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          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS

                                        NO. 0931-95




                      JUAN ANTONIO CARRANZA, Appellant

                                              v.



                                 THE STATE OF TEXAS


          ON'S STATE'S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                                    DALLAS COUNTY




PRICE, J., delivered the opinion of the Court, in which MCCORMICK, P.J., and
OVERSTREET, MEYERS, Holland andWomack, JJ., joined Baird, J.,filedan opinion
concurring in the judgment Keller, J., concurred only in the judgment Mansfield,
3.,filed a dissenting opinion.


                                        OPINION


       Following aplea ofguilty to the offense ofinvoluntary manslaughter under former section
19.05 ofthe Texas Penal Code, ajury assessed Appellant's punishment at ten years' confinement
inthe Institutional Division ofthe Texas Department ofCriminal Justice and a $10,000.00 fine. A
deadly weapon finding was included in the judgment. Appellant filed anotice ofappeal. The Dallas
                                                  fe^^^i«;^**^:*'^«^,;':;%^^Sfe*«^s(^K,i3




                                       Arguments of the Parties


          The State argues that by admonishing Appellant on the range ofpunishment for the offense,

the trial court substantially complied with art. 26.13.1 It urges that once it shows substantial

compliance, the burdenthen shiftsto Appellant to show harm from the failure to admonish him on

thepossibility of deportation. The State insists that Appellant has notmet that burden, because he

has not shown that he was harmed or misled in any way by the Court's admonishments or lack

thereof, orthat he was not aware ofthe consequences ofhis plea. Furthermore, the State urges that

since Appellant was in the United States illegally at the time of trialandtherefore already subject

to the possibility of deportation, he couldnot possibly have been harmedby the trial court's failure

to admonish him.


          In support of its position, the State contends that this case is analogous to those cases in

which courts have held that a failure to admonish a defendant regarding deportation is not reversible

error when the record shows that the defendant is a United States citizen. £££ Cain v. State. 947

S.W.2d 262,264-264 (Tex. Crim. App. 1997); Matchett v. State. 941 S.W.2d 922,927 (Tex. Crim.


        'The relevant provisions of art. 26.13 are as follows:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the
defendant of:
   (1) the range of the punishment attached to the offense;
    ***


   (4) the fact that if the defendant is not a citizenof the United Statesof America, 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.
  ***


  (b)In admonishing the defendant as herein provided, substantial compliance bythe court is
sufficient, unless the defendant affirmatively shows that he wasnot aware of theconsequences of
his plea and that he was misled or harmed by the admonishment of the court.
                                                Tifesp^!#fe»isfc*K* •;«>;? &*%»? K^^Kij«^'iis^^.fafe'!i>:*<




                 sufficientto safeguard rights of a truly unreviewable nature. Where
                 the effects of a particular error are not discernable with reasonable
                 certainty, the presumption of harm will, in fact, be unrebutted.

14 at 928-929 (footnote and citation omitted). We went on to explain in a footnote that if

Appellant's status were unknown or if he were in fact deportable, it would be impossible to

determine the effects ofthe trial court's errorand presumption of harmwouldbe almostirrebuttable.

14 at 929 n.9.

        We reasoned that because the defendant Matchett was a citizen of the United States, and

therefore not subject to deportation, the deportation admonishment as applied to him was irrelevant.

14 at 929-930. Therefore we concluded that the failure to admonishhim regarding art. 26.13 (a)(4)

was harmless beyond a reasonable doubt. 14 at 930. But, we also stated that where the record is

silent regarding the citizenship of a defendant then the legislature's intent must be followed and that

failure to fully admonish a defendant regarding possible immigration consequences constitutes

reversible error. Id-

       Appellant argues that his particular situation is precisely the type anticipated by the

aforementioned language in Matchett. He further argues that our more recent opinion in Cain also

anticipated precisely his type of situation whenwe said, "Ofcourse, where the errorinvolved defies

analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless

error analysis, then the error will not be proven harmless beyond reasonable doubt under Rule

81(b)(2)." Cain. 947 S.W.2d at 264. Here, Appellant urges thatbecause the evidence thathe is an

illegal alien is undisputed, the error involved "defies any meaningful harmless error analysis."

        We recognize that Texas cases are somewhat confusing onthe issue of a trial court's failure

to give art. 26.13 admonishments. Recently, in Cain we formally rejected the "substantial
                                                                                                       7

structural error);3 (2) constitutional error that isharmful;4 (3) constitutional error that is harmless;5

(4) non-constitutional error that is harmful (i.e., affects a substantial right);6 (5) non-constitutional

error that is harmless (i.e., does not affecta substantial right).7

        Therefore, when conducting a rule 44.2 harm analysis our first task is to determine whether

the failure to substantially comply under 26.13 is an error of constitutional magnitude or an error

which affects a substantial right. In McCarthv v.United States. 394 U.S. 459,465-466, 89 S. Ct.

1166, 1170-1171, 22 L. Ed.2d 418 (1969), the Supreme Court considered the purpose of plea

admonishments:


                First, although the procedure embodied in [admonishment] has not
                been held to be constitutionally mandated, it is designed to assist the
                district judge in making the constitutionally required determination
                that the guilty plea was truly voluntary. Second, the rule is intended
                to produce a complete record at the time the plea is entered of the
                factors relevant to the voluntariness determination. Thus the more
                meticulously the rule is adhered to, the more it tends to discourage,
                or at least to enable more expeditious disposition of, the numerous
                and often frivolous post conviction attacks on the constitutional
                validity of guilty pleas ... A defendant who enters a guilty plea
                simultaneously waives several constitutional rights, including his
                right to confront his accusers. For this waiver to be valid under the
                Due Process Clause, it must be "an intentional relinquishment of a
                known right or privilege." Johnson v. Zerbst. 304 U.S. 458, 58 S. Ct.
                1019, 82 L. Ed. 1461 (1938). Consequently, if a defendant's guilty
                plea is not equally knowing and voluntary, it has been obtained in
                violation of the due process and is therefore void. Moreover, because


       3See Cain, 947 S.W.2d at 264.

       4Tex. R. App.P. 44.2(a).

       5Tex. R. App. P. 44.2(a).

       6Tex. R. App. P. 44.2(b).

        7Tex. R. App. P. 44.2(b).
                                                                                                  9

comments to Rule 44.2 state: "Paragraph 44.2(b) is new and is taken from Federal Rule of Criminal

Procedure 52(a) without substantive change." Therefore, itwould seem that we only need look to
the federal court's application of52(a) for guidance regarding the proper standard ofreview to apply
in our 44.2(b) situations. However, in McCarthv v. United States, which concerned a violation of

the federal statutory admonishment requirement ofRule 11, the Supreme Court did not apply the
harmless error provision ofRule 52(a) inassessing the harm ofthe violation. McCarthy. 394 U.S.

at468-472,89 S. Ct. 1172-1174. Because some courts interpreted McCarthy to mean that provision

could not beutilized with respect toRule 11 proceedings, Congress added subdivision (h), aseparate

harmless error rule that specifically applies to statutory admonishment error, to Rule 11. Fed. R.

Crim. P. 11 advisory committee's notes (1983 Amendment). Federal Rule 11(h) reads almost

identically to Rule 52(a)8 and makes clear that the harmless error provision of Rule 52(a) is

applicable to Rule 11. Fed. R. Crim. P. 11 advisory committee's notes (1983 Amendment).

       Based on this history as well as the aforementioned similarities between the Texas and

federal harmless error rules, the State argues that we should adopt a combination of the Fifth

Circuit's and the District of Columbia Circuit's standards of review for analyzing harm regarding

failure to give admonishments. The Fifth Circuit has taken the position that Rule 11 error is

harmless unless "the defendant's knowledge and comprehension of the full and correct information




       8Federal Rule of Criminal Procedure 52(a) provides:
         Harmless Error. Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.

         Federal Rule of Criminal Procedure 11(h) provides:
         Harmless Error. Any variancefrom the procedures required by this rule which does
not affect substantial rights shall be disregarded.
                                                                                                    11

not aware of the consequences of hispleaand that he was misled or harmed bytheadmonishment

ofthe court. To require more would effectively allow the Rules ofAppellate Procedure, which are

promulgated by this Court, to "trump" oroverride the Code ofCriminal Procedure, which is passed

by our Legislature. This would be incontravention ofArt. 44.33(a) (Court ofCriminal Appeals shall

make rules of post-trial andappellate procedure as to the hearing of criminal actions not inconsistent

with the Code of Criminal Procedure), as well as the doctrines of "separation of powers" and

"hierarchy of legislation." See Tex. Const, art. II, § 1; 2 Sutherland Stat. Const. § 36.06 (5*

ed. 1993)(in case of conflict between rules of courtand state statutes, statutes prevail); accord. Rent

v. State.     S.W.2d      , No. 1231-97 (Tex. Crim. App. Sept. 16,1998) (Tex. R. App. P. 21.3(h)

and 43.2(c) construed so as not to conflict with Tex. Code Crim. Proc. art. 44.29).

        In the present case, the State argues that any error was harmless or must be disregarded

because "Appellant was already subject to deportation due to his illegal immigrant status. . . ."

Appellant responds that "significant differences exist between an alien who does not possess valid

immigration documents and an alien who has been convicted of a criminal offense...." We agree.

According to the provisions of 8 U.S.C. § 1227, an alienin the United States is subjectto deportation

if he or she has been convicted of an "aggravated felony" at any time after entry. 8 U.S.C. §

1227(A)(iii). The phrase "aggravated felony" means, in part, a "crime of violence." 8 U.S.C.§

1101(43)(F). A "crime of violence" is defined by 18 U.S.C. § 16as an offense involving theuse of

physical force against a person oranoffense that involves a substantial risk ofphysical force against

a person. Thus, the offense of involuntary manslaughter would likely fall within the "crime of

violence" definition. Although analien with anexpired permit may fall within the categories ofan
          IN THE COURT OF CRIMINAL APPEALS
                                    OF TEXAS

                                       NO. 931-95



                      JUAN ANTONIO CARRANZA, Appellant

                                           v.



                               THE STATE OF TEXAS


           ON STATE'S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE FIFTH COURT OF APPEALS
                                 DALLAS COUNTY




                    BAIRD, J., delivered the concurring opinion.

                         CONCURRING OPINION



      The majority correctly affirms the judgment of the Court of Appeals. However, it

does so only after performing an erroneous harm analysis. Consequently, I cannot join the

majority opinion.

      The majority correctly finds the trial judge did not substantially comply with Tex.
                                                                CARRANZA DISSSENT - Page 4
sexual assault may forever bar his legal reentry into the United States. The majority opinion can
easily be read to require offense-specific admonishments; the implication is strong that aconviction
upon a plea ofguilty or nolo contendere where the current, general admonishment has been given
may be subject to attack on appeal or by post-conviction application for habeas reliefas having been

involuntarily and unintelligently made.1 Any such change to Article 26.13(a)(4) isa policy matter
best left to the Legislature; we should not "go there."

       With these comments, I respectfully dissent.

                                                      MANSFIELD, J.

DELIVERED NOVEMBER 25,1998

PUBLISH




       1 Leftopenis the question of whether a noncitizen convicted upon a pleaof guilty or
nolo contendere may in a post-conviction application for habeas relief, successfully claim
ineffective assistance of counsel if counsel failed to inform him what the effect of conviction for
thatoffense may be as to deportation and legal reentry under federal immigration law.
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                                                       LISA ROMBOK
     Capitol Station                                CLERK              5TH COURT OF APPEALS
   ausftm.tEexaS 787U                               COURTHOUSE                 600 COMMERCE 2ND FLOOR
                                                    DALLAS             TX   752 02
                                                     0931-95
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