Opinion
Nos. 05-07-00520-CR, 05-07-00521-CR
Opinion Filed May 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause Nos. 24875-422, 24876-422.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
Michael Carlton Skinner appeals two convictions for aggravated sexual assault, two convictions for indecency with a child by contact, and four convictions for indecency with a child by exposure. In two issues, appellant contends he received ineffective assistance of counsel, and the trial court failed to admonish him properly before accepting his open guilty pleas. We reverse and remand these cases for further proceedings. In his second issue, appellant contends his substantial rights were affected, and he entered his guilty pleas without knowing their consequences, when the trial court wholly failed to admonish him of the punishment range for indecency with a child by exposure and of the requirement that he register as a sex offender. With regard to the sex offender registration admonishment, we agree. Appellant's convictions require him to register as a sex offender. See Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A) (Vernon Supp. 2007), 62.051 (Vernon 2006). Before accepting appellant's guilty pleas, the trial court was required to admonish him of the registration requirement that would ensue from his convictions. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 1, 1999 Tex. Gen. Laws 4831, 4831-32 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 26.13(a)(5) (Vernon Supp. 2007)). The trial court could have delivered the admonishment orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2007). If the trial court substantially complied with the statute, the burden would shift to appellant to show he was unaware of the consequences of his plea and that he was harmed or misled by the admonishments. See id. art. 26.13(c). In these cases, however, the record shows the trial court completely failed to admonish appellant of the registration requirement. Appellant's signed plea agreement document, containing written admonishments, refers to a "Court's Admonition to Sex Offenders," which was supposedly attached for his review. The record does not contain such an attachment, and the State concedes appellant was not admonished as required. The trial court's complete failure to deliver the admonishment cannot be construed as substantial compliance. See Vannortrick v. State, 227 S.W.3d 706, 708 (Tex.Crim.App. 2007) (no substantial compliance when admonishment omitted completely). The trial court's failure to admonish appellant about sex offender registration as the statute requires is non-constitutional error subject to harmless error review. See Tex. R. App. P. 44.2(b); Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App. 2006) (en banc). We will disregard the trial court's non-constitutional error unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b); Anderson, 182 S.W.3d at 918. To determine whether appellant's substantial rights were affected, we review the whole record and determine whether we are fairly assured his decision to plead guilty would not have changed had the trial court admonished him. See Anderson, 182 S.W.3d at 919. There is no burden to show harm, and we are mindful that actual harm ordinarily cannot be proven. See id. at 918. The State concedes the trial court failed to admonish appellant, and thus erred, but it contends appellant failed to preserve error by bringing his complaint in a motion for new trial and the error was harmless. The court of criminal appeals has rejected imposing a preservation of error requirement on admonishment error. See Bessey v. State, 239 S.W.3d 809, 812-13 (Tex.Crim.App. 2007). Thus, we will proceed with our harm analysis. Appellant asserts he was harmed because he was confused regarding his pleas by the totality of the errors in the admonishments. Appellant points to the record showing he changed his plea after initially pleading not guilty, reconsidered his options, he was misled about his eligibility for regular probation, he was young, and he had been previously diagnosed as mildly retarded. In considering the effect of the trial court's failure to admonish, we may take into account the strength of the State's evidence of guilt, whether appellant learned of the registration requirement from some other source, whether the admonishment actually applies to appellant's situation, and evidence suggesting he would have entered a guilty plea even if he had received the admonishment. See Bessey, 239 S.W.3d at 813-14; Webb v. State, 156 S.W.3d 653, 656-57 (Tex.App.-Dallas 2005, pet. ref'd). The State's evidence included appellant's written statement to police confessing to the offenses. Appellant has never contended he was not guilty, and there is no evidence he was not guilty. Strong evidence of guilt suggests, but does not alone prove, appellant would have entered guilty pleas even if he had received the admonishments. See Bessey, 239 S.W.3d at 813; Anderson, 182 S.W.3d at 920-21. The record does not show appellant learned of the registration requirement from some other source. A community supervision officer who interviewed appellant as part of the pre-sentence investigation testified that he discussed the sentencing options available to the trial court and appellant preferred deferred adjudication. The officer's report mentions appellant would have to register as a sex offender but nothing in the report or the officer's testimony affirmatively shows he discussed the registration requirement with appellant. A silent record supports the inference appellant did not know the consequences of his plea. Bessey, 239 S.W.3d at 813. Because appellant was convicted of sex offenses and sentenced to concurrent confinements, the longest being twenty years, the sex offender admonishment applies to his situation. See id. at 814 (concluding defendant not harmed where sex offender admonishment inapplicable due to lengthy consecutive sentences). Regarding the effect of appellant's alleged mental retardation, the record contains conflicting evidence. Although appellant scored as mildly retarded on an intelligence test administered when he was a juvenile, the examiner concluded the test might have underestimated his abilities due to his "marginally cooperative behavior." Appellant was treated in a psychiatric facility and the PSI report describes him as schizophrenic. On the other hand, during the plea and punishment hearings, he answered questions lucidly and he appeared to understand the proceedings and his options. He does not challenge on appeal his mental competency to enter the pleas. Finally, we consider whether the evidence indicates receiving the admonishment would or would not have affected appellant's decision to plead guilty. See Webb, 156 S.W.3d at 656. The best evidence of appellant's intentions arises from his responses to the admonishments and advice he did receive. The record reflects appellant initially agreed to accept the State's plea-bargain offer for ten-year sentences. Shortly before the plea hearing, appellant changed his mind and entered pleas of not guilty as a prelude to a trial before the court. After the trial court and counsel informed him that the trial court could not give him probation if he was convicted in a trial before the court, appellant announced that he wished to reconsider his pleas. The trial court recessed the hearing so appellant and counsel could further discuss his options. After the recess, the parties announced appellant would enter non-negotiated pleas of guilty. Appellant entered the new pleas and assured the trial court that he was doing so freely and voluntarily. Counsel called him to testify briefly about his understanding of the plea proceedings. Counsel stated that, altogether, he and appellant had been discussing appellant's situation and options for an hour and a half. In response to counsel's questions, appellant affirmed his understanding that he was pleading guilty so he could request deferred adjudication probation from the trial court and that he might receive the deferred adjudication or he might be imprisoned for up to 99 years or life. During the period before sentencing, the State received records from the Texas Youth Commission showing appellant had been convicted of a prior felony. The State filed a motion to enhance punishment to which appellant objected. In arguing against the State's enhancement motion, counsel indicated appellant would not have entered guilty pleas had he been apprized of the true situation regarding enhancement. After a conference between counsel and the prosecutor, the State withdrew its motion. When appellant testified during the sentencing hearing, he engaged in the following exchange with counsel:
[Counsel]: We went over most of that last time we were here about you being charged with some offenses, and you wanted to plead guilty to some and not guilty to some and went over all that, and I think I ended up last time by saying that that hearing would be postponed or reset until another date. Whenever that other date came by, we would come before the Judge, and that Judge would determine what the punishment was going to be on those cases. You remember us talking about that?
. . . .
[Appellant]: Yes, sir. Yes.
[Counsel]: And do you remember probably about an hour and a half ago you and I went over the exact same thing again back in that little room with just you and me?
[Appellant]: Uh-huh, yes.
[Counsel]: And you kind of had to make a decision as to whether or not we wanted to proceed?
[Appellant]: Yes.
[Counsel]: Go ahead with this hearing today or back off our plea and have a jury trial. Remember we talked about those things?
[Appellant]: Yes.
[Counsel]: And you and I decided or you told me that you wanted to go ahead and proceed today and try to get deferred probation?
[Appellant]: Yes.In Webb, the defendant entered his guilty plea as a stratagem to convince the jury to be lenient in assessing punishment. See id. at 657. The defendant's evident desire to avoid prison left us fairly assured that he would have pleaded guilty for a chance at probation even if he had received the sex offender admonishment. See id. As in Webb, our record evinces appellant's desire to obtain probation and avoid prison. Our record, however, also shows appellant seriously considered proceeding to trial. Far from being set in stone, appellant's plea arose from discussions about his options with counsel and the trial court. His change of plea during the plea hearing indicated his willingness to consider other options depending upon the advice and admonishments he received. He and counsel discussed whether to proceed or withdraw the pleas before the punishment hearing began and he requested to withdraw his pleas if his objection to the State's motion to enhance punishment was denied. Because the record reveals appellant's willingness to reconsider his pleas in the face of shifting information, we are not fairly assured his decision to plead guilty would not have changed had the trial court admonished him in substantial compliance with article 26.13(a)(5). See Bessey, 239 S.W.3d at 813-14; Anderson, 182 S.W.3d at 921. Accordingly, we sustain that portion of appellant's second issue complaining about the omitted sex offender admonishment. Having sustained a portion of appellant's second issue, we need not consider appellant's contentions regarding the punishment range admonishments or whether he received ineffective assistance of counsel. We reverse the trial court's judgments and remand these cases to the trial court for further proceedings consistent with this opinion.