raising an objection or in a motion for new trial. The court of appeals overruled the point of error and affirmed the conviction, holding that Appellant had not preserved the issue for appellate review. . Appellant filed a petition for discretionary review. We granted review to determine whether an appellant may raise the issue of improper admonishments regarding a plea of guilty for the first time on appeal, without objecting or raising the issue at trial.

ANALYSIS

The court of appeals noted the trial court‘s error in failing to properly admonish Appellant, but held that failure to comply with Article 26.13 may not be raised for the first time on appeal. Article 26.13 requires that, prior to accepting a plea of guilty or nolo contendere, the court shall admonish the defendant of five things: (1) the range of punishment attached to the offense, (2) certain aspects of the law on plea-bargain agreements, (3) the effect that a plea-bargain agreement may have on the right of appeal, (4) the effect that a conviction might have on a non-citizen, and (5) the fact that a defendant will have to register as a sex offender if convicted of, or placed on deferred adjudication for, any of the sexual offenses listed in Chapter 62 of the Code of Criminal Procedure.

Appellant asserts that a defendant need not object at trial to preserve admonishment error. The State responds that the court of appeals correctly held that Appellant did not preserve the issue for appeal. The State further argues that the duty to register as a sex offender is a collateral consequence of Appellant‘s guilty pleas, and the trial court‘s failure did not render his pleas involuntary.3 Finally, the State argues that any error was harmless.

PRESERVATION OF ERROR

Errors may be raised for the first time on appeal if the complaint is that the trial court disregarded an absolute or systemic requirement or that the appellant was denied a waivable-only right that he did not waive. , . A defendant‘s right to be properly admonished is a waivable-only right. This is because the court has a statutory duty to properly admonish defendants as described by Article 26.13. “A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It cannot be a law that is forfeited by a party‘s inaction.” . Thus, a court‘s failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on appeal unless it is expressly waived.

The court of appeals based its holding on a failure to admonish case decided by the Texarkana Court of Appeals, . In Rhea, the appellant appealed his conviction for sexual assault, contending that the trial court had committed reversible error by failing to admonish him as required by 26.13 and specifically by failing to admonish him regarding the sex-offender registration requirement. . The Rhea court held that complaints about failure to admonish must be preserved in accordance with Texas Rule of Appellate Procedure 33.1. However, as we explained above, a defendant‘s right to be properly admonished need not be raised at trial to be preserved. “[W]e think it far more consistent with the overall structure of our adversary system that litigants not be required by Rule [33.1(a)]4 to do more for

the preservation of their complaints on appeal than they must do at trial to secure benefits of the law to which they are entitled.” ; see also (quoting this passage from Marin). The defendant need make no request at trial for the implementation of his right to proper admonition. Thus, he need not act at trial to preserve his complaint of a failure to admonish. Appellant is entitled to assert his claim on appeal regarding the trial court‘s failure to properly admonish him, despite not having made the claim in the trial court.

HARMLESS ERROR

A trial court‘s failure to properly admonish a defendant is subject to the harm analysis 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.”5 In applying Rule 44.2(b) to the failure to give an admonition, the court considers the record as a whole to determine whether, in this particular case, the error affected substantial rights. . If it did, it is not harmless error. In Anderson, we considered the strength of the evidence of guilt; whether the record indicates that the appellant was aware of the requirement; and whether the omitted admonition actually applied to the appellant‘s situation. .

In the case before us, the State presented substantial evidence of guilt. The victim testified as to the events, and the State introduced a video of Appellant engaging in the charged acts. The State also presented 404(b) evidence regarding other children who had allegedly been abused by Appellant. Those children testified, and the State produced video evidence of Appellant engaging in sexual conduct with those children. The defense presented no evidence that Appellant was not guilty, but tried to mitigate the damaging effect of the evidence. The defense counsel said in his opening statements at punishment that the evidence would show that Appellant was guilty, but that he hoped the jury would take into account the possibility of rehabilitation. Although there was significant evidence of guilt, that alone does not support a finding that Appellant‘s decision to plead guilty would not have changed if he had been properly admonished.

We also searched the record for any indication that Appellant was aware of the requirement, despite the trial court‘s failure to properly admonish him. If an appellant was already aware of the registration requirement, the effect of the court‘s error on his decision to plead guilty would be much less. However, here there is no indication in the record that Appellant was aware of the registration requirement. And, as we stated in , a silent record supports the inference that the appellant did not know the consequences of his plea. Although there is nothing to suggest that Appellant knew about the registration requirement, he has not claimed at any point in his appeal that his guilty plea was involuntary due to the is material to this case. See .

court‘s failure to admonish him that he would be required to register as a sex offender.

Finally, we looked at the record to determine whether the omitted admonition actually applied to Appellant‘s situation. In some failure to admonish cases, the omitted admonition does not affect the appellant. For example, when a court has failed to admonish a defendant on the immigration consequences of a conviction, we have held that the error was harmless where the record showed that the appellant was a U.S. citizen because that particular admonition does not apply to that appellant. . In this case, the omitted admonition regarding the sex-offender registration requirement does apply to Appellant in that he was charged with an offense for which a person is subject to registration. However, based on the cumulation of the sentences in this case, the omitted admonition regarding the sex-offender registration requirement does not apply to or affect Appellant. Because the jury sentenced Appellant to the maximum sentence for each offense and the judge ordered that the sentences be served consecutively, Appellant will not even be eligible for parole until he has served 100 years of his sentence. As a result, it appears that Appellant may never be released from prison and thus would not be subject to the sex-offender registration requirement as mandated by Article 26.13(a)(5). Therefore, Appellant was not harmed by the trial court‘s failure to inform him of the registration requirement.

Considering the record as a whole, we have fair assurance that no substantial right was affected by the trial court‘s error in failing to admonish Appellant regarding the sex-offender registration requirement. By the standard of Rule of Appellate Procedure 44.2(b), the error was harmless.6

CONCLUSION

On appeal, an appellant may raise the issue of improper admonishments regarding a plea of guilty without having made an objection or raising the issue at trial. However, such an error is subject to a harm analysis. After considering the record, we determine that no substantial right was affected by the trial court‘s error in failing to admonish this Appellant. By the standard of Rule of Appellate Procedure 44.2(b), the error was harmless. The judgment, but not the reasoning, of the court of appeals is affirmed.

JOHNSON, J., filed a concurring and dissenting opinion, in which WOMACK, J., joined.

I agree that an appellant may raise the issue of improper admonishments regarding a plea of guilty without having made an objection or raising the issue at trial.

The purpose of the admonition at issue here is to make sure that the defendant knows about the registration requirement. Only a defendant who already knew about the registration requirement, and thus would not need the admonition, would be in a position to object to the absence of the admonition. However, a person who did not already know about the registration requirement would not know that a required admonition had been erroneously omitted and would, therefore, not object to its absence. I therefore join the Court‘s opinion as to its discussion of preservation of error.

The court of appeals erred when it held that appellant had not preserved error as to the inadequate admonition. The proper response by this Court is to remand the cause to the court of appeals and let it consider, in the first instance, the next step in the process-analysis of the harm that may have resulted from the trial court‘s failure to properly admonish appellant. It may seem to some to be inefficient to remand when this Court can itself consider that issue, but the role of this Court is to review decisions of the next lower court. In such circumstances as these, there was no decision as to the issue of harm, thus no decision on that issue for this Court to review. For this reason, I respectfully dissent to the Court‘s failure to remand this cause to the court of appeals.

Notes

1
The indictment contained ten counts, six of which were abandoned by the State.
2
Subsequent references to “Article” or “Articles” refer to the Texas Code of Criminal Procedure.
3
We have previously addressed both of these arguments. Sex-offender registration is not a collateral consequence of a defendant‘s guilty plea, rather it is a direct, non-punitive consequence. . Additionally, failure to admonish an appellant as to the sex offender registration requirement does not render his plea involuntary. (citing ).
4
Marin discussed the predecessor to Rule 33.1(a), Rule 52(a). Rule 52(a) was rewritten and renumbered as 33.1(a) in 1997, but its requirements did not change in any way that
5
As the dissent correctly points out, our custom normally is to remand the case to the court of appeals for a harm analysis. However, because of the unique circumstances of the type of admonishment error, and the manner in which Appellant has brought the appeal, we feel that judicial economy directs us to proceed to perform our own harm analysis. See .
6
Effective September 2005, the 79th Legislature amended Article 26.13(h) which now states, “[t]he court must substantially comply with Subsection (a)(5). 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.” The legislature noted that the change in law applies only to pleas entered on or after the effective date of the Act, September 1, 2005. See Section 4.03 of Acts 2005, 79th Leg., ch 1008. Appellant‘s appeal is governed by the old statute, which stated that “[b]efore accepting a plea of guilty or nolo contendere from a defendant described by Subsection (a)(5), the court shall ascertain whether the attorney representing the defendant has advised the defendant regarding registration requirements under Chapter 62.” We do not address the proper harm analysis under the current 26.13(h) for a failure to admonish regarding sex-offender registration.
31
See (reviewing court looked to defense opening argument, to content of cross-examination, to trial court‘s repeated questioning of defense counsel concerning his purpose in cross-examination inquiries, to the fact that defense counsel declined to agree that he would not argue “fabrication” during his closing argument, and to the fact that defense counsel did argue fabrication during his argument to hold that trial court properly admitted prior consistent statement; “While the government was the first to broach the issue of the plea agreement, we agree with the district court that [defendant‘s] use of the plea agreement was to impliedly charge that it motivated [witness] to fabricate his trial testimony.“).
32
(upholding trial judge‘s admission of prior consistent statement because “it is far from clear that the trial court abused its discretion“); see also (when impeachment questioning is subject to either a suggestion of fabrication or to an attack upon general credibility, trial judge does not abuse his discretion in ruling on the admissibility of a prior consistent statement).