                                    NO. 07-05-0070-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                 JANUARY 26, 2007
                          ______________________________

                         JOSEPH LEE MAXWELL, APPELLANT

                                              V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

                NO. 1079; HONORABLE STEVEN R. EMMERT, JUDGE
                       _______________________________


Before CAMPBELL, J., and BOYD and REAVIS, S.J.1


                                          OPINION


       Joseph Lee Maxwell appeals his conviction of the felony offense of aggravated

robbery. He presents four issues assigning error to the trial court’s failure to give statutory

admonishments on his plea of guilty and two issues challenging the absence of a deadly

weapon definition in the jury charge. The State has not filed a brief in reply. Finding the

errors reflected in the record do not require reversal, we affirm the trial court’s judgment.




       1
        John T. Boyd, Chief Justice (Ret.) and Don H. Reavis, Justice (Ret.), Seventh
Court of Appeals, sitting by assignment.
       Appellant was charged by an indictment alleging he committed aggravated robbery

by placing the victim in fear of injury or death and that he used or exhibited a deadly

weapon, a knife. Through counsel he waived arraignment and entered a plea of not guilty.

He also elected to have any punishment assessed by the jury. At trial, however, appellant

pled guilty before the jury, but sought a bifurcated trial with a jury verdict on guilt before the

presentation of evidence on punishment.2 In conformity with appellant’s request, the State

presented the testimony of the victim and a deputy sheriff who investigated the offense.

The evidence showed appellant entered a convenience store and selected a package of

cigarettes. When the clerk asked how he was going to pay for them he brandished a

pocket knife in front of her and demanded money from the registers. The jury returned a

verdict of guilty.


       The State’s only witness on punishment was the victim. During his testimony on

punishment, appellant acknowledged his guilt of the indicted offense, but testified also to

his lack of prior criminal history and his motive to commit a “small crime” to avoid a

commitment he made to serve in the Navy. He also presented testimony from his father,

a family friend and the county sheriff. The jury assessed punishment at five years

confinement and a $5,000 fine. It also found appellant used or exhibited a deadly weapon.

The trial court rendered judgment in conformity with the jury’s verdicts.




       2
         Asking the court to adopt his requested procedure, appellant’s trial counsel told the
court, “I have done this in the past, we pled guilty, the jury has gone back, quickly, found
a guilty verdict and then we go directly into the punishment phase. And I think from a
defendant’s point of view, that allows a jury to have the satisfaction of finding him guilty
before they decide what they are going to do with him.”

                                                2
       Appellant’s first four issues are based on the trial court’s failure to provide the

admonitions required by article 26.13 of the Code of Criminal Procedure. As relevant here

that statute requires that, before a trial judge accepts a plea of guilty or nolo contendre, the

judge admonish the defendant of the range of punishment and the possible effects of the

plea on defendants who are not citizens. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1), (4)

(Vernon Supp. 2006). We accept appellant’s contention that the court failed to give the

admonishments. Although the court’s judgment recites that appellant “pleaded guilty,

being admonished of the consequences,” no written or oral admonishments with regard to

the guilty plea appear in the record.3          The court’s failure to give the statutory

admonishments was error.4


       After the jury was seated, the indictment was read and appellant pled guilty. As

noted, the State then put on evidence of his guilt. A charge on guilt/innocence, to which

there were no objections, was prepared and read to the jury.              Counsel presented

argument, appellant’s counsel acknowledging that “[h]e has admitted . . . guilt in this case,”

but asking the jury to “make sure the State has proved everything . . . .” The jury returned




       3
         Neither does the reporter’s record suggest any part of the proceeding was not
transcribed.
       4
         Under the procedure employed, it might be said that the trial court did not “accept”
appellant’s plea of guilty. The record shows that after receiving the plea, the court
immediately began hearing the State’s evidence on guilt/innocence. The court did not
instruct the jury to find appellant guilty, but the court’s comments to the jury make clear that
the court expected the jury to render a guilty verdict. Under such circumstances, the
proper procedure is that reflected in Fairfield v. State, 610 S.W.2d 771, 776-77
(Tex.Crim.App. 1981), and other cases, by which the defendant is admonished outside the
presence of the jury.

                                               3
a verdict of guilty, and no complaint is raised on appeal concerning the sufficiency of the

State’s evidence to support the verdict.


       The admonishments required by article 26.13 are not constitutionally required but

are designed to help the trial court ensure that the waiver of constitutional rights resulting

from a plea of guilty is made knowingly and voluntarily. Anderson v. State, 182 S.W.3d

914, 917-18 (Tex.Crim.App. 2006); Aguirre-Mata v. State, 125 S.W.3d 473, 476 (Tex.

Crim.App. 2003) (Aguirre-Mata II). Waiver of a constitutional right which is not voluntary

or is made without knowledge of the consequences violates due process. Boykin v.

Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).                    Such

constitutional errors are reviewed under the standard set out in Rule of Appellate

Procedure 44.2(a). Where a defendant complains only of the failure to follow the dictates

of the statute, we must apply Rule 44.2(b) and determine if the error affects a substantial

right. Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 1999) (Aguirre-Mata I).

Appellant has presented separate complaints of the violation of article 26.13 and violation

of his due process rights.


       Appellant acknowledges authority holding his knowledge of the range of punishment

need not come from the judge to show he understood that consequence of his plea. See

Aguirre-Mata II, 125 S.W.3d at 476-77; Burnett v. State, 88 S.W.3d 633, 639

(Tex.Crim.App. 2002); Gamble v. State, 199 S.W.3d 619, 622 (Tex.App.--Waco 2006, no

pet.). During voir dire both the prosecutor and appellant’s counsel correctly recited the

applicable range of punishment. As in Burnett, appellant’s guilty plea was not given until



                                              4
the conclusion of voir dire. Appellant seeks to distinguish Burnett on the basis that, there,

other required admonitions were given. We cannot agree that fact provides any distinction

from the analysis on this issue in cases such as Burnett and Aguirre-Mata II. His argument

that courts should not presume a defendant was aware of and understood counsel’s

statements to the jury explaining the range of punishment is an invitation to disregard

recent authority of the Court of Criminal Appeals. This we may not do. Additionally, the

record fails to hint at any reason to question appellant’s understanding here. Appellant’s

own testimony revealed he is an articulate high school graduate who had been accepted

into a Texas state university, possessed no physical impairment on which he could rely to

avoid military service and “did real, real well” on a nuclear physics examination given by

a Navy recruiter. This evidence indicates appellant was capable of perceiving and

understanding the description of the range of punishment stated by the prosecutor and his

counsel.


       Having reviewed the entire record, we find nothing that shows he was unaware of

the consequences of his plea, or that he was misled or harmed. Aguirre-Mata II, 125

S.W.3d at 476-77. We conclude the trial court’s error of failing to show on the record it

complied with article 26.13 by admonishing appellant on the range of punishment did not

affect a substantial right and was therefore harmless. Id.; Tex. R. App. P. 44.2(b).


       With respect to appellant’s due process argument, we note that unlike the record

in Boykin, 395 U.S. at 240, the record is not silent concerning appellant’s reasons for

pleading guilty before the jury but sheds considerable light on that subject. In addition to



                                             5
his comments to the trial judge concerning the bifurcated procedure he was requesting, as

he began voir dire, appellant’s trial counsel told the panel that “there are several reasons

for [his client’s plea of guilty]. The truth, that is the main one. And that’s what we are here

to lay out before you. We think if we are asking you to do something seriously we better

start from the start being straight. The other reason is we don’t want to waste your time.

We know it’s valuable and we appreciate your time. So, with that out of the way . . . .”

Counsel then continued, devoting almost all the rest of his voir dire to inquiries concerning

sentencing, clearly attempting to prepare the prospective jurors to recommend community

supervision for his client.


       Later, during appellant’s testimony on punishment, he and his counsel had this

exchange, concerning his actions toward police after his arrest:


       Q:     During that time [after the arrest], did you cooperate with the police?


       A:     Yes, sir.


       Q:     You told them exactly what you had done?


       A:     Yes, sir.


       Q:     Admitted every part of the offense?


       A:     Yes, sir.


       Q:     Just like you have done today?



                                              6
       A:     Yes, sir.


       Appellant later responded, “Yes, sir,” to his counsel’s question “You’re pleading

guilty because that was true?” Also, from the witness stand, appellant apologized to the

victim, and, in a statement occupying some three-quarters of a page of the record,

addressed his counsel’s question asking why the jury should “take a chance on you,”

through community supervision. Appellant also introduced as punishment evidence his

handwritten statement written in jail. Through these instances in the record, and others,

appellant presented himself to the jury as a thoughtful young man who acknowledged a

serious mistake borne of poor judgment but was a good candidate for a “second chance.”5

       Further, by virtue of the procedure utilized in appellant’s trial, his plea of guilty before

the jury did not involve waiver of all the constitutional rights a criminal defendant typically

waives by pleading guilty. See Aguirre-Mata II, 125 S.W.3d at 475 n.6 (constitutional rights

waived by a guilty plea are privilege against compulsory self-incrimination, and rights to

counsel, trial by jury6 and confrontation of accusers, citing Boykin, 395 U.S. at 243). Here,

appellant was represented by counsel throughout, was adjudged guilty by the jury and

cross-examined the State’s witnesses.


       Under the circumstances presented, we find the trial court’s failure to make a record

clearly reflecting admonishment of appellant on the range of punishment did not equate


       5
        Appellant’s strategy met with some success. Although they did not recommend
community supervision, the jury sentenced appellant to the shortest allowable term of
incarceration.
       6
         Nothing in the record shows a waiver of jury trial. See Tex. Code Crim. Proc. Ann.
art. 1.13 and 1.15 (Vernon 2005) (stating manner of waiver of jury trial).

                                                7
to a denial of due process. Boykin, 395 U.S. at 240. His first and second issues are

overruled.


       Appellant’s third and fourth issues complain of the trial court’s failure to admonish

him of the immigration consequences of conviction. Courts have held such an error is

harmless when the record shows that the defendant is a citizen of the United States.

Anderson, 182 S.W.3d at 919; Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997).

Appellant’s description of the record as “completely silent” as to his citizenship is

inaccurate. It contains an affidavit of financial status signed by appellant which recites his

place of birth as Lubbock, Texas.7 Because the record affirmatively shows he is a citizen,

we overrule appellant’s third and fourth issues.


       Appellant’s final two issues complain of the trial court’s failure to define deadly

weapon in the jury charge on guilt or innocence.8 The definitions section of the charge

omitted the statutory definition of deadly weapon, and the application paragraph can be

read to define a knife as a deadly weapon. Appellant concedes the complaints were not

preserved for review by any objection to the trial court and reversal is required only if they

caused harm so egregious as to deprive appellant of a fair trial. Almanza v. State, 686

S.W.2d 157, 171 (Tex.Crim.App. 1984). The harm must be actual, not just theoretical. Id.

at 174; Cormier v. State, 955 S.W.2d 161, 164 (Tex.App.–Austin 1997, no pet.). To


       7
        See U.S. Const. amend. XIV, § 1; 8 U.S.C. § 1433(a) (each declaring persons born
in the United States as citizens).
       8
         We note that appellant’s issues complaining of the jury charge on guilt/innocence
treat his conviction as one based on the jury verdict, a view inconsistent with his first four
issues treating it as based on his guilty plea. We nonetheless address the issues.

                                              8
evaluate the actual harm caused by the charge error, we review the entire jury charge, the

state of the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information shown by the record. Almanza,

686 S.W.2d at 171.


       Appellant cites us to Blanson v. State, 107 S.W.3d 103 (Tex.App.–Texarkana 2003,

no pet.), in which the court found egregious harm from a charge that contained the

instruction, “[a] knife is a deadly weapon.” Id. at 105. Here, though, we cannot ignore

appellant’s plea of guilty before the jury. His plea established the facts alleged in the

indictment, which included the allegation appellant used or exhibited a deadly weapon.

See Fairfield, 610 S.W.2d at 776-77; Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003)

(defining aggravated robbery). Too, unlike in Blanson, in which the nature of the unopened

knife as a deadly weapon was a “central issue,” id. at 106, the characterization of the knife

as a deadly weapon was not a contested issue at appellant’s trial. Further, the knife was

before the jury. The record shows it was a folding or pocket knife, about four inches long

when closed and with a locking, curved serrated blade about two-and-three-quarters inches

long. The investigating sheriff’s deputy testified without objection that the knife was

capable of causing serious bodily injury or death. See Tex. Pen. Code Ann. § 1.07(17)

(Vernon Supp. 2006) (defining deadly weapon). We do not agree the record reflects




                                             9
egregious actual harm flowing from the errors in the jury charge.9 We overrule appellant’s

fifth and sixth issues.


       Finding no reversible error in the judgment of the trial court, we affirm the judgment.




                                                  James T. Campbell
                                                      Justice




Do not publish.




       9
       Our conclusion appellant suffered no egregious harm from the charge error also
means his admission of guilt during punishment testimony bars his complaint, under
DeGarmo v. State, 691 S.W.2d 657 (Tex.Crim.App. 1985). Kelley v. State, 22 S.W.3d 628,
631 (Tex.App.--Fort Worth 2000, pet. ref’d) (admission of guilt at punishment waived
charge error).

                                             10
