REVERSE and REMANI); Opinion issued l)eccmber 6, 2012




                                               In   The
                                  uurt uf qiprala
                         FiftI! )iatrirt uf ixaa at )a11a
                                       No. 05-11-01604-CR


                             JUAN LOPEZ SALAZAR, Appellant

                                                    V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the 195
                                            th
                                                Judicial District Court
                                    I)allas County, Texas
                            Trial Court Cause No. F09-24302-N


                                           OPINION
                           Before Justices Morris, Richter, and Murphy
                                    Opinion By Justice Morris

       After testifying at his trial, Juan Lopez Salazar changed his plea before the jury from not

guilty to guilty. He was convicted of possession with intent to deliver cocaine in an amount of 200

grams or more but less than 400 grams and sentenced to twenty years’ imprisonment. Appellant now

complains the trial court failed to admonish him about the consequences of his guilty plea, including

the immigration consequences of the plea. He also complains the judgment should be modified to

state that he pleaded guilty. We reverse the trial court’s judgment and remand the cause for further

proceedings.

                                     FAcTu\L BAcKGRouND


       At the start of trial, appellant pleaded not guilty to the charges against him, including an
allegation that he used or exhibited a deadi weapon during the offense. Police testimony showed

that over 220 grams of cocaine was fiund in the attic of appellant’s home. along with $125,000.

()fflcers testi fled that appellant said he was holding the drugs for a man known as Comanche. When

appellant testified in his defense, he admitted to possessing the cocaine and money but denied using

the gun found in the house to protect the contraband.

       Appellant claimed he was coerced to come out of hiding and cooperate with police by

officers who threatened his wife that they were going to take away their children ifhe did not appear.

Appellant also testified that an officer told him ifhe did not reveal where the drugs were located, the

officer would arrest his wife and he would never see his children again. Before appellant changed

his plea, his attorney informed the court that appellant intended to seek ajury instruction under code

of criminal procedure article 38.23 requiring thejury to disregard any evidence it believed had been

obtained illegally. The attorney stated. “[W]e believe everything that happened after the officers

entered the home was illegal and thus inadmissible.”

       Alter appellant testified, the State and the defense reached a plea agreement. The State

withdrew the deadly weapon allegation and appellant pleaded guilty to the remaining allegations in

the charge. The trial judge confirmed with appellant that he was aware of the change in his plea and

of the State’s abandonment of the deadly weapon allegation. The trial court did not admonish

appellant orally or in writing as to the possible consequences of his plea, including the possible

immigration consequences.

       The record does not reveal whether appellant is a United States citizen. When he testified

at trial, appellant stated that he was born in Mexico but had lived in Dallas for eighteen years and

“was able to obtain” a driver’s license. He testified that he had previously been employed at several

car dealerships in the Dallas area. At the time of his arraignment, appellant refused to state his
citizenship. j\nd he never specified his citizenship at trial. Appellant spoke through a translator at

trial and spoke mainly Spanish when he was questioned by police following his arrest. During the

questiomng. he acknowledged that a phone number on his mobile phone belonged to his immigration

attorney.

        At the sentencing hearing, appellant’s brother testified that appellant helps his brothers in

Mexico by sending them money and things they need “because he cannot see them.” One of

appellant’s other brothers testified that appellant raised him and the other siblings in Mexico when

their father moved to the United States. Afterward. the brother said, appellant immigrated to the

United States, but he continued to support us down there in Mexico. He’s the one that [sic] brought

us here.”

                                              DisCussioN


        In his second point of error, appellant complains the trial court violated his statutory right to

be admonished about the immigration consequences ofhis guilty plea. See TEx. CODE CRIM. PROC.

ANN. art. 26.l3(a)(4)(West Supp. 2012). The State concedes the trial court never admonished

appellant about the immigration consequences of his plea hut asserts that the error did not harm him.

       The court of criminal appeals has held that in determining whether an appellant was misled

or harmed by the trial court’s failure to admonish him upon entry of his guilty plea, we must consider

the record as a whole and decide whether we have a fair assurance that the appellant’s decision to

plead guilty would not have changed had the court admonished him. See VanNoririck v. State, 227

S.W.3d 706, 709 (Tex. Crim. App. 2007).          Neither party has the burden of proving harm or

harmlessness from the error. Id. We may draw reasonable inferences from facts in the record in

conducting this analysis, but we may not use mere supposition. Id. at 71 0—71 1. Three issues must

be considered in assessing any harm: whether the appellant knew of the consequences of his plea,
the strength ofthe evidence ofthe appellant’s guilt and the appellant’s citizenship and immigration

status. Id.at712.

        First, we cannot detennine from the record whether appellant was aware ofthe deportation

consequences ofa guilty plea As in VanNoririck. the record in appellant’s case shows not only that

the trial court failed to give the deportation admonishment but also that none ofthe parties made any

reference on the record to deportation or other potential immigration consequences ofa guilty plea.

See Id; see also (JutIerrez-Gomez v. State. 321 S.W.3d 679.684 (Tex. App.—Houston [l
                                                                                  th Dist.]
                                                                                  4

2010, no pet.) (holding Gutierrez-Gomez not harmed by failure to give deportation admonishment

where deportation issue was referenced about five times during trial). Although the record shows

appellant declined to give his citizenship status at the time ofhis arraignment, we cannot infer from

that fact that appellant was aware of the deportation consequences of a guilty plea.

       The second issue favors the State. Not only was there considerable police testimony

pertaining to appellant’s guilt, appellant himselfadmitted his guilt for every aspect ofthe offense as

it was originally charged except the deadly weapon allegation. But the court ofcriminal appeals has

made clear that where we cannot infer that the appellant knew about the immigration consequences

of his plea, “the strength or weakness of the evidence against [him] makes little difference to the

harm analysis in the context ofthe whole record.” VanNortrick, 227 S.W.3d at 713. We cannot be

certain that even ifthe evidence againsthim is strong, an appellant would necessarily choose a guilty

plea and certain conviction over taking his chances at trial knowing that is the only way he can

attempt to avoid deportation or being forever denied the opportunity to become a naturalized citizen.

Id.

       It is true that by the time appellant changed his plea to guilty in this case, he had already

effectively admitted to almost every element of the charged offense and thereby nearly guaranteed



                                                -4-
his conviction. Hut it is equally true that when appellant vas pursuing his plea ol not guilty, the

delnse planned to seek a finding by the       jury   that all the State’s incriminating evidence had been

obtained illegally and therefore   could   not be used by the jury to convict him. See TEX. CoDE Ciuxi.

PROC ANN. art. 38.23 (West 2005). Accordingly. assuming appellant is not a U.S. citizen, proper

admonishment on the deportation consequences of a guilty plea would have left appellant with two

choices: (1) plead guilty with the risk of deportation (but the possible benefit of a more lenient

sentence) or (2) persist with his not guilty plea risking conviction and a longer sentence (but with

the possibility that the jury would find him not guilty based on police misconduct and he could not

be deported).

       The final issue is appellant’s citizenship and immigration status. Appellant argues there were

“clear indications” that he is not a U.S. citizen because he refused to state his citizenship at

arraignment. he mentioned his immigration lawyer during police questioning, he stated that he was

born in Mexico and moved to the U.S. when he was about sixteen years old, he did not speak English

very vell, he worked at menial jobs. he was “able to obtain” a Texas driver’s license. he had strong

ties to Mexico. and the State urged the jury during jury argument to consider that appellant caused

drugs to go out to “citizens” in the community. For its part, the State argues there is “also evidence

from which one could reasonably infer that [he] had become a citizen.” The State points to

appellant’s driver’s license and his work for several car dealerships. The State further asserts that

the record shows appellant’s decision to plead guilty was a trial strategy used in the hope of

obtaining probation.

       Although the record is not entirely silent on appellant’s citizenship and immigration status.

it is insufficient for us to make a determination on the issue. See VanNortrick, 227 S.W.3d at 713:

Kelley v. State. 237 S.W.3d 906, 908—09 (Tex. App.—Houston           [14th   Dist.] 2007, pet. ref d). When
the trial court fails to admonish a defendant about the immigration consequences ofMs guilty plea.

a record that is insufficient to determine citizenship establishes harm by the standard ofappellate rule

44.2(b). VanNoririck. 227 S.W.3d at 714; cjt J’ollmer v. Siale. No. 05-10-00081-CR. 2011 Wi

3833028 at 3 (Tn. App.—DaIlas Aug. 31. 2011. pet. rerd) (not designated for publication)

(holding where record showed Voilmer was a U.S. citizen, failure to give deportation admonishment

was harmless). Any other conclusion would involve mere supposition. which we may not employ.

See VanWortrick, 227 S.W.3d at 711. We therefore sustain appellant’s second point of error. Our

resolution of this point of error precludes any necessity to consider appellant’s first point of error

complaining that his plea was not entered knowingly and voluntarily or Ms third point of error

contending that the trial court’s judgment wrongly states that he pleaded not guilty. We therefore

decline to address those points of error.

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




Do Not Publish
Thx. R. App. P.47
11 l604F.U05




                                                 -6-
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                       3FifIIi IJi’:
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                                      JUDGMENT
JUAN LOPEZ SALAZAR, Appellant                      Appeal from the 1 9S Judicial District Court
                                                   of Dallas County, Texas. (Tr.Ct.No. F09-
No. 05-1 1-01604-CR          V.                    24302-N).
                                                   Opinion delivered by Justice Morris,
THE STATE OF TEXAS, Appellee                       Justices Richter and Murphy 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.



Judgment entered December 6, 2012.




                                                     ISTICE
