                                     NO. 07-12-0057-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                      AUGUST 22, 2012

                           ______________________________


                        SILVERIO HERNANDEZ, JR., APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

               NO. 2677-B; HONORABLE GORDON H. GREEN, JUDGE

                           _______________________________

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


                                 MEMORANDUM OPINION


      Pursuant to an open plea of guilty, Appellant, Silverio Hernandez, Jr., was

convicted of burglary. 1 Punishment was assessed by a jury at fifteen years confinement

and a $10,000 fine. By two issues, Appellant maintains (1) the trial court abused its

discretion and deprived him of due process of law in failing to admonish him of the

consequences of a plea of guilty as it pertains to citizenship and deportation as set out

1
Tex. Penal Code Ann. § 30.02(a) (West 2011).
in article 26.13(a)(4) of the Texas Code of Criminal Procedure and (2) the trial court

abused its discretion and deprived him of his Sixth Amendment right to counsel when it

failed to sustain a defense objection to the introduction of a custodial statement made

by him to law enforcement. We affirm.


                                      Background Facts


       On November 11, 2010, while responding to a call of a suspicious vehicle, a

lieutenant and detective with the Muleshoe Police Department observed an individual

leaving a residence carrying an "armful of stuff."          Upon noticing the marked patrol

vehicle, that individual, Appellant's brother, 2 dropped the items and jumped into an SUV

being driven by Appellant. They were also accompanied by two juveniles. Appellant

pulled away from the residence and, according to the lieutenant, headed in the direction

of his patrol vehicle. The SUV collided with the patrol vehicle, lost a front wheel and

continued down the street. 3      Notwithstanding the damage to the patrol vehicle, the

lieutenant was able to give chase for about one-half mile. Appellant, his brother and the

two juveniles abandoned the damaged SUV in a vacant field and fled on foot. The

lieutenant apprehended Appellant and the detective apprehended the two juveniles.

Appellant's brother was not captured but did turn himself in the next day.


       The SUV was abandoned with all four doors remaining open and the back

window shattered from the collision. The lieutenant and detective observed various

2
 Appellant's brother, Edgar Hernandez, was also convicted of burglary.   His appeal, bearing cause
number 07-11-0056-CR, was disposed of this same date.
3
 The lieutenant testified that approximately $10,000 damage was done to his patrol vehicle and he
sustained injuries to his knee and arm.
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items in the SUV, including electronics, video games, CDs, DVDs, firearms, jewelry and

a purse, all determined to be stolen property from victims of several burglaries.


        After a jury was selected, Appellant entered a plea of guilty and elected to have

the jury hear punishment evidence.       In addition to testimony about the burglaries,

evidence was presented that Appellant, while in the Bailey County Jail, violated certain

rules prohibiting inmates from engaging in certain conduct, including possession of

contraband. After presentation of the evidence, the State argued that a fifteen-year

sentence was reasonable punishment and urged the jury not to recommend community

supervision. The defense pleaded for community supervision given that Appellant was

young, has a very young daughter and cooperated with law enforcement.               After

deliberating, the jury assessed punishment at fifteen years confinement and a $10,000

fine.


                                        Analysis


I. Failure to Admonish on Deportation


        By his first issue, Appellant maintains he was denied due process of law by the

trial court's failure to admonish him of the consequences of his plea of guilty as it

pertains to citizenship and deportation. The State concedes that Appellant was not

properly admonished and that the record does not affirmatively reflect he is a United

States citizen. However, the State argues the error is harmless because the trial court

was aware that Appellant was a United States citizen.



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       Article 26.13(4) of the Code of Criminal Procedure mandates that the trial court,

before accepting a plea of guilty or nolo contendere, admonish a defendant 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 . . . .       Tex. Code Crim. Proc. Ann. art.

26.13(4) (West Supp. 2012). A reviewing court looks for substantial compliance with

the statutory admonishments of article 26.13(a). Aguirre-Mata v. State, 125 S.W.3d

473, 480 (Tex.Crim.App. 2003).       However, it is a legal fiction to claim substantial

compliance if the admonishment is never given. VanNortrick v. State, 227 S.W.3d 706,

708 (Tex.Crim.App. 2007) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.

1997)).


       The statutory admonishments in article 26.13(a) are not constitutionally required.

Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). Thus, a trial court's

error in failing to properly admonish a defendant is non-constitutional error reviewed for

harm under Rule 42.2(b) of the Texas Rules of Appellate Procedure. Van Nortrick, 227

S.W.3d at 708.     Non-constitutional error is harmless unless the error affected the

defendant's substantial rights. Id. at 708-09. To determine if substantial rights were

violated, we independently examine the record as a whole. Id. at 709.


       Neither oral nor written admonishments were given to Appellant regarding the

possibility of deportation in the event of a guilty plea. Additionally, the record before us

in this appeal is silent on his citizenship. However, during the punishment phase of

Appellant's trial in Hernandez v. State, No. 07-11-00435-CR, 2012 Tex. App. LEXIS

5272 (Tex.App.--Amarillo June 29, 2012, no pet. h.) (affirming Appellant's conviction in a
                                             4
different burglary case), Appellant's mother gave sworn testimony that both her sons

were United States citizens. When there is proof that a defendant is a United States

citizen, the trial court's failure to admonish him on the possibility of deportation is

harmless error because the threat of deportation could not have influenced the

defendant's decision to plead guilty. VanNortrick, 227 S.W.3d at 709. Notwithstanding

that this record does not address Appellant's citizenship, we take judicial notice of the

record in Appellant's prior appeal to establish that he is a United States citizen. See Joe

Williamson Constr. Co. v. Raymondville Indep. Scho. Dist., 251 S.W.3d 800, 802 n.2

(Tex.App.--Corpus Christi 2008, no pet.) (noting that court of appeals may take judicial

notice of files from related proceedings). Resultantly, this Court has a fair assurance

that his substantial rights were not affected by the trial court's error in failing to

admonish him in accordance with article 26.13(a)(4) of the Texas Code of Criminal

Procedure. Issue one is overruled.


II. Sixth Amendment Right to Counsel


      By his second issue, Appellant maintains the trial court abused its discretion and

deprived him of his Sixth Amendment right to counsel when it failed to sustain a defense

objection to the introduction of a custodial statement made by him to law enforcement.

We disagree.


      Appellant was incarcerated in a ten-man cell in the Bailey County Jail. In August

2011, the Sheriff ordered a "shakedown" to search for contraband. Contraband was

discovered and numerous inmates, including Appellant, were interviewed during the

                                            5
investigation. Prior to being interviewed, Appellant was administered Miranda warnings

and he voluntarily signed a waiver of his rights. The Sheriff testified that Appellant did

not request counsel before being interviewed.


      During the Sheriff's testimony, defense counsel lodged an objection to his

testimony regarding Appellant's interview about the shakedown.          Defense counsel

argued that the Sheriff knew Appellant was represented by counsel and should not have

questioned him. The State responded that Appellant was not interviewed about the

burglaries that led to his incarceration but rather, he was questioned about a completely

separate case arising from a separate set of facts. The trial court overruled defense

counsel's objection.


      We review a trial court's evidentiary ruling for abuse of discretion.          See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A trial court does not

abuse its discretion if its ruling is within a zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g).


      The Sixth Amendment of the United States Constitution guarantees a criminal

defendant the assistance of counsel at the initiation of an adversary proceeding and at

any subsequent "critical stage" of the proceeding. Estelle v. Smith, 451 U.S. 454, 469-

70, 101 S.Ct. 1866, 69 L.Ed.2d 359 (1981). The right, however, is offense specific.

Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed. 2d 321 (2001); Romo

v. State, 132 S.W.3d 2, 3-4 (Tex.App.--Amarillo 2003, no pet.) (holding that invocation

of Sixth Amendment right concerning one charge does not mean that it has attached

                                            6
with regard to another offense). In determining whether the Sixth Amendment right is

offense specific, we apply the Blockburger test and ask whether each offense requires

proof of a fact that the other does not. See Blockburger v. U.S., 284 U.S. 299, 304, 52

S.Ct. 180, 76 L.Ed. 306 (1932).


      In the underlying case, Appellant was in jail for burglaries he allegedly

committed.    He was represented by counsel on those charges.              The objection

complained of on appeal relates to testimony regarding Appellant's interview by law

enforcement regarding contraband found in jail to which he voluntarily waived his

constitutional rights. The burglary cases and the contraband case do not arise from the

same factual basis.    They occurred on different dates and are unrelated offenses.

Consequently, the trial court did not abuse its discretion in overruling defense counsel's

objection to admission of evidence of extraneous conduct by Appellant. Issue two is

overruled.


                                      Conclusion


      The trial court's judgment is affirmed.


                                                       Patrick A. Pirtle
                                                           Justice


Do not publish.




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