                                  NO. 12-16-00073-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

RICHARD PAUL KAY,                                §      APPEAL FROM THE 159TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Richard Paul Kay appeals his conviction for evading arrest or detention. In two issues,
Appellant argues that the trial court erred by failing to properly admonish him before his guilty
plea, and that he received ineffective assistance of counsel. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with aggravated assault on a public servant and
evading arrest or detention.    An enhancement paragraph alleged a prior felony conviction.
Appellant pleaded “not guilty” to aggravated assault on a public servant and “guilty” to evading
arrest or detention. After hearing evidence and arguments, a jury found Appellant “not guilty” of
aggravated assault on a public servant and “guilty” of evading arrest or detention. The jury
assessed Appellant’s punishment at imprisonment for ten years and a fine of $5,000. This appeal
followed.


                                         ADMONITIONS
       In his first issue, Appellant contends that the trial court failed to properly admonish him
of the immigration consequences of his plea.
Standard of Review and Applicable Law
       Prior to accepting a guilty plea, the trial court must admonish the defendant. TEX. CODE
CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2016). The admonitions must include, among other
things, the fact that if the defendant is not a citizen of the United States of America, a plea of
guilty 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). The admonitions may be given orally or in
writing. Id. art. 26.13(d) (West Supp. 2016). Substantial compliance by the court is sufficient,
unless the defendant affirmatively shows that he was not aware of the consequences of his plea
and that he was misled or harmed by the admonishment of the court. Id. art. 26.13(c) (West
Supp. 2016).
       The admonitions of Article 26.13 serve to protect several constitutional rights of the
defendant, but the statutory admonitions are not constitutionally required. VanNortrick v. State,
227 S.W.3d 706, 708 (Tex. Crim. App. 2007). Thus, a trial court’s failure to provide the
admonitions is nonconstitutional error subject to a harm analysis under Texas Rule of Appellate
Procedure 44.2(b). Id. We review nonconstitutional error to determine whether it affected the
defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.
Crim. App. 2001). An error affects a substantial right if it had a substantial and injurious effect
or influence on the verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). When
examining nonconstitutional error in the context of a guilty plea, the critical issue is whether we
have fair assurance that the defendant’s decision to plead guilty would not have changed had the
trial court provided the mandatory admonitions. Anderson v. State, 182 S.W.3d 914, 919 (Tex.
Crim. App. 2006). An error that does not affect a substantial right must be disregarded. TEX. R.
APP. P. 44.2(b); Johnson, 43 S.W.3d at 4.
Immigration Consequences
       In his first issue, Appellant argues that the trial court erred by failing to advise him of the
immigration consequences of his guilty plea. The record reflects that the trial court did not
admonish Appellant either orally or in writing of the immigration consequences of his plea.
Thus, the trial court erred. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4). Consequently, we
must review the error to determine whether we have fair assurance that Appellant’s decision to
plead guilty would not have changed had the trial court provided the mandatory admonition. See
Anderson, 182 S.W.3d at 919.



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        When the record shows a defendant is a United States citizen, the trial court’s failure to
admonish him on the immigration consequences of his guilty plea is harmless because the threat
of deportation could not have influenced that defendant’s decision to plead guilty. VanNortrick,
227 S.W.3d at 709. Conversely, a silent record on citizenship, or a record that is insufficient to
determine citizenship, establishes harm when the trial court fails to admonish the defendant on
the immigration consequences of his guilty plea. Id. at 714. A reviewing court may draw
reasonable inferences from facts in the record in determining whether a defendant is a United
States citizen. Id. at 710-11. We examine the entire record—including but not limited to
admitted evidence—for indications of the defendant’s citizenship status. Fakeye v. State, 227
S.W.3d 714, 716 (Tex. Crim. App. 2007).
        Here, the State contends that any error in the trial court’s failure to admonish Appellant
regarding the immigration consequences of his plea is harmless because the record shows
Appellant is a United States citizen. In support of its contention, the State points to a document
in the clerk’s record titled “Defendant Information.”                 The document contains handwritten
responses to several questions. Appellant’s birthplace is listed as Conroe, Texas. The document
is not signed, but based on its location in the record, it appears to be part of an application for
appointed trial counsel.1 The preceding document, titled “Questionnaire Under Oath Concerning
Financial Resources,” is signed by Appellant and notarized. From these facts, we can reasonably
infer that Appellant is a United States citizen. See id. at 717 (court of appeals correctly relied in
part on allegations in motion in limine to support inference that Appellant was not a citizen);
Lawrence v. State, 306 S.W.3d 378, 379 (Tex. App.—Amarillo 2010, no pet.) (failure to warn of
immigration consequences harmless where pen packet showed appellant was born in Texas);
Gamble v. State, No. 10-05-00044-CR, 2007 WL 2127337, at *1 (Tex. App.—Waco July 25,
2007, pet. ref’d) (mem. op., not designated for publication) (failure to warn of immigration
consequences harmless where application for appointed counsel showed appellant was born in
Mexia, appellant’s mother testified she had lived in Mexia “a long time,” and appellant testified
he lived in Mexia). Therefore, we conclude that Appellant was not harmed by the trial court’s
failure to admonish him regarding the immigration consequences of his guilty plea.                             See




        1
         The State asserts in its brief that the document is part of an application for court appointed counsel and
was completed by Appellant.


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VanNortrick, 227 S.W.3d at 709. Accordingly, we disregard the error and overrule Appellant’s
first issue. See TEX. R. APP. P. 44.2(b); Johnson, 43 S.W.3d at 4.


                            INEFFECTIVE ASSISTANCE OF COUNSEL
       In Appellant’s second issue, he contends his trial counsel was ineffective because he
neither requested the Article 26.13(a)(4) immigration admonition nor gave the admonition
himself.
Standard of Review and Applicable Law
       In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.
1986). Under the first prong of the Strickland test, an appellant must show that counsel’s
performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires
the appellant to demonstrate that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. See id., 466 U.S. at 688, 104 S. Ct. at 2064-
65. To satisfy this requirement, the appellant must identify the acts or omissions of counsel
alleged to constitute ineffective assistance and affirmatively prove that they fell below the
professional norm for reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996).
       In any case considering the issue of ineffective assistance of counsel, we begin with a
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). We presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See id.; see also Okonkwo v. State, 398 S.W.3d 689,
693 (Tex. Crim. App. 2013). Appellant must rebut this presumption by presenting evidence
illustrating the reasons for counsel’s actions and decisions. See Jackson, 877 S.W.2d at 771.
Appellant cannot meet this burden if the record does not affirmatively support the claim. See
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective assistance
claim cannot be built upon retrospective speculation. Bone v. State, 77 S.W.3d 828, 835 (Tex.
Crim. App. 2002). Moreover, before being condemned as unprofessional and incompetent,
counsel should be given an opportunity to explain his actions. See id. at 836. Thus, absent a




                                                4
properly developed record, an ineffective assistance claim must usually be denied as speculative.
See id.
          Under the second prong of the Strickland test, the appellant must affirmatively prove
prejudice from the deficient performance of his counsel. See Strickland, 466 U.S. at 687, 104 S.
Ct. 2064; Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that his counsel’s errors, judged by the totality of the representation and not
by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough
for the appellant to show that the errors had some conceivable effect on the outcome of the
proceedings. Id. He instead must show that there is a reasonable probability that, but for his
counsel’s errors, the outcome would have been different either as to a reasonable doubt about his
guilt or the extent of his punishment. See id.; see also Bone, 77 S.W.3d at 836. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
          Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Appellant must prove both prongs of the Strickland test by a preponderance of the
evidence in order to prevail. Tong, 25 S.W.3d at 712.
Immigration Consequence Admonition
          Appellant argues that his counsel’s failure to either request that the trial court give him
the Article 26.13(a)(4) immigration consequence admonition, or give the admonition himself,
rendered his performance below the prevailing norm for counsel at a plea hearing. In Padilla v.
Kentucky, the United States Supreme Court held that the weight of prevailing professional norms
supports the view that counsel must advise his client regarding the risk of deportation arising
from a guilty plea. 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
          In this case, Appellant has failed to show that counsel’s performance was deficient. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Although counsel did not advise Appellant of
the immigration consequences of his plea on the record, the record does not show what counsel
advised him outside of court. Furthermore, Appellant directs us to no authority supporting the
proposition that defense counsel has a duty to request that the trial court give the mandatory plea
admonishments.       And, as discussed above, we can reasonably infer from the record that
Appellant is a United States citizen and, consequently, was not harmed by the lack of an



                                                   5
admonishment. We conclude that the record is not sufficiently developed on this direct appeal to
determine whether the first prong of Strickland has been met. See id.; Bone, 77 S.W.3d at 836.
         Because Appellant failed to establish that trial counsel’s performance was deficient, he
has failed to carry his burden of showing that he received ineffective assistance of counsel. See
Strickland, 466 U.S. at 687, 104 S.Ct. 2064; Tong, 25 S.W.3d at 712. Accordingly, we overrule
Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered October 25, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 25, 2017


                                         NO. 12-16-00073-CR


                                      RICHARD PAUL KAY,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2015-0735)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
