Opinion filed September 22, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-15-00331-CR
                                  __________

              FRANCISCO SOLIS-QUINTERO, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CR42777


                     MEMORANDUM OPINION
      Francisco Solis-Quintero entered an open plea of guilty to aggravated assault
with a deadly weapon. The trial court found Appellant guilty of the offense and
assessed his punishment at imprisonment for a term of fifteen years in the
Institutional Division of the Texas Department of Criminal Justice. In his sole issue,
Appellant argues that the trial court erred in failing to admonish him about the
immigration consequences of his guilty plea. We reverse and remand.
                                  Background Facts
      Appellant was indicted for aggravated assault with a deadly weapon. See TEX.
PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2016), § 22.02(a)(2) (West 2011). He
waived his right to a jury trial and pleaded guilty to the offense alleged in Count II
of the indictment.     Prior to accepting Appellant’s guilty plea, the trial court
admonished him of several of his rights but did not admonish him on the potential
immigration consequences of his plea as required by Article 26.13(a)(4) of the Texas
Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West
Supp. 2016). At the conclusion of the punishment phase of trial, the trial court found
Appellant guilty of aggravated assault with a deadly weapon as charged in Count II
of the indictment and assessed his punishment as set forth above.
                                        Analysis
      Prior to accepting a plea of guilty, the trial court is required to admonish the
defendant of, among other things, “the fact that if the defendant is not a citizen of
the United States of 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.” CRIM. PROC. art. 26.13(a)(4). There
is no dispute that the trial court did not admonish Appellant about the possible
immigration consequences of his guilty plea. Accordingly, the primary question to
resolve in this appeal is the harm, if any, resulting from this omission.
      We note at the outset that Appellant does not assert that he is not a citizen of
the United States or that he has suffered any adverse immigration consequences as
a result of his plea. Furthermore, he does not assert that he would not have pleaded
guilty if the trial court had given him the immigration warning. Instead, Appellant
asserts that the trial court’s error is reversible because the record is silent as to his
citizenship status and that “there cannot be a fair assurance that [his] decision to
plead guilty would not have changed had he been admonished.” He cites the holding
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in VanNortrick v. State in support of this contention. 227 S.W.3d 706, 713–14 (Tex.
Crim. App. 2007).
       Appellant’s reliance on VanNortrick is well-placed because its facts are
analogous to the facts in this appeal. VanNortrick also involved an omitted warning
on possible immigration consequences and a silent record on the defendant’s
citizenship status. The Court of Criminal Appeals held in VanNortrick that the
omission of the admonition required by Article 26.13(a)(4) is a nonconstitutional
error subject to a harm analysis under TEX. R. APP. P. 44.2(b). Id. at 708. “Any
other error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.” TEX. R. APP. P. 44.2(b); see Barshaw v. State, 342 S.W.3d
91, 93 (Tex. Crim. App. 2011) (When an appellate court applies Rule 44.2(b), it
must disregard a nonconstitutional error unless the error affects the appellant’s
substantial rights.). “If the error affected substantial rights, then, it is not harmless.”
VanNortrick, 227 S.W.3d at 708.
       The court noted in VanNortrick that there is no burden on either party to prove
harm or harmlessness resulting from the error. Id. at 709 (citing Anderson v. State,
182 S.W.3d 914, 918, 919 (Tex. Crim. App. 2006); Burnett v. State, 88 S.W.3d 633,
638 (Tex. Crim. App. 2002)). “[T]he critical question is, ‘[C]onsidering the record
as a whole, do we have a fair assurance that the defendant’s decision to plead guilty
would not have changed had the court admonished him?’” Id. (quoting Anderson,
182 S.W.3d at 919) (second alteration in original)). The defendant’s citizenship
status is a critical component to this determination. Id. at 713. If the record shows
that a defendant is a United States citizen, the failure to admonish him about
immigration consequences is harmless error. Id. at 709 (citing Cain v. State, 947
S.W.2d 262, 264 (Tex. Crim. App. 1997)). Conversely, if the record shows that the
defendant was not a citizen at the time of the guilty plea, the error is not harmless.
Id. (citing Carranza v. State, 980 S.W.2d 653, 658 (Tex. Crim. App. 1998)).
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       In some cases, however, the record does not affirmatively show the
defendant’s citizenship status. The court recognized in VanNortrick that it is
appropriate for appellate courts to draw reasonable inferences about the defendant’s
citizenship status in these instances when determining harm resulting from the
omission of the deportation admonition. Id. at 710. The appellate record in
VanNortrick established that the defendant had a prior felony conviction from
another state. Id. The State asserted that this prior felony conviction “strongly
suggested” that the defendant was a United States citizen because he had not been
deported. Id. The Court of Criminal Appeals rejected the State’s contention on the
basis that a single prior conviction for a deportable offense will not support an
inference of citizenship because of the many possible scenarios by which a
noncitizen defendant could have escaped the immigration consequences of his
conviction. Id. at 711. The court concluded that, “[b]ecause we cannot know
whether the appellant is a United States citizen, . . . it is impossible to determine with
any certainty whether the appellant’s decision to plead guilty would have changed
had he been properly admonished.” Id. at 713. The court determined that it did not
have a fair assurance that the defendant would not have pleaded guilty if he had been
properly admonished. Id. “All we can do is speculate about whether the appellant
would have changed his mind about his guilty plea had he been admonished.” Id. at
714.
       In this appeal, the State contends that we can infer from the record that
Appellant is a United States citizen. The State bases this contention on Appellant’s
prior arson conviction from Ector County. The State asserts that the arson conviction
was a deportable offense and that we can infer that Appellant is a citizen of the
United States because he was not deported. The State also asserts that there is not
any evidence that Appellant was unaware of the possible immigration consequences
of his guilty plea. The State relies on Luna v. State in support of these contentions.
                                            4
No. 07-15-00231-CR, 2016 WL 1179091 (Tex. App.—Amarillo March 25, 2016,
no pet.) (mem. op., not designated for publication).
      We conclude that the facts in Luna are distinguishable. The defendant in Luna
had five prior convictions rather than a single prior conviction.          Id. at *2–3.
Additionally, the defendant testified that he had attended public school in the United
States, and his trial counsel discussed the defendant’s “right as a citizen of the United
States” during voir dire examination. Id. at *3.
      The facts in this appeal are analogous to those in VanNortrick. The evidence
of a single prior conviction is simply not enough under VanNortrick to infer that
Appellant is a citizen of the United States. Furthermore, the silence in the record
pertaining to Appellant’s citizenship status and the absence of evidence that he was
aware of any possible immigration consequences preclude us from having a fair
assurance that his decision to plead guilty would not have changed had the court
properly admonished him. See Fakeye v. State, 227 S.W.3d 714, 717 (Tex. Crim.
App. 2007) (“[A] silent record supports the inference that the defendant was unaware
of the consequences [of his guilty plea].”). Thus, VanNortrick requires a finding of
reversible error on this “silent record” even though Appellant does not assert that he
is not a citizen of the United States or that he will suffer any adverse immigration
consequences as a result of his guilty plea. We sustain Appellant’s sole issue.
      Having found reversible error, we must determine the appropriate disposition
of this appeal. The State requests that we remand the matter back to the trial court
“for an evidentiary hearing on [A]ppellant’s citizenship status.” We decline the
State’s invitation to remand the case to the trial court to receive additional evidence
that would be relevant to the question of harm. The Court of Criminal Appeals
rejected a similar request in Fakeye, another case involving the omission of the
deportation admonition. 227 S.W.3d at 717–18. We are required to conduct a harm
analysis based on the entire record before us on appeal, rather than remanding the
                                            5
case to the trial court for the record to be further developed on the question of harm.
Id.
                                   This Court’s Ruling
      We reverse the trial court’s judgment of conviction and remand this cause to
the trial court for further proceedings.




                                                     JOHN M. BAILEY
                                                     JUSTICE


September 22, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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