Summary
concluding that article 1.15 of the Texas Code of Criminal Procedure did not require that the defendant swear to a stipulation
Summary of this case from Jones v. StateOpinion
No. 05-03-01608-CR
Opinion issued October 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-73507-NJ. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
In this case, Vincent Edward Ashley challenges his conviction for burglary of a habitation. He first complains the trial court erred by excusing two jurors and replacing them before testimony began in his case. Second, he contends his guilty plea was involuntary due to incomplete admonishments and an improper stipulation of evidence. Concluding appellant's issues are without merit, we affirm the trial court's judgment. The facts of the case can be stated simply. Appellant elected to enter a guilty plea in his case and have a jury set punishment. After the jury had been sworn, but before testimony commenced, two of the jurors became ill. Appellant and the State agreed to the trial court's dismissing the two jurors and did not object to the court's replacing them with jurors selected from a second voir dire panel. When appellant entered his guilty plea, the trial court neglected to inform him of the deportation consequences of a guilty plea. The record, however, shows appellant is a United States citizen. Three pen packets admitted into evidence by the State show Dallas County, Texas as appellant's place of birth. The record contains a judicial confession and stipulation by appellant admitting his guilt for the charged offense. In his first issue, appellant contends the trial court erred by excusing the two sick jurors and replacing them with new jurors from a second voir dire panel. Appellant admits he agreed to excuse one of the previous jurors but contends "the record is silent as to any dismissal of action in excusing the twelfth previously selected juror." The record, in fact, shows appellant agreed to excuse the second previously selected juror before testimony began. Appellant agreed to the trial court's dismissal of the previous jurors, and he never objected to replacing them with two jurors from a new panel. Therefore, his complaint is without merit. See Hatch v. State, 958 S.W.2d 813, 816 (Tex.Crim.App. 1997); see also Tex.R.App.P. 33.1(a). We resolve his first issue against him. In his second issue, appellant contends his guilty plea was involuntary because the trial court failed to admonish him about the possible deportation consequences of the plea. He additionally claims the plea was involuntary because the stipulation of evidence and judicial confession were not sworn to by him before a deputy district clerk. Appellant claims that because the stipulation was improper, the State failed to support his guilty plea with any evidence. He further claims that the State's failure to put on evidence of his guilt rendered his plea involuntary. Article 26.13(a)(4) of the Texas Code of Criminal Procedure states that before accepting a guilty plea, the trial court must admonish the defendant that if he is not a citizen of the United States, a plea of guilty could result in his deportation, his exclusion from admission to this country, or his denial of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2004-05). But when the record conclusively shows that the defendant is a United States citizen, any error in failing to give the deportation admonishment is harmless beyond a reasonable doubt. Splawn v. State, 949 S.W.2d 867, 876 (Tex.App.-Dallas 1997, no pet.). The record in appellant's case conclusively shows he is a United States citizen. Therefore, any error by the trial court in failing to admonish appellant about the deportation consequences of his plea was harmless. Appellant additionally contends his guilty plea was somehow rendered involuntary based on the fact that the stipulation in his case was not sworn to by him before a proper officer. He argues that the stipulation therefore fails to meet the requirements of Texas Code of Criminal Procedure article 1.15. Appellant points to no authority, nor can we find any, showing that article 1.15 requires a defendant's stipulation to be sworn to before a proper officer. The article provides that "it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant" and notes that the evidence may be stipulated:
if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004-05). Appellant has failed to show how an alleged flaw in his judicial confession and stipulation of evidence rendered his guilty plea involuntary. Regardless, article 1.15 does not require that the defendant swear to a stipulation of his guilt. See id.; see also Jones v. State, 857 S.W.2d 108, 110 (Tex.App.-Corpus Christi 1993, no pet.). This contention, then, is also without merit. We resolve appellant's second issue against him. We affirm the trial court's judgment.