Opinion issued May 6, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00160-CR
EDWIN LEIVA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 898504
MEMORANDUM OPINION
Appellant, Edwin Leiva, pled guilty to aggravated assault without an agreed recommendation. After a pre-sentence investigation (PSI) report was completed and a sentencing hearing with testimony was conducted, the trial court found appellant guilty, entered an affirmative deadly-weapon finding, and assessed punishment at eight years’ confinement in prison. In three issues, appellant contends that (1) the trial court reversibly erred by failing to instruct appellant of the deportation consequences of his guilty plea; (2) appellant received ineffective assistance of counsel, resulting in an involuntary plea; and (3) the trial court abused its discretion by denying appellant’s motion for new trial.
We affirm.
Failure to Admonish Regarding Deportation Consequences of Guilty Plea
In his first issue, appellant complains that the trial court reversibly erred by failing to admonish him about the deportation consequences of his guilty plea.
Code of Criminal Procedure article 26.13 sets out the admonishments a trial court must provide a defendant who is pleading guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). Among these is the admonition that, if the defendant is not a citizen of the United States, 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 found in article 26.13(a)(4). Id. art. 26.13(a)(4). A trial court errs if it accepts a defendant’s guilty plea without admonishing him of the deportation consequences of his plea. Gorham v. State, 981 S.W.2d 315, 318 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); see also Carranza v. State, 980 S.W.2d 653, 655-56 (Tex. Crim. App. 1998) (finding that trial court did not substantially comply with article 26.13(a)(4) when it failed to admonish defendant either orally or in writing regarding deportation consequences of his plea); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (providing that trial court shall admonish defendant pleading guilty regarding deportation consequences).
The court may make the admonitions required by article 26.13(a) either orally or in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2004). The record in this case contains no written admonitions signed by the defendant. The transcript from the plea hearing contained in the record shows that the trial court admonished appellant regarding the range of punishment for the offense of aggravated assault but makes no mention of the deportation consequences of appellant’s plea.
Despite the absence of any reference at the plea proceeding to the deportation admonition required by article 26.13(a)(4), some indication exists in the record that appellant was given such admonition. At the PSI hearing, the following testimony was given by appellant:
[Appellant’s trial counsel]: [Y]ou remember during the time that Judge admonished you one of the points he made was that if you’re not a citizen you could be deported. Do you remember that?
[Appellant]: Yes, sir.
Q. Knowing that’s going to be hell to your family, too. Do you know that?
A. Yes, sir.
We also note that the trial court signed plea papers providing that the trial court had admonished appellant of the consequences of his plea. The trial court’s judgment contains similar language.
Failure of the trial court to admonish a defendant regarding his deportation status is non-constitutional error and is, therefore, subject to a harmless error analysis under Rule of Appellate Procedure 44.2(b). See Carranza, 980 S.W.2d at 656. Under this analysis, when there has been no substantial compliance with the admonishment requirements of article 26.13(a)(4), a defendant is required to show no more than his unawareness of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Id. at 658.
Regardless of whether the trial court failed to admonish appellant regarding the deportation consequences of his plea in this case, the record does not show that appellant was harmed by such failure. Specifically, appellant has failed to show that he was unaware of the deportation consequences of his plea. To the contrary, appellant’s own testimony at the PSI hearing demonstrates that he was aware of such consequences. In addition, the plea papers and the judgment state that appellant was properly admonished. Thus, the record indicates that appellant understood and knew he was subject to possible deportation consequences if he pled guilty.
The record further shows that appellant understood that he would be found guilty and sentenced accordingly if he pled guilty. Appellant also understood that the trial court would assess punishment within the applicable punishment range.
We hold that, even assuming that the trial court failed to comply with article 26.13(a)(4), any error in failing to do so was harmless.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
Appellant asserts in his second point of error that he received ineffective assistance of counsel because his trial counsel misinformed him that, as part of the plea agreement, the State had agreed to waive a deadly-weapon finding. The plea papers do not reflect such an agreement; rather, the plea papers only indicate: “Without a Recommendation–Plea to PSI.” Appellant asserts that the misinformation he allegedly received from his trial counsel effectively renders his guilty plea involuntary because his plea was predicated on his understanding that the State was waiving the deadly-weapon finding.
In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (holding Strickland two-prong test applies to ineffective assistance claims throughout trial). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). As with other types of ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that counsel’s performance fell below a reasonable standard of competence and that appellant would, with reasonable probability, have pled not guilty and insisted on going to trial had he been properly advised. Id. at 858. Here, we need not address the first prong under Moody because appellant has failed to meet the second prong; that is, appellant fails to show that, but for counsel’s alleged error, he would not have pled guilty and would have insisted on going to trial.
The record reflects that appellant filed an unverified motion for new trial, asserting that the State had agreed to waive the deadly-weapon finding and that appellant’s plea had been predicated on such waiver. At the hearing on the motion, appellant’s trial counsel argued to the trial court that he and the State’s counsel had an understanding that the deadly-weapon finding would be waived even though such agreement was not reflected in the plea papers. Counsel also implied that appellant’s plea was based on this agreement. Neither appellant nor his trial counsel testified as witnesses at the hearing, and no other evidence was presented to the trial court. Thus, all that was before the trial court when it decided the motion for new trial was the unverified motion itself and the unsworn assertions of trial counsel. The trial court denied the motion, noting, “It matters what it says in the plea papers. The plea papers don’t say a word about it, no striking out of the language of deadly weapon. There’s nothing written in there that says the State is going to waive a finding of a deadly weapon.”
Appellant has failed to present a record demonstrating that his plea was made based on the alleged misinformation supplied by trial counsel. The unsworn statements made by counsel during argument on the motion for new trial do not constitute evidence. We have no record in the present case as to what advice trial counsel gave appellant or how that affected appellant’s decision to plead guilty. Nothing is present in the record to suggest why appellant pled, what he relied on, what role his attorney played in that determination, and why his counsel took whatever actions he took. In sum, the record does not demonstrate that appellant would have chosen to go to trial but for the alleged misinformation provided by trial counsel. See id. Accordingly, appellant has not established that his plea was involuntary due to ineffective assistance of counsel.
We overrule appellant’s second issue.
Motion for New Trial
As a corollary to his second point of error, appellant contends in his third point of error that the trial court erred in denying his motion for new trial. We review the denial of a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).
As discussed in the preceding section, appellant presented no evidence in support of his motion for new trial. Allegations in a motion for new trial are not self-proving. Rios v. State, 510 S.W.2d 326, 328 (Tex. Crim. App. 1974). A trial court does not err in denying a motion for new trial based on matters outside of the record if no evidence of those matters is admitted at the motion for new trial hearing. See id. at 329. Because appellant presented no evidence in support of his motion for new trial, we hold that the trial court did not abuse its discretion in denying appellant’s motion.
We overrule appellant’s third issue.
Conclusion
We affirm the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).