Nos. 05-03-00055-CR, 05-03-00056-CR, 05-03-00057-CR
Opinion Filed January 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50415-IU, F02-50416-VU, F02-72973-JU. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion By Justice O'NEILL.
Ronald Gene Stribling was convicted of possession of cocaine in an amount of four grams or more, but less than two hundred grams, unlawful possession of a firearm by a felon, and possession of phencyclidine in an amount of one gram or more, but less than four grams. The trial court assessed his punishment at thirty years of confinement for each drug offense and ten years of confinement for the firearm offense. On appeal, Stribling raises two issues related to the trial court's failure to admonish him of the deportation consequences of his plea. The trial court's judgments are affirmed.
I. BACKGROUND
Stribling pleaded not guilty to the offenses charged and a jury trial commenced. At the beginning of the second day of testimony, Stribling elected to change his pleas to guilty. The trial court admonished Stribling regarding the consequences of his pleas and the applicable ranges of punishment, and informed the jury of the plea changes and its impact on their service. The jury found Stribling guilty of all three offenses and found that he used or exhibited a deadly weapon during the commission of the two drug offenses. Stribling elected to have the trial court assess his punishment. He pleaded true to the two enhancement paragraphs alleged in the drug cases and the one enhancement paragraph alleged in the possession of a firearm by a felon case. The trial court found the enhancement paragraphs true and that Stribling used or exhibited a deadly weapon during the commission of the offenses. The trial judge assessed Stribling's punishment at thirty years of confinement for each drug offense and ten years of confinement for the firearm offense. Stribling's original appellate counsel filed a brief that concluded the appeals were wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). However, this Court concluded there was at least one arguable issue for appeal regarding the trial court's failure to admonish Stribling of the possible deportation consequences of his guilty pleas. See Stribling v. State, No. 05-03-00055-CR, 2004 WL 2152345 (Tex.App.-Dallas Sept. 27, 2004) (not designated for publication). New appellate counsel was appointed by the trial court and new briefing was done. II. DEPORTATION ADMONISHMENT
In his first issue, Stribling argues his guilty pleas were not voluntary because the trial court did not admonish him of the deportation consequences of his guilty pleas as required by article 26.13 of the Texas Code of Criminal Procedure. The State responds that the record shows Stribling is a United States citizen and he would have been previously subjected to deportation proceedings if he was not a United States citizen because he has a criminal history. Article 26.13(a)(4) of the Texas Code of Criminal Procedure requires a trial court to admonish a defendant of the fact that if he is not a citizen of the United States, then a plea of guilty may result in deportation, the exclusion from admission into this country, or the denial of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005); see also Splawn v. State, 949 S.W.2d 867, 876 (Tex.App.-Dallas 1997, no pet.). A trial court errs if it accepts a defendant's guilty plea without admonishing him of the possible deportation consequences of his plea. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002); Hwang v. State, 130 S.W.3d 496, 498 (Tex.App.-Dallas 2004, pet. ref'd). That error, however, is subject to a harm analysis. See Tex.R.App.P. 44.2(b); Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998) (en banc). The trial court wholly failed to admonish Stribling regarding the deportation consequences of his pleas. Therefore, the trial court erred in not giving the admonishment required by article 26.13(a)(4) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13; Hwang, 130 S.W.3d at 499. However, we conclude the error was harmless. After the appeals were reinstated, a supplemental clerk's record was filed. The supplemental clerk's record contains documents that show Stribling stated he was a citizen of the United States when he appeared before a magistrate after his arrests for the charged offenses. Accordingly, we conclude the trial court's error in failing to admonish Stribling of the deportation consequences of his guilty pleas is harmless. Stribling's first issue is decided against him. III. DUE PROCESS
In his second issue, Stribling argues the trial court's failure to admonish him of the deportation consequences of his guilty pleas violated his due process and due course of law rights under the United States and Texas Constitutions. The State responds that the Texas Court of Criminal Appeals has held the failure to admonish regarding the deportation consequences of a guilty plea is non-constitutional error, his due process rights could not have been violated because the record shows he is a United States citizen, and any error in failing to admonish him was harmless. The purpose and function of article 26.13 is to ensure that only a constitutionally valid plea is entered and accepted by the trial court. See Hwang, 130 S.W.3d at 499; Gorham v. State, 981 S.W.2d 315, 319 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). In cases where a non-citizen defendant pleads guilty to a criminal offense, the trial court's failure to admonish him regarding the possibility of deportation raises serious due process concerns. See Gorham, 981 S.W.2d at 319. However, the same due process considerations are not implicated when the trial court fails to admonish a United States citizen in accordance with article 26.13(a)(4). See, e.g., Cain, 981 S.W.2d at 264; see also Gorham, 981 S.W.2d at 319. Although the failure to give a United States citizen the deportation admonishment violates statutory law, it does not affect a defendant's due process or substantial rights. See Gorham, 981 S.W.2d at 319. The record shows Stribling stated to a magistrate on two separate occasions that he was a United States citizen. Accordingly, we conclude the trial court's failure to admonish him of the deportation consequences of his guilty pleas did not violate his due process rights. Stribling's second issue is decided against him. IV. CONCLUSION
The trial court's judgments are affirmed.