Charlie Brager v. State

• Court: Court of Appeals of Texas
• Decided: February 28, 2003
• Docket: 12-02-00166-CR
• Status: Published

Opinion

NO. 12-02-00166-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHARLIE BRAGER,

§ APPEAL FROM THE SEVENTH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Charlie Brager ("Appellant") appeals his conviction for aggravated sexual assault, for which he was sentenced to imprisonment for thirty years. Appellant raises one issue on appeal. We affirm.

Background

Appellant was indicted for the aggravated sexual assault of N.N. ⁽¹⁾ Appellant pleaded guilty and the trial court admonished Appellant to determine if his plea was entered voluntarily. Appellant's trial counsel informed the trial court that he believed that Appellant understood his rights and the consequences of entering the guilty plea. However, Appellant was not admonished regarding the requirement that he register as a sex offender after serving his sentence. The trial court sentenced Appellant to imprisonment for thirty years and this appeal followed.

Admonishment Regarding Sex Offender Registration Requirement

In his sole issue, Appellant argues that the trial court committed reversible error in failing to admonish him regarding the requirement that he register as a sex offender after serving his sentence. The State concedes that Appellant was not so admonished, but argues that such a failure on the trial court's part does not constitute reversible error.

Prior to accepting a plea of guilty or nolo contendere, the trial court shall admonish the defendant of the fact that the defendant will be required to meet the registration requirements of Chapter 62 of the Texas Code of Criminal Procedure if he is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(5) (Vernon Supp. 2003). Moreover, the trial court is required to ascertain whether the defendant's attorney has advised the defendant regarding such registration requirements. See Tex. Code Crim. Proc. Ann. art. 26.13(h) (Vernon Supp. 2003). However, in admonishing the defendant, substantial compliance by the trial 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. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989).

The admonishments under article 26.13(a) are not constitutionally required because their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. See Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999); Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.-Fort Worth 2001, no pet.). Thus, a trial court commits non-constitutional error when it fails to admonish a defendant on one of the statutorily required admonishments. Id.

Non-constitutional error is to be disregarded, unless it affects a substantial right of the appellant. See Tex. R. App. P. 44.2(b). In this context, a substantial right is affected if the appellant was unaware of the consequences of his plea and was misled or harmed by the admonishment of the trial court. Alvarez, 63 S.W.3d at 581-82; Tex. Code Crim. Proc. Ann. art. 26.13(c). ⁽²⁾ We assess the harm to the appellant, if any, after reviewing the record. See Johnson, 43 S.W.3d at 5.

Since article 26.13(a) was amended to include admonishments regarding the sex offender registration requirement, several courts of appeals have addressed the issue of whether a trial court's failure to admonish a defendant regarding the registration requirement affects a guilty plea. The majority of those courts have applied the Carranza ⁽³⁾ standard of review in conjunction with the concepts of direct versus collateral consequences of a plea in determining whether reversible error occurred and the defendant's plea was invalidated. See, e.g., Lopez v. State, 71 S.W.3d 511, 516 (Tex. App.-Fort Worth 2002, no pet.); Alvarez v. State, 63 S.W.3d at 583; Thompson v. State, 59 S.W.3d 802, 806-07 (Tex. App.-Texarkana 2001, pet. ref'd); Shankle v. State, 59 S.W.3d 756, 759-62 (Tex. App.-Austin 2001, pet. granted); Ducker v. State, 45 S.W.3d 791, 793-96 (Tex. App.-Dallas 2001, no pet.).

Generally, if a defendant is fully advised of the direct consequences of his plea, his ignorance of a collateral consequence does not render the plea involuntary. See State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Each of the courts cited above initially concluded that the admonishments under article 26.13(a)(5) regarding sex offender registration are only collateral and that the failure to admonish a defendant, alone, does not invalidate a guilty plea. See Lopez, 71 S.W.3d at 516; Alvarez, 63 S.W.3d at 582; Thompson, 59 S.W.3d at 806-07; Shankle, 59 S.W.3d at 759-62; Ducker, 45 S.W.3d at 793-96. The courts then proceeded to apply the Carranza standard of review to the facts of the particular cases.

In Thompson and Ducker, the courts determined that, in the absence of evidence that the defendant was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishment, no reversible error occurred. See Thompson, 59 S.W.3d at 807; Ducker, 45 S.W.3d at 795-96; see also Alvarez, 63 S.W.3d at 583; Lopez, 71 S.W.3d at 516. On the other hand, in Shankle, the case on which Appellant relies, the court determined that, even though registration is a collateral consequence, the registration requirement was so serious that the trial court's failure to admonish the defendant regarding registration affected a substantial right and was reversible error. See Shankle, 59 S.W.3d at 761-62. Although from our review of Shankle, it is clear the court determined Shankle was harmed by the admonishment, we see no indication that the court also concluded from its review of the record that Shankle was not aware of the consequences of his plea. See id. at 760-62. As such, we conclude that the analysis in Shankle is incomplete, and therefore not helpful to us in our analysis of the case at hand.

In conducting our harmful error analysis, we have reviewed the record in the instant case. See Johnson, 43 S.W.3d at 5. Appellant admitted to sexually assaulting N.N. Appellant understood the range of punishment for the offense and that he could be found guilty and sentenced accordingly. There is no evidence that Appellant was unaware of the registration requirement or that he would not have pleaded guilty if the trial court had properly admonished him regarding registration. Rather, Appellant's trial counsel informed the trial court that he believed that Appellant understood his rights and the consequences of entering the guilty plea. Thus, if anything, the record reflects that Appellant was aware of the registration requirement, it being one of the consequences of his entering a guilty plea.

We agree that the registration requirement is a serious consequence of Appellant's plea, albeit a collateral one. However, in the absence of evidence in the record that Appellant was unaware of such a consequence of his plea 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. See Alvarez, 63 S.W.3d at 583; Thompson, 59 S.W.3d at 806-07; Ducker, 45 S.W.3d at 793-96; see also Lopez, 71 S.W.3d at 516. Appellant's sole issue is overruled.

Conclusion

Having concluded that the trial court's failure to admonish Appellant regarding the registration requirement was harmless error, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered February 28, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

(DO NOT PUBLISH)

1.

In this opinion, we use the victim's initials instead of her name.

2.

We note that an appellant has no burden to show harm under Rule 44.2(b). See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001).

3.

Carranza v. State, 980 S.W.2d 653, 655-56 (Tex. Crim. App. 1998).