Opinion
Nos. 05-06-00370-CR, 05-06-00371-CR, 05-06-00372-CR, 05-06-00373-CR, 05-06-00374-CR
Opinion Filed July 12, 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 DO NOT PUBLISH Tex.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, F05-55029-PK, F05-72803-PK, F06-00131-VK, and F06-00132-VK.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
OPINION ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
On March 8, 2007, we issued our original opinion in these appeals. In that opinion, we reversed the trial court's judgments because the trial court failed to admonish Banda in accordance with article 26.13 of the Texas Code of Criminal Procedure concerning the deportation consequences of her plea and the record was silent as to Banda's citizenship and understanding of those consequences. See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002) (failure to admonish in accordance with article 26.13 of code of criminal procedure reversible error where record silent as to defendant's understanding of consequences of plea); Carranza v. State, 980 S.W.2d 653, 658 (Tex.Crim.App. 1998) (failure to admonish guilty-pleading defendant on immigration consequences of plea reversible error where record shows defendant is not United States citizen). At the State's request, the record was supplemented two weeks after our opinion issued. The supplemental record contained an arraignment sheet showing Banda is a United States citizen. Based on the supplemental record, the State filed a motion for rehearing urging we withdraw our March 8 opinion and affirm the trial court's judgment. On May 9, 2007, we granted the State's motion, withdrew our March 8 opinion, and vacated our judgment of that date. In our May 9 opinion on motion for rehearing, we concluded the trial court's failure to admonish Banda on the deportation consequences of her plea did not constitute reversible error because the record reflected Banda is a United States citizen. See VanNortrick v. State, No. 0923-06 0924-06, 2007 WL 1828918, *2 (Tex.Crim.App. June 27, 2007) (failure to admonish guilty-pleading defendant on immigration consequences of plea harmless error where record shows defendant is United States citizen); Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006) (same). We now withdraw our May 9 opinion and vacate the judgment accompanying that opinion. This is now the opinion of the Court. Tex. R. App. P. 50. Pursuant to open pleas of guilty, a jury found Banda guilty of 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). Although Banda sought probation, the jury 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 argues in three issues that 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 probation. Concluding no reversible error occurred, we affirm the trial court's judgments. Banda's first issue concerns the trial court's failure to admonish her concerning the deportation consequences of her pleas and is based on the original record which is silent as to her citizenship status and awareness of those consequences. As stated, however, the record was supplemented with an arraignment sheet showing Banda is a United States citizen. When, as here, the record shows the defendant is a United States citizen, the trial court's failure to admonish on the deportation consequences of the plea does not amount to reversible error. See VanNortrick, No 0923-06 0924-06, 2007 WL 1828918, *2; Anderson, 182 S.W.3d at 919. We resolve Banda's first issue against her. In resolving Banda's first issue against her, we necessarily reject her argument in her response to the State's motion for rehearing that the documentation in the supplemental clerk's record should not be considered. Banda urges two reasons for not considering the arraignment sheet: (1) it was filed after our original opinion issued and six months after she filed her original appellate brief and (2) it "was never file-stamped or offered in evidence" at trial and nothing reflects it is "accurate or even . . . part of the [original] trial record." The only limitation we find in the rules of appellate procedure concerning the filing of a supplemental record is the rule governing our plenary power. See Tex. Rs .App. P. 19 (plenary power), 34.5(c) (supplementation of clerk's record). Under that rule, we retain jurisdiction over our judgments for sixty days after judgment if no timely motion to extend time or for rehearing is pending and for thirty days after we overrule all such timely motions. Tex. R. App. P. 19.1. The supplemental record has been filed within our plenary power and as such is properly before us. We also conclude the supplemental record is properly before us even though the arraignment sheet is not file-stamped and was not offered into evidence. No requirement exists that citizenship be proven through direct evidence; it may be inferred from mere references in the record. Fakeye v. State, No. 0514-06, 2007 WL 1828690, at *1 (Tex.Crim.App. June 27, 2007). Here, the trial court clerk certified the arraignment sheet as a document in the record. We presume regularity in trial court papers absent evidence of impropriety, see Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000), and nothing here shows any impropriety. Further, although Banda maintains nothing in the record reflects the arraignment sheet is "accurate," the record reflects the opposite. The arraignment sheet identified Dallas County magistrate Dorothy Shead as having certified that on July 22, 2005, she informed Banda of her constitutional rights and of her rights as a non-citizen. As to "citizenship," the magistrate stated:
I also informed the person arrested that if he is not a citizen of the United States that he may have the right to contact consular officials from his country and that if he is citizen of certain countries that consular officials would be notified of this arrest without further action required on his part.
The person arrested stated that he is a citizen of the United States of America. (Box preceding this line is checked).This document shows Banda is a citizen of the United States of America. The arraignment sheet further contains Banda's full name, booking number, race, gender, and date of birth, and two of the five criminal charges leading to these appeals (aggravated robbery-trial court cause no. F05-55029-PK and escape-trial court cause no. F05-18878-MK). All of this personal information and the nature of the criminal charges is also shown in the original record before us; that is, the indictment, the judicial confession, the witness's own testimony, and the trial docket sheet also contain this information. Therefore, ample evidence exists showing the factual statements in the arraignment sheet to be accurate, including the particular statement that Banda is a citizen of the United States of America. See VanNortrick, No. 0923-06 0924-06, slip op. at 4, 2007 WL 1828918, at *4 (appellate courts should draw reasonable inferences from facts in the record in determining harm in connection with failure to admonish on consequences of plea). Banda's arguments for not considering the supplemental clerk's record are without merit. In her second and third issues, Banda argues the trial court erred in denying her requests that the jury be instructed on certain conditions of probation the trial court could impose. Relevant to these issues, the record reflects the trial court's charge in each case instructed the jury that if it recommended probation, the trial court would set the conditions. The trial court further charged the jury on more than half of the twenty-four "basic" conditions of probation listed in article 42.12 of the code of criminal procedure and instructed the jury that those conditions were "possible," not mandatory, and not exclusive. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon 2006). Because the offenses resulted from drug use and Banda wanted jurors to "know that [probation] could have some [other] extremely onerous terms," she requested the trial court to instruct the jury that the court could impose up to 180 days in jail in the escape case and not less than sixty nor more than 120 days in the Texas Department of Corrections in the kidnaping and robbery cases. See id. art. 42.12, §§ 3g(b), 12(a). Banda also requested the court to instruct the jury that the court could require confinement in a substance abuse facility of not less than ninety days and up to one year. Id. § 14(a). In arguing the court reversibly erred in denying her requested instructions, Banda acknowledges that it is settled law that no harm results to a defendant from a trial court's failure to enumerate in its jury charge specific conditions of probation. See Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App. 1974) (failure to enumerate probationary conditions not harmful to defendant); Yarbrough v. State, 742 S.W.2d 62, 64 (Tex.App.-Dallas 1987) (same), pet. dism'd improvidently granted, 779 S.W.2d 844, 844-45 (Tex.Crim.App. 1989) (per curiam). Nonetheless, Banda urges us to "revisit this issue" and conclude that the jury "should be informed of all possibly-applicable terms of community supervision that could be imposed by the court" so that jurors would not have "to exercise their discretion whether to grant community supervision in a vacuum." We decline Banda's invitation to revisit this issue and set-aside long-standing precedent. Because no reversible error results from a trial court's failure to enumerate specific conditions of probation, we resolve Banda's second and third issues against her. We affirm the trial court's judgments.