Opinion
No. 05-03-00079-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 DO NOT PUBLISH.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. F02-53197-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 possession of a firearm by a felon, appellant raises three issues: the trial court failed to admonish him about the deportation consequences of his guilty plea; the evidence is legally insufficient to prove his previous felony conviction; and a significant portion of the record has been lost or destroyed. We conclude the evidence supporting appellant's conviction is legally sufficient. Nevertheless, 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, 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. We next address the legal sufficiency claim asserted in appellant's second issue. Appellant specifically complains the evidence against him is legally insufficient to prove his previous felony conviction because the written evidence of these judgments has been lost from the appellate record. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Where, as here, the defendant enters a guilty plea, the State must introduce evidence into the record "showing the guilt of the defendant." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). At trial, appellant orally admitted he had been convicted in Tarrant County, Texas on December 15, 1994, in cause number 0552727 of robbery. This was the precise previous felony offense alleged in the indictment. Moreover, the court reporter's record contains the prosecutor's recitation of the stipulation between appellant and the State that appellant "is the same person duly, legally convicted of the felony offense of robbery on the 15th day of December in the Criminal District Court of Tarrant County, Texas in a case on the docket of said court, No. 0552727. . . ." This evidence is legally sufficient to support appellant's conviction. See Rascon v. State, 496 S.W.2d 99, 102 (Tex.Crim.App. 1973). We resolve appellant's second issue against him. 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.
Despite our conclusion that the trial court reversibly erred in failing to admonish appellant about the deportation consequences of his guilty plea, we must nevertheless address his legal sufficiency claim. A reversal based on legal sufficiency grounds would result in appellant's acquittal of the charges, rather than a simple remand. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).