Opinion
Nos. 05-06-00370-CR, 05-06-00371-CR, 05-06-00372-CR, 05-06-00373-CR, 05-06-00374-CR
Opinion Filed March 8, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F05-18878-MK, F06-00131-VK, and F06-00132-VKF05-55029-PK, F05-72803-PK.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
Opinion By Justice RICHTER.
OPINION
After Joanna Banda entered open pleas of guilty to one charge of escape (appellate cause no. 05-06-00370-CR), one charge of aggravated kidnaping (appellate cause no. 05-06-00374-CR), and three charges of aggravated robbery (appellate cause nos. 05-06-00371-CR, 05-06-00372-CR, and 05- 06-00373-CR), a jury found her guilty in each case and assessed punishment at two years in the escape case, twenty years in one of the robberies, and twenty-two years each in the kidnaping case and remaining two robberies. Banda now argues reversible error resulted from the trial court's failure to admonish her on the deportation consequences of her pleas and failure to instruct the jury on certain conditions of community supervision. Concluding the record supports Banda's claim that the court reversibly erred in failing to admonish her properly, we reverse and remand. Before accepting a plea of guilty, a trial court must admonish the defendant, either orally or in writing, of the consequences of his plea including that he may be deported, excluded from admission to this country, or denied naturalization if he not a United State citizen. Tex. Code Crim. Proc. Ann. art. 26.13(a)(4),(d) (Vernon 2005). A complete failure to admonish is error and we will reverse on appeal if the record shows the defendant's substantial rights were affected by the trial court's error. Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App. 2006). We will conclude the defendant's substantial rights were not affected if, upon our independent review of the record, we have a fair assurance the defendant's decision to plead guilty would not have changed had the trial court admonished him properly. Id. at 919. A record which shows the defendant is a United States citizen or otherwise knew the deportation consequences of his plea will give us such an assurance. Id.; Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002). On the other hand, a record which is silent as to the defendant's citizenship and understanding of the deportation consequences of his plea will not. See Burnett, 88 S.W.3d at 638; Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd). In arguing the trial court erred in failing to admonish her on the deportation consequences of her pleas, Banda correctly notes that the record contains no written admonishments about the consequences of the pleas nor does it show that the trial court orally admonished her that she could be deported, excluded from admission to this country, or denied naturalization if she is not a United States citizen. Banda correctly notes further that the record is silent as to her citizenship status and awareness of the deportation consequences of her pleas. Banda maintains that because the court wholly failed to admonish her and the record is silent as to her citizenship status and awareness of the deportation consequences of her pleas, we must conclude she was harmed and reverse each case. In response, the State argues that although the record is silent on those matters, it nonetheless supports an inference that Banda is a United States citizen. The State bases its argument on a psychological report contained in the record showing Banda has had a social security number for the last five years-since she was thirteen years old. Noting that "social security numbers are currently assigned to newborn United States citizens as part of the official birth registration process" and that "legal permanent residents may obtain a social security number for work purposes or to obtain federally-funded benefits," the State asserts that because Banda has had a social security number since at least the age of thirteen, "before the time she would normally be working or applying for federal benefits," this "strongly suggests that [Banda] is a United States citizen and the trial court's failure to admonish her regarding deportation was harmless." See 20 C.F.R. §§ 422.103(b)(2), 422.104(a). The State also argues that evidence that Banda has lived in Dallas since she was at least thirteen, "committed 15 `crimes, wrongs, or acts'" in Dallas County, and has "Dallas, Texas" tattooed on her arms suggests she is a United States citizen. Finally, the State notes that these cases were tried "by two experienced prosecutors and an experienced judge" and "[i]f any of [Banda's] extensive juvenile records had reflected that she was not a United States citizen, the prosecutors and/or judge would certainly have admonished [her] as to the deportation consequences of her pleas." Although we agree with the State that social security numbers may be issued at the time of birth and to lawfully admitted aliens for work purposes or to obtain federally-funded benefits, they may also be issued to lawful permanent residents regardless of employability, nonresident dependents of lawful permanent residents, and lawfully admitted aliens for nonwork purposes. See id. §§ 422.103(b)(1), 422.104(a)(2),(3). Thus, while Banda's having a social security number might suggest she is a citizen, it equally could suggest she is a lawful permanent resident, a nonresident dependent of a lawful permanent resident, or an otherwise lawfully admitted alien, any of which would make her subject to deportation, excluded from admission, or ineligible for naturalization as a result of her pleas and convictions. See 8 U.S.C. §§ 1101(a)(3),(f), 1182(a)(2),1227 (a), 1427(a) (2005 Supp. 2006). The State's remaining arguments are not persuasive. We are bound by the record before us and decline to engage in speculation. Because the record is silent regarding Banda's citizenship status and whether she was aware of the deportation consequences of her pleas, we cannot determine whether her decision to plead guilty would have changed had the court properly admonished her. Anderson, 182 S.W.3d at 919. Accordingly, we cannot "have a fair assurance she would not have pleaded guilty." Id. We sustain her first issue. Because we have concluded the court reversibly erred in failing to admonish Banda about the deportation consequences of her pleas, we need not consider Banda's remaining issues. Tex. R. App. P. 47.1. We reverse the trial court's judgments and remand for further proceedings.