Opinion
No. 14-04-01173-CR
Memorandum Opinion filed March 2, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 959,571. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
MEMORANDUM OPINION
Appellant, Mario Castaneda, appeals a conviction for aggravated sexual assault on the grounds that: (1) the trial court erred in failing to admonish him that he would be required to register as a sex offender, and (2) his guilty plea was involuntary because he unwittingly pleaded guilty to an indictment that charged two offenses. We affirm. Appellant entered a plea of guilty to the offense of aggravated sexual assault. After a presentence investigation, the trial court conducted a hearing on punishment where appellant was found guilty and sentenced to thirty years' confinement in the Texas Department of Criminal Justice-Institutional Division. In his first issue, appellant contends the trial court erred in failing to admonish him that he would be required to register as a sex offender. Article 26.13 of the Code of Criminal Procedure requires that the court, prior to accepting a plea of guilty, admonish the defendant regarding (1) the range of punishment, (2) the law on plea bargain agreements, (3) the effect that a plea bargain agreement may have on the right to appeal, and (4) the effect that a conviction might have on a non-citizen. A defendant who is accused of an offense that may require him to register as a sex offender must be admonished of that consequence. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(5). These admonishments can be made orally or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d). In arraigning appellant, the trial court admonished him in writing of the range of punishment attached to the offense and the possibility of deportation because appellant is not a citizen of the United States. The court did not admonish appellant of the consequences of a plea bargain agreement because appellant entered an open plea. The record shows that the trial court did not include the sex offender registration consequence among its written admonishments. No record of the plea hearing was filed with this court. Because appellant did not produce a record of the plea hearing, it is impossible to determine from the appellate record whether the trial court orally admonished appellant of his obligation to register as a sex offender if convicted. Therefore, we cannot determine from the record before us whether the trial court erred. Moreover, even if the record showed the trial court failed to admonish appellant of his obligation to register as a sex offender, any error would be harmless. The failure of a trial court to admonish a defendant as to the required registration as a sex offender does not render a plea involuntary. Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App. 2004). A violation of article 26.13 comes within the non-constitutional harmless error standard embodied in Rule 44.2(b) of the Texas Rules of Appellate Procedure. Anderson v. State, ___ S.W.3d ___, 2006 WL 119841, at *2 (Tex.Crim.App. January 18, 2006) (not yet published). The issue to be determined in applying rule 44.2(b) to the failure to give an admonition is, considering the record as a whole, do we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him? Id. at *3. In considering the effect of the court's error on appellant's decision to plead guilty, we should consider the strength of the evidence of guilt. Id. at *4. In this case, appellant, his brother, and the complainant each gave a statement to the police. In her statement, the complainant said she had stepped out of her apartment when appellant and his brother grabbed her and forced her into their car. They drove to a motel, left the motel, then took her out to an open field. While in the field, the brothers alternately sexually assaulted the complainant. The complainant testified she fought her assailants and feared for her life during the attack. Appellant and his brother gave statements to the police in which they admitted the sexual assault occurred without the complainant's consent, but the complainant got into their car on her own. Considering the record as a whole, even if the trial court failed to admonish appellant, there is no evidence that appellant's decision to plead guilty would have been different if the trial court had admonished him about sex offender registration requirements. Therefore, the error, if any, was harmless. Appellant's first issue is overruled. In his second issue, appellant contends his plea was involuntary in that he unwittingly pleaded guilty to an indictment that charged two separate offenses. Appellant was charged in two paragraphs of the indictment with sexual assault by penetration of the victim's sexual organ and by penetration of the victim's mouth. The indictment, therefore, charged appellant with two offenses. See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App. 1999). Appellant alleges his plea was involuntary because he was not admonished that he was pleading guilty to two offenses and it is unclear whether the trial court assessed punishment for one or two offenses. An accused's plea of guilty must be made freely and voluntarily. Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App. 1996). When considering the voluntariness of a plea, we must examine the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Appellant contends that neither the written admonishments, nor the oral pronouncements at the punishment hearing informed him that the indictment alleged two crimes. The record reflects, however, that appellant and his counsel were informed that appellant was indicted for two crimes and that appellant pleaded guilty to two crimes. Appellant and his attorney signed a document entitled, "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession." Both offenses were alleged in the document and appellant stated he understood the allegations against him and confessed that they were true. Appellant was then admonished that he was charged with the felony offense of aggravated sexual assault and that the range of punishment was five years to ninety-nine years in prison. In its judgment, the trial court found appellant guilty of aggravated sexual assault and assessed punishment at thirty years. Appellant has failed to present a record showing he was not aware he was indicted for two offenses. In fact, the document signed by appellant and his counsel indicates otherwise. Appellant's unsupported allegations do not suffice to render his plea involuntary. Appellant's second issue is overruled. The judgment of the trial court is affirmed.