REFORMED and AFFIRM; Opinion issued October 31, 2012.

In The

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No. 05-11-00237-CR

No. 05-1 1-00239-CR

FRANCISCO NOVAS, Appellant

V.

THE STATE OF TEXAS, Appelice

On Appeal from the 199th iudiual District Court

Collin County, Texas

Trial Court Cause No.’s 199-82234-08 and 199-82235-08

OPINION

Before Bridges, Richter, and Lang

Opinion By Justice Richter

Appellant pleaded guilty to possession ofless than one gram of cocaine and delivery

of more than 200 grams but less than 400 grams of cocaine. The jury found him guilty and

assessed punishment at two years in a statejail facility and twenty-eight years imprisonment,

respectively. The judge probated the state jail sentence for two years, but ordered that

appellant serve the twenty-eight year sentence for the first degree felony, in two issues on

appeal, appellant asserts the trial court erred because it failed to properly admonish him and

failed to conduct a hearing on his motion for new trial. In a cross-point, the State requests
that we reform the udgmcnts to correctly reflect the judge presiding over the case at trial.

We reform the trial court ‘s judt.ments, and as reformed, affirm.

A dni onishin ciii

In his first issue, appellant asserts the trial court erred in huhing to properly admonish

him before accepting his guilty plea. The State agrees there were no admonishments, but

contends the error was harmless, We agree with the State.

The Texas Code of Criminal Procedure in effect at the time of appellant’s offenses

required that a trial court accepting a plea admonish the defendant about (1) the range of

punishment, (2) certain legal aspects of’a plea-bargain agreement, (3) the effect of a pleabargain agreement on the defendants right to appeal, (4) the effect a guilty plea may have

on a non—citizen, (5) sex—offender registration requirements for a defendant pleading guilty

to certain sex offenses, and (6) the effect of a famil violence conviction on the right to

possess a firearm. See Tix. CODE (‘RIM PROC. ANN. art,26. 1 3(a) (West 2007); ‘Anderson i’.

State, 182 S.W.3d 914, 916-17 (Tex. (‘rim. App. 2006). Article 26.13 admonishments

themselves are not constitutionally mandated but rather are designed to assist the trial judge

in determining whether a defendant’s plea is voluntary, which is constitutionally required.

Aguirre-Mata e. State, 125 S.W.3d 473, 475-76 (Tex. Crim. App. 2003). Thus, a trial court’s

failure to admonish a defendant in accordance with Article 26.1 3 is non—constitutional error

subject to a harm analysis under TEx. R. App. P. 44.2(b). VanNortric* i’. State, 227 S.W.3d

By the tine ol appellant’s plea in 2011. Article 26.1 3(a) had been deleted 1w the Legislature for offenses

committed atler September 1 , 2009. Appellant’s oil enses, however, were committed in 2008. Therefore, the 2007

version of the statute was in effect at the time, and applies to his case.
706, 708 (Tex. Crim. App. 2007). Under this rule, an appellate court must disregard any

error that does not affect a defendant’s substantial ritthts, 1(1.

Appellant pleaded guilty to two drug offenses without having any agreement with the

State. Iheretore, the admonishments relating to family violence, sex offender reglstration,

and plea bargains did not apply to his case. See e.g., Bessei; v. Stale, 239 S.W.3d 809, 8 14

(Tex. Crim, App. 2007) (trial court’s failure to admonish regarding sex offender registration

was harmless when inapplicable).

The trial courts failure to admonish appellant concerning the effects of a guilty plea

on immigration status was similarly harmless because the record shows he was a United

States citizen. IuiiNorir,ck, 227 S.W.3d at 709; S’p/awn v. State, 949 S.W.2d $67, 876 (Tex.

App. —Dallas 1997, no pet.). At the time of trial, appellant was twenty—two years old. In his

statement to police, he told the officer he was born in Dallas. his father offered similar

testimony at trial. Appellant’s father stated that he had been employed by the City of 1)allas

since appellant was twelve years’ old, and lived at his current address in Richardson for the

past ten years. Appellant had never lived anywhere other than his parents’ home, Therefore,

there is ample evidence in the record from which to infer that appellant is an American

citizen. As a citizen, his decision to plead guilty could not have been influenced by the threat

of deportation. Further, there is nothing in the record to indicate that the absence of an

admonishment concerning immigration consequences misled or harmed him. See Moore v.

State, 27$ S.W.3d 444, 449 (Tex. App.-—--Houston [14th Dist.) 2009, no pet.).

-3—
The only admonishment that potentially could have afftcted appellant’s decision to

ph.. id guIlI\ \ I’ th.. 1 ing of pimishm ft S Ii \ ( ( Nfl ( RIM Piu i\NN n t 26 1 3(a)( 1)

We will not reverse unless the record supports an intèrence that appellant did not know the

consequences of his plea. See Burnett r. 5aie, 8$ S.W.3d 633. 638 (Tex. Crim. App. 2002).

An appellant’s substantial rights are not affected by the trial court’s fiuilure to admonish him

on the range of punishment when the record contains references to the correct punishment

range and nothing in the record indicates that the appellant was unaware of the range or

misled or harmed by the lack of an admonishment, Aguirre-Mata, 1 25 S.W.3d at 476 77.

The record reflects that both the prosecutor and defense attorney discussed the range

of punishment for the first degree felony (luring vow dire. The prosecutor also discussed

pmbation, and outlined some of the conditions a judge might impose. Appellant was present

in the courtroom and heard all of this information prior to entering his plea.

Appellant’s greatest exposure was for the delivery case, a first degree felony. During

the punishment phase, appellant testified he understood the range of punishment for the first

degree felony was ten to ninety-nine years or life. He also acknowledged his awareness of

the fact that the judge could attach any number of conditions to any probated sentence,

including 180 days in jail. Appellant never indicated that he did not have this information

prior to entering his plea.

With regard to the state jail felony, there is no specific reference in the record as to

the punishment range. But the record does reflect that appellant discussed his cases with his

attorney presumably such a discussion would include the potential penalties for the charged
olfenses. The maximum penalty he faced flw the state jail felony ui tense was two years in

a state jail .S’u Ti x. P[N\[. (‘oim \Nis. ‘ 1 2.35 (West 201 2). In light of the fact that he was

aware that he could face lifi in prison for the first degree fdonv. it is unlikely that the

potential state jail sentence influenced his plea. Moreover, appellant received probation for

this offense, to be served concurrently with the twentyeight year sentence for the first

degree felony. Therefore, on this record, we cannot conclude appellant was harmed by the

lack of an admonishment on range of punishment for either offense, Appellant’s first issue

is overruled.

Motion for New iria!

In his second issue, appellant argues the trial court erred in failing to conduct a

hearing on the motion for new trial. A trial judge abuses his discretion in failing to hold a

hearing if the motion and accompanying affidavits (1) raise matters which are not

determinable from the record and (2) establish reasonable grounds showing that the

defendant could potentially be entitled to relief. Hobbs v. State, 298 S.W.3d 193, 199 (Tex.

Crim. App. 2009). There is no absolute right to a hearing on a motion for new trial. Smith

v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).

A motion for new trial must be supported by an affidavit as a prerequisite to a hearing

when the grounds in the motion are based on matters not already in the record. Id. Such an

affidavit is required to specifically set forth the factual basis for the claim. The affidavit need

not establish a prima Jicie case, or even “reflect every component legally required to

establish relief. {I]t is sufficient if a fair reading of it gives rise to reasonable grounds in
support of the claim.” Id. But affidavits that are conclusory in nature and unsupported by

facts do not provide the requisite notice of the basis for the relief claimed; thus, no hearing

is required. Id. at 339.

Here, appellant’s motion asserted that his attorney failed to file a motion to suppress

the search ofthe vehicle in which he was a passenger when the drugs were found. According

to the motion, the search was without a warrant or probable cause, Appellant claimed he was

“coerced into a guilty plea based upon the ineffectiveness of. . . court appointed counsel in

violation of the Sixth Amendment” and therefore his plea was involuntary and “should be

allowed to be withdrawn,” The only verification of the conclusory facts alleged in the

motion, however, was from appellant’s counsel, who did not have personal knowledge of

the facts alleged in the motion. Therefore, appellant failed to provide the requisite notice,

and as a result, no hearing was required. See Alcott v. State, 26 S.W.3d 1, 5 (Tex.

App.—Waco 1999) afj’d, 51 S.W.3d 596 (Tex. Crim. App. 2001); Hobbs, 298 S.W.3d at

199. Appellant’s second issue is overruled,

Reformation ofJudgment

In a cross-point, the State requests we correct the judgment to correctly reflect the

presiding judge. An appellate court has the power and even a duty to correct a clerical error

on a judgment form to properly reflect what occurred in the trial court as shown by the

record. TEx. R. App. P.43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).

The judgments in this case state that the Honorable Robert Dry was the presiding judge, but

the record reflects that the Honorable Don Jarvis presided over the trial. Therefore, we
sustain the State’s crosspoint, and reform the judgment to reflect that the Honorable Don

Jarvis presided over the trial ofthe case. As reformed, the trial court’sjudgment is affirmed.

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TEx. R. App, P.47

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JUDGMENT

FRANCISCO NOVAS, Appellant

No. O51 1OO237CR V.

THE STATE OF TEXAS, Appellee

Appeal from the 199th Judicial District

Court of Collin County, Texas, (Tr.Ct.No.

1 9982234M8).

Opinion delivered by Justice Richter,

Justices Bridges and Lang participating.

Based on the Court’s opinion of this date, the judgment of the trial court is REFORMED

to icflcct th t thc Honoiablc Don Jarvis presidcd oer the trial of this case

As reformed, the judgment is AFFIRMED.

Judgment entered October 31, 2012.

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JU TICE
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JUDGMENT

FRANCISCO NOVAS, Appellant

No. 05l I00239CR V.

‘IlIE STAlE OF TEXAS. Appellee

Appeal from the 199th Judicial District

Court of Collin County, Texas, (Tr.Ct,No.

05-I 1-00239-CR).

Opinion delivered by Justice Richter,

Justices Bridges and Lang participating.

Based on the Court’s opinion of this date, the judgment of the trial court is REFORMEI)

to reflect that the Honorable Don Jarvis presided over the trial of this case.

As rOot med thc udgmcnt i AFl I kM El)

Judgment entered October 3 1, 2012.