Reverse and Remand and Opinion Filed February 3, 2014




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-12-01705-CR

                                         JULIO EDGAR RUIZ JR., Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                               On Appeal from the 203rd Judicial District Court
                                            Dallas County, Texas
                                    Trial Court Cause No. F08-24859-P

                                         MEMORANDUM OPINION
                                   Before Justices Francis, Lang-Miers, and Lewis
                                             Opinion by Justice Francis
          In a bench trial, Julio Edgar Ruiz Jr. pleaded no contest to the offense of aggravated

sexual assault of a child. The trial court found Ruiz guilty and assessed punishment at eighteen

years in prison and a $3000 fine. In his sole issue on appeal, appellant argues the trial court

reversibly erred by failing to admonish him about the immigration consequences of his plea. The

State concedes the issue. After reviewing the record, we agree the trial court erred in failing to

give the required admonishment and that the error was harmful. We therefore reverse the trial

court’s judgment and remand for further proceedings.1



     1
        The judgment in this cause contains a number of errors, including the offense for which appellant was convicted, the statute for the
offense, appellant’s plea, and the punishment assessed. Generally, we would modify the judgment to correct these errors; however, our
disposition of this appeal makes such action unnecessary.
        Appellant was indicted on a charge of continuous sexual abuse of a young child. Before

jury selection was to begin, appellant appeared before the court. A translator was present to

interpret from English to Spanish and vice-versa.         The court explained that if convicted,

appellant faced a punishment range of twenty-five years to ninety-nine years or life in prison

with no possibility of probation or parole. The court advised appellant that the State had made a

plea bargain offer.    Thereafter, defense counsel outlined a previous plea offer rejected by

appellant in which the State offered twenty-five years in exchange for a plea of guilty. Counsel

then outlined another offer made by the State earlier that day to “reduce” the charge to

aggravated sexual assault of a child in exchange for a plea of guilty. Defense counsel explained

to appellant that the range of punishment on the reduced charge was five to ninety-nine years or

life with the possibility of parole and the possibility of deferred probation. Appellant rejected

that offer.

        The trial court then spoke to appellant and explained the possible outcomes if he pleaded

guilty to aggravated sexual assault. The court then informed appellant of yet another offer in

which the State would reduce the charge to aggravated sexual assault if appellant would agree to

waive his right to a jury trial and try the case before the court. After conferring with counsel,

appellant informed the trial court that he accepted the offer. The next day, the State made an oral

motion to amend the indictment to reflect a charge of aggravated sexual assault of a child, which

the trial court granted. After a brief discussion, appellant pleaded no contest to aggravated

sexual assault of a child. After hearing the evidence, the trial court found appellant guilty.

        Article 26.13 of the Texas Code of Criminal Procedure requires that certain

admonishments must be given to a defendant who is pleading guilty or nolo contendere. TEX.

CODE CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2013). Among other things, the trial court

must admonish a defendant of “the fact that if the defendant is not a citizen of the United States

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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[.]”

Id. § 26.13(a)(4). Substantial compliance is sufficient unless the defendant shows he did not

understand the consequences of the plea and was harmed or misled by the admonishments given.

See id. § 26.13(c).

       When the trial court wholly fails to give the required admonishment, there is no

substantial compliance with the requirements of article 26.13. See VanNortrick v. State, 227

S.W.3d 706, 708 (Tex. Crim. App. 2007). Failure to give the required admonishment is subject

to non-constitutional harm analysis set out in rule of appellate procedure 44.2(b), which provides

that “[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must

be disregarded.” Id.; TEX. R. APP. P. 44.2(b). The critical inquiry is whether, considering the

record as a whole, there is a fair assurance that the defendant’s decision to plead guilty or nolo

contendere would not have changed had the court admonished him. VanNortrick, 227 S.W.3d at

709. We consider the following relevant factors: (1) whether appellant knew the consequences

of his plea; (2) the strength of the evidence of appellant’s guilt; and (3) appellant’s citizenship

and immigration status. Id. at 712. Neither party has the burden to prove harm or harmlessness.

Id.

       With respect to first factor, there is no discussion or reference to appellant’s citizenship,

immigration status, or deportation consequences of appellant’s plea at any of the hearings.

Further, the clerk’s record does not contain any written plea papers that explain such

consequences. Consequently, the record does not contain any indication that appellant was

aware of the immigration consequences of his no-contest plea.

       As to the second factor, the court of criminal appeals has indicated that the strength or

weakness of the evidence against an appellant makes “little difference” to the harm analysis

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where the record does not reveal the defendant knew about the immigration consequences of his

plea. Id. at 713. Thus, even if the evidence in this case is compelling, we would have no fair

assurance appellant would not have changed his no-contest plea had he been properly

admonished. See id. Finally, the clerk’s record in this case includes the arraignment sheet,

which shows appellant is a citizen of Mexico. Appellant and his sister made references during

their testimony to appellant’s having grown up outside the United States and to his living in

Mexico. Having reviewed the factors, we conclude appellant was harmed by the trial court’s

failure to admonish him on the immigration consequences of his plea. We sustain appellant’s

sole issue.

        We reverse the trial court’s judgment and remand for further proceedings.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
121705F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JULIO EDGAR RUIZ JR., Appellant                    On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-12-01705-CR        V.                       Trial Court Cause No. F08-24859-P.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered February 3, 2014




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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