07-17-00379-CR                                                                            ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/5/2018 3:46 AM
Vivian Long, Clerk




                                     CAUSE NO. 07-17-00379-CR

                             IN THE COURT OF APPEALS FOR THE SEVENTH FILED IN
                                                                  7th COURT OF APPEALS
                             COURT OF APPEALS DISTRICT OF TEXAS     AMARILLO, TEXAS
                                                                    6/5/2018 3:46:48 AM
                                 CHARLES BRANDON JOHNSON,      VIVIAN LONG
                                                     APPELLANT, CLERK

                                                -vs-

                                     THE STATE OF TEXAS,
                                                           APPELLEE.
                               ___________________________________

                             APPEAL IN CAUSE NUMBER 56,863-C FROM THE
                           89TH DISTRICT COURT OF WICHITA COUNTY, TEXAS


                            _________________________________________

                                      APPELLANT’S BRIEF

                            _________________________________________

                                         J. BRUCE HARRIS
                                           Attorney at Law
                                      900 8th Street, Suite 106
                                    Wichita Falls, Texas 76301
                                         Tel. (940) 723-2241
                                         Fax. (940) 264-2274
                                 E-Mail. bruceharrislaw@gmail.com


                             ORAL ARGUMENT IS NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Parties:

       1.   CHARLES BRANDON JOHNSON is an individual who currently resides

            in TDCJ Fort Stockton Unit, Pecos County, Texas.

       2.   THE STATE OF TEXAS is a State within the United States of America.

Counsel:

       1.   JAMES BRUCE HARRIS, attorney for Appellant on appeal, is an

            attorney licensed by the State Bar of Texas who practices law in Wichita

            County, Texas, and whose address is: 900 8th St., Ste. 106, Wichita Falls,

            Texas 76301.

       2.   STEPHEN R. BJORDAMMEN, attorney for Appellant at trial, is an

            attorney licensed by the State Bar of Texas who practices law in Wichita

            County, Texas, and whose address is: 710 Lamar St., Ste. 440, Wichita

            Falls, Texas 76301.

       3.   DOBIE KOSUB, attorney for Appellee at trial, and Assistant District

            Attorney for Wichita County, Texas is an attorney licensed by the State

            Bar of Texas.

       4.   JENNIFER PONDER, attorney for Appellee on appeal is an attorney

            licensed by the State Bar of Texas and Assistant District Attorney for

            Wichita County, Texas, who practices law in Wichita County, Texas, and

            whose address is: 900 7th Street, Wichita Falls, Texas.




                                         ii
                           TABLE OF CONTENTS

Identity of All Parties and Counsel………………………………………………………..ii

Table of Contents…………………………………………………………………...…iii-iv

Table of Authorities……………………………………………………..……….……..iv-v

Statement of the Case………………………………………………………………….…..2

Statement Regarding Oral Argument……………………………………………………...2

Issues Presented……………………………………………………………………….......3

Statement of Facts………………………………………………………………………4-9

     Background Facts…………………………………………………………….……4

     Proceedings Facts……………………………………………………………….5-9

     Other Phases……………………………………………………....................……9

Summary of the Argument……………………………………………………………….10

     Issue Presented Number 1

           A.     The Applicable Law In General……………………………...10-12

           B.     Application of the Facts to the Law……………......................13-14

           C.     Conclusion……………………………………………………….14

     Issue Presented Number 2

           A.     The Applicable Law In General……………………………...15-17

           B.     Application of the Facts to the Law……………......................18-19




                                       iii
             C.      Conclusion……………………………………………………19-20

    Issue Presented Number 3

        A.        The Applicable Law In General……………………………....….21-22

        B.        Application of the Facts to the Law…………….................................22

        C.        Conclusion…………………………………………………………...23



Prayer for Relief………………………………………………………………………….24

Certificate of Service……………………………………………………………….……25

Certificate of Compliance………………………………………………………………..26



                             TABLE OF AUTHORITIES

CASES                                                                                PAGE

    BESSEY V. STATE,
         239 S.W.3d 809 (Tex.Crim.App. 2007)…………………………………21

    EX PARTE WILLIAMS,
         763 S.W.2d 674 (Tex.Crim.App. 1986)…………………..……………..17

    GRAY V. STATE,
         257 S.W.2d 825 (Tex.Ct.App. - Texarkana. 2006)…………………..10-14

    HELLMAN V. STATE,
        815 S.W.2d 681 (Tex.Crim.App. 1991)……………………………..17, 19

    HUGHES V. STATE,
        833 S.W.2d 137 (Tex.Crim.App. 1992)………………………………….21

    KUYAYA V. STATE,
         538 S.W.2d 627 (Tex.Crim.App. 1976)………………………….10-11, 13

    SUMMERALL V. STATE,
        504 S.W.2d 265 (Tex.Crim.App. 1974)………………………………….16




                                            iv
     VANNORTRICK V. STATE,
         227 S.W.3d 706 (Tex.Crim.App. 2007)………………………………….22


CONSTITUTIONS & STATUTES                               PAGE

     TEXAS CONSTITUTION,

          § 10…………………………………………………………….…16-17, 19

          § 13…………………………………………………………….…16-17, 19

          § 19……………………………………………………….………16-17, 19



     TEXAS CODE OF CRIMINAL PROCEDURE,

          § 1.15……………………………………………………………………15

          § 26.13……………………………………………………………10-11, 21

          § 26.13(a)(4)……………………………………………………………..21

          § 26.13(b)………………………………………………………………..10



     TEXAS RULES OF APPELLATE PROCEDURE,

          § 44.2(b)…………………………………………………………………22




                             v
                       CAUSE NO. 07-17-00379-CR

             IN THE COURT OF APPEALS FOR THE SEVENTH
             COURT OF APPEALS DISTRICT OF TEXAS

                   CHARLES BRANDON JOHNSON,
                                       APPELLANT,

                                    -vs-

                      THE STATE OF TEXAS,
                                            APPELLEE.
                ___________________________________

             APPEAL IN CAUSE NUMBER 56,863-C FROM THE
           89TH DISTRICT COURT OF WICHITA COUNTY, TEXAS


            _________________________________________

                         APPELLANT’S BRIEF

            _________________________________________

TO THE HONORABLE JUDGES OF SAID COURT OF APPEALS:
      COMES NOW, James Bruce Harris, court-appointed counsel to
Defendant/Appellant Charles Brandon Johnson, hereinafter referred to as
“Appellant,” and submits this, the Appellant’s Brief in Cause No. 56,863-C
from the 89th District Court of Wichita County, Texas.
                      STATEMENT OF THE CASE
      Appellant was originally charged by indictment with one count of
Aggravated Robbery in Cause No. 56,863-C which was pending in the 89th
District Court of Wichita County, Texas, the Honorable Charles Barnard
Presiding. (C.R. 6) On August 8, 2017, Appellant pled guilty to the jury.
(R.R. Vol. III at 13). On August 10, 2017 the jury found defendant guilty
and sentenced him to 40 years in TDCJ-ID. (R.R. Vol. V at 47-48; C.R. at
60-61).
      Appellant timely filed a Notice for Appeal on September 13, 2017.
(C.R. at 75)




           STATEMENT REGARDING ORAL ARGUMENT
      Oral argument is not requested.




                                                                            2
              ISSUE PRESENTED NUMBER ONE

The Court erred is accepting Appellant’s plea of guilty because

there was no finding that he was mentally competent to stand

trial.



              ISSUE PRESENTED NUMBER TWO

The Court fundamentally erred by failing to inform Appellant,

immediately before he testified, of his rights to remain silent in

violation of the Texas Constitution.



             ISSUE PRESENTED NUMBER THREE

The Court erred in not admonishing Appellant regarding the

possibility of deportation as required by the Texas Code of

Criminal Procedure Article 26.13.




                                                                     3
                          STATEMENT OF FACTS

A.      Background Facts

        On November 19, 2015, Appellant and his co-defendant walked into a

local gun store, Texoma Armory, with the intent to steal guns. Appellant was

armed with a “taser” while his co-defendant had a gun. The store’s owner,

Guy Barlow (Barlow), upon seeing Appellant’s approach, shot Appellant in

the stomach. A gun fight between Barlow and the co-defendant ensued and

Barlow was shot several times. Appellant was arrested. (R.R. Vol. III-IV et.

seq.)

        After    a    brief    investigation,    which     included     various

statements/confessions by Appellant, he was charged by indictment with one

count of Aggravated Robbery on January 21, 2016 in Cause No. 56,863-C.

(R.R. Ex. 88 and 89; C.R. 5-6).

        On August 8, 2017, Appellant pled guilty to the jury. (R.R. Vol. III at

13). On August 10, 2017 the jury found defendant guilty and sentenced him

to 40 years in TDCJ-ID. (R.R. Vol. V at 47-48; C.R. at 60-61).

        Appellant timely filed a Notice for Appeal on September 13, 2017.

(C.R. at 75)




                                                                                  4
B.    Proceedings Facts

      The facts relevant to this appeal are few and encompass Appellant’s

plea of guilty and a very small amount of his testimony.

      Upon presentment of the indictment by the State, the Appellant pled

guilty. As required, the Court immediately excused the jury. The State then

requested the Court “admonish the Defendant pursuant to Article 26.13 of

the Code of Criminal Procedure…” (R.R. Vol. III at 12-13). The following

dialogue then took place:

            COURT: …Sir, my understanding is that you have pled guilty
            to Aggravated Robbery in Cause No. 56863, the State of Texas
            vs. Charles Brandon Johnson; is that correct?

            DEFENDANT: Yes sir.

            COURT: And did you plead guilty because you are guilty and
            for no other reason?

            DEFENDANT: I’m guilty sir.

            COURT: And I’ll ask you if you understand the plea of guilty
            in this case?

            DEFENDANT: Yes sir.

            COURT: And you entered it freely and voluntarily and of your
            own free will; is that correct?

            DEFENDANT: Yes sir.

            COURT: Okay. And you understand that the range of
            punishment for aggravated robbery is life or 5 to 99 years and
            up and a $10,000 fine.

                                                                          5
            DEFENDANT: Yes sir.

            COURT: And you understand that if you decide to testify, you
            understand that you have the right to testify?

            DEFENDANT: Yes sir.

            COURT: You understand that you have – you have the right to
            remain silent, that anything you say can and will be used
            against you in this court of law?

            DEFENDANT: Yes sir.

            COURT: Anything further regarding the admonishments?

            STATE: <asks for further inquiry>

            COURT: Sir, do you feel that you need any more time to
            consult with your attorney concerning your plea of guilty? You
            understand if you go forward with the plea of guilty, then we
            will begin – we will call the jury back in and we will begin with
            the sentencing stage of the trial? Do you understand that?

            DEFENDANT: Yes sir.

            COURT: Okay. And do you still wish to proceed with your plea
            of guilty and begin with the sentencing stage?

            DEFENDANT: Proceed.

            COURT: Okay.

            STATE: Thank you, Judge.


This ended the plea admonishments. (R.R. Vol. III at 13-17).




                                                                           6
      Shortly thereafter, the State entered into evidence a Stipulation of

Evidence wherein the Appellant admitted he committed the offense, tracking

the language of the Indictment. It was silent as to any admonishment, mental

competency or waiver of rights outside the stipulation itself. (R.R. Vol. III at

18-19; R.R. Ex. 94)). The State than presented several witnesses and entered

nearly 100 pieces of evidence. (R.R. Vol. III et. seq.; R.R. et. seq.)

      Appellant was the first witness called in his defense. After announcing

ready, and Appellant being called, the Court asked the parties to approach

the bench. The following dialogue took place:

             COURT: I have to admonish him –

             STATE: Yeah.

             COURT: -- this witness outside the presence of the jury.

             STATE: I would appreciate it if you would, Your Honor.

             DEFENSE COUNSEL: I certainly – if the Court feels that that
             is the right thing to do, that’s fine. I – I intend to go through
             with him that he did not have to testify and – and why don’t
             you just let me do that and if there’s something that I didn’t go
             over, I think –

             STATE: I will be fine with that.

             COURT: Okay. Thank you.


Defense counsel then began questioning Appellant regarding his right to not

testify and the fact they discussed what a waiver of that right meant. The

                                                                              7
Court again called the parties to the bench. There an in depth discussion took

place:

               COURT: Okay. I – I feel comfortable with that.

               STATE: Yeah.

               DEFENSE COUNSEL: Are you okay?

               STATE: Okay.

               COURT: Okay. Good. Thank you.

This ended the admonishment of Appellant. (R.R. Vol. IV at 12-13).

         Appellant then testified. Most of his testimony is irrelevant to this

appeal and will be excluded. Relevant testimony included that he was born

on November 29, 1992 “at” El Paso, moved to Wichita Falls at two-months

old where he spent most of his life and was raised by his maternal

grandparents (R.R. Vol. IV at 6, 10-11, 85-86).

         The State also offered two misdemeanor judgments of Appellant’s

into evidence however they did not offer the corresponding plea paperwork

for either case. Each judgment was silent to a finding of US citizenship.

(R.R. Ex. 92 and 93).

         Finally, a review of the “Judgment of Conviction By Jury; Sentence

By Jury To Institutional Division, TDCJ (Judgment)” in this case showed no




                                                                             8
finding of mental competency nor was there mention of Appellant’s

immigration/citizenship status. (C.R. 60-61).

C.    Other Phases

      Appellant has reviewed the record of voir dire, opening statements,

the jury charge and conference, closing statements, and the evidence

admitted and finds nothing that merits appeal, other than was is discussed

herein. (R.R. Vol II-VII et seq.; R.R. Ex. et. seq.; C.R. et. seq.)




                                                                             9
                      SUMMARY OF ARGUMENT

                               ARGUMENT
                  Issue Presented Number One Restated

      The Court erred is accepting Appellant’s plea of guilty because

there was no finding that he was mentally competent to stand trial.

A.    The Applicable Law in General

      The Texas Code of Criminal Procedure (C.C.P.) prohibits a trial court

from accepting a guilty plea “unless it appears that the defendant is mentally

competent…” See Tex. Code Crim. Proc. Ann. Art. 26.13(b)1.

      Generally, under Article 26.13, a court does not have to make an

inquiry sua sponte, or hear evidence on such issue, unless issue is made of

an accused’s present mental competency at the time of the plea. See Gray v.

State, 257 S.W.2d 825, 827-828 (Tex.App,-Texarkana 2006); see also

Kuyaya v. State, 538 S.W.2d 627,628 (Tex.Crim.App. 1976). This is

particularly true where a court has had the opportunity to observe the

accused in open court, hear him speak, observe his demeanor and engage




1
 C.C.P. Art. 26.13(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.

                                                                              10
him in colloquy2 as to the voluntariness of his plea. See Summerall v. State,

514 S.W.2d 265 (Tex.Cr.App. 1974)

       In Kuyaya, while there was no inquiry at the time of the guilty plea as

to the mental competency, the court made an explicit finding in the judgment

that the defendant was mentally competent (“…and it plainly appearing to

the Court that the Defendant is sane…”).3

       Finally, and most importantly, the Court of Criminal Appeals urged

that it is “the better practice…for the trial court to inquire into the mental

competency of the defendant whether the issue is raised or not.4 Kuyaya at

628.

       In Gray, the Court held that it did not even need to decide whether the

mental competency issue was sufficiently raised because the record reflected

that it had made an inquiry. Specifically, it noted the following exchanges

before the court accepted the defendant’s open plea of guilty.


2
 Colloquy is defined in the Merriam-Webster Dictionary as a high-level
serious discussion or a conversation.
3
  Article 26.13, as enacted as a part of the 1965 Code of Criminal Procedure
and its forerunners, provided that a plea of guilty or nolo contender should
not be received unless “it plainly appears that he is sane.” However, in 1973
the statute was amended to provide that such pleas should not be taken
“unless it plainly appears that he is mentally competent.”
4
 It should be noted this “better practice” was set out by the highest criminal
appellate court of our state 42 years ago.

                                                                            11
             COURT: Before signing any of these papers, did you sit down
             with your attorney, Mr. Clement Dunn, and did he go over the
             papers with you?

             DEFENDANT: Yes sir.

             COURT: Did you understand them when you signed them?

             DEFENDANT: Yes sir.

             COURT: In your words, just tell me what you’re doing in court
             here today.

             DEFENDANT: I’m pleading guilty to the offense.

             COURT: And what defense is that?

             DEFENDANT: Sexual assault.

             COURT: All right. It’s aggravated sexual assault.

             DEFENDANT: Aggravated sexual assault.

             COURT: Mr. Dunn, talk to me about your judgement as to
             your client’s mental competency.

             DEFENSE COUNSEL: Your Honor, I’ve spoken with my
             client a number of times. I have spoken with his mother on a
             number of occasions…I have found him to be able to
             understand me. And we have been able to converse such that
             I’m satisfied that he understands what he is doing.


       Finally, the Court found that the above quoted exchanges between the

trial court and both the defendant and his counsel were sufficient to

constitute an informal inquiry into the defendant’s competence. Gray at 828-

829.

                                                                         12
B.      Application of the Law to the Facts

        This case is distinguishable from Kuyaya and its progeny, including

Gray.

        In Kuyaya, there was no inquiry into the mental competence of the

defendant but there was finding of mental competence in the judgment.

Additionally, the Court reasoned that the Court had opportunity to observe

the defendant in court, hear him speak, and engage him in “colloquy.” Here,

as in Kuyaya, the court did not inquire into the mental competence of

Appellant, however, there was no finding in Appellant’s Judgment or

Stipulation of Evidence that he was mentally competent. (C.R. 60-61; R.R.

Ex. 92, 93 and 94). Additionally, the record is sparse regarding how much

the court had observed Appellant before accepting his plea. At the time it

had only been for a couple of hours through voir dire and opening

statements. Finally, it can hardly say the court and Appellant entered into a

serious high-level conversation (a “colloquy”). The Court asked Appellant

nine questions, none of which were regarding his mental competency.

Appellant answered “yes, sir” seven times, “proceed,” and “I’m guilty sir.”

(R.R. Vol. III at 12-17). Not very in depth dialogue that can be said to elicit

communicative ability and mental competence.



                                                                            13
      Gray is also distinguishable. In Gray, unlike here, the court entered

into a conversation with the defendant, asking him open ended questions. In

Gray, the court also questioned defense counsel regarding his opinion of his

client’s competency which was not done here. Finally, the court here made

no finding of competence unlike in Gray. (R.R. Vol. III at 12-17).

C.    Conclusion

      The court did not follow the law when it accepted Appellant’s plea of

guilty. It definitely cannot be said that the court entered into a colloquy with

Appellant as nine closed-ended questions eliciting two and three word

answers do not equal a serious high-level conversation. A simple inquiry

into defense counsel’s opinion of Appellant’s mental competence would

have satisfied the law but that wasn’t even done.

      Even more egregious the trial court made no inquiry into the mental

competency to enter his guilty plea and it made no finding of such

competency. The “better practice,” as set out by the Court of Criminal

Appeals 42 years ago was not followed in this case. Do we need to wait

another 42 for the “better practice” to be implemented by the judicial

system?




                                                                             14
                       Issue Presented Number Two

      The Court fundamentally erred by failing to inform Appellant,

      immediately before he testified, of his rights to remain silent in

      violation of the Texas Constitution.

A.    The Applicable Law in General

      In Texas, a guilty plea before the court is insufficient to support an

adjudication of guilt in a felony case. Tex. Code Crim. Pro. Ann. Art. 1.15

(Vernon Supp. 1993)5. The State must also introduce evidence into the

record showing the accused’s guilt and this evidence shall form the basis of

the trial court’s judgment in the case. Id. In some instances, the defendant

himself testifies as to his guilt, thus providing the necessary evidence to


5
  Art. 1.15. JURY IN FELONY. No person can be convicted of a felony
except upon the verdict of a jury duly rendered and recorded, unless the
defendant, upon entering a plea, has in open court in person waived his right
of trial by jury in writing in accordance with Articles 1.13 and 1.14;
provided, however, that it shall be necessary for the state to introduce
evidence into the record showing the guilt of the defendant and said
evidence shall be accepted by the court as the basis for its judgment and in
no event shall a person charged be convicted upon his plea without sufficient
evidence to support the same. The evidence may be stipulated if the
defendant in such case consents in writing, in open court, to waive the
appearance, confrontation, and cross-examination of witnesses, and further
consents either to an oral stipulation of the evidence and testimony or to the
introduction of testimony by affidavits, written statements of witnesses, and
any other documentary evidence in support of the judgment of the court.
Such waiver and consent must be approved by the court in writing, and be
filed in the file of the papers of the cause.


                                                                           15
support his plea. In those cases, Article I, Sections 106, 137, and 198 of the

Texas Constitution must require that a trial judge carefully inform the

defendant of his right not to incriminate himself AFTER the accused has

pled guilty and BEFORE he takes the stand as a witness. Such an

admonishment would comport with the Texas Constitution’s requirements

that an accused not be required to give evidence against himself and that he

6
  Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In
all criminal prosecutions the accused shall have a speedy public trial by an
impartial jury. He shall have the right to demand the nature and cause of the
accusation against him, and to have a copy thereof. He shall not be
compelled to give evidence against himself, and shall have the right of being
heard by himself or counsel, or both, shall be confronted by the witnesses
against him and shall have compulsory process for obtaining witnesses in his
favor, except that when the witness resides out of the State and the offense
charged is a violation of any of the anti-trust laws of this State, the defendant
and the State shall have the right to produce and have the evidence admitted
by deposition, under such rules and laws as the Legislature may hereafter
provide; and no person shall be held to answer for a criminal offense, unless
on an indictment of a grand jury, except in cases in which the punishment is
by fine or imprisonment, otherwise than in the penitentiary, in cases of
impeachment, and in cases arising in the army or navy, or in the militia,
when in actual service in time of war or public danger.
7
   Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL
PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF
LAW. Excessive bail shall not be required, nor excessive fines imposed, nor
cruel or unusual punishment inflicted. All courts shall be open, and every
person for an injury done him, in his lands, goods, person or reputation, shall
have remedy by due course of law.
8
  Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY
DUE COURSE OF LAW. No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land.


                                                                              16
be tried in accordance with “due course of law.” See Tex.Const. Art. I, Secs.

10, 13, & 19.

          Texas courts have long acknowledged that “our state constitution is a

doctrine independent of the federal constitution and its guarantees are not

dependent upon those in the federal constitution. See Hellman v. State, 815

S.W.2d 681, 688 (Tex.Crim.App. 1991). In Hellman, the Court of Criminal

Appeals declined to “blindly follow” United States Supreme Court decisions

interpreting searches and seizures under the 14th Amendment analyzing the

same issue under Art. I, Secs. 10, 13, & 19 of the Texas Constitution. Id. at

690. Although Supreme Court decisions represent the minimum protections

a state must afford its citizens states may also provide individuals additional

rights.

          Our state constitution is more protective of these rights than the

federal constitution because a guilty plea before a Texas state court is

insufficient to support a conviction in a felony case. In federal court,

however, a guilty plea alone will support a conviction. See Ex parte

Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986).




                                                                            17
B.    Application of the Law to the Facts

      Appellant was not admonished by the trial court prior to testifying. It

is true he testified regarding understanding his rights but it was by his

attorney and not the court. Initially, both the court and the state’s attorney

began to follow “due course of law” and admonish Appellant regarding

testifying. Remember --

               After announcing ready, and Appellant being called, the Court

      asked the parties to approach the bench. The following dialogue took

      place:

               COURT: I have to admonish him –

               STATE: Yeah.

               COURT: -- this witness outside the presence of the jury.

               STATE: I would appreciate it if you would, Your Honor.

               DEFENSE COUNSEL: I certainly – if the Court feels that that
               is the right thing to do, that’s fine. I – I intend to go through
               with him that he did not have to testify and – and why don’t
               you just let me do that and if there’s something that I didn’t go
               over, I think –

               STATE: I will be fine with that.

               COURT: Okay. Thank you.

               Defense counsel then began questioning Appellant regarding

      his right to not testify and the fact they discussed what a waiver of that



                                                                             18
      right meant. The Court again called the parties to the bench. Their in

      depth discussion took place as follows:

             COURT: Okay. I – I feel comfortable with that.

             STATE: Yeah.

             DEFENSE COUNSEL: Are you okay?

             STATE: Okay.

             COURT: Okay. Good. Thank you.

      Unfortunately, they were talked down by defense counsel. (R.R. Vol.

IV at 12-13).

C.    Conclusion
      The reasoning used in Hellman should be applied to the Fifth
Amendment and the privilege against self-incrimination and the right to be
tried in accordance with due course of law of Art. I, Secs. 10, 13 & 19 of the
Texas Constitution. Our state constitution is more protective of these rights
than the federal constitution because a guilty plea before a Texas state court
is insufficient to support a conviction in a felony case. In federal court,
however, a guilty plea alone will support a conviction.
      Defense counsel is an advocate for his or her client. The duty to the
client is so pervasive that it make them solely focused on that client. A trial
court, sitting as a neutral authority over the case, is focused on the law, in
general, and as it intertwines with the facts of the case. It is that judicial
authority that a defendant will take heed from when admonished prior to its

                                                                            19
testimony. It is that last gate-keeper of the constitution, of the law, that can
deliver a final warning to the defendant. Allowing defense counsel to deliver
the admonishment is not “due course of law.”9
      Therefore, the Court should require trial courts to admonish
defendants of their right to remain silent prior to their testimony. Finding the
court erred herein would embolden trial by “due course of law” guaranteed
us by the Texas Constitution




9
  When a soccer player gets a yellow card does it rely on its agent to guide
them on what might keep him from getting a red card and kicked out of the
match? No, he pays attention to the official and what they have to say about
his actions on the field.

                                                                             20
                    Issue Presented Restated Number Three

      The Court erred in not admonishing Appellant regarding the

      possibility of deportation as required by the Texas Code of

      Criminal Procedure Article 26.13.

A.    The Applicable Law in General

      Texas Code of Criminal Procedure Art. 26.13 requires that the trial

court admonish the defendant of the direct consequences of his guilty plea

before accepting the plea. Section 4 of said Article requires that a defendant

be admonished that “the fact that if the defendant is not a citizen of the

United States of America, a plea of guilty or nolo contender for the offense

charged may result in deportation, the exclusion from admission to this

country, or the denial of naturalization under federal law…” See Tex. Code

Crim. Pro. Art. 2613(a)(4).

      Compliance with the admonishments is C.C.P. Art. 26.13 is

mandatory. See Hughes v. State, 833 S.W.2d 137 (Tex.Crim.App. 1992).

      Because the C.C.P. Art. 26.13 admonishments are a waivable-only

right, a defendant can raise the issue for the first time on appeal without

having made an objection or raising the issue at trial. Such error is subject to

a harm analysis. See Bessey v. State, 239 S.W.3d 809 (Tex.Crim.App. 2007).



                                                                             21
That said, the Court of Criminal Appeals has held that “when the trial court

fails to admonish a defendant about the immigration consequences of his

guilty plea, a silent record on citizenship, or a record that is insufficient to

determine citizenship, establishes harm.10 See Vannortrick v. State, 227

S.W.3d 706, 714 (Tex.Crim.App. 2007).



B.       Application of the Law to the Facts

         The facts, as applied to the law herein, are simple.

         Appellant was not admonished regarding immigration consequences

of his guilty plea. The court’s attempt at admonishing Appellant did not

include inquiry into his citizenship status, nor did it advise him of the

consequences if he wasn’t a US citizen. (R.R. Vol. III at 12-13).

         Additionally, the record was silent, or at least insufficient, regarding

whether or not he was a US citizen. Appellant did testify that he was born

“at” El Paso but that hardly proves citizenship status. (R.R. Vol. IV at 6, 10-

11, 85-86). Furthermore, numerous legal documents were entered into

evidence, none of which referred to Appellant’s citizen status. (R.R. Ex. 92,

93 and 94). Additionally, the Judgment in the case was silent to citizenship

status. (C.R. at 60-61)


10
     Under the standard of T.R.A.P. 44.2(b).

                                                                              22
C.    Conclusion

      Appellant was not properly admonished as required under Article

26.13. The court did not admonish Appellant regarding the immigration

consequences of his guilty plea.

      While one can argue that the record is silent on Appellant’s

citizenship status, some might surmise that Appellant is a US citizen.

However, conjecture and supposition is not sufficient to determine

citizenship. For the reasons stated above, and the law cited, harm has been

established and the court must reverse.




                                                                        23
                          PRAYER FOR RELIEF

      For the reasons and the points of error set forth herein and upon the

authority herein the Appellant, requests that his issues on appeal be

sustained, his sentence vacated, and his case be remanded to the trial court

for further proceedings or judgment be rendered. Appellant additionally

prays for such other and further relief to which he may be entitled.



                                       Respectfully submitted,




                                       _/s/ Jas. Bruce Harris____________
                                       JAS. BRUCE HARRIS
                                       State Bar No. 24026926
                                       900 8th Street, Ste. 106
                                       Wichita Falls, Texas 76301
                                       TEL: (940) 723-2241
                                       FAX: (940) 264-2274

                                       ATTORNEY FOR APPELLANT




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                      CERTIFICATE OF SERVICE

      I, James Bruce Harris, certify that on June 5, 2018, a true copy of this

brief has been served upon the following persons in the following manners:


      1.    Jennifer Ponder, Assistant District Attorney, Wichita Co.,
            Texas by email at Jennifer.ponder@co.wichita.tx.us

                                       _/s/ Jas. Bruce Harris____________
                                       JAS. BRUCE HARRIS



                  CERTIFICATE OF COMPLIANCE

   1. This brief complies with the type-volume limitations of Tex. R. App.

      9.4(i)(2) because it contains approximately 3653 words, excluding the

      parts of the brief exempted by Tex. R. App. 9.4(j)(1)

   2. The electronic copy of this brief complies with Tex. R. App. 9.4(i)(1)

      because it has been directly converted from Microsoft Word into a

      searchable document in Portable Document File (PDF) format.

                                       _/s/ Jas. Bruce Harris____________
                                       JAS. BRUCE HARRIS




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