Lead Opinion
MAJORITY OPINION
Rаshun Tionchae Moore, appellant, entered a plea of “guilty” to the offenses of aggravated robbery and unlawful possession of a firearm by a felon. Tex. Penal Code Ann. §§ 29.03, 46.04 (Vernon 2003). The jury assessed appellant’s punishment át thirty years’ confinement in the Institu
Factual and PROCEDURAL History
Appellant was charged with aggravated robbery and unlawful possession of a firearm by a felon. Appellant pled guilty to both charges. He also pled true to the enhancement paragraph. Before accepting his plea, the trial court admonished the defendant:
THE COURT: Mr. Moore, you have just entered your plea of guilty to each count of the indictment. Before you did that, did you talk it over with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that by entering your plea of guilty, the jury is probably going to find you guilty in [sic] each count?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Are you being forced to do that?
THE DEFENDANT: No, sir.
THE COURT: You’re doing it freely and voluntarily, pleading guilty to each count of the indictment?
THE DEFENDANT: Yes, sir.
THE COURT: After consulting with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand what’s going on in these proceedings?
THE DEFENDANT: Yes, sir.
THE COURT: All right. It appears to me that the Defendant is competent and insisting in [sic] his рlea of guilty. The Court accepts his plea of guilty to Count One and Two.
The trial court accepted appellant’s plea. After a jury trial to assess punishment, appellant was sentenced to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.
Discussion
A. Did the trial court err in failing to admonish appellant on the applicable range of punishment upon entering his guilty plea?
In his first issue, appellant contends the trial court erred in failing to admonish him on the applicable range of punishment upon entering his guilty plea. Appellant argues this error requires reversal without a harm analysis. We disagree and conclude appellant suffered no harm.
1. Standard of Review
Before accepting a plea of guilty, the trial court must admonish a defendant of the range of punishment for the offense. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 1989). Failure to admonish a defendant about the range of punishment before accepting a guilty plea is subject to
2. Analysis
Prior to accepting his plea, the trial court admonished appellant, but failed to admonish him on the range of punishment.
In conducting a harm analysis, we must determine whether appellant’s substantial rights were violated. The record reflects appellant was aware of the range of punishment for the offenses of aggravated robbery and unlawful possession of a firearm by a felon. During voir dire, the trial court read the complete punishment range to the jury during opеning remarks. In addition to the State also disclosing the punishment range during voir dire, the State explained the punishment range to individual veniremen on three separate occasions. Furthermore, during appellant’s voir dire, his counsel explained the range of punishment for aggravated robbery as well as the range for enhancement of the charges. Since the record reflects the applicable range of punishment was discussed, appellant’s substantial rights were not violated by the trial court’s error. See Gardner v. State,
B. Did the trial court violate appellant’s due process rights when it failed to advise him of the possible deportation consequences of his guilty plea?
In issues two аnd three, appellant claims the trial court erred when it failed to advise him of the possible deportation consequences of his guilty plea in violation of his due process rights under the Texas Constitution and the United States Constitution. The admonishments in article 26.13(a) have not been held to be constitu
1. Standard of Review
A nonconstitutional violation of article 26.13 is subject to a harm analysis under Texas Rules оf Appellate Procedure 44.2(b). Aguirre-Mata,
2. Analysis
In looking at the first factor, the record is silent on the immigration consequences of appellant’s guilty plea. When the record is silent regarding the possible deportation consequences of a guilty plea, the court must infer appellant did not know the consequencеs of his plea regarding immigration. Id. at 710-11. Second, the strength or weakness of the evidence of guilt has little relevance when coupled with a finding that the appellant was not aware of the consequences of his plea. Id. at 713. Finally, we look to appellant’s citizenship. When 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. Id, at 709.
The record in this case reflects appellant is a United States citizen. During appellant’s trial testimony, he stated he was born in Houston, Texas and had lived in Houston his entire life. Furthermore, the final page of State’s exhibit 13, the pen packet for appellant’s prior felony, sets out appellant’s place of birth as “Texas.” Since appellant is a United States citizen, we hold the trial court’s failure to admonish appellant as to the deportation consequences of his plea harmless error. See U.S. Const, amend. XIV, § 1 (declaring persons born in the United States as citizens). Thus, we overrule issues two and three.
C. Did the trial court abuse its discretion by refusing to grant appellant’s request for a mistrial?
In issue four, appellant contends the trial court erred by refusing to grant a mistrial after the State introduced improper hearsay testimony. We hold the trial court’s instruction to the jury to disregard cured any error.
1. Standard of Review
A trial court’s denial of a motion for mistrial is reviewed for abuse of discretion. Hawkins v. State,
Generally, a mistrial is only required when the improper evidence is “clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App.1999) (quoting Gonzales v. State,
2. Analysis
Appellant contends the trial court erred by refusing to grant him a mistrial after the State, during its examination of one of its witnesses, questioned the witness about the condition of another inmate inside appellant’s jail tank. During the questioning, the following exchange occurred:
Q: Other than the blisters on his face, what kind of injuries did Inmate Williams suffer?
A: He had a stab wound on his-the side of his face or his ear; and I found out later, after finding the ballpoint pen, that he had been stabbed by the defendant.
[DEFENSE COUNSEL]: Objection, Your honor, to hearsay. He has no personal knowledge. The only way he could find that-discover that is from somebody telling him. COURT: Sustained.
[DEFENSE COUNSEL]: Request an instruction to the jury to disregard the previous answer of the witness.
COURT: You’re instructed, as Counsel asked, members of the jury.
[DEFENSE COUNSEL]: Request a mistrial for the record at this time.
COURT: Denied.
With respect to the first Mosley factor, we do not conclude the statement by the state’s witness to be severe or highly prejudicial. Appellant contends the statement had a substantial and injurious effect on the jury’s determination of appellant’s sentence. He argues the prison sentence of thirty years is a direct result of the jury hearing the improper statement concerning appellant’s violent behavior in the jail pending trial. We disagree. The jury heard ample testimony about appellant’s violent behavior. First, the jury heard testimony from appellant himself, who admitted a prior conviction for committing an
Second, we determine the curative measure employed by the trial court to be sufficient. In most cases, an instruction to disregard effectively cures any harm caused by improper testimony. Hawkins,
Lastly, the third prong, the certainty of conviction absent the prejudicial event, is not relevant in this case because the improper statement occurred during the punishment phase, after appellant had already been convicted. Thus appellant’s fourth issue is overruled.
D. Did the trial court err by allowing the State to reopen its case after it rested in order to admit exhibits it had inadvertently forgotten to admit?
In his fifth issue, appellant contends the trial court erred by permitting the State to reopen its case after it rested in order to admit exhibits it had inadvertently forgotten to admit. Appellant waived any error by failing to get a ruling from the trial court.
After the State rested, but prior to the reading of the Court’s charge and jury argument, the State moved to reopen in order to admit exhibits 15 through 29. After taking it under аdvisement, the court granted the request. Appellant argues the trial court committed reversible error by allowing the State to reopen its case after it rested in order to admit exhibits it had overlooked. The relevant portion of the record is:
[PROSECUTOR]: Your Honor, the State asks the Court to reopen.
[COURT]: Granted. You may reopen.
[DEFENSE COUNSEL]: The defense objects.
[PROSECUTOR]: The State tenders and offers State’s Exhibit 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29.
[DEFENSE COUNSEL]: We have an objection. We have no other objection other than our previous objection to the Court allowing the State to reopen.
THE COURT: They are admitted.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.RApp. P. 33.1(a)(1). Furthermore, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or that cоmplaining party must have objected to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State,
Here, appellant objected to the State’s motion to reopen, but the trial court did not rule on appellant’s objection. Appellant also failed to object to the trial court’s refusal to rule. Accordingly, we hold appellant did not preserve this issue for our review. We overrule appellant’s fifth issue.
E. Did the trial court err in its response to the jury аsking for further instruction during punishment phase deliberations?
The clerk’s record contains a question the jury sent to the trial court during punishment phаse deliberations. The question asks: “Would the sentences on the 2 counts run concurrently?” The trial court answered, “Members of the Jury: I cannot answer your question. [Judge presiding].” The record is otherwise silent on the procedures followed when the trial court responded to the jury question. The reporter’s record contains no reference to the trial court responding to the jury question. Nor does anything in the record reflect that appellant objеcted to the trial court’s answer to the jury’s question. The record is also silent on when appellant became aware of these communications between the trial court and the jury.
Appellant claims for the first time on appeal that the trial court violated article 36.27 of the Texas Code of Criminal Procedure when the jury sent out a note for further instruction. Article 36.27 provides:
When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
All such proceedings in felony cases shаll be a part of the record and recorded by the court reporter.
Code Crim. Proc. Ann. art. 36.27 (Vernon 2006). Appellant argues the trial court’s answer to the jury question constituted improper additional jury instructions which harmed him because it left the jury “entirely free to speculate as to the legal effect of the sentences they were going to impose.” Appellant contends the record affirmatively shows the trial court did not comply with the provisiоns in the Code of Criminal Procedure because the record is silent. This conclusion is incorrect. The Court of Criminal Appeals has held that when a record is silent, a presumption exists that the trial court complied with the requirements of article 36.27. Word v. State,
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
Notes
. See the factual section above for details on the trial court’s admonishment of appellant.
. Having waived the issue, appellant’s contention that the trial court’s answer to the jury question was improper in substance becomes moot.
Concurrence Opinion
concurring.
I respectfully concur.
Waiver of Objection to State’s Reopening (Fifth Issue)
In addressing appellant’s fifth issue, the court correctly determines that appellant waived error in his objection to the State’s request to reopen. However, the majority mischaracterizes the waiver as appellant’s failure to procure a ruling from the trial court. Appellant waived error by not lodging a timely, contemporaneous objection, as evidenced in the following exchange outside of the jury’s presence:
[STATE]: Your Honor, I made a mistake. I need to actually ask for the exhibits to be admitted. Will I have an opportunity to reopen just briefly for that purpose?
[TRIAL JUDGE]: I don’t know. I was wondering what you were going to do there. I’ll have to think about that.
[STATE]: Yes, sir.
[TRIAL JUDGE]: How much time on that argument?
[DEFENSE COUNSEL]: Judge, I’d ask for-just to be on the safe side. I would ask for 25 minutes. This is the heart of the case, Judge, the punishment.
Neither party nor the trial judge made any other reference to the State’s request to reopen until the State renewed its request, in the jury’s presence, in the following exchange:
[STATE]: Your Honor, the State asks the court to reopen.
[TRIAL JUDGE]: Granted. You may reopen.
[DEFENSE COUNSEL]: The defense objects.
[STATE]: The State tenders and offers State’s Exhibit 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29.
[DEFENSE COUNSEL]: We have an objection. We have no other objection, other than our previous objection to the court allowing the State to reopen.
[TRIAL JUDGE]: They are admitted.
To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.
Trial Court’s Response to Jury’s Request for Further Instructions (Sixth Issue)
In appellant’s sixth issue, the court, relying on Word v. State,
A trial judge’s substantive response to a jury’s question during deliberations amounts to an additional or supplemental jury instruction.
As reflected ip the record, the jury’s written question and the trial judge’s written response are set forth below:
[JURY’S QUESTION]: Would the sentences on the 2 counts run concurrently?
[TRIAL JUDGE’S RESPONSE]:
Members of the Jury:
I cannot answer your question.
[Signed by presiding judge]
The trial court’s response does not contain a substantive answer to the jury’s question.
Appellant argues that because the trial judge gave no substantive answer to the jury’s query, appellant was harmed in that the jury was left to speculate as to the legal effect of the possible punishment. However, appellant has prоvided no legal authority to support this contention. Therefore, he has failed to demonstrate that he was harmed by the trial court’s
. TexR.App. P. 33.1(a); Saldano v. State,
. King v. State,
. See Tex.R.App. P. 33.1(a).
. See Edwards v. State,
. McFarland v. State,
. See Tex.R.App. P. 44.2(b); Reidweg,
. See Daniell v. State,
. See McFarland,
. See Reidweg,
. See Daniell,
. See McFarland,
. See McFarland,
. See McFarland,
. See McFarland,
