Anderson v. State

182 S.W.3d 914, 2006 Tex. Crim. App. LEXIS 15, 2006 WL 119841
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 18, 2006
DocketPD-0028-02, PD-0029-02, PD-0030-02
StatusPublished
Cited by200 cases

This text of 182 S.W.3d 914 (Anderson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 182 S.W.3d 914, 2006 Tex. Crim. App. LEXIS 15, 2006 WL 119841 (Tex. 2006).

Opinions

WOMACK, J.,

delivered the opinion of the court,

in which KELLER, P.J., and MEYERS, PRICE, HOLCOMB, and COCHRAN, JJ., joined.

The issue in this case is the standard for harmless-error review when, during arraignment, a court fails to admonish a defendant of the requirement to register as a sex offender which will affect him after conviction.

The appellant faced three indictments: two for aggravated sexual assaults of children and one for indecency with a third child. He did not waive his right to trial by jury. In accordance with Article 37.07, section 2(b), of the Code of Criminal Procedure he “filed his sworn motion for probation before the trial,” and thus the same statute required that “the punishment be assessed by the ... jury.”

He was arraigned on, and pleaded guilty to, the indictments. Article 26.13 of the Code of Criminal Procedure requires, “Pri- or to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of’ four things: (1) the range of punishment attached to the offense, (2) certain aspects of the law on plea-bargain agreements, (3) the effect that a plea-bargain agreement may have on the right of appeal, and (4) the effect that a conviction might have on a non-citizen.1 The article contains a fifth admonition for a defendant who is accused of an offense that may require him to register as [917]*917a sex-offender; the court must admonish such a defendant of that consequence.2

In arraigning the appellant, the court admonished him of the ranges of punishment attached to the offenses. It did not give him the second or third admonitions because, a jury being empaneled to assess punishment after the plea, there was no plea-bargain agreement.3 It did not give him the fourth admonition, apparently because there is no suggestion that the appellant was not a citizen of the United States. The court also made some excellent inquiries to carry out its responsibility to reject a plea of guilty if it did not appear that the appellant was mentally competent and that his plea was free and voluntary.4 But the court neglected to admonish the appellant on the registration requirements for convicted sex offenders.

The jury found the appellant guilty and assessed punishments of seventy-five years’ imprisonment in each case of aggravated sexual assault and twenty years in the indecency case.

On appeal he complained of the failure of the court to give him the sex-offender-registration admonition. The Court of Appeals noted the error and turned to the issue of its harm. See Anderson v. State, 62 S.W.3d 304 (Tex.App.-Fort Worth 2001). The Court perceived a split among the courts of appeals, in which some courts had held such an error to be harmless,5 and another had held it not to be harmless.6 The Court of Appeals held that the error was harmless because, for one thing, “sex offender registration, while serious, is a collateral consequence of appellant’s guilty pleas and that the trial court’s failure to admonish him regarding the registration requirement did not render his pleas involuntary.”7 The Court added, “Further, in the absence of evidence in the record that appellant was unaware of the consequences of his pleas and that he was misled or harmed by the trial court’s admonishment, we conclude the trial court’s failure to admonish appellant regarding the registration requirement was harmless error.”8 It affirmed the judgments of conviction. We granted review.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial: the privilege granted against compulsory self-incrimination guaranteed by the Fifth Amendment, and the Sixth Amendment rights to be tried by jury and to confront one’s accusers; the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States sets the standard of volun-tariness for a waiver of these important federal rights.9 Among other constitutional requirements is one that a defendant who pleads guilty be fully aware of certain [918]*918consequences of the plea.10 But this constitutional standard does not require a court to admonish a guilty-pleading defendant “about every possible consequence of his plea, direct or collateral, only about those direct consequences that are punitive in nature. ... We hold that the failure to admonish appellant as to a direct, non-punitive consequence of his plea, specifically, the sex-offender-registration requirement, did not violate due process or render his plea involuntary.”11

A Texas court, however, must do more than is required to meet the minimum standards of due process of law when a defendant pleads guilty in a felony case. It also must “admonish a defendant [who is pleading guilty] ... about those direct consequences that are ... specifically enunciated in the law. See, Tex.Code Crxm. Proc., art 26.13.”12 The registration requirement for persons who are convicted of sex offenses is a direct consequence.13 The required admonition about the registration requirement has been specifically enunciated in Article 26.13 since September 1, 1999.14 The issue in this case is not constitutional error; it is a violation of Article 26.13’s prescribed admonition.

For such violations, Article 26.13(c) itself contains a directive to appellate courts:

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.

“There is a large gray area between letter-perfect compliance and total failure to admonish,” 15 and questions of substantial compliance arise in that gray area. Here we are in the pure black area of total failure to admonish on the sex-offender registration requirement.

When there is insufficient admonition, whether by total failure to admonish or an admonition that is not in substantial compliance, the violation of Article 26.13 comes within the standard of Rule of Appellate Procedure 44.2(b): “Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”16

Whether an error was in violation of a “mandatory” statute has no place in the analysis under Rule 44.2(b).17 The issue is whether, in a given case, the error affected substantial rights, in which case it is not harmless error. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm.18 It is important to look at the record as a whole. In general, we look to the severity of the error in a [919]*919trial, to measures taken to cure the error, and to the certainty of conviction without the error.19

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Cite This Page — Counsel Stack

Bluebook (online)
182 S.W.3d 914, 2006 Tex. Crim. App. LEXIS 15, 2006 WL 119841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-texcrimapp-2006.