Roland Carranza v. State

Carranza v. State IN THE TENTH COURT OF APPEALS No. 10-94-076-CR ROLAND CARRANZA, Appellant v. THE STATE OF TEXAS, Appellee From the 204th District Court Dallas County, Texas Trial Court # F93-56348-JQ O P I N I O N Appellant Carranza appeals from his conviction for possession of cocaine (less than 28 grams), enhanced, for which he was sentenced to forty years in the Texas Department of Criminal Justice. Appellant was indicted March 4, 1993, for possession of cocaine, less than 28 grams, enhanced by one prior felony conviction. On November 5, 1993, he pled guilty without a negotiated plea agreement, and pled true to the enhancement. The trial judge advised Appellant that the range of punishment was not less than five or more than ninety-nine years, or life, plus a fine up to $10,000. Appellant stated to the trial judge that he understood the charge and the punishment range; that he wished to give up his right to a jury trial and plead guilty before the judge; that he could read and write the English language; and that he understood the documents he had signed in this case. The State offered Appellant's signed written-judicial confession and stipulation of evidence, and he signed a plea of true and stipulation of evidence to the enhancement. Two pen packets reflecting prior convictions for two felony offenses were introduced into evidence. On January 6, 1994, the trial court placed Appellant on deferred adjudication for ten years. One of the conditions of Appellant's probation was that he not use cocaine or marihuana. On January 27, the State filed a motion to adjudicate guilt, alleging Appellant violated the terms of his probation by using both cocaine and marihuana. On February 25, Appellant's deferred adjudication was revoked, he was found guilty as charged, the enhancement paragraph was found to be "true," and Appellant was sentenced to forty years in prison. Appellant appeals on one point of error: "The trial court erred by failing to admonish the defendant of the consequences of the plea at the time he entered his plea of guilty." Article 26.13(a)(4), Texas Code of Criminal Procedure, provides that the following admonition shall be given: 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 a naturalization under federal law. The record reflects that the trial court did not admonish Appellant in accordance with Article 26.13(a)(4) prior to accepting his plea of guilty. Appellant asserts that failure to make this admonition is reversible error, and that Appellant need not show harm to obtain a reversal, citing Morales v. State, 872 S.W.2d 753 (Tex. Crim. App. 1994). Morales, supra, does hold what Appellant recites. Nevertheless, where there is no plea bargain as to punishment, a free and voluntary plea of guilty bars all non-jurisdictional defects. Lyon v. State, 872 S.W.2d 732, 735, n.8 (Tex. Crim. App. 1994); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972); Christal v. State, 692 S.W.2d 656, 658 (Tex. Crim. App. 1981). Moreover, a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980). Two Courts of Appeal have addressed the identical issue Appellant raises here, i.e., the lack of an admonishment under Article 26.13(a)(4). Mitchell v. State, 848 S.W.2d 917, 919 (Tex. App.—Texarkana 1993, pet ref'd); Foster v. State, 817 S.W.2d 390, 391 (Tex. App.—Beaumont 1991). Those cases hold that a defendant who was a citizen of the United States was not entitled to admonishment under Article 26.13(a)(4) at a guilty plea hearing because such admonition is not applicable to a United States citizen. In Morales, the record was silent as to whether Morales was a United States Citizen. Morales was a plurality decision in which three judges joined with two concurring opinions, and four judges dissenting. In the instant case, as in Mitchell and Foster, supra, the record reflects that Appellant is a United States citizen, he having been born in Bexar County, Texas. Appellant further complains the trial court failed to admonish him under Article 26.13(a)(2) and (3). Both of these subsections apply to situations in which there is a plea bargain as to punishment between the State and defendant. In this case, there was no plea bargain. Appellant's plea of guilty was an open plea of guilty without any agreement with the State. Appellant's point is overruled. The judgment of the trial court is affirmed. FRANK G. McDONALD Chief Justice (Retired) Before Chief Justice Thomas, Justice Vance, and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed April 12, 1995 Do not publish er="0"> must be electronically recorded to be admissible against another co-defendant. See Tex. Code Crim. Proc. Ann. art. 38.22 §3 (a)(1) (Vernon Pamp. 2004). Therefore, even if Smith had preserved this complaint, his inadequate briefing presents nothing for review. Tex. R. App. P. 38.1; see Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, order). Smith then contends, in his third issue, the trial court erred in failing to enter an order pursuant to article 38.22 of the Code of Criminal Procedure regarding the voluntariness of the statements of Smith’s co-defendants and in failing to instruct the jury not to consider such statements unless they were voluntarily made. See Tex. Code Crim. Proc. Ann. art 38.22 §§6, 7 (Vernon Pamp. 2004). Smith again presents nothing that would support the proposition that article 38.22 applies to the voluntariness of co-defendants’ statements. His issue is inadequately briefed and presents nothing for review. Tex. R. App. P. 38.1; see Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, order); see also McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex. Crim. App. 2001). Conclusion The trial court’s judgment is affirmed. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 10, 2004 Do not publish [CRPM]