                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                '
 NATHANIEL RAY SMITH,                                          No. 08-11-00167-CR
                                                '
                        Appellant,                                  Appeal from
                                                '
 v.                                                             355th District Court
                                                '
 THE STATE OF TEXAS,                                          of Hood County, Texas
                                                '
                        Appellee.               '                (TC # CR11587)


                                          OPINION

       Nathaniel Ray Smith appeals his guilty plea to one count of aggravated sexual assault of

a child. A jury assessed Appellant’s punishment at a term of forty-five years’ confinement and a

fine of $5,000. In four issues on appeal, Appellant contends the trial court committed reversible

error by: (1) failing to properly admonish him as to the consequences of his guilty plea; (2)

denying his motion for mistrial due to an allegedly tainted juror; (3) denying his motion for

continuance; and (4) sustaining the State’s objection to relevance during the punishment phase.

For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       On June 2, 2010, Appellant was charged in a three-count indictment with committing

three different offenses against a minor child, TM12. Prior to voir dire, Appellant entered a plea

of guilty to aggravated sexual assault with a child as alleged in Count One. In exchange for this

guilty plea, the State agreed to drop the charges alleged in Counts Two and Three. The trial

court admonished Appellant regarding the consequences of his guilty plea and then specifically

questioned Appellant’s trial counsel as to whether she believed that Appellant, “freely,
voluntarily, and knowingly, intelligently chang[ed] his plea to Count [One] from that of not

guilty to guilty.” Finding the answers satisfactory, the trial court agreed that Appellant was

mentally competent to change his plea to guilty and that Appellant did so “freely and voluntarily

and knowingly and intelligently.” Accordingly, the trial court accepted Appellant’s guilty plea

and the case proceeded to voir dire.1

         After voir dire but before the beginning of the trial on punishment, Juror Fullerton,

notified the trial court that she had received an e-mail from the school at which she works stating

that TM12 would be absent and in court.2 The defense sought a mistrial on the basis that the e-

mail tainted Fullerton. Defense counsel also asked the court for permission to question Fullerton

regarding the origin of the e-mail. The trial court granted counsel’s request to question Fullerton

and subsequently denied a mistrial.

         Also prior to trial, defense counsel orally re-urged one ground alleged in a written motion

for continuance which the trial court denied by written order the previous day. Specifically,

counsel expressed her need to more thoroughly examine the Child Protective Services and the

Child Advocacy Center records to adequately prepare for trial. The trial court again denied the

motion for continuance.

         The case proceeded to a trial on punishment, and, after hearing all the evidence, the jury

assessed Appellant’s punishment at forty-five years’ confinement and a $5,000 fine. For the

following reasons, we affirm.

                                         FAILURE TO ADMONISH


1
   A few days before trial, on March 17, 2011, Appellant filed a motion for continuance based in part on defense
counsel’s alleged inability to adequately prepare for trial because she had not been provided with all of the necessary
records from Child Protective Services and the Child Advocacy Center.
2
 Fullerton testified that at some point during the voir dire process she heard a name with the same last name as
TM12 but a slightly different first name.


                                                        -2-
       In Issue One, Appellant complains of the trial court’s failure to admonish him that he

would be required to register as a sex offender if he pled guilty to the offense of sexual assault of

a child. According to Appellant, nothing in the record indicates his awareness of the registration

requirement or that he would have been willing to plead guilty had he been aware of such

requirement. Therefore, Appellant contends that the trial court committed harmful, reversible

error in failing to properly admonish him as to the “direct consequence” of his plea.

       Article 26.13 of the Texas Code of Criminal Procedure states in relevant part:

       Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall
       admonish the defendant of: . . . 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)(5)(West 2009). It is undisputed that although the trial

court gave several admonishments prior to accepting the guilty plea, the court did not admonish

Appellant about the sex offender registration requirement in accordance with Article 26.13 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM.PROC.ANN. art. 26.13. However,

Article 26.13(h) provides that “[t]he 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.” Id. art. 26.13(h); see also

James v. State, 258 S.W.3d 315, 318 (Tex.App.--Austin 2008, pet. dism’d)(stating “the

legislature, by amending article 26.13(h), has foreclosed the relief [appellant] now requests on

appeal”).

       We believe the plain language of the statute renders this argument invalid.               See

TEX.CODE CRIM.PROC.ANN. art. 26.13(h); see also James, 258 S.W.3d at 317 (“Because

[appellant’s] sole complaint about his plea in the sexual assault case is the court’s failure to

admonish him concerning the sex offender registration requirement, we resolve [appellant’s]



                                                -3-
third issue against him.”), quoting Standifer v. State, No. 05-06-00078-CR, 2006 WL 3057903,

*2 (Tex.App.--Dallas Oct. 30, 2006, no pet.)(mem. op., not designated for publication).

       Even if we were inclined to address the merits of his claim solely under the requirements

of Article 26.13(a), Appellant would not be entitled to relief. A trial court’s failure to admonish

a defendant under Article 26.13(a) is non-constitutional error. See Aguirre-Mata v. State, 992

S.W.2d 495, 498-99 (Tex.Crim.App. 1999) and Carranza v. State, 980 S.W.2d 653, 655-56

(Tex.Crim.App. 1998)(cases noting that the purpose and function of the admonishments under

Article 26.13(a) are to assist the trial court in determining whether a guilty plea is entered

knowingly and voluntarily and that such admonishments are not constitutionally required.

Therefore a trial court commits only non-constitutional error when it fails to admonish a

defendant on one of these statutorily required admonishments). Such errors will be disregarded

unless they affect a substantial right.      See TEX.R.APP.P. 44.2(b).       Despite Appellant’s

characterization of the sex offender registration requirement under Article 26.13(a)(5) as a direct

consequence of his guilty plea, the requirement is only a collateral consequence such that failure

to admonish Appellant regarding registration, standing alone, does not invalidate his plea. See

Lopez v. State; 71 S.W.3d 511, 515 (Tex.App.--Fort Worth 2002, no pet.); Alvarez v. State,

63 S.W.3d 578, (Tex.App.--Fort Worth 2001, no pet); Anderson v. State, 62 S.W.3d 304

(Tex.App.--Fort Worth 2001, pet. granted), aff’d by 182 S.W.3d 914 (Tex.Crim.App. 2001).

       Although only a collateral consequence, “a serious collateral consequence, a substantial

right is affected under these circumstances only if the appellant was unaware of the

consequences of his plea and was misled or harmed by the admonishment of the trial court.”

Lopez, 71 S.W.3d at 516, citing Alvarez, 63 S.W.3d at 583; Anderson, 62 S.W.3d at 307;

Carranza, 980 S.W.2d at 658; Torres v. State, 59 S.W.3d 365, 368 (Tex.App.--Houston [1st



                                               -4-
Dist.] 2001, no pet.); Thompson v. State, 59 S.W.3d 802, 807 (Tex.App.--Texarkana 2001, pet.

filed); and Ducker v. State, 45 S.W.3d 791, 793–96 (Tex.App.--Dallas 2001, no pet.).              In

assessing any harm, we review the entire record.             Johnson v. State, 43 S.W.3d 1, 5

(Tex.Crim.App. 2001). The record demonstrates that Appellant admitted to sexually assaulting

TM12. Appellant understood the charges against him and the consequences of his guilty plea.

He was aware of the punishment range associated with the offense and that, upon a finding of

guilt, he would be sentenced within that range.          The trial court found Appellant freely,

voluntarily, intelligently, and knowingly entered his plea of guilty. By entering a plea of guilty

as to Count One, the State agreed to drop the remaining two counts. Nothing suggests that

Appellant was unaware of the registration requirement or that he would not have pled guilty if

the trial court had properly admonished him regarding registration. See Lopez, 71 S.W.3d at

516; Alvarez, 63 S.W.3d at 583; Anderson, 62 S.W.3d at 307. We conclude that Appellant’s

substantial rights were not affected by the trial court’s failure to comply with Article 26.13(a)(5).

We overrule Issue One.

                                   MOTION FOR MISTRIAL

       In Issue Two, Appellant complains that the trial court erred when it denied his motion for

mistrial. He contends that Juror Fullerton withheld material information during voir dire and

should have been disqualified from serving. The crux of the issue is the materiality of the

information received by Juror Fullerton. .

       We review the trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007); Wood v. State, 18 S.W.3d

642, 648 (Tex.Crim.App. 2000). If the trial court’s ruling was within the zone of reasonable




                                                -5-
disagreement, then there is no abuse of discretion and we must uphold the trial court’s decision.

Sanders v. State, 255 S.W.3d 754, 758 (Tex.App.--Fort Worth 2008, pet. ref’d).

       On March 21, 2011, the parties conducted and concluded voir dire. At the end of the day,

the juror selection process was completed. Fullerton was among those selected and sat on the

jury. The following day, the proceedings began with defense counsel moving for a mistrial as

follows:

                                        PROCEEDINGS

       THE COURT: Ms. Perkins?

       MS. PERKINS [DEFENSE COUNSEL]: Your Honor, on behalf of the
       Defendant, Nathan Smith, we move for mistrial on the basis that there’s been a
       taint to a jury member, Ms. Fullerton, who has communicated to an officer of the
       Court that she received an e-mail concerning one of the prospective witnesses in
       this case. We believe that this juror has been tainted, Your Honor, and at the
       Defense’s hesitation, we need to question this witness as to the origin of that e-
       mail.

       THE COURT: You want to question the juror?

       MS. PERKINS: The juror, Your Honor.

       THE COURT: All right. Continue.

       MS. PERKINS: And on that basis, we move for the mistrial.

At defense counsel’s request, the trial judge cleared the court room and Fullerton was brought to

the witness stand. Fullerton testified that the prior afternoon, after returning to work from voir

dire, she received an e-mail from the attendance secretary at her school stating “that a student

from my campus would be out with excused absences for a couple of days going to court.”

Fullerton said that the name of the student was “very similar to a name that was mentioned

yesterday when I was here.” She did not know the student, but because she name was very

similar to the name mentioned in voir dire, Fullerton “wanted to make sure it was okay to be on



                                              -6-
the jury.” When Fullerton reported for jury duty the next morning, she immediately informed

the bailiff of the e-mail. She and the bailiff were the only two people in the hallway and that

they were not close to anyone else.

       Q. [BY MS. PERKINS/DEFENSE COUNSEL]: And do you have any personal
       knowledge about this prospective witness?

       A. [BY JUROR FULLERTON]: No, ma’am.

       Q. Does anything in that experience, Ms. Fullerton, cause you to be biased
       towards the Government or towards the Defendant --

       A. No, ma’am.

       Q. -- in any way? Did you communicate to any of the other jurors that you had
       been contacted?

       A. No, ma’am.

The trial court then instructed Fullerton not to discuss anything about “these discussions that

we’ve held” with any of the other jurors. Counsel for the defense then renewed her objections:

       Your Honor, I move to strike this witness [sic] on the basis that she has been
       tainted unfairly on the basis of my questioning here, and I’d like to bring it to the
       Court’s attention that the State subpoenaed this witness and has now made
       characterizations as to his -- this juror’s qualifications. We move for mistrial on
       that basis. We submit to the Court that all personal information about jurors
       under 3529 should be kept confidential by all parties. And on the basis of that,
       Your Honor, we think this witness is tainted, and we move for mistrial. I’m sorry,
       I misspoke. Not the witness, the juror.

The trial court denied the motion.

       When a potential juror withholds material information during voir dire, the trial court’s

refusal to grant a motion for mistrial results in constitutional error. See Lopez v. State, 261

S.W.3d 103, 107 (Tex.App.--San Antonio 2008, pet. ref’d). When the withheld information is

immaterial and the record does not reflect that an appellant has been deprived of an impartial

jury or denied a fair trial, the trial court’s denial of a motion for mistrial is not error. Id. To



                                               -7-
determine materiality, we evaluate whether the withheld information would likely reveal the

juror harbored a bias or prejudice to such a degree that the juror should have been excused from

jury service. Sypert v. State, 196 S.W.3d 896, 900 (Tex.App.--Texarkana 2006, pet. ref’d).

       In Decker v. State, the Court of Criminal Appeals addressed a similar situation:

       In the instant case, the record shows that Rich did not intentionally give false
       information during the voir dire examination. Rather, the record shows that Rich
       did not realize that he knew the complaining witness until he saw the complaining
       witness walk into the courtroom immediately before the trial was to commence,
       but after voir dire and jury selection had been completed. Upon recognizing the
       complaining witness, he immediately informed the trial court. Further, we find
       that the information was not material, in that the record shows that Rich’s
       acquaintance with the complaining witness was only that--an acquaintance
       through employment. There was evidence that the two men had never socialized
       together or had any type of friendship. They merely worked at the same job site.
       [Emphasis in original].

Decker v. State, 717 S.W.2d 903, 907 (Tex.Crim.App. 1983)(op. on reh’g). The court ultimately

found there was no showing that such relationship had any potential for prejudice or bias on the

part of the juror. See id. at 907-08. Where the evidence indicates that there has never been any

relationship between the juror and the witness, the potential for bias is even less. See Lopez, 261

S.W.3d at 108 (finding no potential for bias where no relationship existed between juror and

complainant and juror “did not recognize the complainant’s name and did not initially recognize

him in person”).

       Here, Appellant asserts that the school-wide e-mail informed Fullerton that the victim of

the sexual assault was one of her students and constituted bias as a matter of law. The record

does not indicate any prior relationship between Fullerton and TM12. Fullerton did not withhold

information during voir dire; instead, she truthfully denied having any knowledge about the

potential witnesses at the time. It was only after voir dire that she became aware that a potential

witness was a student in the school where she worked. This realization was the result of an



                                               -8-
unsolicited, school-wide e-mail, not an independent realization that she had seen the potential

witness before. Based on these facts, we hold that this after-the-fact realization did not constitute

material information. See Lopez, 261 S.W.3d at 108; Decker, 717 S.W.2d at 907. We overrule

Issue Two.

                               MOTION FOR CONTINUANCE

       In Issue Three, Appellant argues that the trial court erred in denying his motion for

continuance because defense counsel did not have adequate time to investigate records from

Child Protective Services and the Child Advocacy Center that were material to the defense and

may have contained exculpatory evidence. Defense counsel made two different motions for

continuance but we will address only his written motion as his oral motion preserved nothing for

review. See Anderson v. State, 301 S.W.3d 276, 279 (Tex.Crim.App. 2009)(“[I]f a party makes

an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the right

to complain about the judge’s ruling on appeal.”).

       We review a trial court’s ruling on a motion for continuance for an abuse of discretion.

Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). To show reversible error predicated

on the denial of a pretrial motion for continuance, an appellant must demonstrate both that the

trial court erred in denying the motion and that the lack of the continuance harmed him.

Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010); see also Heiselbetz v. State, 906

S.W.2d 500, 512 (Tex.Crim.App. 1995)(holding “[a]bsent a showing of prejudice, we cannot

hold that the trial court abused its discretion in overruling appellant’s motion for continuance”).

       The Court of Criminal Appeals has addressed the denial of a motion for continuance

based upon the need for additional trial preparation. In Wright v. State, the court held that the

trial court did not err in overruling an appellant’s motion for continuance “to afford his defense



                                                -9-
expert an opportunity to review DNA analyses recently developed by the state’s experts.”

Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000). There, the appellant had ample

opportunity to request an expert, but did not do so until the first day of trial on the merits. Id.

The court concluded that the appellant should not “be allowed to profit from his own failure to

act.” Id. at 533.

       In Gonzales v. State, the court reiterated:      “In essence, Wright injects a diligence

requirement as a precondition for a continuance based upon the need for additional trial

preparation.” Gonzales, 304 S.W.3d at 843. Essentially, “that just means that the resolution of

such a motion is particularly within the discretion of the trial court.” Id. at 844 (internal

quotations omitted).

       Appellant filed a written motion for continuance four days before trial. While his oral

motion did not preserve error, it is relevant to show diligence or lack thereof. The following

exchange occurred at the trial court:

       DEFENSE COUNSEL: We reurge our motion for continuance on the basis that
       we haven’t obtained the registered CPS regional office in Arlington, although that
       agency has a subpoena duces tecum from us. We submit to the Court that those
       records are material to our defense in showing this jury everything that is
       admissible upon prior consideration on punishment.

                                          .      .      .

       STATE: I would like to represent to the Court that those records have been in the
       State’s file for months, even perhaps a year, and that those records have been
       available for the defense this entire time.

                                          .      .      .

       DEFENSE COUNSEL: With all due respect, Mr. Christian’s office has given me
       an opportunity to look through his file at length, but every several days other
       things seem to appear in that file. And so we simply ask for a reasonable period of
       time in which to review those records and present those facts to the jury.




                                              - 10 -
         STATE: And, Your Honor, I’ll just state that these records were faxed in May of
         2010, so it’s not like they were just sprung on the defense a few days ago.

         The trial court could reasonably have rejected Appellant’s motion because it failed to

address diligence. See Gonzales, 304 S.W.3d at 843. Furthermore, Appellant has not established

a “specific prejudice to his cause arising from the trial court’s failure to continue the trial.”

Heiselbetz, 906 S.W.2d at 511. “This showing can ordinarily be made only at a hearing on a

motion for new trial . . . .” Gonzales, 304 S.W.3d at 842-43. Appellant filed a motion for new

trial but did not assert denial of a continuance as grounds therefor. Because Appellant has not

shown that denial of the continuance harmed him, we overrule Issue Three.3

                                        RELEVANCE OBJECTION

         In Issue Four, Appellant complains that the trial court erred in prohibiting his wife from

testifying about the relationship between Appellant and his children. The State objected on

relevance grounds, and the trial court sustained the objection. .

         Rulings on relevance should be left largely to the trial court, relying on its own

observations and experience, and will not be reversed absent an abuse of discretion. Sanders v.

State, 255 S.W.3d 754, 758 (Tex.App.--Fort Worth 2008, pet. ref’d). If the trial court’s ruling

falls within the zone of reasonable disagreement, then there is no abuse of discretion, and we

must uphold the trial court’s ruling. Id.

         For a complaint concerning the exclusion of evidence to be considered by an appellate

court, the record must show what the excluded testimony would have been. Stewart v. State, 686

S.W.2d 118, 122 (Tex.Crim.App. 1984). The complaining party must comply with Rule 103 by

3
  A recent case addressed an almost identical fact situation: “[A]ppellant had received the CPS report in question
during the week prior to trial. Having received the report before trial, the discovery of its contents falls outside the
scope of ‘some unexpected occurrence since trial began.’” [Emphasis in original]. Reder v. State, No. 07-07-0022-
CR, 2008 WL 980909, at *1 (Tex.App.--Amarillo Apr. 10, 2008, no pet.)(mem. op.)(not designated for publication)
(holding trial court did not abuse its discretion in denying motion for continuance that appellant stated was necessary
so that he could flesh out the allegations in the CPS report that he believed were exculpatory).


                                                        - 11 -
making an offer of proof which sets forth the substance of the proffered evidence. Mays v. State,

285 S.W.3d 884, 889 (Tex.Crim.App. 2009). Rule 103 states in relevant part:

       Error may not be predicated upon a ruling which admits or excludes evidence
       unless a substantial right of the party is affected, and

                                         .        .    .

       In case the ruling is one excluding evidence, the substance of the evidence was
       made known to the court by offer, or was apparent from the context within which
       questions were asked.

TEX.R.EVID. 103(a)(2). To preserve error, an offer of proof, “must include a reasonably specific

summary of the evidence offered and must state the relevance of the evidence unless the

relevance is apparent, so that the court can determine whether the evidence is relevant and

admissible.” Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998).

       Appellant wholly failed to make an offer of proof detailing what the excluded evidence

would have been. We thus have no basis for reviewing the contention that the trial court erred in

excluding the evidence in question. Hitt v. State, 53 S.W.3d 697, 708 (Tex.App.--Austin 2001,

pet. ref’d). Accordingly, we “cannot decide whether evidence [was] improperly excluded unless

the evidence is included in the record for review.” Moreno Denoso v. State, 156 S.W.3d 166,

177 (Tex.App.--Corpus Christi 2005, pet. ref’d).       We overrule Issue Four and affirm the

judgment of the trial court.


October 31, 2012                     _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




                                              - 12 -
