Opinion issued July 31, 2018




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-16-00438-CR
                            ———————————
                            VITH LOCH, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 209th District Court
                            Harris County, Texas
                        Trial Court Case No. 1463146


                          MEMORANDUM OPINION

      After appellant, Vith Loch, without an agreed punishment recommendation

from the State, pleaded guilty to the offense of murder,1 a jury found him guilty of

murder and assessed his punishment at confinement for life and a $10,000.00 fine.

1
      See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
In three issues, appellant contends that the trial court erred in not admonishing him

of the potential immigration consequences of his guilty plea, the trial court erred in

not making certain findings before accepting his guilty plea,2 and, as a result, he

entered his guilty plea involuntarily. In its sole cross-point, the State requests

reformation of clerical errors in the judgment.

      We reverse and remand.

                                    Background

      At his arraignment, the trial court advised appellant as to the range of

punishment for the offense of murder, but it did not provide any further

admonitions. Appellant testified that he discussed his case at length with his trial

counsel, including all potential defensive theories and strategies. However, despite

his trial counsel’s presentation of various possible defensive strategies, appellant

chose to plead guilty to committing the 2004 murder of Soeuth Nay, the

“complainant,” and for a jury to assess his punishment.

      During the trial on the issue of punishment, Tavey Mao, the complainant’s

cousin, testified that he saw appellant threaten the complainant with a firearm near

the time of his murder.

      N.M. testified that she thought highly of the complainant and that her family

had hoped she would marry him when she was older.              However, she feared


2
      See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2017).
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appellant, explaining that when she was twelve years old, he kissed her against her

will while she babysat his son. And after the complainant’s disappearance in 2004,

when N.M. was fourteen years old, appellant called to tell her that the complainant

“was gone.” Shortly thereafter, N.M. ran into appellant. He offered to buy her a

soft drink, and she got into his car because she was afraid to refuse his offer.

Appellant then drove her to a motel where he sexually assaulted her.

      N.H., appellant’s former “girlfriend” and the mother of two of his children,

testified that they began a “relationship” when she was fifteen years old and he was

much older. During their on-and-off relationship, which lasted for six or seven

years, he was violent towards her and would point a firearm at her when he was

angry. Appellant even fired a shot at her one time while she was pregnant. In

2004, on the night of the complainant’s murder, appellant insisted that N.H. go to

work even though she was not scheduled to do so. Later that evening, when she

telephoned him after her shift for a ride home, he did not answer, despite

attempting to reach him numerous times. N.H. took a cab home and discovered

that appellant had left their two young children home alone. When he arrived

home later that night, he went straight to the bathroom to wash his hands and

clothing. N.H. explained that she and her children subsequently fled with appellant

to live with his mother in Alvin, Texas. Less than a month later, appellant moved

to Florida. He later admitted to N.H. that he had shot and killed the complainant.


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      M.S., who had been in a “relationship” with appellant before N.H., and is the

mother of two of his children, testified that she met appellant when she was

thirteen years old and he was approximately twenty-three years old. She explained

that he was violent. Appellant knocked her unconscious around the time she

returned home from the hospital after giving birth to their second son. After they

broke up, appellant showed up at her home late one night in 2004. He was nervous

and told M.S. that law enforcement officers were looking for him. Appellant asked

to stay with her, but she refused. Two years later, he admitted to M.S. during a

telephone call that he had killed the complainant.

      The trial court admitted into evidence a stipulation in which appellant stated

that he had been previously convicted of six additional felonies: three in Texas and

three in Florida. The trial court also admitted into evidence a statement made by

appellant to law enforcement officers at the time of his arrest. In that statement, he

admitted to having killed the complainant.

                                 Plea Admonitions

      In his first issue, appellant argues that the trial court erred in not

admonishing him of the immigration consequences of his guilty plea. Although

the State concedes that the trial court so erred, it asserts that the error was

harmless.




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       To ensure that trial courts enter and accept only constitutionally valid pleas

and to assist trial courts in making the determination that a defendant’s

relinquishment of rights is made knowingly and voluntarily, Texas law requires

that trial courts make certain admonishments to defendants before accepting a plea

of guilty. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon Supp. 2017). And a

trial court is explicitly required to admonish the defendant of, among other things,

the fact “that if [he] 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.”

Id. art. 26.13(a)(4).

       Here, the record demonstrates, and the State concedes, that the trial court did

not admonish appellant of the immigration consequences of his guilty plea.

Therefore, the trial court committed error. See VanNortrick v. State, 227 S.W.3d

706, 708 (Tex. Crim. App. 2007).               However, because the error is non-

constitutional, if it did not affect appellant’s substantial rights, we must hold it to

be harmless. See TEX. R. APP. P. 44.2(b).

       In order to determine whether appellant’s substantial rights were affected,

we must review the entire record. Anderson v. State, 182 S.W.3d 914, 918–19

(Tex. Crim. App. 2006). There is no burden on either party to prove harm or

harmlessness resulting from the error. VanNortrick, 227 S.W.3d at 709. While we


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may draw reasonable inferences from the record, we may not use mere

supposition. Id. at 710–11. In order to determine whether the error was harmless,

we must decide whether we have fair assurance that appellant’s decision to plead

guilty would not have changed had the trial court properly admonished him of the

potential immigration consequences of his guilty plea. Id. at 709. In conducting

this review, we focus on three issues: (1) whether appellant knew the consequences

of his plea, (2) the strength of the evidence of his guilt, and (3) his citizenship and

immigration status. Id. at 712–13.

      First, we consider whether appellant was aware of the deportation

consequences of his guilty plea.       VanNortrick, 227 S.W.3d at 712; see also

Gutierrez-Gomez v. State, 321 S.W.3d 679, 683–84 (Tex. App.—Houston [14th

Dist.] 2010, no pet.) (holding error in not admonishing defendant of immigration

consequences harmless where issue referenced five times during voir dire). In this

case, the record demonstrates that the trial court did not admonish appellant of any

deportation consequences of his guilty plea, and no one made any reference on the

record to deportation or other potential immigration consequences that might result

from his guilty plea. “[W]hen the record is silent regarding the consequences of

conviction in the context of a guilty plea, we infer that the defendant did not know

the consequences of his plea.” VanNortrick, 227 S.W.3d at 710–11.




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      The State argues that appellant must have been aware of the immigration

consequences of his guilty plea because he would have presumably been

admonished when pleading guilty in any one of his six prior felony cases in Texas

and Florida.3 It further notes that a Texas “pen packet” for one of his prior

convictions states “possible DETN from USI for Immigration Violation.”

However, there is no evidence in the record that establishes that appellant actually

received an admonishment in any of those cases or was otherwise made aware of

the immigration consequences of his plea. See VanNortrick, 227 S.W.3d at 711

(holding “pen packet documenting [defendant]’s prior conviction qualifying as a

deportable felony conviction” insufficient to support inference defendant non-

citizen). And we note that the records in the cases relied upon by the State in

support of its position contain direct references to the immigration consequences of

pleading guilty, supporting the inference that those defendants had knowledge of

the consequences of their pleas. See Rodriguez v. State, 425 S.W.3d 655, 665–67

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding harmless error in not

admonishing defendant who had twice been previously deported after pleading

guilty, admitted discussing consequences of plea with attorney, and discussed

marrying citizen with prior counsel to stay in country); Gutierrez-Gomez, 321

S.W.3d at 683–84 (holding trial judge’s statement, during voir dire, defendant


3
      The State asserts that, at the time, Florida law required a similar admonition.
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likely automatically deported if released on community supervision, along with

references to deportation by defense counsel and prospective juror, supported

inference defendant knew consequences of plea).         Conversely, in this case,

“[d]rawing any sort of reasonable inference from the record before us is no more

than mere supposition, which cannot support what the State suggests.”

VanNortrick, 227 S.W.3d at 711.

      Next, we consider the strength of the evidence of appellant’s guilt. This

evidence unquestionably favors the State.      Both N.H. and M.S. testified that

appellant admitted to them that he had killed the complainant. N.M. also testified

that after the complainant’s disappearance, appellant telephoned her and told her

that the complainant “was gone.” Additionally, Tavey Mao testified that he saw

appellant threaten the complainant with a firearm around the time of his

disappearance.

      However, the Texas Court of Criminal Appeals has made it clear that where

we cannot infer that appellant knew about the immigration consequences of his

plea, “the strength or weakness of the evidence against [him] makes little

difference to the harm analysis in the context of the whole record.” Id. at 713.

This is because we cannot be certain that, even if the evidence of guilt against him

is strong, appellant would necessarily have chosen to enter a guilty plea and accept

conviction over taking his chances at trial knowing that is the only way he could


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have attempted to avoid deportation or being forever denied the opportunity to

become a naturalized citizen. Id.

       Finally, it is undisputed in this case that appellant is not a United States

citizen.

       Although the evidence of appellant’s guilt is strong, there is no evidence in

the record from which we can infer that he had knowledge of the immigration

consequences of his guilty plea. Thus, we cannot have fair assurance that his

decision to plead guilty would not have changed had the trial court admonished

him of the possible deportation consequences of his guilty plea. Accordingly, we

hold that the trial court’s error in not admonishing appellant of the immigration

consequences of his guilty plea was not harmless.

       We sustain appellant’s first issue. Because we sustain appellant’s first issue,

we need not reach his second or third issues. We also need not address the State’s

cross-point requesting modification of the judgment for clerical errors.




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                                    Conclusion

      We reverse the judgment of the trial court and remand the case to the trial

court for further proceedings consistent with this opinion.




                                                Terry Jennings
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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