Morales v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of aggravated possession of marihuana. Tex. Health & Safety Code § 481.121(c). Pursuant to a plea bargain agreement, appellant entered a plea of guilty and the jury sentenced appellant to ten years confinement and a fine of $10,000. The Court of Appeals reversed. Morales v. State, 838 S.W.2d 272 (Tex.App.—El Paso 1992). We granted the State’s petition for discretionary review to determine whether the Court of Appeals correctly held a reversal was required for non-compliance with Tex.Code Crim.Proc.Ann. art. 26.13(a)(4). We will affirm.

I.

Appellant was charged in a two count indictment with illegal investment, Tex. Health & Safety Code § 481.126(a)(2), and aggravated possession of marihuana, Tex. Health & Safety Code § 481.121(c). After the presentation of evidence and both parties rested, the State and appellant entered into a plea bargain agreement whereby, in exchange for a plea of guilty to possession of marihuana, the illegal investment charges would be dismissed. The trial judge attempted to admonish appellant on the consequences of her guilty plea pursuant to art. 26.13(a). However, the parties agree that the trial judge failed to admonish appellant as required under art. 26.13(a)(4). The jury assessed appellant’s punishment at ten years confinement and a $10,000 fine. The Court of Appeals reversed because of the lack of admonishments required by art. 26.13(a)(4). Morales, 838 S.W.2d at 276.

II.

Art. 26.13 governs the admonishments to be given a defendant before her plea of guilty. Art. 26.13(a) provides:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

(1) the range of the punishment attached to the offense;

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contende-re; and

(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial; and

(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

Art. 26.13(c) provides that the admonishments will be sufficient if the trial judge substantially complies with the admonishment required by art. 26.13(a).

III.

In Ex parte McAtee, 599 S.W.2d 335 (1980), the defendant contended the trial judge failed to admonish him, under art. 26.13(a). We held that “[a] total failure of the trial court to admonish the defendant concerning the range of punishment is reversible error, without regal'd to whether the defendant was harmed.” Id. We reasoned:

... that where the record indicates that the defendant has received an admonishment with respect to punishment, although not a complete one, there is a prima facie showing of a knowing and voluntary plea of guilty.... Where there is a total failure to admonish concerning punishment, however, there is no prima facie showing; the defendant has received no warning whatsoever as to the punishment that is liable to be assessed. In such a case the danger of the defendant entering an unknowing and involuntary plea is so great that no specific harm need be shown.

Id. at 336 (emphasis in original; citations omitted). See also, Weekley v. State, 594 S.W.2d 96 (Tex.Cr.App.1980).

In Ex parte Cervantes, 762 S.W.2d 577 (Tex.Cr.App.1988), the trial judge wholly failed to admonish the defendant, pursuant to art. 26.13(a)(4). Relying upon our opinion in McAtee, we held:

While admonishments which substantially comply with Article 26.13 are sufficient, the complete failure to comply with an admonishment required by the statute requires reversal.

Cervantes, 762 S.W.2d at 578. In Cervantes, we set aside the judgment and remanded the cause for a new trial. Id.

We reaffirmed our holdings in McAtee and Cervantes in Hughes v. State, 883 S.W.2d 137, 140 (Tx.Cr.App.1992). Hughes contended the trial judge did not substantially comply with art. 26.13(a)(1). We stated:

... substantial compliance will only be found where a trial court has undertaken to admonish the defendant, the sentence given was within the range prescribed by law, and the defendant has failed to affirmatively show harm. Conversely, it will not be found where a trial court wholly fails to admonish the defendant on punishment.

Id. (Footnotes omitted.)

IV.

The instant case is indistinguishable from Cervantes. The trial judge wholly failed to admonish appellant as required under art. 26.13(a)(4). Therefore a prima facie case was not made and there is no requirement appellant show harm. See, McAtee, supra, and, Hughes, supra.

Accordingly, we affirm the judgment of the Court of Appeals.

CLINTON and OVERSTREET, JJ., join with the observation that the “if’ wording in subsection (a)(4) is intended to preclude any inquiry into defendant’s citizenship.

MILLER and WHITE, JJ., dissent.

. The State’s question for review asks:

Is a defendant entitled to have his plea of guilty set aside for failure of the trial court to admonish the defendant as set out by Tex.Code Crim.Proc.Ann. art. 26.13(a)(4), that if the defendant 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, where the record is silent as to whether the defendant was a citizen of the United States?

Tex.R.App.P. 202(d)(4) provides in part: "The statement of the questions should be short and concise and should not be argumentative or repetitious.” The State’s question for review does not comply with Rule 202(d)(4).

. Unless otherwise indicated, all emphasis is supplied.

. Tex.Code Crim.Proc.Ann. art. 26.13(c) provides:

In admonishing the defendant as herein provided, substantial compliance by the court is sufficient unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.