Opinion
No. 05-03-00078-CR
Opinion issued March 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-53133-JN. Reversed and Remanded.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
In a single trial, Willis Deshaun Reed pleaded guilty to and was convicted by a jury of aggravated robbery and possession of a firearm by a felon. In this appeal of the conviction for aggravated robbery, appellant complains the trial court failed to admonish him about the deportation consequences of his guilty plea and a significant portion of the record has been lost or destroyed. Concluding the trial court reversibly erred in failing to admonish appellant about the deportation consequences of his plea, we reverse the trial court's judgment and remand for further proceedings. In his first issue, appellant complains the record contains no evidence that he was admonished by the trial court about the deportation consequences of his guilty plea as required by article 26.13 of the Texas Code of Criminal Procedure. Under this statute, before accepting a defendant's guilty plea, the trial court must admonish the defendant, among other things, that if he is not a citizen of the United States, a plea of guilty may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). The State initially responds to appellant's complaint by noting that the charge of the court and the judgment both indicate appellant was fully admonished before entering his plea. The State then asserts that this Court must presume the recitals in these court documents are correct unless the record affirmatively shows otherwise. But in Hwang v. State, we held that when the reporter's record is clear that the defendant was not admonished as required by article 26.13, then this fact is sufficient to overcome a recital in the trial court's judgment or jury charge that he was. Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd). The court reporter's record in this case shows appellant first discussed his plea with the trial judge before jury selection. The judge admonished appellant about the punishment range for the charged offenses but never informed appellant about the possible deportation consequences of a guilty plea. Appellant later pleaded guilty before the jury without admonishments from the trial court. The clerk's record in the case contains no written admonishments to appellant about the deportation consequences of a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(d). Thus, because the record is clear that appellant was not admonished, we are not bound by the recitals in the judgment or the jury charge. See Hwang, 130 S.W.3d at 499. The trial court in this case erred by failing to admonish appellant about the deportation consequences of his plea. Failure to admonish is statutory, rather than constitutional error, so we must examine the record to determine if the error affected his "substantial rights." Id. (citing Tex.R.App.P. 44.2(b)). We survey the record for indications that appellant was not aware of the consequences of his plea and was misled or harmed by the trial judge's failure to admonish him. Id. at 500. To warrant a reversal, the record must first support an inference that appellant did not know the consequences of his plea. A silent record may support such an inference. Id. at 499. In Hwang, we held that a "silent" record, for these purposes, is one in which there is no indication the appellant was ever informed about the specific consequences of his plea. Id. at 500. A record showing the appellant was informed, by the court or some other way, about the specific consequences of his plea creates a rebuttable presumption that he was aware of those consequences that then may be rebutted by the appellant. Id. Here, however, the record is silent about whether appellant was specifically informed by the trial court, defense counsel, or the prosecution that his guilty plea had possible deportation consequences. The record supports the inference that appellant did not know the deportation consequences of his plea. Now we must determine whether the record supports an inference that his lack of knowledge misled or harmed him. The State argues appellant's testimony that he was "from Fort Worth, Texas" proves he was "an undeportable United States citizen" and therefore could not be harmed by the trial court's failure to give a deportation admonishment. Although facts in the record before us hint that appellant is probably a United States citizen, some of the evidence from appellant's trial is missing. This Court has determined that certain exhibits from appellant's trial have been lost. These exhibits include two previous judgments of conviction against appellant in Tarrant County. Although the court reporter's record contains some recitation of what the judgments state, it appears the recitation is incomplete. Accordingly, without being able to review the exhibits, we cannot know whether they would show appellant was or was not a United States citizen. Thus, because of the missing exhibits, we cannot determine whether the record supports or negates appellant's assertion of harm. See Burnett v. State, 88 S.W.3d 633, 639 (Tex.Crim.App. 2002). We are faced with the rare case where "the data is insufficient to conduct a meaningful harmless error analysis." See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). In effect, a complete and thorough harm analysis is not possible. We must therefore conclude appellant was harmed and resolve his first issue in his favor. See id. Due to our disposition of appellant's first issue, we need not address the lost record complaint in his third issue. We reverse the trial court's judgment and remand the cause for further proceedings.
Although Cain discussed a harm analysis for non-constitutional error under an appellate rule no longer in effect, we do not perceive any meaningful difference between that rule and the current appellate rule 44.2(b) that would allow for a different outcome under the current rule. See 947 S.W.2d 262, 264.
In his consolidated brief on appeal, appellant complains not only about the robbery cause of action but also about the cause of action for possession of a firearm by a felon. Because appellant's second issue relates only to the possession of a firearm by a felon cause, we do not address it in this opinion.