
      NO. 07-09-0060-CR

      IN THE COURT OF APPEALS

      FOR THE SEVENTH DISTRICT OF TEXAS

      AT AMARILLO

      PANEL B

      FEBRUARY 16, 2010
      ______________________________

      KENNETH LAWRENCE,

                                                   Appellant

      v.

      THE STATE OF TEXAS,

                                                   Appellee
      ______________________________

      FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

      NO. 19791-B; HON. JOHN B. BOARD, PRESIDING
      ______________________________

                                   Opinion
                       ______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Appellant Kenneth Lawrence was convicted of failing to register  as  a
sex offender after pleading guilty.  On appeal, he  contends  his  plea  was
not knowing and voluntary because the trial court failed to admonish him  as
to the range of punishment and the possible consequence of deportation.   We
affirm the judgment.
      Appellant originally opted for a  jury  to  try  him  and  assess  his
punishment if found guilty.  Prior to voir dire,  however,  he  changed  his
mind and requested the trial court  to  assess  punishment.   During  trial,
appellant  changed  his  mind  again  but  this  time  about  being   tried.
Consequently, he pled guilty.  The  trial  court  accepted  the  plea,  but,
before doing so,  it  failed  to  admonish  appellant  about  the  range  of
punishment and the possibility of deportation if he was not a United  States
citizen.  See Tex. Code Crim. Proc. Ann.  art.  26.13(a)(1)  &  (4)  (Vernon
Supp. 2009) (requiring such admonishments).  Such a failure is  error.   See
Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim.  App.  2002).   The  error,
nevertheless, remains subject to a harm analysis under Rule 44.2(b)  of  the
Rules of Appellate Procedure.  Id.
      The nature of the applicable harm analysis was most recently explained
in Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006).  Like the  case
before us,  Anderson  also  involved  the  failure  to  fully  admonish  one
pleading guilty.  Furthermore, the  Court  of  Criminal  Appeals  reiterated
that the issue is whether the error affected the substantial rights  of  the
defendant.  Id. at 918-19.  In cases like  that  before  us,  this  normally
requires an investigation of the record to  determine  with  fair  assurance
whether the plea would have  stayed  the  same  had  the  admonishment  been
given.  Id. at 919.  With that said, we turn to the record before us.
      Regarding the failure to admonish about deportation, the  omission  is
harmless if the record shows that the defendant is a United  States  citizen
and, therefore, not subject  to  deportation.   VanNortrick  v.  State,  227
S.W.3d 706, 709 (Tex. Crim.  App.  2007).    That  is  the  situation  here.
According to a pen packet admitted into  evidence,  appellant  was  born  in
Texas.  Since Texas remains part of the United States, appellant was born  a
United States citizen  and  is  not  subject  to  deportation.   Thus,  this
particular error was harmless.
      As for the failure to admonish about  the  range  of  punishment,  the
record reveals that appellant  was  convicted  of  a  "2nd  degree  felony,"
sentenced to a prison term of ten years, and fined $1000.  So  too  does  it
illustrate that appellant admitted,  during  the  punishment  phase  of  the
proceeding, that he "understood" the trial  court  could  sentence  him  "to
jail anywhere up to ten years," place  him  on  probation  for  "up  to  ten
years," and "assess any fine that he wants to."    Despite  this  knowledge,
he wanted to "make amends" and seek "mercy" from the trial  court.   So,  he
pled  guilty  and  relied  on  the  trial  court  to  select  his  sentence.
Moreover, the sentence ultimately levied fell within the two to twenty  year
range applicable to second degree felonies.   Tex. Penal  Code  Ann.  '12.33
(Vernon Supp. 2009).  So too did the fine assessed fall  under  the  $10,000
maximum permitted by the same statute.  Id.
      Yet, the record fails to indicate whether he knew that his prison term
could have exceeded ten years.  The presence of  this  deficiency  makes  it
difficult for us to determine, per Anderson, whether  his  plea  would  have
differed had he been told that.  But, before we conclude that the error  was
harmful, we must remember that Anderson was attempting to  explain  how  one
was to apply Rule 44.2(b) to cases  involving  the  failure  to  admonish  a
defendant who pleads guilty.  In undertaking  that  explanation,  the  court
did not reject the actual wording of Rule 44.2(b).  Quite the contrary.   It
initially specified that the "issue is whether, in a given case,  the  error
affected substantial rights" of  the  defendant.   Anderson  v.  State,  182
S.W.3d at 918-19.  Given this, we can safely say that  assessing  whether  a
defendant's plea would have differed had the appropriate admonishments  been
given is simply one, but not the sole, way of  determining  the  harmfulness
of the type of error encompassed here.  We remain free to  apply  the  words
of Rule 44.2(b).  And, in  doing  so  here,  we  discover  that  appellant's
sentence fell within the range allowed by law, and was much  less  than  the
permissible maximum.   It is also clear that he received  what  he  knew  he
could get; no more, no less.  So, in the final analysis,  appellant's  right
to be told the full range of punishment so that he could  make  an  informed
decision was protected from injury by  the  trial  court  limiting  (whether
intentionally or otherwise) his punishment to that about which he  knew  and
was ready to accept.[1]
      Accordingly, the issue is overruled, and the judgment is affirmed.


                                        Brian Quinn
                                        Chief Justice


      Publish.
-----------------------
      [1]To the extent  that  appellant  argues  he  was  not  afforded  the
admonishments relating to plea bargains, nothing of  record  indicates  that
such a bargain existed.  Rather, his desire to simply seek "mercy" from  the
trial court, coupled with his acknowledgement that his sentence could  range
from probation to ten years imprisonment allows one to  reasonably  conclude
that there was no bargain between the parties.  There being no  bargain,  it
therefore cannot be said that he was harmed by  the  lack  of  admonishments
regarding plea bargains and the trial court's authority to reject them.

