Pamela Sue Garza v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2005
• Docket: 07-04-00431-CR
• Status: Published

Opinion

NO. 07-04-0431-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 16, 2005

______________________________

PAMELA SUE GARZA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

NO. 1096; HONORABLE STEVEN EMMERT, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Pamela Sue Garza, pled guilty to a jury to possession of a controlled

substance with intent to deliver. The jury returned a guilty verdict and sentenced appellant

to seven years incarceration in the Institutional Division of the Texas Department of

Criminal Justice. Appellant appeals her conviction. We affirm. Background

Based on information from a confidential informant, the Lipscomb County Sheriff’s

Office obtained a search warrant for appellant’s home and gathered evidence indicating

her participation in drug trafficking between Amarillo and Higgins, Texas.

At trial, appellant pled guilty before a jury. The trial court judge then informed the

jury that instead of a bifurcated trial, there would be only one phase of the trial. After

presentment of evidence on punishment, the jury, per its verdict form, stated “We, the jury

having found the defendant, Pamela Sue Garza, guilty . . .” sentenced appellant to seven

years incarceration in the Institutional Division of the Texas Department of Criminal Justice.

Appellant presents two issues on appeal. Appellant contends that the trial court

erred by (1) failing to submit the issue of guilt/innocence to the jury, and (2) failing to

admonish appellant as required. TEX . CODE CRIM . PROC . ANN . art. 26.13 (Vernon Supp.

2005).1 We affirm.

Issue One: Failure to submit issue of guilt to the jury after guilty plea

Appellant contends that the trial court should have submitted the issue of guilt to the

jury, and obtained a written verdict, see art. 37.01, even on a guilty plea. See Fairfield v.

State, 610 S.W.2d 771, 780 n.15 (Tex.Crim.App. 1981). Thus, appellant contends that the

trial court erred by proceeding directly into punishment evidence without first directing the

1 Further reference to the Texas Code of Criminal Procedure will be by reference to “art. __.”

2 jury to return a finding of guilt. However, once a defendant pleads guilty to an offense, the

plea itself is sufficient evidence to establish all the facts alleged in the indictment, id. at

780, and the trial no longer has separate guilt/innocence and punishment phases. Barfield

v. State, 63 S.W.3d 446, 449 (Tex.Crim.App. 2001) (bifurcation statute, art. 37.07 § 2(a),

applies only to pleas of not guilty before a jury). Appellant’s guilty plea precluded

submission of the issue of guilt to the jury, Fairfield, 610 S.W.2d at 776-77, and left only

the issue of punishment to be determined during an unitary trial. See Carroll v. State, 975

S.W.2d 630, 631 (Tex.Crim.App. 1998). Thus, the jury had to return a verdict only on the

issue submitted to it, which was the issue of punishment. See art. 37.01; Brinson v. State,

570 S.W.2d 937, 939 (Tex.Crim.App. 1978).

However, even assuming that appellant was entitled to a written verdict by the jury

on the issue of guilt, the verdict form returned in this case stated that the jury “found the

defendant, PAMELA SUE GARZA, guilty of the offense of POSSESSION OF

CONTROLLED SUBSTANCE WITH INTENT TO DELIVER . . .” and assessed punishment

within the same verdict form. This verdict is sufficient to fulfill the requirements of art.

37.01. See Brinson, 570 S.W.2d at 939. Appellant’s first issue is overruled.

Issue Two: Failure to admonish upon guilty plea

Both parties agree that the trial court did not give any written or oral

admonishments, as required by art. 26.13. Specifically, appellant complains that the trial

court failed to admonish her as to the applicable punishment range, art. 26.13(a)(1), and

the possible consequences of a guilty plea on citizenship and immigration related issues,

3 art. 26.13(a)(4). Failure to admonish a defendant consistent with art. 26.13 is non-

constitutional error subject to harm analysis. TEX . R. APP. P. 44.2(b);2 see also Aguirre-

Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 1999). Under Rule 44.2(b), “Any

other error, defect, irregularity, or variance [not under Rule 44.2(a)] that does not affect

substantial rights must be disregarded.”

Appellant contends that she was unsure of the punishment range because the

prosecutor misstated the correct punishment range,3 and that she was not aware of the

correct punishment range until it was “too late for her to withdraw her plea.” The State

contends that appellant’s substantial rights were not affected because it correctly stated

the punishment range of incarceration during voir dire and the trial court correctly stated

the applicable punishment range in the court’s charge. Thus, the State contends that

appellant knew the applicable punishment range, even though the judge erred in failing to

give the admonishments. Although, appellant contends that without the admonishments

“doubt is cast upon the voluntariness of her plea,” our independent review of the record

reveals no “grave doubt” that appellant’s plea was voluntary. Burnett v. State, 88 S.W.3d

633, 638 (Tex.Crim.App. 2002). Further, appellant could have withdrawn her plea at any

time prior to the retirement of the jury. See Fairfield, 610 S.W.2d at 776 (citing Alexander

v. State, 69 Tex.Crim. 23, 152 S.W. 436, 437 (1912)).

2 Further reference to the Texas Rules of Appellate Procedure will be by reference to “Rule __.” 3 During voir dire, the prosecutor incorrectly stated the maximum fine as being up to $10,000. On a charge of delivery of a controlled substance within a drug free zone, the maximum fine is up to $20,000. See TEX . HEALTH & SAFETY CODE ANN . § 481.134(c)(1) (Vernon Supp. 2005).

4 Appellant also contends the trial court’s failure to admonish her of possible

deportation consequences of her plea substantially harmed her and requires reversal even

though the record is silent to appellant’s citizenship status. The State counters that harm

cannot be presumed by the trial court’s failure to admonish appellant of deportation

consequences given the lack of evidence concerning appellant’s citizenship status.

Contrary to appellant’s position, without evidence of appellant’s citizenship status, we have

no basis to determine whether appellant’s substantial rights were affected and are,

therefore, required to disregard any error as harmless. Rule 44.2(b); see also Gorham v.

State, 981 S.W.2d 315, 319 (Tex.App.–Houston [14th Dist.] 1998, pet. ref’d).

Under our duty to assess harm after a proper review of the record, we do not find

any indication that appellant’s substantial rights were affected by the trial court’s failure to

admonish appellant as to the applicable punishment range or of the possible deportation

consequences of her plea. Further, the record does not indicate that appellant’s plea was

involuntary. We overrule appellant’s second issue.

Conclusion

Having overruled appellant’s two issues, we affirm.

Mackey K. Hancock Justice

Do not publish.