Matchett v. State

BAIRD, Judge,

concurring.

I disagree with the plurality’s treatment of the first point of error.1

Immediately prior to trial, appellant pled guilty to the offense of capital murder. The trial judge complied with art. 26.13(a)(1) by informing appellant of the range of punishment. However, the parties agree the trial judge did not admonish appellant pursuant to *942art. 26.13(a)(2-4). Appellant contends this was reversible error; the State contends the admonishments required by article 26.13(a)(2-4) were inapplicable in the instant case.

Art. 26.13(a)(2) requires that prior to accepting a plea of guilty, the court shall, inter alia, admonish the defendant of the nonbinding effect of the prosecutor’s recommendation as to punishment, if such a recommendation exists. Similarly, subsection (3) requires the trial judge admonish the defendant of his appellate rights if the trial judge follows the prosecutor’s punishment recommendation. In McCravy v. State, 642 S.W.2d 450 (Tex.Cr.App.1980), the trial judge did not comply with subsection (2). Nevertheless, we held that in situations where there was no recommendation by the prosecutor as to punishment, the provisions of subsection (2) did not apply. In other words, there is no requirement that a trial judge admonish the defendant as to the nonbinding character of a non-existent recom.mendation. Id., 642 S.W.2d at 461-62 (Tex.Cr.App.1982)(Op’n on Reh’g). This reasoning necessarily pertains to subsection (3); if there is no recommendation as to punishment, subsection (3) is wholly inapplicable. Therefore, because there was no punishment recommendation in the instant case, the trial judge was not required to admonish appellant under either subsection (2) or (3).

The remaining question is whether the subsection(4) admonishment was required in the instant case. That admonishment must be given to every defendant entering a plea of guilty. Morales v. State, 872 S.W.2d 753, 755 (Tex.Cr.App.1994) (Clinton, Overstreet, Maloney and Meyers, JJ., concurring) (citing Ex parte Cervantes, 762 S.W.2d 577 (Tex.Cr.App.1988)).

Morales entered into a plea bargain whereby she agreed to plead guilty to one offense and the State agreed to dismiss the remaining indictment. In admonishing Morales of the consequences of her guilty plea, the trial judge failed to admonish under art. 26.13(a)(4). Because there was no showing in the record whether Morales was or was not a United States citizen, the Court of Appeals reversed, 838 S.W.2d 272, 276 (Tex.App.—El Paso 1992), and we affirmed. 872 S.W.2d 753. Both opinions were reached through the standard method of statutory interpretation, i.e., relying on the literal text of the statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991) (We give effect to the plain meaning of the statute.).

Article 26.13(c) provides that substantial compliance is sufficient unless the defendant shows that he was not aware of the consequences of his plea and that he was mislead or harmed by the admonishment of the court.2 In Morales we held there can be no substantial compliance where there is no compliance. Therefore, it logically followed that in a “no compliance” case, there was no requirement that the defendant show harm.3 Moreover, because art. 26.13 provides its own species of harm analysis, Tex.R.App. P. 81(b)(2), is inapplicable to cases dealing with admonishment error.4

However, Boykin provides an exception to the literal text interpretation, namely where application of the statute’s plain language would lead to an absurd result which the *943Legislature could not possibly have intended. Ibid. I believe this exception comes into play in the instant case because here, unlike Morales where the record as to citizenship was silent, the record shows that appellant was bom in Houston. Appellant is, therefore, a nondeportable citizen of the United States. Obviously an interpretation requiring reversal of a conviction because the defendant did not receive an admonishment that was totally inapplicable to him and could not have affected his plea of guilty would lead to an absurd result.5 The Courts of Appeals have recognized this absurdity and have not reversed a single case where the record affirmatively reflected the defendant was an United States citizen. See, Foster v. State, 817 S.W.2d 390, 392 (Tex.App.—Beaumont 1991); Mitchell v. State, 848 S.W.2d 917, 919 (Tex.App.—Texarkana 1993); Dominguez v. State, 889 S.W.2d 13, 15 (Tex.App.—El Paso 1994); Dixon v. State, 891 S.W.2d 783 (Tex.App.—Austin 1995); Cain v. State, 893 S.W.2d 681, 685 (Tex.App.—Ft. Worth 1995); Durst v. State, 900 S.W.2d 134, 140 (Tex.App.—Beaumont 1995); Rodgers v. State, 902 S.W.2d 726, 727-728 (Tex.App.—Ft. Worth 1995); Fregia v. State, 903 S.W.2d 94, 98 (Tex.App.—Beaumont 1995); Armstrong v. State, 911 S.W.2d 133, 135 (Tex.App.—Houston [1st Dist.] 1995); and, Thomas v. State, 932 S.W.2d 128, 131 (Tex.App.—San Antonio 1996). Cf., Britton v. State, 887 S.W.2d 188, 190 (Tex.App.—Ft. Worth 1994) (Evidence insufficient to establish citizenship.).

Generally, these Courts of Appeals’ decisions have resulted from a finding of substantial compliance under art. 26.13(c), or a finding that the error was immaterial or irrelevant. However, I cannot agree that there has been substantial compliance because there has been no compliance. Indeed, this was the argument specifically rejected in Morales. Similarly, the trial judge’s failure to admonish the defendant should not be deemed immaterial or irrelevant. Such a holding would reduce the trial judge’s responsibility for giving the admonishment to a mere technicality. We rejected this precise argument in Whitten v. State, 587 S.W.2d 156, 158-59 (Tex.Cr.App.1979).

Instead, I believe we are confronted with a clear ease of statutory interpretation under Boykin. Under my interpretation, the law relating to cases on direct appeal may be stated as follows: when a trial judge fails to admonish a defendant pursuant to art. 26.13(a)(4) reversal is required if the defendant is not a United States citizen, Cervantes, or if the defendant’s citizenship is unknown, Morales; but, an affirmance is in order if the record affirmatively establishes the defendant is a United States citizen. Another construction of art. 26.13 would either reject the literal text of the statute or lead to an absurd result.

In the instant case, the record affirmatively establishes the defendant is a United States citizen. Therefore, I concur in the decision to overrule the first point of error. With these comments, I join only the judgment of the Court.

. I disagree with the treatment of appellant’s eighteenth point of error for the reasons stated in Morris v. State, 940 S.W.2d 610, 616 (Tex.Cr.App.1996) (Baird, J., dissenting).

. Article 26.13(c) provides:

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.

. The holding rule announced in Morales has been reaffirmed by this Court in Ex parte Tovar, 901 S.W.2d 484, 485 (Tex.Cr.App.1995), and Ex parte Akhtab, 901 S.W.2d 488, 489, n. 3 (Tex.Cr.App.1995).

.In light of Morales, Tovar and Akhtab, the plurality's attempt to apply a harm analysis is very disturbing because such an analysis directly conflicts with those cases. Additionally, the analysis performed by the plurality is not properly conducted because it does not apply the factors prescribed in Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Cr.App.1989).

. In Morales, the concurrence stated:

Clearly, American citizens are not subject to deportation as a result of criminal conviction and cannot, therefore, be influenced by the possibility of immigration difficulties when deciding whether to plead guilty to a criminal offense.

Id., 872 S.W.2d at 755 (Clinton, Overstreet, Maloney and Meyers, JJ., concurring).