Opinion issued March 19, 2015




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-14-00296-CR
                        ———————————
                  BOBBY EUGENE EASLEY, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 184th District Court
                         Harris County, Texas
                     Trial Court Case No. 1376456


                       MEMORANDUM OPINION

     After appellant, Bobby Eugene Easley, without an agreed punishment

recommendation from the State, pleaded guilty to the offense of aggravated
robbery with a deadly weapon,1 a jury assessed his punishment at confinement for

fourteen years. In three issues, appellant contends that the trial court erred in not

properly admonishing him prior to his entry of his plea of guilty, not ensuring that

he knowingly relinquished his constitutional due process rights, and including only

a few basic conditions of community supervision in the jury charge.

      We affirm.

                                   Background

      After appellant entered his plea of guilty, he testified that on February 4,

2013, he was “driving around” in his car with a friend when they spotted the

complainant, Rodrigo Vega, walking through a parking lot. Appellant stopped the

car, approached the complainant while pointing a gun at him, and asked for his

belongings. After the complainant handed appellant three dollars and his cellular

telephone, appellant drove away. A few minutes later, when appellant realized that

he may have dropped his own cellular telephone on the ground during the robbery,

he returned to the parking lot to retrieve it. Police officers apprehended appellant

shortly thereafter. The officers also found the complainant’s cellular telephone and

the gun that appellant had used to rob the complainant in the car that appellant had

been driving.




1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).

                                         2
                               Plea Admonishments

      In his first issue, appellant argues that the trial court erred in not properly

admonishing him prior to his entry of his plea of guilty because it did not inform

him of the range of punishment or the immigration consequences of a guilty plea.

See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2014). He asserts,

thus, that the trial court should not have accepted his involuntary plea. See id.

Although it concedes that the trial court erred in admonishing appellant, the State

asserts that appellant was not harmed by the trial court’s error.

      To ensure that trial courts enter and accept only a constitutionally valid plea

and to assist trial courts in making the determination that a defendant’s

relinquishment of rights is made knowingly and voluntarily, Texas law requires

trial courts to admonish defendants before accepting pleas of guilty. Carranza v.

State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998); see TEX. CODE CRIM. PROC.

ANN. art. 26.13(a) (Vernon Supp. 2014). As noted by appellant, trial courts are

statutorily required to inform a defendant who is pleading guilty to an offense of

the range of punishment attached to the offense. TEX. CODE CRIM. PROC. ANN. art.

26.13(a)(1) (Vernon Supp. 2014). A trial court must also inform a defendant who

is pleading guilty to an offense of the immigration consequences of his plea, i.e.,

that he could be subject to deportation. Id. art. 26.13(a)(4) (Vernon Supp. 2014).




                                          3
Range of Punishment

      Trial courts are required to substantially comply with article 26.13(a), either

orally or in writing. Id. art. 26.13(c), (d). A failure to properly admonish a

defendant about the range of punishment before accepting a guilty plea is subject

to harmless error analysis. See TEX. R. APP. P. 44.2(b); Aguirre-Mata v. State, 125

S.W.3d 473 474 (Tex. Crim. App. 2003). In conducting this harm analysis, we

must disregard the error unless it affected the defendant’s substantial rights.

Bessey v. State, 239 S.W.3d 809, 813 (Tex. Crim. App. 2007). If it did, the error is

not harmless. Id. In the context of a guilty plea, an error affects substantial rights

when, considering the record as a whole, we do not have a fair assurance that the

defendant’s decision to plead guilty would not have changed had the trial court

properly admonished him. Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim.

App. 2006).

      Article 26.13, in pertinent part, provides,

              (a)   Prior to accepting a plea of guilty . . . the court shall
                    admonish the defendant of:

                    (1)    the range of punishment attached to the offense;

                    ...

                    (4)    the fact that if the defendant is not a citizen of the
                           United States of America, a plea of guilty . . . for
                           the offense charged may result in deportation, the
                           exclusion from admission to this country, or the
                           denial of naturalization under Federal law.


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             (b)    No plea of guilty or plea of nolo contendere shall be
                    accepted by the court unless it appears that the defendant
                    is mentally competent and the plea is free and voluntary.

TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1), (4), (b).

      Here, the record reflects that the trial court, at the plea hearing, did not

admonish appellant about the range of punishment. Because the trial court erred in

not doing so, we must conduct a harm analysis pursuant to rule 44.2(b). Burnett v.

State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

      Although appellant asserts that the record is silent regarding what occurred

during his plea hearing, this Court received a supplemental reporter’s record on

February 3, 2015.2 The supplemental record reflects that on February 18, 2014,

the trial court held a hearing on appellant’s guilty plea and allowed appellant’s trial

counsel to question him about his plea. Appellant indicated that he was aware that

he could reasonably receive “probation up to 10 years” or the jury could sentence

him “anywhere from five years all the way up to 99 years or life.” Other portions

of the record also indicate that appellant actually knew the range of punishment

attached to his offense. During voir dire, in appellant’s presence, 3 the trial court


2
      After appellant filed his brief, the State filed a motion to supplement the record.
      See TEX. R. APP. P. 34.6(d) (allowing any party to direct court reporter to file
      supplemental reporter’s record). Although the Court notified appellant that a
      supplemental reporter’s record had been filed, appellant has not supplemented or
      amended his brief in light of the supplemented record.
3
      At the beginning of voir dire, the trial court asked appellant to stand.

                                             5
stated, “I’m informed by both lawyers that [the trial court] went through all of the

admonishments with the defendant before he accepted the plea.” The trial court

then informed the venire members that “[a]ggravated robbery has a very broad

punishment range, from 5 years to 99 years or life in prison . . . .” It further stated

that if a defendant has never before been convicted of a felony, “then the jury may

consider [probation].” Finally, the State and appellant’s trial counsel discussed the

range of punishment multiple times with the venire members.

      Nothing in the record suggests that appellant was unaware of the range of

punishment. Instead, the record reflects that appellant heard about the range of

punishment attached to his offense on multiple occasions from his counsel, the

State, and the trial court. Based on the entire record before us, we conclude that

appellant had knowledge of the range of punishment, and we have fair assurance

that appellant’s substantial rights were not affected by the trial court’s error in not

admonishing him about the range of punishment attached to his offense. See TEX.

CODE CRIM. PROC. ANN. art. 26.13(a)(1); Burnett, 88 S.W.3d at 639 (concluding

admonishment error harmless when nothing in record showed defendant did not

know range of punishment and record contained many instances in which parties

referred to sentence jury could assess).




                                           6
Immigration Consequences

      Trial courts are required to admonish defendants, prior to their pleas of

guilty or nolo contendere, of “the fact that if the defendant is not a [U.S. Citizen] 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[.]” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4).

      When a trial court fails to admonish a defendant of the immigration

consequences of his plea, such error is harmless if the record reflects that he is a

U.S. citizen and, therefore, not subject to deportation. Cain v. State, 947 S.W.2d

262, 264 (Tex. Crim. App. 1997) (holding trial court’s failure to admonish

harmless error when defendant U.S. citizen). Here, appellant testified during the

punishment phase of trial that he was born in Houston, Texas. Because appellant

is a U.S. citizen, the trial court’s error in not admonishing him about the

deportation consequences of his plea is harmless. Id.

      We overrule appellant’s first issue.

                            Voluntariness of Guilty Plea

      In his second issue, appellant argues that the “trial court erred in failing to

ensure a knowing relinquishment of the constitutional due process rights that he

waived by pleading guilty” because there is “no evidence that [he] was advised of

his right against self-incrimination prior to pleading guilty . . . .” He asserts that a



                                           7
plea of guilty “is the most literal and blatant manifestation of self-incrimination”

and, here, there is no evidence that he “voluntarily and understandingly entered his

plea[] of guilty.” The State argues that the trial court did not violate appellant’s

due process rights because the record affirmatively shows that appellant entered his

plea voluntarily and knowingly.

      A guilty plea constitutes a waiver of three constitutional rights: (1) the right

to a jury trial, (2) the right to confront one’s accusers, and (3) the right not to

incriminate oneself. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712

(1969). Accordingly, a guilty plea, to be consistent with due process of law, must

be entered knowingly, intelligently, and voluntarily. Id. at 242, 89 S. Ct. at 1712–

13; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969).

To be “voluntary,” a guilty plea must be the expression of the defendant’s own free

will and must not be induced by threats, misrepresentations, or improper promises.

Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970). The Texas

Court of Criminal Appeals has noted “that Boykin did not specifically set out what

must be ‘spread on the record’ to comply with [its] mandate.” Davidson v. State,

405 S.W.3d 682, 687 (Tex. Crim. App. 2013). “So long as the record otherwise

affirmatively discloses that the defendant’s guilty plea was adequately informed,

due process is satisfied.” Id.




                                          8
      Appellant submits that we should scrutinize the record “to determine

whether [he] had been properly informed of his rights even though he plead guilty

to the jury” as the court of criminal appeals did in Gardner v. State, 164 S.W.3d

393 (Tex. Crim. App. 2005). In Gardner, the defendant pleaded guilty before a

jury to five separate offenses of aggravated sexual assault, but did not receive

proper admonishments at the time of the plea. Id. at 394. The defendant’s counsel

“referred to [the defendant’s] guilty plea several times during the punishment

phase” and stressed to the jury throughout various parts of the trial that the

defendant had taken responsibility for the offense.     Id. at 395–97.    The jury

assessed punishment at confinement for thirty-five years for each offense. Id. at

397. The defendant, citing Boykin, complained on appeal that he did not receive

the proper admonishments. Id. The court of criminal appeals, held, however, that

the record showed,

      [The defendant] understood that he was waiving [his constitutional]
      rights when he pled guilty. This may be inferred, in part, from
      [defendant’s] counsel’s statements during the punishment phase
      mentioning that [defendant] would testify even though he did not have
      to under the Fifth Amendment and that [defendant’s] guilty plea saved
      the victim from having to testify and saved the jury from the “grueling
      experience” of determining [defendant’s] guilt.

             The voluntary nature of [defendant’s] guilty plea is further
      shown in the record by the overwhelming evidence that [defendant’s]
      guilty plea was part of a strategy (which we may also infer was done
      in consultation with competent counsel) to persuade the jury to grant
      [defendant] probation. Unlike this case, the record in Boykin was



                                        9
      silent on whether the defendant’s guilty plea was part of some trial
      strategy.

Id. at 399 (citations omitted). Appellant argues that Gardner “is distinguishable”

from the instant case because, there, the trial court “did engage in some

admonishment that was recorded in the transcript,” unlike here.

      More importantly, here, as in Gardner, the voluntary nature of appellant’s

guilty plea is shown by the evidence that his plea was part of a trial strategy

intended to persuade the jury to grant him community supervision. During his plea

hearing, appellant testified that he chose to plead guilty to give a jury an

opportunity to assess community supervision as a punishment. At voir dire, the

point of the opening statement of appellant’s trial counsel was to extensively focus

on the issue of punishment and the possibility that the jury could place him on

community supervision. Counsel reminded the jury that appellant had pleaded

guilty and it was only there to determine an appropriate sentence. Counsel further

emphasized that appellant had pleaded guilty when he said, “There is an incredible

800-pound gorilla sitting at the end of the table, so to speak; and that [appellant]

has pled guilty to aggravated robbery with a deadly weapon.” Unlike in Boykin,

the record here is not silent regarding the trial strategy behind appellant’s guilty

plea. See Boykin, 396 U.S. at 240, 89 S. Ct. at 1709 (“Trial strategy may of course

make a plea of guilty seem the desirable course. But the record is wholly silent on

that point and throws no light on it.”).

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       Moreover, during the punishment phase of trial, when appellant was asked if

he understood that he had a right to remain silent, he answered affirmatively. He

also stated from the witness stand that he pleaded guilty because he was guilty and

that “[i]f you did make that mistake . . . you have to own up to it and take

responsibility for it.”

       Finally, during closing argument, appellant’s counsel said, “[Appellant] pled

guilty to it in front of you-all. He accepted and said: I’m putting my faith and my

trust in 12 fellow citizens of this county, and I’m owning up to what I did.” Trial

counsel further emphasized that appellant did not argue about his guilt, point the

finger at someone else, or assert that someone else made him do it. And he noted

that appellant “got on [the] witness stand, admitted it all to you, and . . . apologized

to the complainant.”

       As in Gardner, the record reveals appellant’s trial strategy of seeking

community supervision and demonstrates that he understood the consequences of

his plea when he entered it even though he had not been expressly informed of

those consequences at the time.       See Gardner, 164 S.W.3d at 399; see also

Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975) (stating “failure to

give [admonishments regarding right to confront witnesses or right against self-

incrimination] does not invalidate a plea of guilty otherwise freely and voluntarily

made”). Although the trial court did not specifically admonish appellant on each



                                          11
of his constitutional rights at the time he entered his plea, we hold that the record

demonstrates that he was otherwise aware of his rights and entered his guilty plea

voluntarily and knowingly. See Davison, 405 S.W.3d at 687 (explaining “it is not

enough that the record is unrevealing with respect to whether [the defendant] was

admonished by the trial court; the record must also be silent with respect to

whether he was otherwise provided, or nevertheless aware of, the requisite

information to render his guilty plea voluntary and intelligent”).

      We overrule appellant’s second issue.

                     Conditions of Community Supervision

      In his third issue, appellant argues the trial court erred in including “only

nine basic potential conditions of community supervision” in the jury charge

because this created a “harmful and misleading impression of the definition of

community supervision in the minds of the jury.” Appellant asserts that “[b]y only

including a few of the less-restrictive conditions of community supervision, the

jury charge deviated from the statutory language and misled the jury into believing

that community supervision is much less onerous than in reality.” The State

responds that the trial court properly defined community supervision in the charge

and it was not required to list all twenty-four statutory conditions of community

supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § (2)(2)(B) (Vernon

Supp. 2014).



                                          12
      The trial court instructed the jury that community supervision is:

             [T]he placement of a defendant by a court under a
             continuum of programs and sanctions, with conditions
             imposed by the Court for a specified period during which
             a sentence of imprisonment or confinement,
             imprisonment and fine, or confinement and fine, is
             probated and the imposition of sentence is suspended in
             whole or in part.

This definition tracks the language of article 42.12. Directly after its definition of

community supervision, but before it listed nine possible conditions of community

supervision, the trial court noted that “if community supervision is recommended

by the Jury, the Court may impose the following conditions, among others, with

respect thereto.” (Emphasis added).

      Appellant asserts that the trial court’s list of nine possible conditions of

community supervision “constitute[ed] a significant part of the ‘definition’ of

community supervision” and by “only informing the jury of a few minor

conditions, it created a misleading instruction that was harmful to [appellant].”

Appellant further asserts that the State emphasized the problem when it repeatedly

referred to community supervision and the stated conditions as a “joke.”

      Here, the trial court provided the jury with the statutory definition of

community supervision, listed some of the possible conditions of community

supervision, and informed the jurors that additional conditions could be imposed.

To the extent that appellant wanted more conditions included in its charge, the trial



                                         13
court was not required to submit all of the possible statutory conditions of

community supervision in the jury charge on punishment. See Yarbrough v. State,

779 S.W.2d 844, 845 (Tex. Crim. App. 1989); Wade v. State, 951 S.W.2d 886, 893

(Tex. App.—Waco 1997, pet. ref’d) (“[F]ailure to enumerate all of the terms and

conditions [of community supervision] is not considered harmful to the accused or

restrictive of the court’s authority.”).

      Moreover, appellant has not directed us to any authority that requires a trial

court to include conditions of community supervision in its punishment charge to a

jury. See TEX. CODE CRIM. PROC. ANN. art 42.12, § 11(a) (stating “[t]he judge may

impose any reasonable condition”). Indeed, a trial court ultimately determines

what conditions to include and what to leave out in ordering community

supervision. See id. (stating that “[t]he judge of the court . . . shall determine the

conditions of community supervision”). Accordingly, we hold that the trial court

did not err in instructing the jury on community supervision. See McNamara v.

State, 900 S.W.2d 466, 468 (Tex. App.—Fort Worth 1995, no pet.) (holding failure

to enumerate conditions of probation in jury charge not harmful); Saenz v. State,

879 S.W.2d 301, 306 (Tex. App.—Corpus Christi 1994, no pet.) (stating trial court

need not inform jury of any conditions of community supervision in jury charge);

Herrera v. State, 848 S.W.2d 244, 248 (Tex. App.—San Antonio 1993, no pet.)




                                           14
(determining omission of conditions of community supervision from jury charge

not fundamental error).

      We overrule appellant’s third issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice




Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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