Summary
considering testimony of appellant's mother that she had lived in Mexia "a long time" and appellant's testimony that he lives in Mexia and completed tenth grade to be probative of citizenship
Summary of this case from Burton v. StateOpinion
No. 10-05-00044-CR
Opinion delivered and filed July 25, 2007. DO NOT PUBLISH.
On Appeal from the 77th District Court Limestone County, Texas, Trial Court No. 10510-A.
Before Chief Justice Gray, Justice Vance, and Justice Reyna.
MEMORANDUM OPINION
Antwon Chavor Gamble pleaded guilty to robbery. A jury found that he had been previously convicted of a felony and assessed his punishment at sixty years' imprisonment. Gamble contends in his sole issue that the court erred by failing to admonish him of the deportation consequences of his guilty plea. We will affirm. Gamble's prior counsel filed an Anders brief asserting that Gamble's appeal presented no issues of arguable merit. This Court, with Chief Justice Gray dissenting, disagreed and abated the appeal for the appointment of other counsel, noting in particular the trial court's failure to admonish Gamble in accordance with article 26.13 of the Code of Criminal Procedure and the absence of evidence in the record to indicate that Gamble is a United States citizen or was aware of the deportation consequences associated with a guilty plea. See Gamble v. State, 199 S.W.3d 619 (Tex.App.-Waco 2006, order) (per curiam). After abatement and the appointment of new counsel, the State caused a supplemental clerk's record to be filed containing Gamble's original application for appointment of counsel, which he had completed after arrest but before indictment. See TEX. R. APP. P. 34.5(c)(1) ("If a relevant item has been omitted from the clerk's record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item.") (emphasis added). In this application, Gamble stated under oath that he was born in Mexia. A trial court errs when it fails to admonish a criminal defendant under article 26.13 of the consequences of a guilty plea. Fakeye v. State, No. PD-514-06, 2007 WL 1828690, at *1 (Tex.Crim.App. June 27, 2007). Such failure constitutes statutory error which this Court must disregard unless it affected the defendant's substantial rights. Id.; TEX. R. APP. P. 44.2(b). We must examine "the entire record" to determine whether the failure to admonish affected Gamble's substantial rights. Fakeye, 2007 WL 1828690, at *3. Here, Gamble's application for appointed counsel reflects that Gamble is a United States citizen born in Mexia in 1977. This is consistent with the testimony of his mother that she had lived in Mexia "a long time" and with Gamble's testimony that he lives in Mexia and completed tenth grade. Therefore, because the record affirmatively reflects that Gamble is a United States citizen, the court's failure to admonish him of the deportation consequences of a guilty plea did not affect his substantial rights. See Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997)). We overrule Gamble's sole issue and affirm the judgment. Affirmed
The original clerk's record contains the order appointing counsel signed five days after Gamble signed his application for appointed counsel.