      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-01-00200-CR




                               Bruce Wayne Shankle, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 50,368, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




               Appellant Bruce Wayne Shankle pleaded guilty to aggravated sexual assault. The

district court adjudged him guilty and assessed punishment at imprisonment for forty years. See Tex.

Pen. Code Ann. § 22.021 (West Supp. 2001). Appellant contends the court reversibly erred by failing

to admonish him before accepting his plea that he would be required to register as a sex offender.

We must first decide, however, if appellant’s general notice of appeal was adequate to confer

jurisdiction on this Court.


Jurisdiction

               There was a plea bargain agreement in this case. In exchange for appellant’s guilty

plea, the State agreed to consent to the court taking into consideration when assessing punishment

a burglary offense for which appellant had been indicted but not tried. See Tex. Pen. Code Ann.

§ 12.45 (West 1994). The State also agreed to file no more charges arising from events occurring
on the date of the charged aggravated sexual assault. The plea agreement additionally provided for

an adjudication of guilt and that “sentencing will be done by the Judge taking the plea in this case.”

At the sentencing hearing, appellant admitted his guilt of the unadjudicated burglary with the

prosecutor’s consent, and the district court took that offense into consideration in assessing

punishment.

               There is a limited right to appeal when a defendant is convicted of a felony on his plea

of guilty and “the punishment assessed did not exceed the punishment recommended by the

prosecutor and agreed to by the defendant.” Tex. R. App. P. 25.2(b)(3). The question presented

here is whether appellant’s plea bargain contained an agreed punishment recommendation within the

meaning of rule 25.2(b)(3). If it did, his general notice of appeal was insufficient under the rule to

confer jurisdiction on this Court. See Whitt v. State, 45 S.W.3d 274, 275 (Tex. App.—Austin 2001,

no pet.); see also Cooper v. State, 45 S.W.3d 77, 80-81 (Tex. Crim. App. 2001).

               This Court has held that rule 25.2(b)(3) applies not only when the State agrees to

recommend a specific number of years, but also when the agreement calls for a recommended

punishment “cap” below which the trial court may exercise its discretion in assessing punishment.

Delatorre v. State, 957 S.W.2d 145, 148-49 (Tex. App.—Austin 1997, pet. ref’d).1 This cause is

distinguishable from Delatorre because the State did not agree to recommend either a specific term

of years or a cap. Under the agreement, the State was free to recommend any punishment within the

range prescribed by statute. In fact, the State asked the court to sentence appellant to the maximum

term of life imprisonment.


       1
          Delatorre construed former appellate rule 40(b)(1), the relevant portion of which was
substantially identical to present rule 25.2(b)(3).

                                                  2
               The State argues that rule 25.2(b)(3) is invoked by any agreement which effectively

limits the defendant’s punishment exposure. The State’s contention is that by agreeing to allow the

district court to take the unadjudicated burglary of a habitation into consideration in assessing

punishment, the State gave up its right to prosecute appellant for that offense and thereby removed

any possibility that appellant might be cumulatively punished for both offenses. The State draws our

attention to a motion filed by the State asking that any punishment assessed in this cause and in the

burglary prosecution be ordered to run consecutively.

               In support of its contention, the State cites Watson v. State, 924 S.W.2d 711, 714-15

(Tex. Crim. App. 1996), and Ditto v. State, 988 S.W.2d 236, 238-39 (Tex. Crim. App. 1999). In

Watson, the court held that when a prosecutor recommends deferred adjudication in exchange for a

defendant’s guilty plea, the trial court does not exceed that recommendation if, upon adjudicating

guilt, it assesses any punishment within the range provided by law. 924 S.W.2d at 714.2 In Ditto,

the court held that a plea agreement setting a cap on punishment is satisfied when the trial court

defers adjudication, and that imposition of a higher sentence is not prohibited upon adjudication of

guilt. 988 S.W.2d at 239-40. Neither holding speaks to the issue before us.

               Appellant refers us to the opinion in Eaglin v. State, 843 S.W.2d 153 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref’d). In that case, the State agreed to dismiss four other

pending felony cases in exchange for the defendant’s plea, but expressly disclaimed any agreement




       2
         Watson further held that the earlier plea bargain agreement limited the defendant’s right to
appeal following adjudication of guilt. Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App.
1996). This holding was recently disavowed in Vidaurri v. State, No. 151-99, slip op. at 9 (Tex.
Crim. App. June 20, 2001).

                                                 3
as to the punishment to be imposed. Id. at 154. The court held that there was no agreed punishment

recommendation within the meaning of what is now rule 25.2(b)(3). Id. The cause before us is

distinguishable from Eaglin because the plea bargain agreement did not expressly state that there was

no punishment recommendation. Nevertheless, we find it instructive that the Eaglin court did not

consider the agreement to dismiss the other charges to be an agreed punishment recommendation.

                Rule 25.2(b)(3) does not limit the right to appeal whenever there is a bargained guilty

plea, but only when “the punishment assessed does not exceed the punishment recommended by the

prosecutor and agreed to by the defendant.” The plea agreement before us foreclosed the possibility

of appellant being separately tried, convicted, and punished for the unadjudicated burglary, but the

agreement placed no limitation on the punishment to be assessed in this cause. There was no

possibility of a cumulation order in this cause because appellant had not been tried and convicted in

the burglary case. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2001). While we do

not hold that an agreement to forego cumulative punishment can never invoke rule 25.2(b)(3), we

do hold that the State’s agreement to the consideration of the unadjudicated burglary offense pursuant

to section 12.45 did not constitute an agreed punishment recommendation in this cause within the

meaning of rule 25.2(b)(3).3 The general notice of appeal was therefore adequate to invoke our

jurisdiction.




        3
          After appellant was sentenced, the prosecutor told the court, “Your Honor, I note for the
court there is a plea agreement in this case and that was – so his right of appeal is limited.” Defense
counsel responded, “Correct.” Of course, if the plea agreement is not within the ambit of rule
25.3(b)(3), the attorneys’ belief to the contrary cannot make it so.

                                                  4
Admonishment

                Before accepting appellant’s guilty plea, the district court failed to admonish him that

he would be required to meet the requirements of the sex offender registration program. Tex. Code

Crim. Proc. Ann. art. 26.13(a)(5) (West Supp. 2001); see id. ch. 62 (Texas Sex Offender Registration

Program). The court also failed to ascertain whether appellant’s attorney had advised him regarding

the registration requirements. Id. art. 26.13(h). Appellant contends the court’s failure to comply with

article 26.13 rendered his guilty plea involuntary. The State urges that the court’s error did not

render appellant’s plea involuntary or otherwise affect a substantial right because sex offender

registration is only a collateral consequence of the guilty plea.

                The rule that a guilty plea must be voluntary is not without limits, especially as it

concerns collateral consequences. See Ex parte Evans, 690 S.W.2d 274, 277 (Tex. Crim. App.

1985). The rule that a plea must be intelligently made to be valid does not require that a plea be

vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into

the decision. Id. (quoting Brady v. United States, 397 U.S. 742, 757 (1970)). If a defendant is fully

advised of the direct consequences of his plea, his ignorance of a collateral consequence does not

render the plea involuntary. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing

United States v. Long, 852 F.2d 975, 979-80 (7th Cir. 1988)).

                Three other courts of appeals have concluded that registration as a sex offender is a

collateral consequence, rather than a direct consequence, of a plea of guilty to an offense subject to

the registration program. Ruffin v. State, 3 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.]

1999, pet. ref’d); Guzman v. State, 993 S.W.2d 232, 236 (Tex. App.—San Antonio 1999, pet. ref’d);

In re B. G. M., 929 S.W.2d 604, 606-07 (Tex. App.—Texarkana 1996, no writ) (juvenile case). We

                                                   5
are persuaded by the reasoning of these opinions, which we will not repeat here. We conclude that

sex offender registration is a collateral consequence of appellant’s guilty plea, and that the district

court’s failure to admonish him regarding the registration program or to ascertain what counsel had

told him about the program did not render his plea involuntary.

               The fact remains, however, that the district court did not substantially comply with

the article 26.13(a)(5) admonishment requirement.4 See Tex. Code Crim. Proc. Ann. art. 26.13(c)

(West 1989) (substantial compliance with admonishment requirements sufficient); Cain v. State, 947

S.W.2d 262, 264 (Tex. Crim. App. 1997) (failure to give required admonishment is not substantial

compliance). The failure to substantially comply with article 26.13(a) is not reversible error per se.

Cain, 947 S.W.2d at 264. Instead, it is nonconstitutional error subject to harm analysis under Texas

Rule of Appellate Procedure 44.2(b). Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App.

1999) (failure to admonish regarding range of punishment); Carranza v. State, 980 S.W.2d 653, 656

(Tex. Crim. App. 1998) (failure to admonish regarding deportation status). “[W]e understand Rule

44.2(b) to require that when there has been no substantial compliance with the admonishment

requirements of article 26.13, a defendant is required to show no more than that he was not aware

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

Carranza, 980 S.W.2d at 658. 5



       4
        Ruffin and Guzman were decided before article 26.13 was amended to require an
admonishment regarding sex offender registration.
       5
          Although the Carranza court spoke of the defendant being required to show harm, the court
of criminal appeals has since made it clear that an appellant has no burden to show harm under rule
44.2(b). Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). “[I]t is the responsibility of the
appellate court to assess harm after reviewing the record and . . . the burden to demonstrate whether
the appellant was harmed by a trial court error does not rest on the appellant or the State.” Id.

                                                  6
                 Having announced the test for harmful error, the Carranza court went on to apply it

in that case. Id. The State argued that the failure to admonish Carranza that his guilty plea might

result in his deportation was harmless because Carranza was illegally in this country and therefore

subject to deportation in any event. Id. Carranza argued, and the court of criminal appeals agreed,

that under federal immigration law he was “clearly at a greater disadvantage if subject to deportation

as a criminal deportee rather than one who has an expired permit.” Id. The court concluded that

because Carranza had “affirmatively shown that he was harmed by the failure of the trial court to

admonish him regarding the deportation consequences of his plea . . . he [had] shown that this error

affected a substantial right.” Id.6 As we understand Carranza, a substantial right is affected by the

trial court’s failure to give an admonishment required by article 26.13(a) if the conviction based on

the guilty plea results in harm to the defendant directly related to the subject of the omitted

admonishment. Cf. Cain, 947 S.W.2d at 264 (failure to admonish regarding deportation harmless

where record showed defendant was United States citizen); Aguirre-Mata v. State, 26 S.W.3d 922,

926 (Tex. App.—Houston [1st Dist.] 2000, pet. granted) (failure to admonish regarding range of

punishment harmless where record showed defendant was otherwise told correct punishment range).

                 Appellant’s situation is closely analogous to Carranza’s. Sex offender registration,

like deportation, is a collateral consequence of the guilty plea. See State v. Jimenez, 987 S.W.2d 886,

888-89 (Tex. Crim. App. 1999) (deportation is collateral consequence of guilty plea). A consequence

is no less serious for being collateral. Because of this conviction, appellant will be required to register

as a sex offender for the rest of his life. Tex. Code Crim. Proc. Ann. art. 62.12(a) (West Supp.


        6
            See footnote 5, supra.

                                                    7
2001). The legislature considers sex offender registration so serious that it requires the trial judge,

before accepting a guilty plea, both to admonish the defendant of the registration requirement and to

ascertain whether counsel has advised the defendant about it. Tex. Code Crim. Proc. Ann. art.

26.13(a)(5), (h). The district court failed to substantially comply with article 26.13(a)(5). The

conviction arising from appellant’s guilty plea will result in harm to him in the form of a lifetime duty

to register as a sex offender. The duty to register was the subject of the omitted admonishment. We

therefore conclude that, as in Carranza, the district court’s error affected a substantial right.

                The judgment of conviction is reversed and the cause is remanded for a new trial.




                                                Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Reversed and Remanded

Filed: September 13, 2001

Publish




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