                                    NO. 07-02-0009-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                       JULY 24, 2002

                           ______________________________


                     WENDELL LOVELL WILLIAMSON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

           FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

                     NO. 83592; HONORABLE LARRY GIST, JUDGE

                          _______________________________

Before QUINN, REAVIS and Johnson JJ.


       Pursuant to a guilty plea, appellant Wendell Lovell Williamson was convicted of

possession of marijuana (in an amount of two thousand pounds or less and more than fifty

pounds). The trial court assessed punishment at ten years confinement and a $1,000 fine,

but suspended sentence and placed appellant on community supervision. Asserting two

points of error, appellant claims (1) the trial court erred in failing to comply with TEX . CODE
CRIM . PROC . ANN . art. 26.13(a)4) (Vernon Supp. 2002), to admonish him as an “alien

resident” in regard to his guilty plea; and (2) he was denied effective assistance of

counsel. Based upon the rationale expressed herein, we affirm.


       On January 17, 2001, appellant was observed driving a sport utility vehicle on

Interstate Highway 10 near Beaumont, Texas. The vehicle he was driving was being

followed too closely by a second sport utility vehicle, and officers observed the two

vehicles change lanes together. Suspicious the vehicles were traveling together as

narcotics couriers, officers stopped both vehicles separately for traffic violations. The

occupants of the second vehicle and appellant denied traveling together, however,

investigation revealed that the vehicle driven by appellant was registered in the name of

one of the second vehicle’s occupant’s, and the two vehicles had been in communication

via cell phone. Appellant consented to search of the vehicle he was driving and police

recovered 102.5 pounds of marijuana. The two occupants of the second vehicle were

photographed, fingerprinted, and released. Appellant was arrested and charged with

possession of marijuana (in an amount of two thousand pounds or less and more than fifty

pounds).


       A plea agreement was negotiated between appellant and the State whereby he

would receive deferred adjudication for ten years and a $1,000 fine in return for his guilty

plea. On August 20, 2001, in preparation of his guilty plea, appellant executed written plea

admonishments in accordance with TEX . CODE CRIM . PROC . ANN . art. 26.13(a)4) (Vernon

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Supp. 2002). The court accepted the plea, but stated “no decision will be made until the

report required by law is filed.” Appellant, born in Jamaica, relocated to the United States

at an early age, and was allegedly under the impression he was a United States citizen.

The pre-sentence investigation report revealed in fact however that appellant was not a

United States citizen, but rather, a resident alien. On October 1, 2001, the trial court,

approving both the fine and the community supervision time contained in the agreed

punishment recommendation, rejected the recommendation for deferred adjudication. The

trial court notified appellant of his intent to enter an immediate adjudication of guilt, and

queried appellant whether he still wanted to proceed with the guilty plea. Appellant

answered in the affirmative, and the trial court entered a finding of guilt. 1


       By his first point, appellant argues the trial court erred in failing to comply with TEX .

CODE CRIM . PROC . ANN . art. 26.13(a)(4) (Vernon Supp. 2002), to admonish him as an “alien

resident” in regard to his guilty plea. Article 26.13(a)4) provides that prior to accepting a

plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:


       the fact that if the defendant is not a citizen of the United States of America,
       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;


       1
        Appellant’s counsel states that immediately following the adjudication of guilt,
appellant was arrested by two Immigration and Naturalization agents and detained for
deportation proceedings. It is further alleged appellant had no prior awareness of his
citizenship status. However, we cannot consider material that is outside the record.
Brown v. State, 866 S.W.2d 675, 678 (Tex.App.–Houston [1st Dist.] 1993, pet. denied).

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       Appellant cites Morales v. State, 872 S.W.2d 753 (Tex.Cr.App. 1994), for the

proposition that “the total failure of the trial court to admonish appellant concerning the

possible effects of a plea of guilty to a non-citizen constitutes reversible error without the

necessity of showing harm.” Appellant argues the courts make a distinction between

cases where the record is silent as to the defendant’s citizenship and those where the

record affirmatively reflects the defendant was a United States citizen, and that when the

record so reflects, the deportation admonishment is immaterial. Dominguez v. State, 889

S.W.2d 13, 16 (Tex.App.–El Paso, no pet.). However, the Court of Criminal Appeals has

expressly overruled that portion of Morales which appellant cites. In Cain v. State, 947

S.W.2d 262 264 (Tex.Cr.App. 1997), the Court formally rejected the "substantial

compliance through immateriality doctrine" which was being used by some appellate courts

to affirm convictions where the record established that the defendant was a U.S. citizen.

The Court ruled that substantial compliance with the admonishment statute does not end

the inquiry, but then a harmless error standard must be applied. Id. Further modifying the

rule in Carranza v. State, 980 S.W.2d 653, 656 (Tex.Cr.App. 1998), the Court ruled the

proper inquiry to follow is first to determine whether there has been substantial

compliance, then next determine whether or not this error was of constitutional or

non-constitutional magnitude, and from there, whether or not it was harmless.

                                              4
       Substantial compliance with the admonishment statute is all that is required. TEX .

CODE CRIM . PROC . ANN . art. 26.13(c) (Vernon Supp. 2002). Further, article 26.13(d)

specifically provides:


       The court may make the admonitions required by this article either orally or
       in writing. If the court makes the admonitions in writing, it must receive a
       statement signed by the defendant and the defendant's attorney that he
       understands the admonitions and is aware of the consequences of his plea.
       If the defendant is unable or refuses to sign the statement, the court shall
       make the admonitions orally.
(Emphasis added).


       In this case, the court made the required admonishments in writing. It is conceded

no oral admonishments were given, however, none are required under the statute. The

trial court questioned appellant in open court about whether he understood everything he

signed, and he answered affirmatively. Neither substantial compliance, constitutional

error, nor harm are at issue because the court strictly complied with the statute by

administering the required admonishment in writing. No error is presented. Point of error

one is overruled.


       By his second point of error, appellant argues he was denied effective assistance

of counsel. The gist of his argument suggests that because trial counsel knew he was a

resident alien, he was ineffective by (1) not persuading the court to follow the agreed

punishment recommendation, and (2) allowing his client to enter the guilty plea. Under

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), a


                                            5
defendant claiming ineffective assistance of counsel must establish that (1) counsel’s

performance was deficient (i.e., fell below an objective standard of reasonableness), and

(2) there is a reasonable probability that but for counsel’s deficient performance, the result

of the proceeding would have been different. Hernandez v. State, 726 S.W.2d 53, 55

(Tex.Cr.App. 1986). A strong presumption exists that defense counsel’s conduct falls

within a wide range of reasonable representation. Strickland, 466 U.S. at 690, 104 S.Ct.

at 2064, 80 L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999),

cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).


       Although the constitutional right to counsel ensures the right to reasonably effective

counsel, it does not guarantee errorless counsel whose competency or accuracy of

representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509

(Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993),

cert. denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). A strong presumption

exists that defense counsel's conduct falls within a wide range of reasonable

representation. Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, 80 L.Ed.2d at 695;

Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1131,

120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). To sustain a challenge of ineffective assistance,

it must be firmly founded in the record, Mercado v. State, 615 S.W.2d 225, 228

(Tex.Cr.App. 1981), and the defendant must overcome the presumption that counsel's

conduct might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771


                                              6
(Tex.Cr.App. 1994). After proving error, a defendant must also affirmatively demonstrate

prejudice. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514

U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Failure to make the required showing

of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Id.


       The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Garcia, 887

S.W.2d at 880. In Ex Parte Dunham, 650 S.W.2d 825, 826-27 (Tex.Cr.App. 1983) (en

banc), counsel was found ineffective in one isolated instance. However, in Dunham,

counsel’s conduct prompted the client to waive his right to a jury trial knowing that the

waiver was not in the client’s best interest.2


       There is nothing in the record to indicate appellant’s counsel knew or should have

known of his client’s residency status, or alternatively, that he did not know, and engaged

in a course of activity designed to vigorously represent his client. Appellate counsel

speculates the tenor of questions to trial counsel by the trial court indicates that different

responses might have encouraged the court to follow the agreed punishment

recommendation. However, the appellate record is not adequately developed enough to

sustain such an argument. On the face of the record, we cannot say that trial counsel’s


       2
       We note further that Dunham was determined in a habeas corpus proceeding
where, unlike here, the record was fully developed.

                                                 7
conduct fell below an objective standard of reasonableness. Point of error two is

overruled.


      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice

Do not publish.




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