Cain v. State

947 S.W.2d 262, 1997 Tex. Crim. App. LEXIS 54, 1997 WL 331774

• Court: Court of Criminal Appeals of Texas
• Decided: June 18, 1997
• Docket: 317-95, 318-95
• Status: Published

Opinions

OPI NION ON APPELLANT’S PETITION FOB DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was indicted in 1993 in Parker County on two charges of aggravated robbery. He pled guilty to “aggravated robbery with a deadly weapon” in Cause Nos. 11520 and 11521 and elected to have the jury set punishment. Punishment was assessed at life in prison in both causes, to run concurrently. On January 11,1995, appellant’s conviction was affirmed by the Second Court of Appeals. Cain v. State, 893 S.W.2d 681(Tex.App. — Fort Worth 1995). We granted appellant’s petition for discretionary review to determine whether the trial court reversibly erred in failing to admonish him about the deportation consequences to a non-citizen of a guilty plea when the record reflects that appellant is in fact a United States citizen.¹ We will affirm.

Appellant argues that the trial court committed reversible error by failing to admonish him in accordance with Article 26.13(a) of the Texas Code of Criminal Procedure. Specifically, the trial court failed to admonish appellant concerning the deportation consequences of his plea:

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.

Article 26.13(a)(4). In its brief to the Court of Appeals and in its response to appellant’s petition for discretionary review, the State does not dispute that the (a)(4) admonishment was not given. Instead, it points to the fact that appellant is a U.S. citizen, and correctly infers that the failure to give the admonishment could not possibly have influenced appellant’s decision to plead guilty. The Court of Appeals agreed with the State, holding that because the admonishment was immaterial to the plea and the record showed that appellant is a U.S. citizen,² the trial court substantially complied with Art. 26.13, and the burden shifted to the defendant to prove that he was harmed by the omission.

Our past decisions on the issue of complete failure to give an admonishment are confusing. Much of the debate has focused on 26.13(c), which states: “ 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.” In Whitten v. State, 587 S.W.2d 156 (Tex.Crim.App.1979) and more recently in Morales v. State, 872 S.W.2d 753 (Tex.Crim.App.1994), we have used 26.13(c) as the dominant paradigm for deciding when a conviction must be reversed.

In Whitten v. State, 587 S.W.2d 156 (Tex. Crim.App.1979), we held that where an admonishment was not given but the admonishment was immaterial to the pleas, the trial court was still in substantial compliance with the statute. Id at 158. In Morales, however, we rejected the Whitten approach of finding substantial compliance where there was in fact no compliance with a particular admonishment. Morales, 872 S.W.2d at 754-755. The concurring opinion in Morales pointed out the difficulty with our “substantial compliance” jurisprudence, stating in effect that “substantial compliance,” which is intended to address the language used in an inaccurate or incomplete admonishment, has been used as a type of harmless error analysis. Morales, 872 S.W.2d at 756 (Meyers, J., concurring).³

However, in Morales, the record was silent on whether the defendant was a U.S. citizen. Seizing upon this fact, several appeals courts have distinguished Morales by applying the “substantial compliance through immateriality” doctrine to affirm convictions where the record affirmatively established that the defendant was a U.S. citizen. See Durst v. State, 900 S.W.2d 134, 139-140 (Tex.App.— Beaumont 1995, pet. ref'd); Dixon v. State, 891 S.W.2d 783, 783-784 (Tex.App. — Austin 1995); Dominguez v. State, 889 S.W.2d 13, 15-16 (Tex.App. — El Paso 1994). The Court of Appeals in this case used the same approach, holding that the trial court “substantially complied” with the statute. Cain, 893 S.W.2d at 685.

But the Morales ’ critique of the Whitten approach applies equally to the present context. To claim that an admonishment was in substantial compliance even though it was never given is a legal fiction. Article 26.13(c) has been used as a rough replacement for a harmless error analysis, when that is really not its purpose.

However, Morales was mistaken to the extent that it may have implied that the absence of substantial compliance ends the inquiry. Recently, a plurality of this Court has opined that all errors, including a failure to admonish under Article 26.13(a)(4), are subject to the harmless error standard found in Texas Rule of Appellate Procedure 81(b)(2).⁴ Matchett v. State, 941 S.W.2d 922, 926-30 (Tex.Crim.App.l996)(plurality opinion). The plurality recognized that its opinion conflicts with some statements found in Marin v. State, 851 S.W.2d 275 (Tex.Crim. App.1993) regarding the inapplicability of harmless error standards to certain kinds of errors but reasoned that appellate courts should not foreclose entire categories of error from harmless error review merely because such errors may generally resist a meaningful harmless error determination. Matchett, 941 S.W.2d at 928-29. The plurality concluded that a failure to admonish under Article 26.13(a)(4) is subject to a Rule 81(b)(2) harmless error analysis and that the error is harmless beyond a reasonable doubt if the record contains evidence that the defendant is a U.S. citizen. Id at 929-30. We find the plurality opinion in Matchett to be well-reasoned, and we adopt that opinion’s holding and reasoning. Except for certain federal constitutional errors labeled by the United States Supreme Court as “structural,” ⁵ no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. Of course, where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless beyond a reasonable doubt under Rule 81(b)(2). Hence, it may be true that some kinds of errors (particularly jurisdictional ones) will never be harmless under the Rule 81(b)(2) test and that some other kinds of errors will rarely be harmless. But, appellate courts should not automatically foreclose the application of the harmless error test to certain categories of error. Where an error is shown to be harmless, it is not a ground for reversal, regardless of the category or label attached to that particular error. In the present case, the trial court’s failure to admonish the defendant concerning the deportation consequences of his plea is harmless because the record reflects that he is a U.S. citizen and is therefore not subject to deportation. To the extent that Marin, Morales, Whitten, and any other decision conflicts with the present opinion, they are overruled.

Although we disagree with the rationale of its opinion, the Court of Appeals reached the correct result. Therefore, the judgment of the Court of Appeals is affirmed.

MEYERS, J., concurs, with opinion to follow.

1 . Although we granted two other grounds for review contained in appellant’s petition, we now dismiss those grounds as improvidently granted.

2 . Appellant disputes the State's position that the record affirmatively revealed his citizenship. However, the court of appeals found that the record did establish that the defendant was a U.S. citizen. It based this decision on the fact that State’s Exhibit # 1, appellant's TDC record, showed his birthplace to be Parker County, Texas.

3 .Judge Meyers wrote:

The rationale underlying these peculiar cases reads more like an application of the harmless error rule than a determination that the admonishments actually given were substantially correct ... It is the sense of the statute that defendants need not be admonished in any particular form of words, but only that the information be communicated to them in some effective way.

Morales, 872 S.W.2d at 756 (Meyers, J., concurring).

4 . Rule 81(b)(2) provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment

5 . The Supreme Court has mandated that certain federal constitutional errors labeled as ''structural'' are not subject to a harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1264-1265, 113 L.Ed.2d 302 (1991).