Opinion
No. 05-12-00127-CR
07-31-2012
DURNELL DEWAYNE REED, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified; Opinion Filed July 31, 2012.
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F09-60982-L
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
Durnell Dewayne Reed waived a jury, pleaded guilty to possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams, and pleaded true to one enhancement paragraph. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010). The trial court assessed punishment at fifteen years' imprisonment and a $1,000 fine. In a single point of error, appellant contends he was not admonished as required by article 26.13. We modify the trial court's judgment and affirm as modified. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law
to be applied in the case is well settled.
Appellant contends the trial court failed to substantially comply with the requirements of article 26.13 because he was not admonished on the deportation consequences of his guilty plea. Appellant asserts that because the record is silent as to his citizenship, the trial court's error in failing to give the deportation admonition is not harmless. The State responds that the record shows appellant is a United States citizen, and any error in failing to admonish him on deportation consequences is harmless.
Before accepting a plea of guilty, the trial court shall admonish a defendant of the fact that if he is not a citizen of the United States of America, a plea of guilty may result in deportation, exclusion from admission to this country, or the denial of naturalization. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West Supp. 2011). A trial court errs if it accepts a defendant's guilty plea without admonishing him regarding the deportation consequences of his plea in accordance with article 26.13. See Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998). However, when the record conclusively shows that an appellant is a United States citizen, any error in failing to give the deportation admonishment is harmless. Matchett v. State, 941 S.W.2d 922, 929 (Tex. Crim. App. 1996); Splawn v. State, 949 S.W.2d 867, 876 (Tex. App.-Dallas 1997, no pet.).
The record does not show appellant was admonished regarding the possibility of deportation. However, the record includes an “Arraignment Sheet” signed by a Dallas County magistrate judge on November 5, 2009, that contains the following statement: “the person arrested stated that he is a citizen of the Unites States of America.” Thus, the record affirmatively shows appellant is a United States citizen, and the trial court's error in failing to admonish him of the deportation consequences of his plea is harmless. We overrule appellant's sole point of error.
In a cross-point, the State asks us to modify the trial court's judgment to “reflect the correct degree of offense” for which appellant was convicted. The judgment correctly recites the degree of the offense is a first-degree felony, but incorrectly identifies the statute for the offense. Appellant was convicted for possession with intent to deliver cocaine under section 481.112 of the Health and Safety Code. Tex. Health & Safety Code Ann. § 481.112(a). The judgment incorrectly identifies the statute as section 481.121. We sustain the State's cross-point.
We modify the judgment to show the statute for the offense is “481.112 Health and Safety Code.” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
As modified, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
120127F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DURNELL DEWAYNE REED, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-12-00127-CR
Appeal from the Criminal District Court No. 5 of Dallas County, Texas. (Tr.Ct.No. F09- 60982-L).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section entitled “Statute for Offense” is modified to show “481.112 Health and Safety Code.”
As modified, we AFFIRM the trial court's judgment.
Judgment entered July 31, 2012.
MARTIN RICHTER
JUSTICE