                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-164-CR


SANTOS GARCIA                                                            APPELLANT

                                            V.

THE STATE OF TEXAS                                                             STATE

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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      In a single point, Appellant Santos Garcia contends that the trial court failed

to admonish him of the range of punishment attached to the offense of manslaughter

and that this failure rendered his guilty plea involuntary. The State concedes that the

trial court failed to admonish Garcia of the range of punishment as required by article

26.13(a)(1) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art.

26.13(a)(1) (Vernon Supp. 2009). But the State argues that this failure nonetheless



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           See Tex. R. App. P. 47.4.
did not affect Garcia’s substantial rights because (1) Garcia was present in the

courtroom while the jury panel was being questioned and qualified regarding the

range of punishment for the offense, and (2) the State offered conclusive evidence

of Garcia’s guilt.

       The incident forming the basis of Garcia’s prosecution occurred one afternoon

when he was at a friend’s home, pointed what he thought was an unloaded gun at

this friend, and pulled the trigger. Garcia’s friend died from the gunshot wound, and

a grand jury indicted Garcia. Garcia pleaded guilty to the offense of manslaughter,

and the State waived the other counts in Garcia’s indictment. The case proceeded

to a trial on punishment before a jury. The jury assessed punishment at twenty

years’ confinement. The trial court sentenced Garcia accordingly.

       The admonishments under article 26.13(a) are not constitutionally required

because their purpose and function is to assist the trial court in making the

determination that a guilty plea is knowingly and voluntarily entered. Aguirre-Mata

v. State, 992 S.W .2d 495, 498–99 (Tex. Crim. App. 1999). Thus, a trial court

commits nonconstitutional error when it fails to admonish a defendant of one of the

statutorily required admonishments. Id.; Carranza v. State, 980 S.W .2d 653, 655–56

(Tex. Crim. App. 1998).

       W ith nonconstitutional error, we apply rule 44.2(b) and disregard the error if

it did not affect Garcia’s substantial rights. See Tex. R. App. P. 44.2(b); Mosley v.

State, 983 S.W .2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526


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U.S. 1070 (1999); Coggeshall v. State, 961 S.W .2d 639, 642–43 (Tex. App.—Fort

W orth 1998, pet. ref’d). In making this determination, we review the record as a

whole. Motilla v. State, 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). Accordingly,

in applying rule 44.2(b) to the failure to give an admonition we must determine, by

considering the record as a whole, whether we 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).

      The    punishment     range    for   the   offense    Garcia    was    charged

with—manslaughter—is imprisonment for not more than twenty years nor less than

two years and an optional fine not to exceed $10,000. See Tex. Penal Code Ann.

§ 12.33 (Vernon Supp. 2009), § 19.04(b) (Vernon 2003). The record reflects that

Garcia had notice of this range of punishment because he was present in the

courtroom when the jury panel was questioned and qualified on the range of

punishment for the trial on punishment. 2 After the jury was selected for the trial on


      2
       Both the prosecutor and the defense attorney extensively questioned the
veniremembers on whether they understood and could consider the entire range of
punishment. In one place in the record, the prosecutor states,

      This is a second degree. The offense of manslaughter is a second
      degree, and the penalty range that it carries is anywhere from two years
      to twenty years in prison, anywhere from two years to twenty years in
      prison, okay?


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punishment, Garcia pleaded guilty in front of the jury. No fine was assessed in this

case. Accordingly, the trial court’s error in failing to admonish Garcia on the range

of punishment did not affect Garcia’s substantial rights. See Moore v. State, 278

S.W .3d 444, 447 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding failure to

admonish on punishment range did not affect defendant’s substantial rights when

defendant was present when punishment range was explained during voir dire);

Stevens v. State, 278 S.W .3d 826, 827–28 (Tex. App.—Houston [14th Dist.] 2009,

pet. ref’d) (same); Gamble v. Sate, 199 S.W .3d 619, 622 (Tex. App.—W aco 2006,

no pet.) (same); Slaughter v. Sate, No. 02-07-00050-CR, 2007 W L 3120688, at *6

(Tex. App.—Fort W orth Oct. 25, 2007, no pet.) (mem. op., not designated for

publication) (same); see also VanNortrick v. State, 227 S.W .3d 706, 712 (Tex. Crim.

App. 2007) (holding failure to admonish defendant of deportation consequences

harmless when record showed defendant was U.S. citizen); Singleton v. State, 986

S.W .2d 645, 651 (Tex. App.—El Paso 1998, pet. ref’d) (holding failure to admonish

as to possibility of fine not harmful when no fine was assessed). Viewing the record

as a whole, we have a fair assurance that Garcia’s decision to plead guilty would not



In another place in the record, the defense attorney states,

      Okay. Now that we’ve had time to think about [it], do you understand
      the range of punishment of anywhere as little as two – TDC part, as
      little as two and as much as twenty, after having thought about it,
      [cannot consider the entire range].

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have changed had the trial court properly admonished him on the range of

punishment. See Anderson, 182 S.W .3d at 919; Gamble, 199 S.W .3d at 622. Thus,

we disregard the error. See Tex. R. App. P. 44.2(b).

      W e overrule Garcia’s sole point. W e affirm the trial court’s judgment.



                                                    SUE W ALKER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 22, 2010




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