Opinion
05-22-00404-CR
03-06-2023
OSCAR REYES, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1976942-S
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
DENNISE GARCIA JUSTICE.
Appellant pleaded guilty to murder without the benefit of a plea bargain and the court assessed punishment at forty years in prison. In a single issue, appellant argues he was harmed by the court's failure to orally admonish him about the immigration consequences of his plea. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
I. Background
Appellant was indicted for murder, and when he found out there was a warrant for his arrest, fled to Mexico. Appellant was apprehended attempting to reenter the U.S. while evading U.S. Border Control agents.
Appellant was arraigned in Dallas, Texas. The Arraignment sheet reflects that "[t]he person arrested states that he is a citizen of the United States of America."
Appellant entered an open guilty plea and proceeded to sentencing. The trial court accepted appellant's judicial confession and assessed punishment at forty years in prison. This timely appeal followed.
II. Analysis
Appellant argues the trial court's failure to orally admonish him about the immigration consequences of his plea caused him harm. We disagree.
Prior to accepting a plea, the trial court must admonish the defendant of (1) the range of punishment; (2) the fact that any plea recommendation of the prosecutor is not binding on the trial court; (3) the limitations on the right of appeal resulting from the plea, and (4) the immigration consequences of the plea if the defendant is not a United States citizen. Tex. Code Crim. Proc. Ann. art. 26.13(a). Admonishments regarding deportation and other immigration consequences must be made orally and in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d-1).
Failure to admonish a defendant under Article 26.13 constitutes nonconstitutional error. Loch v. State, 621 S.W.3d 279, 281 (Tex. Crim. App. 2021). Accordingly, we disregard such an error if it "does not affect substantial rights." Tex.R.App.P. 44.2(b); Loch, 621 S.W.3d at 282. An error does not affect a defendant's substantial rights if, after examining the record as a whole, the appellate court has fair assurance that "the defendant's decision to plead guilty would not have changed had the court admonished him." Loch, 621 S.W.3d at 282. To make this determination, we consider the following factors to aid in our harm analysis: "(1) whether an appellant knew the consequences of his plea; (2) the strength of the evidence of an appellant's guilt; and (3) an appellant's citizenship and immigration status." Id. (citing VanNortrick v. State, 227 S.W.3d 706, 712 (Tex. Crim. App. 2007)).
Neither party bears the burden to prove harm. Id. Accordingly, the reviewing court "should draw reasonable inferences from facts in the record when conducting a harm analysis due to a trial court's failure to admonish a defendant about the consequences" of his plea. VanNortrick, 227 S.W.3d at 710.
As an initial matter, appellant does not contend that he would have changed his plea had the trial court orally admonished him, nor does he contend that he is not a United States citizen or claim that he has suffered any adverse immigration consequences because of his plea.
Considering the Loch harm factors, the first factor weighs in favor of harm. It is undisputed that appellant was not orally admonished about the possible immigration consequences of his plea. Although the record reflects that appellant was admonished in writing and acknowledged these admonishments, an oral admonishment is also required. Tex. Code Crim. Proc. Ann. art. 26.13(d-1).
The second and third Loch factors, however, foreclose appellant's assertions of harm based on the absent oral admonishment. At the plea hearing, appellant testified that he pleaded guilty because he is guilty and for no other reason. He entered an open plea because he was asking the judge for mercy in sentencing based on his confession. Consequently, the record reflects that notwithstanding the lack of an oral admonition, appellant still would have pleaded guilty in an effort to minimize his sentence.
The evidence of appellant's guilt was undisputed. Appellant judicially confessed to the crime and the court accepted his confession. The confession was supported by other evidence at the sentencing hearing. Therefore, the strength of the evidence of appellant's guilt does not support a finding of harm.
Moreover, the record reflects that appellant is a United States citizen. Direct evidence of citizenship is not required to support an inference made by the appellate court. See Fakeye v. State, 227 S.W.3d 714, 716 (Tex. Crim. App. 2007). The Arraignment sheet includes appellant's representation to the court that he is a U.S. citizen. In addition, the record includes evidence that appellant applied for a license to carry a firearm and has a commercial driver's license. Appellant's parents own and operate an interstate trucking business, and appellant is employed as a driver.
Appellant insists that we should have "grave doubts" about his citizenship because he fled to Mexico and subsequently entered the United States illegally. According to appellant, this shows that he has "strong ties to Mexico." The record reflects, however, that appellant fled the United States because he was wanted for murder and reentered illegally in an attempt to evade border control agents. Fleeing to another country after committing a crime and bypassing the points for legal reentry are not actions that give rise to a reasonable inference that an individual is not a U.S. citizen.
As a citizen, appellant would not suffer immigration consequences as a result of his plea. Appellant's citizenship status weighs against a finding of harm.
Accordingly, we conclude that appellant was not harmed by the trial court's failure to orally admonish him about the immigration consequences of his plea. See Davilacontreras v. State, No. 05-21-00995-CR, 2022 WL 4396145, at *1 (Tex. App.-Dallas Sept. 23, 2022, no pet.) (mem. op., not designated for publication). Appellant's issue is resolved against him and the trial court's judgment is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.