                                  NO. 07-08-0030-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                 OCTOBER 14, 2009
                          ______________________________

                                JAMES GIST, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

             NO. 1032660D; HONORABLE MOLLEE WESTFALL, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Following an open plea of guilty, appellant James Gist was convicted of possession

of cocaine in an amount of four grams or more but less than 200 grams and sentenced to

seventeen years of confinement. Through one issue, appellant contends the trial court

erred by failing to properly admonish him during the plea proceeding. We will affirm the

judgment of the trial court.
                                         Background


       In December 2006, appellant was indicted on two counts of possession of a

controlled substance, cocaine, in an amount four grams or more but less than 200.1 The

first count alleged appellant possessed the drug with the intent to distribute it; the second

count omitted that allegation. The record reflects that appellant first rejected plea offers

from the State, then decided to plead guilty to the second count “open to the jury,” in

exchange for the State’s agreement to dismiss the first count and waive an enhancement

paragraph.


       As the result of appellant’s plea and the State’s actions, after the open plea of guilty,

a jury was selected to hear evidence and assess appellant’s punishment. The State called

two police officers to testify. The first officer testified that on August 8, 2006, officers were

executing a search warrant in connection with drug activity. The officer and his partner

entered the residence to be searched and observed a male, later identified as appellant,

running out the back door. The two officers chased him and watched appellant throw a

bag over the fence. The officers apprehended appellant and arrested him. Cocaine was

later found in the bag. Appellant testified on his own behalf. After hearing the evidence

presented, the jury assessed punishment against appellant as noted. Appellant timely filed

notice of appeal.




       1
        See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). This is a
second degree felony punishable by imprisonment in the institutional division for any term
of not more than 20 years or less than 2 years. Tex. Penal Code Ann. § 12.33 (Vernon
2003).

                                               2
       Appellant’s original appellate counsel filed a brief that concluded the appeal was

wholly frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008). On

reviewing the record, however, we concluded there was at least one arguable issue for

appeal, that regarding the absence of an admonishment to appellant of the possible

deportation consequences of his guilty pleas. See Gist v. State, No. 07-08-0030-CR, 2009

WL 1577968 (Tex.App.–Amarillo June 5, 2009, no pet.) (mem. op., not designated for

publication). New appellate counsel was appointed by the trial court and counsel filed a

brief asserting the trial court erred when it failed to properly admonish appellant during the

plea proceeding.


       The record shows that, after appellant’s change of mind and decision to enter a plea

of guilty, the trial court orally admonished him of the punishment range for the offense.

See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 2007) (requiring such an

admonition).    The record, however, contained no admonition of the immigration

consequences of appellant’s guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4)

(Vernon 2007) (requiring admonition that if the defendant is not a United States citizen,

plea of guilty may result in deportation, exclusion from admission to this country or denial

of naturalization under federal law). See also Vannortrick v. State, 227 S.W.3d 706

(Tex.Crim.App. 2007) (addressing consequences of absence of admonition); Burton v.

State, No. 02-06-00279-CR, 2007 WL 3037840 (Tex.App.–Fort Worth Oct. 18, 2007, pet.

ref’d) (mem. op., not designated for publication) (applying Vannortrick). Appellant argues

the trial court reversibly erred by failing to properly admonish him. The State contends the


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record supports a finding appellant is a United States citizen, rendering any error harmless.

We now agree with the State.


                                          Analysis


       A trial court's admonitions to and inquiries of a defendant prior to his plea of guilty

serve to protect several constitutional rights. Vannortrick, 227 S.W.3d at 708.        Article

26.13 is designed to provide these constitutional assurances but the admonitions

contained therein are not themselves constitutionally required. Id. Consequently, the

failure to admonish a defendant regarding the immigration consequences of his plea is

non-constitutional error subject to a harm analysis under Rule of Appellate Procedure

44.2(b). Id.; see Tex. R. App. P. 44.2(b).


       Reviewing courts look for “substantial compliance” with the statutory requirement.

But the Court of Criminal Appeals has stated, “[t]o claim that an admonishment was in

substantial compliance even though it was never given is a legal fiction.” Vannortrick, 227

S.W.3d at 708. The record demonstrates appellant was not admonished, either orally or

in writing, on the deportation consequences of his plea. There was not substantial

compliance with the article 26.13(a)(4) admonitions requirement. See Tex. Code Crim.

Proc. Ann. art. 26.13(a)(4) (Vernon 2009). Both parties acknowledge the trial court erred

by failing to include the deportation consequences in the plea admonitions given appellant.

See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002) (addressing error from

absence of admonition, and resulting harm).




                                              4
       Appellant, however, was not harmed by the trial court’s error. On our initial review

of the record, we determined it was silent as to appellant’s citizenship. However, after new

counsel was appointed and a new brief was submitted, a second supplemental clerk’s

record was filed at the State’s request containing the Appearance Bond signed by

appellant in August 2006. That bond shows appellant was born in Maryana, Arkansas, and

we can therefore infer he is a United States citizen.2 See Fakeye v. State, 227 S.W.3d

714, 716 (Tex.Crim.App. 2007) (discussing inferences regarding citizenship based on

examination of appellate record).      Appellant filed his brief before the record was

supplemented and his issue is based on the original silent record. Even so, appellant does

not assert he is not a United States citizen, nor has he challenged the authenticity or

credibility of the documents contained in the second supplemental clerk’s record.


       Where the record affirmatively shows the defendant is a United States citizen and

is therefore not subject to deportation, the trial court's failure to admonish him in

accordance with article 26.13(a)(4) is harmless. See Vannortrick, 227 S.W.3d at 209;

Stribling v. State, Nos. 05-03-00055-CR, 05-03-00056-CR, 05-03-00057-CR, 2005 WL

3619190 (Tex.App.–Dallas Jan. 9, 2005, no pet.) (mem. op., not designated for publication)

(finding error in failing to admonish on deportation consequences harmless where, after

an Anders brief was rejected, a supplemental clerk’s record was filed containing

documents showing the appellant was a United States citizen); Lopez v. State, No. 14-96-

00390-CR, 1998 WL 418768 (Tex.App.–Houston [14th Dist.] July 23, 1998, pet. ref'd)


       2
        See U.S. Const. amend. XIV, § 1; 8 U.S.C. § 1433(a) (each declaring persons born
in the United States to be citizens).


                                             5
(mem. op., not designated for publication) (record showed appellant was a citizen where

appellant's pen packet and a document entitled "Defendant Descriptor," contained in the

supplemental clerk's record, reflected appellant was born in Houston, Texas and that he

was a citizen of the United States). See also Gamble v. State, No. 10-05-00044-CR, 2007

WL 2127337 (Tex.App.–Waco July 25, 2007, no pet.) (mem. op., not designated for

publication) (similar finding). Accordingly, we overrule appellant's issue and affirm the

judgment of the trial court.




                                                James T. Campbell
                                                    Justice




Do not publish.




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