                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-08-00130-CR

MARCUS ANTHONY WILSON,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 07-00049-CRF-272


                          MEMORANDUM OPINION


     Wilson appeals his convictions for sexual assault and for burglary of a habitation

with intent to commit sexual assault. See TEX. PENAL CODE ANN. § 22.011(a), (f) (Vernon

Supp. 2008), § 30.02(a), (d) (Vernon 2003). We affirm.

     Plea.   In Wilson‖s first two issues, he complains concerning his plea of nolo

contendere. “[T]he legal effect of a plea of nolo contendere is the same as a plea of

guilty insofar as the criminal prosecution is concerned.” Young v. State, 8 S.W.3d 656,

664 (Tex. Crim. App. 2000) (quoting Chavarria v. State, 425 S.W.2d 822, 823 (Tex. Crim.

App. 1968)); accord Aguillar v. State, 170 Tex. Crim. 189, 190, 339 S.W.2d 898, 898 (1960).
     Statutory Admonishments. In Wilson‖s first issue, he complains that the trial court

failed to admonish Wilson pursuant to Texas Code of Criminal Procedure Article 26.13.

TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2008). Article 26.13 requires, in

relevant part:

         Prior to accepting 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 citizen of the United States, a plea
     of . . . 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; [and]
         (5) the fact that the defendant will be required to meet the registration
     requirements of Chapter 62, if the defendant is convicted of or placed on
     deferred adjudication for an offense for which a person is subject to
     registration under that chapter . . .
         ....

TEX. CODE CRIM. PROC. ANN. art. 26.13(a); see TEX. CODE CRIM. PROC. ANN. arts. 62.001-

62.405 (Vernon 2006 & Supp. 2008).

     Wilson argues that the trial court failed to admonish him on the range of

punishment, and on the deportation, exclusion, and naturalization and sex-offender–

registration consequences of Wilson‖s plea.

     As to Article 26.13(a)(5) and the admonishment on sex-offender registration

requirements, Wilson‖s complaint is not cognizable.           Code of Criminal Procedure

Article 26.13(h) provides, “The failure of the court to comply with Subsection (a)(5) is

not a ground for the defendant to set aside the conviction, sentence, or plea.” TEX. CODE

CRIM. PROC. ANN. art. 26.13(h). Article 26.13(h) means what it says. See James v. State,


Wilson v. State                                                                         Page 2
258 S.W.3d 315, 317-318 (Tex. App.—Austin July 2, 2008, no pet.); Standifer v. State, Nos.

05-06-00078-CR & 05-06-00079-CR, 2006 Tex. App. LEXIS 9358, at *7 (Tex. App.—Dallas

Oct. 30, 2006, no pet.) (not designated for publication).

     As to the sex-offender registration consequences, Wilson thus does not show error.

Otherwise, the State concedes that the trial court erred.1 We assume without deciding

that the trial court failed to admonish Wilson pursuant to Code of Criminal Procedure

Article 26.13(a), Subsections 1 and 4, and thus erred.

     “When there is insufficient admonition, whether by total failure to admonish or an

admonition that is not in substantial compliance, the violation of Article 26.13 comes

within the” harmless-error “standard of Rule of Appellate Procedure 44.2(b): ―Any other

[than constitutional] error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.‖” Anderson v. State, 182 S.W.3d 914, 918 (Tex.

Crim. App. 2006) (quoting TEX. R. APP. P. 44.2(b)) (alteration in Anderson); accord

Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999); see TEX. CODE CRIM.

PROC. ANN. art. 26.13; TEX. R. APP. P. 44.2(b); Bessey v. State, 239 S.W.3d 809, 813-14 (Tex.

Crim. App. 2007). “[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




        1 “A defendant‖s right to be properly admonished is a waivable-only right.” Bessey v. State, 239

S.W.3d 809, 812 (Tex. Crim. App. 2007); see Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993);
TEX. R. APP. P. 33.1(a). A “waivable right” is a “right[] of litigants which must be implemented by the
system unless expressly waived.” Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004) (quoting
Marin at 279) (alteration added); accord State v. Moore, 225 S.W.3d 556, 567 (Tex. Crim. App. 2007). The
State does not contend that Wilson affirmatively waived his admonishment rights. We assume without
deciding that Wilson preserved his complaint for appellate review.

Wilson v. State                                                                                    Page 3
changed had the court admonished him?‖” Vannortrick v. State, 227 S.W.3d 706, 709

(Tex. Crim. App. 2007) (quoting Anderson at 919) (1st alteration added).

     As to Article 26.13(a)(1) and the admonishment on the range of punishment, Wilson

concedes that any error was harmless. An appellant suffers no harm from the trial

court‖s failure to admonish on the range of punishment where the appellant heard the

venire panel examined on the punishment range. Gamble v. State, 199 S.W.2d 619, 622

(Tex. App.—Waco 2006, order), disp. on merits, No. 10-05-00044-CR, 2007 Tex. App.

LEXIS 5876, at *2-3 (Tex. App.—Waco July 25, 2007, pet. ref‖d) (not designated for

publication) (mem. op.); Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.—Waco 1998,

pet. ref‖d); Slaughter v. State, No. 2-07-050-CR, 2007 Tex. App. LEXIS 8452, at *16 (Tex.

App.—Fort Worth Oct. 25, 2007, no pet.) (not designated for publication) (mem. op.); cf.

Aguirre-Mata, 125 S.W.3d 473, 476-77 (Tex. Crim. App. 2003) (“The record contains

references to the correct punishment range . . . .”).    Here, for example, the State

examined the venire panel in Wilson‖s presence as follows:

         The punishment range in this case is: It‖s a 1st degree felony, it‖s a huge
     punishment range.
         The way it reads in the Penal Code, if a person is found guilty of a 1st
     degree felony, the punishment range is not less than 5 years or more than 99
     years or life in Institutional Division of the Texas Department of Criminal
     Justice.
         It‖s a huge range, 5 to 99. And also up to a $10,000 fine. And then you can
     extend the range further.
         Probation is a possibility if the person is eligible.

(3 R.R. at 34); see TEX. PENAL CODE ANN. § 12.32 (Vernon 2003).

     As to Article 26.13(a)(4) and the admonishment on the deportation, admission, and

naturalization consequences of Wilson‖s plea, the State argues that the trial court‖s

Wilson v. State                                                                    Page 4
failure to admonish Wilson was harmless. “[W]hen the record shows a defendant to be

a United States citizen, the trial court‖s failure to admonish him on the immigration

consequences of his guilty plea is harmless error”; “such a defendant is not subject to

deportation.” Vannortrick, 227 S.W.3d at 709; see generally 8 U.S.C.S. §§ 1101-1537 (1997-

2007 & Supp. 2008). Where there is evidence that the defendant was born in the United

States, and evidence that the defendant has lived in the United States “a long time,” the

record does affirmatively show that the defendant is a citizen of the United States.

Gamble, 2007 Tex. App. LEXIS 5876, at *2-3. The State points to evidence that Wilson‖s

“mother testified that [he] was born in Bryan, Texas and had lived in the Brazos Valley

his entire life.” (Br. at 30 (citing 5 R.R. 152).) Wilson thus suffered no harm from the

trial court‖s failure to admonish him on the immigration and naturalization

consequences of the plea.

     CONCLUSION. Wilson does not show harmful error from failure by the trial court to

give Wilson statutory admonishments. We overrule Wilson‖s first issue.

     Due Process. In Wilson‖s second issue, he complains under due process.2 Wilson

argues primarily under Boykin v. Alabama. See Boykin v. Alabama, 395 U.S. 238, 243

(1969).




        2 In Wilson‖s second issue, he contends that the trial court failed to make the same statutory

admonishments as Wilson complained about in Wilson‖s first issue, but Wilson now attributes
constitutional error to that failure. See TEX. CODE CRIM. PROC. ANN. art. 26.13. “The Article 26.13
admonitions, however, are not themselves constitutionally required.” Vannortrick, 227 S.W.3d at 708. We
consider the matter further below.

Wilson v. State                                                                                 Page 5
     The Fourteenth-Amendment Due-Process Clause provides,

     No State shall . . . deprive any person of life, liberty, or property, without due
     process of law . . . .

U.S. CONST. amend. XIV, § 1. “When a defendant pleads guilty he or she, of course,

forgoes not only a fair trial, but also other accompanying constitutional guarantees.”

Unites States v. Ruiz, 536 U.S. 622, 628 (2002) (citing Boykin, 395 U.S. at 243). Boykin

holds, “It [i]s error, plain on the face of the record, for the trial judge to accept [a]

petitioner‖s guilty plea without an affirmative showing that it was intelligent and

voluntary.” Boykin at 242. “Given the seriousness of the matter, the” Due-Process

Clause “insists, among other things, that the defendant enter a guilty plea that is

―voluntary‖ and that the defendant must make related waivers ―knowing[ly],

intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely

consequences.‖” Ruiz, 536 U.S. at 629 (quoting Brady v. United States, 397 U.S. 742, 748

(1970)) (alterations in Ruiz); see Parke v. Raley, 506 U.S. 20, 28-29 (1992); Marshall v.

Lonberger, 459 U.S. 422 (1983); Bordenkircher v. Hayes, 434 U.S. 357 (1978); Anderson, 182

S.W.2d at 917-18. “The standard . . . remains whether the plea represents a voluntary

and intelligent choice among the alternative courses of action open to the defendant.”

Raley, 506 U.S. at 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).

     The due-process “constitutional standard does not require a court to admonish a

guilty-pleading defendant ―about every possible consequence of his plea, direct or

collateral, only about those direct consequences that are punitive in nature.‖” Anderson,

182 S.W.3d at 918 (quoting Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)).


Wilson v. State                                                                      Page 6
“Generally, a guilty plea is considered voluntary if the defendant was made fully aware

of the direct consequences.” State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999)

(citing Brady v. United States, 397 U.S. 742, 755 (1970)). “A consequence has been defined

as ―direct‖ where it is ―definite, immediate, and largely automatic.‖”      Id. at 888 n.5

(quoting United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir. 1997)). “It will not be

rendered involuntary by lack of knowledge as to some collateral consequence.” Jimenez,

987 S.W.2d at 888 (citing, e.g., United States v. Campbell, 778 F.2d 764, 767 (11th Cir.

1985)).    “A consequence has been defined as ―collateral‖ where ―it lies within the

discretion of the court whether to impose it,‖ or where ―its imposition is controlled by an

agency which operates beyond the direct authority of the trial judge.‖” Jimenez, 987

S.W.2d at 888 n.6 (quoting Kikuyama, 109 F.3d at 537; Beagen v. State, 705 A.2d 173, 175

(R.I. 1998)).

     “[T]he failure to admonish [an] appellant as to a direct, non-punitive consequence

of his plea . . . d[oes] not violate due process or render his plea involuntary.” Anderson,

182 S.W.3d at 918 (quoting Mitschke, 129 S.W.3d at 136) (alterations added).

     “Boykin clearly did not hold that due process requires the equivalent of the Article

26.13(a) admonishments . . . .”   Aguirre-Mata, 125 S.W.3d at 475 (citing McCarthy v.

United States, 394 U.S. 459 (1969)); see Boykin, 395 U.S. 238; TEX. CODE CRIM. PROC. ANN.

art. 26.13(a).

     “That a guilty plea may result in deportation is generally considered a collateral

consequence.” Jimenez, 987 S.W.2d at 888-89 (citing, e.g., United States v. Campbell, 778

F.2d 764, 767 (11th Cir. 1985)). “Deportation is considered a collateral consequence

Wilson v. State                                                                      Page 7
because ―it is a result peculiar to the individual‖s personal circumstances and one not

within the control of the court system.‖” Id. at 889 n.7 (quoting, e.g., People v. Ford, 657

N.E.2d 265, 268 (N.Y. 1995)). An admonishment on collateral deportation consequences

is not constitutionally required, and the failure so to admonish does not render a plea

constitutionally involuntary. See Jimenez, 987 S.W.2d at 889.

     Moreover, “Boykin clearly did not hold that due process requires . . . an

admonishment on the range of punishment.”                    Aguirre-Mata, 125 S.W.3d at 475; see

Boykin, 395 U.S. 238.

     Sex-offender registration, too, though a direct consequence of guilty plea, is a non-

punitive consequence.          Bessey, 239 S.W.3d at 812 n.3; Anderson, 182 S.W.3d at 918;

Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). Accordingly, “[F]ailure to

admonish an appellant as to the sex offender registration requirement does not render

his plea involuntary.” Bessey at 812 n.3 (citing Anderson at 918); accord Mitschke at 136.

     CONCLUSION. Wilson does not show harmful constitutional error from the trial

court‖s admonishments to Wilson on the consequences of Wilson‖s plea. We overrule

Wilson‖s second issue.

     Evidence.      In Wilson‖s third issue, he complains of evidence admitted in the

punishment phase of trial.3

     “[A] trial court‖s ruling admitting or excluding evidence is reviewed on appeal for

abuse of discretion.” Ramos v. State, 245 S.W.3d 410, 417 (Tex. Crim. App. 2008) (citing


        3  We assume without deciding that Wilson‖s issue is adequately briefed. See TEX. R. APP. P.
38.1(h); e.g., Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Mosley v. State, 983 S.W.2d 246,
259 (Tex. Crim. App. 1998).

Wilson v. State                                                                                       Page 8
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)); accord Weatherred v. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State, 810 S.W.2d 372, 391-92

(Tex. Crim. App. 1991) (op. on reh‖g). “Under an abuse of discretion standard, an

appellate court should not disturb the trial court‖s decision if the ruling was within the

zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App.

2008) (citing Hinojosa v. State, 4 S.W.3d 240, 250-51 (Tex. Crim. App. 1999)); accord

Montgomery at 394 (op. on reh‖g).

     Wilson complains of the admission of evidence that he “had left a note containing

his name, jail address, the date and the words ―write me‖ in the secured part of the”

courthouse inmate holding area, namely in the women‖s room, during trial. (Br. at 15.)

Wilson objected that the evidence was irrelevant and unfairly prejudicial.

     Relevance. Wilson argues, first, that the evidence was irrelevant pursuant to the

Texas Rules of Evidence.     See TEX. R. EVID. 401-402. The Texas Code of Criminal

Procedure governs over the Rules of Evidence. Id. 101(c). Code of Criminal Procedure

“Article 37.07, § 3(a), governs the admissibility of evidence during the punishment stage

of a non-capital criminal trial.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App.

2007) (citing Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004)); accord Valley v.

State, 448 S.W.2d 474, 475 (Tex. Crim. App. 1969); see TEX. CODE CRIM. PROC. ANN. art.

37.07, § 3(a) (Vernon Supp. 2008). Pursuant to the Code of Criminal Procedure, in the

punishment phase of trial, “evidence may be offered by the state . . . as to any matter the

court deems relevant to sentencing, including but not limited to . . . any . . . evidence of

an extraneous crime or bad act . . . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

Wilson v. State                                                                       Page 9
(Vernon Supp. 2008). Rule of Evidence 401‖s definition of relevance is only “‖helpful‖ to

determine relevancy under Section 3(a).” Ellison v. State, 201 S.W.3d 714, 718 (Tex.

Crim. App. 2006) (citing Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)); see

TEX. R. EVID. 401.

     “[T]he admissibility of evidence at the punishment phase of a non-capital felony

offense” trial “is” really “a function of policy rather than relevance.” Rodriguez v. State,

203 S.W.3d 837, 842 (Tex. Crim. App. 2006); accord Miller-El v. State, 782 S.W.2d 892, 894-

95 (Tex. Crim. App. 1990); Rogers, 991 S.W.2d at 265; Murphy v. State, 777 S.W.2d 44, 63

(Tex. Crim. App. 1988). “Evidence is ―relevant to sentencing,‖ within the meaning of”

Article 37.07, Section 3(a), “if the evidence is ―helpful to the jury in determining the

appropriate sentence for a particular defendant in a particular case.‖”        McGee, 233

S.W.3d at 318 (quoting Rodriguez at 842); see TEX. CODE CRIM. PROC. ANN. art. 37.07,

§ 3(a).

     The State argued, and argues on appeal, that the evidence was relevant “to rebut

[Wilson]‖s argument that the appropriate punishment for his crime was probation.”

(Br. at 48-49.) Wilson had filed an application for community supervision, and had

raised community supervision before the jury by examining the venire panel on it. See

TEX. CODE CRIM. PROC. ANN. art. 27.02(7) (Vernon 2006), art. 37.07, § 2(b) (Vernon Supp.

2008). Wilson argues, “The evidence was not relevant because there was nothing to

show having or distributing solicitations for someone to write to appellant violated any

jail rule.” (Br. at 15.) The State points primarily to the following evidence. A sheriff‖s

deputy testified that the note constituted “contraband.” “Contraband” means “[g]oods

Wilson v. State                                                                      Page 10
that are unlawful to . . . possess.” BLACK‖S LAW DICTIONARY 341 (Bryan A. Garner ed.,

8th ed. 2004). When the contraband was found in the women‖s room, jailers were

selecting inmates to transport to court. Jailers had to delay that process until they could

determine the source of the contraband.

     The trial court did not abuse its discretion in finding that the evidence was helpful

to the jury in assessing Wilson‖s punishment, and thus overruling Wilson‖s relevance

objection.

     Prejudice. Next, Wilson argues that the evidence was unfairly prejudicial.

     Texas Rule of Evidence 403 provides, “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” TEX. R. EVID. 403. “[T]he use of the word ―may‖ reflects the draftsman‖s

intent ―that the trial judge be given a very substantial discretion in “balancing”

probative value on the one hand and “unfair prejudice” on the other, and that he

should not be reversed simply because an appellate court believes that it would have

decided the matter otherwise.‖” Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.

2003) (quoting Montgomery, 810 S.W.2d at 379 (op. on orig. submission)); see State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

     “Rule 403 creates a presumption of admissibility of all relevant evidence and

authorizes a trial judge to exclude such evidence only when there is a ―clear disparity

between the degree of prejudice of the offered evidence and its probative value.‖”

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); accord Gallo v. State, 239



Wilson v. State                                                                     Page 11
S.W.3d 757, 762 (Tex. Crim. App. 2007); see Montgomery, 810 S.W.2d at 388-89 (op. on

orig. submission).

     “‖Unfair prejudice‖ does not, of course, mean that the evidence injures the

opponent‖s case—the central point of offering evidence. Rather it refers to ―an undue

tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one.‖” Rogers, 991 S.W.2d at 266 (quoting Cohn v. State, 549 S.W.2d 817,

820 (Tex. Crim. App. 1993)).

     [A] Rule 403 analysis should include, but is not limited to, the following
     factors:
          (1) how probative the evidence is;
          (2) the potential of the evidence to impress the jury in some irrational, but
          nevertheless indelible way;
          (3) the time the proponent needs to develop the evidence; and
          (4) the proponent‖s need for the evidence.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006) (citing Montgomery, 810

S.W.2d at 389-90) (op. on reh‖g)); see also Gigliobianco v. State, 210 S.W.3d 637, 641-42

(Tex. Crim. App. 2006); e.g., Gallo, 239 S.W.3d at 762.

     Here, the probative value of the evidence, though not strong, was substantial. The

State‖s main theory of admissibility was that the evidence tended to show Wilson‖s

inability to comply with rules, and thus inability to comply with the conditions of

community supervision. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11 (Vernon

Supp. 2008). As to prejudicial effect, Wilson argues only, “The error was harmful

because the State‖s closing argument emphasized [his] failure to comply with jail rules.”

(Br. at 16.) Although the evidence was thus prejudicial to Wilson‖s case, in proportion


Wilson v. State                                                                     Page 12
to its probative value, Wilson does not so establish undue prejudice. The time to

present the evidence was negligible, about five pages of testimony. As for the State‖s

need for the testimony, other than the evidence of which Wilson complains, the State

had stronger evidence of Wilson‖s inability to comply with jail rules, in the form of

testimony that Wilson was involved in fights with other inmates, offered physical

resistance to jailers against Wilson‖s movement from cell to cell within the jail, and stole

food. The parties point to no other factors.

     Balancing those factors, we cannot say that the trial court abused its discretion in

overruling Wilson‖s objection under Rule 403.

     CONCLUSION. We overrule Wilson‖s third issue.

     CONCLUSION. Having overruled Wilson‖s issues, we affirm.



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
    (Justice Vance concurs in the judgment with a note) *
Affirmed
Opinion delivered and filed December 17, 2008
Do not publish
[CRPM]

       * “(I concur in the judgment with the following observations: 1) Because the
right to be properly admonished is a waivable-only right, as footnote 1 correctly notes,
preservation of the complaint for appellate review is not an issue. Marin specifically
notes: “The [preservation] rule does not apply to rights which are waivable only or to
absolute systemic requirements, the violation of which may still be raised for the first
time on appeal.” Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Thus, the
footnote misstates the requirement; 2) the opinion conflates the concepts of error and
harm in discussing the failure to admonish on the immigration and naturalization
Wilson v. State                                                                      Page 13
consequences of the plea (issue one) and the consequences of his plea (issue two); and 3)
the opinion says the probative value of the note admitted into evidence (issue three)
“though not strong, was substantial.” Furthermore, the opinion states that the state
“had stronger evidence” of the fact the evidence was intended to prove. Based on the
opinion‖s own analysis, I would hold that the admission of evidence was error, but
harmless under this record.)”




Wilson v. State                                                                   Page 14
