Jamar Agomo v. State

• Court: Court of Appeals of Texas
• Decided: April 19, 2012
• Docket: 01-09-00353-CR
• Status: Published

Opinion

Opinion issued April 19, 2012

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00352-CR & 01-09-00353-CR

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Jamar Agomo, Appellant

V.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1148163 & 1148164

MEMORANDUM OPINION

Without an agreed recommendation on punishment, appellant Jamar Agomo pleaded guilty to murder and aggravated assault with a deadly weapon.  See Tex. Penal Code Ann. §§ 19.02 (murder), 22.02 (aggravated assault) (West 2011).  He elected to have the jury assess punishment.  The jury sentenced him to life in prison for murder and 20 years in prison for aggravated assault.  On appeal, Agomo contends that the trial court reversibly erred by failing to admonish him about the ranges of potential punishment.  We affirm.

          Agomo was indicted for murder and for aggravated assault after he shot his wife and her friend, killing the friend.  He pleaded guilty at a pretrial hearing before voir dire.  The trial court did not admonish Agomo about the ranges of punishment for the charged offenses, but the court did ascertain that his plea was made freely and voluntarily, that nobody had threatened him, that he was mentally competent, and that he had consulted with his lawyer before deciding to plead guilty.  

Voir dire for the punishment stage was conducted five days later, and the record reflects that Agomo was present.  During voir dire, the trial court explained the ranges of punishment several times.  The court stated that murder is a first degree felony, for which the range of punishment is not less than five years nor more than 99 years or life in prison and up to a $10,000 fine.  See Tex. Penal Code Ann. § 12.32 (West 2011).  The court also stated that aggravated assault is a second degree felony, for which the range of punishment is not less than two years nor more than 20 years in prison and up to a $10,000 fine.  See id. § 12.33 (West 2011). The prosecutor and defense counsel discussed the same ranges of punishment in questioning the venire panel.  After the jury was seated, Agomo was arraigned before the jury, and he again pleaded guilty to both charges.

In his sole issue, Agomo contends that, before accepting his guilty pleas, the trial court failed to admonish him about the ranges of punishment, as required by the Texas Code of Criminal Procedure.  This issue may be raised for the first time on appeal.  See Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007).  Prior to accepting a guilty plea, a trial court must admonish a defendant about the punishment range attached to an offense.  Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2011).  The record reflects, and the State concedes, that the trial court did not administer the required admonishments.  The trial court clearly erred by failing to do so.  See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (holding that trial court clearly erred by wholly failing to admonish defendant as to applicable range of punishment).

“Failure to admonish a defendant on the direct consequences of his guilty plea is statutory rather than constitutional error.”  Burnett, 88 S.W.3d at 637; see Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999) (holding that trial court’s error in failing to show on record that it admonished guilty-pleading defendant is subject to non-constitutional harm analysis under Tex. R. App. P. 44.2(b)).  Thus, to determine if reversal is required, we must consider whether the trial court’s failure to give the statutory admonishments affected his substantial rights.  Tex. R. App. P. 44.2(b) (“Any other [i.e., non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

“Neither the appellant nor the State have any formal burden to show harm or harmlessness under Rule 44.2(b).”  Burnett, 88 S.W.3d at 638.  Rather, an appellate court “must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court’s failure to admonish him of the punishment range.”  Id.  “Reviewing courts must examine the entire record to determine whether, on its face, anything in that record suggests that a defendant did not know the consequences of his plea.”  Id.  In this context, a trial court’s failure to admonish a defendant will be harmless if the appellate court’s review of the record as a whole gives “fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him.”  Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006).

Agomo argues that the trial court’s error in failing to admonish him concerning the range of punishment requires reversal.  The record shows that Agomo was present during voir dire when the trial court explained multiple times that the range of punishment for murder is not less than five years nor more than 99 years or life in prison and up to a $10,000 fine and that the range of punishment for aggravated assault is not less than two years nor more than 20 years in prison and up to a $10,000 fine.  Both the prosecutor and Agomo’s trial counsel also explained the full range of punishment during voir dire.  After voir dire, Agomo was arraigned before the jury, and he pleaded guilty.  Agomo was not formally admonished, and the record does not reflect that he was made specifically aware of the punishment range at the time of the initial plea.  However, the record is clear that the range of punishment was repeatedly mentioned in his presence immediately prior to the subsequent plea, and although he could have changed his plea to “not guilty,” he nevertheless reaffirmed his plea of guilty.  See Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004) (“In a trial before a jury, the defendant may change the plea from guilty to not guilty at any time before the jury retires to deliberate its verdict; when trial by jury has been waived, the defendant may change the plea from guilty to not guilty until the court pronounces judgment or takes the case under advisement.”).  Having reviewed the record, we find nothing in it that suggests that Agomo did not know the punishment consequences of his guilty pleas.  See Burnett, 88 S.W.3d at 638.  We conclude that the record as a whole gives fair assurance that Agomo’s decision to plead guilty would not have changed had the court admonished him, and we hold that the trial court’s error in failing to give the statutory admonishments was harmless.  See Anderson, 182 S.W.3d at 919.  We overrule Agomo’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                      Michael Massengale

                                                                      Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish.   Tex. R. App. P. 47.2(b).