Carranza v. StateCarranza v. State
- Reporters:
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- Before:
- Price
Lead Opinion
OPINION
PRICE, J.,delivered the opinion of the Court, in which
McCORMICK, P. J., and OVERSTREET, MEYERS, HOLLAND and WOMACK, JJ., joined.Following a plea of guilty to the offense of involuntary manslaughter under former section 19.05 of the Texas Penal Code, a jury assessed Appellant’s punishment at ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine. A deadly
Relevant Facts
Appellant testified that he was born in Monterey, Mexico and came to the United States in 1990. ■ He also testified that he had a “green card” but that it had expired. The record reflects that Appellant was not a citizen of the United States at the time of his plea. The State acknowledges that, in the instant case, although the trial judge did admonish Appellant as to the applicable range of punishment, he did not admonish Appellant either orally or in writing that he could be deported if he pled guilty.
The Court of Appeals’ Decision
Relying on our opinions in Morales v. State, 872 S.W.2d 753 (Tex.Crim.App.1994), and Ex parte Cervantes, 762 S.W.2d 577 (Tex.Crim.App.1988), the Dallas Court of Appeals reasoned that since the trial court wholly failed to give Appellant the statutorily required admonishment on citizenship, it had not substantially complied with art. 26.13. Carranza, slip op. at 5, 1995 WL 379512, at *2. It held that the complete failure to admonish required reversal without a harm analysis. Id. at 3, 1995 WL 379512, at *1.
Arguments of the Parties
The State argues that by admonishing Appellant on the range of punishment for the offense, the trial court substantially complied with art. 26.13.1 It urges that once it shows substantial compliance, the burden then shifts to Appellant to show harm from the failure to admonish him on the possibility of deportation. The State insists that Appellant has not met that burden, because he has not shown that he was harmed or misled in any way by the Court’s admonishments or lack thereof, or that he was not aware of the consequences of his plea. Furthermore, the State urges that since Appellant was in the United States illegally at the time of trial and therefore already subject to the possibility of deportation, he could not possibly have been harmed by the trial court’s failure to admonish him.
In support of its position, the State contends that this case is analogous to those cases in which courts have held that a failure to admonish a defendant regarding deportation is not reversible error when the record shows that the defendant is a United States citizen. See Cain v. State, 947 S.W.2d 262, 264-264 (Tex.Crim.App.1997); Matchett v. State, 941 S.W.2d 922, 927 (Tex.Crim.App. 1996), cert. denied, — U.S.-, 117 S.Ct. 2487, 138 L.Ed.2d 994 (1997);2 Dixon v. State, 891 S.W.2d 783, 785 (Tex.App. — Austin 1995, no pet.). It argues that because Appellant was automatically subject to deportation
Appellant counters that the literal text of art. 26.13(a)(4) and (c) require that his guilty plea be set aside because there was no substantial compliance with the statute. He likens the relevant facts of this case to those in Morales, where this court said: “The trial judge wholly failed to admonish Appellant as required under art. 26.13(a)(4). Therefore a prima facie case was not made and there is no requirement Appellant show harm.” Morales, 872 S.W.2d at 755. See also Cervantes, 762 S.W.2d at 578. Appellant bolsters this argument with reliance on language in our recent opinions of Matchett and Cain. In Matchett, a plurality of this Court reiterated the Morales court’s interpretation of the meaning of the term “substantially complied” as used in art. 26.13 and found that there cannot be substantial compliance when there is no compliance. Matchett, 941 S.W.2d at 927. We also found that the language used in art. 26.13(e) did not preclude the application of a Rule 81(b)(2) harm analysis to the error under review. Id. at 927-928. In regard to meaningful harm analysis, we said:
Rather than foreclose the application of a harm analysis to whole categories of error on grounds that it is theoretically impossible to conduct a meaningful harm analysis, we believe it wiser to allow for a case by case determination of whether in fact a meaningful harm analysis is possible. The presumption that all errors are harmful along with the accompanying burden to rebut the presumption are sufficient to safeguard rights of a truly unreviewable nature. Where the effects of a particular error are not discemable with reasonable certainty, the presumption of harm will, in fact, be unrebutted.
Id. at 928-929 (footnote and citation omitted). We went on to explain in a footnote that if Appellant’s status were unknown or if he were in fact deportable, it would be impossible to determine the effects of the trial court’s error and presumption of harm would be almost irrebuttable. Id. at 929 n. 9.
We reasoned that because the defendant Matchett was a citizen of the United States, and therefore not subject to deportation, the deportation admonishment as applied to him was irrelevant. Id. at 929-930. Therefore we concluded that the failure to admonish him regarding art. 26.13(a)(4) was harmless beyond a reasonable doubt. Id. at 930. But, we also stated that where the record is silent regarding the citizenship of a defendant then the legislature’s intent must be followed and that failure to fully admonish a defendant regarding possible immigration consequences constitutes reversible error. Id.
Appellant argues that his particular situation is precisely the type anticipated by the aforementioned language in Matchett. He further argues that our more recent opinion in Cain also anticipated precisely his type of situation when we said, “Of course, where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless beyond reasonable doubt under Rule 81(b)(2).” Cain, 947 S.W.2d at 264. Here, Appellant urges that because the evidence that he is an illegal alien is undisputed, the error involved “defies any meaningful harmless error analysis.”
We recognize that Texas cases are somewhat confusing on the issue of a trial court’s failure to give art. 26.13 admonishments. Recently, in Cain we formally rejected the “substantial compliance through immateriality doctrine” which was being used by some appellate courts to affirm convictions where the record established that the defendant was a U.S. citizen. Id. at 264. We explained that to claim that a court is in substantial compliance with 26.13, even though a particular admonishment was never given, would be a legal fiction. Id. But we also explained that the absence of substantial compliance does not end the inquiry. Id. We adopted the reasoning and holding of the plurality opinion in Matchett and concluded that a failure to admonish under art. 26.13(a)(4) was subject to a Rule 81(b)(2) harmless error analysis and that the error was harmless beyond a reasonable doubt if the record con
Applying the aforementioned principles to the present case then, we find that the trial court did not substantially comply with art. 26.13(a)(4) when it failed to admonish Appellant either orally or in writing regarding the deportation consequences of his plea. We must next determine whether or not this error was of constitutional or non-constitutional magnitude, and from there, whether or not it was harmless. Rule of Appellate Procedure 44.2, which supercedes and replaces 81(b)(2), now governs how harm is assessed after error is found in criminal cases.
Harm Analysis
A careful reading of Rule 44.2 and our relevant case law reveals several types of error that can occur in criminal cases: (l)constitutional error that is not subject to harmless error analysis (i.e., structural error); 3 (2) constitutional error that is harmful;4 (3) constitutional error that is harmless;5 (4) non-constitutional error that is harmful (i.e., affects a substantial right);6 (5) non-constitutional error that is harmless (i.e., does not affect a substantial right).7
Therefore, when conducting a rule 44.2 harm analysis our first task is to determine whether the failure to substantially comply under 26.13 is an error of constitutional magnitude or an error which affects a substantial right. In McCarthy v. United States, 394 U.S. 459, 465-466, 89 S.Ct. 1166, 1170-1171, 22 L.Ed.2d 418 (1969), the Supreme Court considered the purpose of plea admonishments:
First, although the procedure embodied in [admonishment] has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary. Second, the rule is intended to produce a complete record at the time the plea is entered of the factors relevant to the vol-untariness determination. Thus the more meticulously the rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post conviction attacks on the constitutional validity of guilty pleas ... A defendant who enters a guilty plea simultaneously waives several constitutional rights, including his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant’s guilty plea is not equally knowing and voluntary, it has been obtained in violation of the due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts, (footnotes omitted)
Likewise, this Court has stated on numerous occasions that “the purpose and function of Article 26.13 are to ensure that only a constitutionally valid plea is entered and accepted by. the trial court.” Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.1997) (citing Meyers v. State, 623 S.W.2d 397 (Tex.Crim.App.1981)); see also Ex parte Evans, 690 S.W.2d 274, 276 (Tex.Crim.App.1985); Ex parte Williams, 637 S.W.2d 943, 954-955 (Tex.Crim.App.1982); Ricondo v. State, 634 5.W.2d 837, 845 (Tex.Crim.App.1981). So, although the admonishment itself is not constitutionally required, it aids the trial court in making the determination that the relinquishment of rights, constitutional or otherwise, by the defendant is both knowing and voluntary. Accordingly, we conclude that the failure of the trial court to admonish Appellant regarding his deportation status was non-constitutional error.
Rule 44.2(b) is modeled after the federal harmless error rule 52(a). In fact, the notes and comments to Rule 44.2 state: “Paragraph 44.2(b) is new and is taken from
Based on this history as well as the aforementioned similarities between the Texas and federal harmless error rules, the State argues that we should adopt a combination of the Fifth Circuit’s and the District of Columbia Circuit’s standards of review for analyzing harm regarding failure to give admonishments. The Fifth Circuit has taken the position that
Article 26.13(c) provides that in admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Given the fact that even substantial compliance can sometimes result in a reversal if the defendant can affirmatively show that he was harmed or misled, it would be illogical to place a greater burden of proof upon a defendant when there has been no substantial
In the present ease, the State argues that any error was harmless or must be disregarded because “Appellant was already subject to deportation due to his illegal immigrant status.... ” Appellant responds that “significant differences exist between an alien who does not possess valid immigration documents and an alien who has.been convicted of a criminal offense_” We agree. According to the provisions of
Notes
. The relevant provisions of art. 26.13 are as follows:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to offense;
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(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or 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.
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(b) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.
. The State argues that although Matchett and Cain were both decided in terms of former Rule 81(b)(2), any harm analysis conducted in this case should be done under the new Rules of Appellate procedure, which went into effect on September 1, 1997. See
. See Cain, 947 S.W.2d at 264.
. TexJR.App. P. 44.2(a).
.
. TexR.App. P. 44.2(b).
. TejcR.Apf. P. 44.2(b).
.
Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
. See Nguyen v. INS, 117 F.3d 206 (5th Cir.1997); Hemandez-Rodriguez v. Pasquarell, 118 F.3d 1034 (5th Cir.1997); and Okoro v. INS, 125 F.3d 920 (5th Cir.1997).
. Furthermore,
Dissenting Opinion
delivered the dissenting opinion.
In Boykin v. State, 818 S.W.2d 782 (Tex. Crim.App.1991), we held;
Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute [citations omitted].... There is, of course, a legitimate exception to this plain meaning rule; where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally. [Emphasis added.]
Boykin, supra, at 785.
Texas Code of Criminal Procedure Article 26.13(a)(4) provides:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contende-re for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.
We have held that failure to give the Article 26.13(a)(4) admonishment is harmless error where the record shows the defendant is a United States citizen. Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997); Matchett v. State, 941 S.W.2d 922, 926-930 (Tex.Crim.App.1996) (plurality op.). Our holding in Cain rests upon the fact that a United States citizen cannot be deported for any reason, including for conviction of a criminal offense. Accordingly, failure to give a defendant who is a U.S. citizen the Article 26.13(a)(4) admonishment at the time of pleading guilty or nolo contendere is harmless error per se under Texas Rule of Appellate Procedure 44.2(b), or its predecessor, Rule 81(b)(2).
Though the majority in Cain did not expressly utilize our holding in Boykin to ascertain legislative intent underlying Article 26.13(a)(4), the result would have been the same had it done so. See, Cain, supra, at 266-267 (Mansfield, J. concurring). Clearly, it would have been an absurd result — never intended by the Legislature — to hold that a defendant who is a United States citizen and therefore not subject to deportation should have his conviction reversed on appeal because he was not admonished as to the possibility of totally inapplicable deportation consequences as a result of his plea of guilty or nolo contendere.
Turning to the instant case, the record establishes that appellant, at the time he pled guilty, was not admonished as to the possible consequences of his plea under federal immigration law as required by Article 26.13(a)(4). The record also reflects appellant was not a citizen of the United States. Furthermore, the record shows, based on his own testimony, appellant was residing in this country illegally, i.e., he was an illegal alien.
Under applicable federal law, an illegal alien is subject to deportation at any time. Therefore, he could not have been harmed by the trial court’s failure to admonish him regarding deportation. See
The majority notes that a person who is deported as an illegal alien lacking proper documents is treated, for purposes of potential future legal reentry into the United States, differently than a noncitizen (legal or illegal) who is deported due to conviction of a crime of violence or aggravated felony under federal immigration law. See
With these comments, I respectfully dissent.
. Left open is the question of whether a nonciti-zen convicted upon a plea of guilty or nolo contendere may in a post-conviction application for habeas relief, successfully claim ineffective assistance of counsel if counsel failed to inform him what the effect of conviction for that offense may be as to deportation and legal reentry under federal immigration law.
Concurrence Opinion
delivered the concurring opinion.
The majority correctly affirms the judgment of the Court of Appeals. However, it does so only after performing an erroneous harm analysis. Consequently, I cannot join the majority opinion.
The majority correctly finds the trial judge did not substantially comply with Tex. Code Crim. Proe. Ann. art.26.13(a)(4). Ante, at 656. Under the plain language of
In Matchett v. State, 941 S.W.2d 922 (Tex.Cr.App.l996)(plurality opinion), and Cain v. State, 947 S.W.2d 262 (Tex.Cr.App.1997), this Court erroneously held the error resulting from the failure to comply with art. 26.13(a)(4) was subject to a harm analysis.1 Those opinions are erroneous because the statute provides its own species of harm analysis depending on whether there has been no compliance or substantial compliance with the statute. Consequently,
In an attempt to follow Matchett and Cain, the majority purports to apply a harm analysis under
For these reasons, I join only the judgment of the Court.
. As I have previously stated, Matchett and Cain were wrongly decided because the true issue in each case was one of statutory construction, not the propriety of a harm analysis. Matchett, 941 S.W.2d at 941 (Baird, J., concurring); and, Cain, 947 S.W.2d at 265 (BAIRD and Price, J.J., concurring).
. All emphasis is supplied unless otherwise indicated.