1 John T. Boyd, C hief Justice ( Ret.) and Don H. Reavi s, Justice (Ret.), Seventh

Court of Appeals, sitting by assignment. NO. 07-05-0070-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JANUARY

26, 2007

______________________________ JOSEPH LEE MAXW ELL, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 31 ST DISTRIC T COURT O F LIPSCO MB COUNTY; NO. 1079; HON ORABLE STEVEN R. EMMERT, JU DGE

_______________________________ Before CAMPBELL, J., an d BOYD and REAVIS, S.J. 1
OPINION Joseph Lee Maxw

ell appeals hi s convic

tion of the felon y offen se of aggravated robb ery. He presentsfour issues as signing error to the trial court’s failure to give statutory admonishments on his plea of g uilty and two issu es challeng ing the absence of a dead ly weapon definition in the jury charge. The S tate has not filed a brief in reply. F inding the errors reflected in the record do not require reversal, we affirm the trial court’s j udgment.2 Asking thecourt to adopt h is reques ted procedure, appel lant’s tri al counsel told the

court, “I have done this in the past, we pled guil ty, the jur y has goneback, quic kly, found a guilty verdict and then we go directly int o the pu nishme nt phas e. And I thin k from a defendant ’s point of view , that allow s a jury to have the s atisfaction of finding him guilty before they decide what they are going to do with him.” 2 Appellant

was char

ged by an indictment

alleging he committed aggravated robbery by placing the victim in fear of injury or d eath and that he used or exhibited a deadly weapon, a knife. Through counsel he waived arraign ment and entered a pl ea of not gu ilty. He also elected to have any punishment asses sed by the j ury. At t rial, however, appel lant pled guilty

before the jury, but sought a bi furcated trial with a j ury verdict on g uilt before the presentation of evidence on pu nishment. 2 In conformity with appellant’s r

equest, the Sta te presented the t esti mon y of t he vi ctim and a deputy sher iff who inve stigated the offense. The evidence s howed appell ant entered a convenience store a nd selecte d a packa ge of cigarettes. When the cle rk asked how he was g oing to pay

for them he brandis hed a pocket knife in front

of her and demanded money from the regis ters. The jur y returned a verdict of guilty.
The State’s only witness on punishment was the victim. During his testi mony on punishment, appellant acknowledged his guilt of the indicted offense, but testified also to his lac k of pri or criminal history and his motive to commit a “s mall crime”to avoid a commitment

he made to serve in the Nav y. He also presented testimony from his father,
a family friend a nd the c oun ty s heriff. The jury assessed punishment at five years confinement

and a $5,000 fine. It also found appellant used or exhibited a dead ly weapon. The trial court rendered judgmen t in conformity with the jury’s verdicts.3 Neither do es the reporter ’s record suggest an y part of the pr oceeding was not transcribed.

4 Under the pro cedure employed, it might be said that the trial court di d not“accept” appellant’s plea of guilt y. The recor

d shows that

after rec eivi ng the plea, the court imme diat elybegan hearing the State’s ev idence on gui lt/innocence. The court did not instruct the jury

to find appellant g uilty, but the court’s comments to the jury make clear that t he court expected the jury to render a guilty verdict. Under such circumstance s, th e proper procedure is

that reflected i n Fairfield v . State , 610 S.W.2d 771, 776-77 (Tex.Cri m.App. 1981), and other cases, by which thedefendant is admonished outside the presence of the jur

y. 3 Appellant’s first four iss ues are based on t he t ria l court’s failure to prov ide the admonitions required by artic le 26.13 of the Code of Crimina l Procedure. As relevant here thatstatute requires th at, bef ore a tria l judge accepts a plea of guilt y or nolo contendre, the judge admonish the defendant of the r ange of punishment and the possible effects of the plea on defendan ts who are not c itize ns. T ex. Code Crim. Proc. Ann. art . 26.13(a)(1) , (4) (Vernon Supp. 2006). We accept appellant’ s contention that the cou rt failed to giv

e the admonishment s. Although the court’s j udgmen t reci tes t hat a ppe llan t “ple ade d guil ty, being admonished of the conseq uences,” no w ritten or or al admonishments w ith regar d to the guilty

plea appear in the record. 3 The court’s fai lure to give the statutory admonishment s was error. 4
After the jury was seated, the indictment w as read and appell an t pled guil ty . As noted, the State then put on evidence of his guilt. A charge on guilt/innocence, to which there were no obje ctio ns, wa s pre pare d and read to th e jury. Counsel pr esented argument, appellant’s counsel acknowledging that “[h]e has admitted . . . guilt in this case,” butasking the jury to “ make sure the State has proved every thing . . . .” The j ury returned4

a verd ict of guilt y, and no complaint i s raised on app eal concernin g the sufficiency of the State’s evi dence to support the verdic t.
The admonishments req uired by article 26.13 are not constitutionally required but
are designed to help the trial court ensure that the wai ver of consti tutional rights r esulting from a plea of

guilty is made know ingly and voluntar ily. Anderson v. Stat e , 182 S.W.3d 914, 917-18 (Tex. Crim.App. 2006) ; Aguirre-M ata v. State , 125 S.W .3d 4 73, 4 76 (T ex. Crim.App. 2003) (Aguirre-M ata II ). Wa iver of a constitutional right which is not voluntary
or is made wi thout knowl edg e of the consequences v iolates due pr ocess. Boykin v. Alab ama , 3 95 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Such constitutional errors ar e review ed under the standard s et out in Ruleof Appellate Procedure 44.2(a). Where a defendant complains onl y of the failure to foll ow the dic tates of the s tatu te, we must apply R ule 44.2(b)and determine if the error affects a s ubstantial right. Aguirre-M

ata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 199 9) ( Aguirre-M ata I ). Appellant has pr

esented separate complai nts of the viola tion of articl e 26.13 and vi olation of his due process

rights. Appellant

acknowledges authority holding his knowledge of t he range of punis hment need not come from the judge to show he under stood that conseq uence of his plea. See Aguirre-M

ata II , 125 S.W.3d at 476-77; Burnett v. State , 88 S.W.3d 633, 639 (Tex.Cri m.App. 2002); Gamble v. State , 199 S.W .3d 619, 622 (Tex.App. --Wa co 2006, no pet.). During voir dire both the prosecutor and appellant’s counsel corr ectly r ecited the applicable range of

punishment. As i n Burnett , appellant’s guilty plea was not given until5

the conclusion of v

oir dire. Appellant

seeks to dis tinguish Burnett on the basis that, there, other required admonitions were given. We cannot agree that fact prov ides any di stinction from the analysis on this issue in cases such as Burnett and Aguirre-M

ata II . His arg ument thatcourts should not presume a de fendant was aware of and un derstood counsel’s statements to the jury

explaini ng the rang e of punishm ent is an invitation to disregard recent authority of the Court of Criminal Ap peals. This we may n ot do . Add itio nall y, the record fails to hint a t any reaso n to question appellant’s unde rstanding here. Appellant’s
own testimony r

evealed he is an arti culate high school graduate w ho had been accepted into a Texas state un iversi ty, posses sed no physi cal impairment on which he could rely

to avoid military service and “did real, real we ll” on a nucl ear physi cs examinati on given by
a Navy recruiter . This evi dence indicatesappellant was capable of per cei ving and understanding the descript ion ofthe range of punishment sta ted by the prosecutor and his counsel. Having review

ed the entire r

ecord, we find nothing that shows he was unaware of the conseque nc es of his plea, or that he wasmisled or harmed. Aguirre-M ata II , 125 S.W.3d at 476-77. W e conclude the trial court’s error of f ailing to show on the record it complied with ar

ticle 26.13 by admonishi ng appellant o n the range of puni shmentdid not affect a substantial right and was therefore harml ess. Id .; Tex. R. A pp. P. 44.2(b).
With respect to appel lant’s due pr ocess argument , we note that unlike th e reco rd in Boykin , 395 U.S. at 240, the record i s not silent concerning appellant ’s reasons for pleading guilty before the jury but sheds considerable light on t hat subject. I n addition to6

his comments to the trial j udge concerni ng the bifurcated pr ocedure he was requesti ng, as he began voi r dire, appel lant’s tri al counsel tol d the panel that “there are sever

al reasons for [his clie nt’s plea of gui lty]. The truth, that is themain one. And that’s what we are here to lay out before you. We th ink if we are asking y ou to do something seriously we better start from the start being str aight. The other reason i s we don’t want to w

aste your t ime. We know it’ s valuableand we appre ciate your time. So, wit h that out of the way . . . .” Counsel then continued, devoting almost all t he rest of his v oir dire to inquiri es concerning senten cing, clearly

attempting toprepare the prospective jurors to recommend community supervis ion for his cl ient. Later, during appellant’s testimony on punishm ent, he and his counsel had this exchange, concerning his actions toward pol ice after his a rrest:
Q: During th at time [after the arrest], did y ou cooperate w ith the police?
A: Yes, sir.
Q: You told them ex actly w hat you had done?
A: Yes, sir.
Q: Admitted ever

y part of the offense?
A: Yes, sir.
Q: Just like yo u have done toda y?5 Appe llan t’s st rate gy m et with s ome success. Al though they did not recommend

community

supervision, the jury sentenced appella nt to t he shortest al lowable te rm of incarcerati on.

6 Nothing in the record shows a waiver of jury trial. See Tex. Code Crim. Proc. Ann. art. 1.13 and 1.15 (Verno n 2005) (stating manner ofwaiver of jury trial). 7 A: Yes, sir. Appellant

later re spon ded, “Yes, s ir,” to hi s counsel’s question “Y ou’re pleading guilty because that was true?” Al so, from the witnes s stand, appell ant apologized to the vic tim, and, in a statement occupying some three -quarter s of a page of the record, addr e ssed his counsel’ s question a sking w hy the jur y should “ take a chance on y ou,” through community supervision. Appell ant also introduced as punishm ent evidence his handwritt en stat ement written in ja il. Throu gh these instances in the recor

d, and others, appellant

presented himself to the jury as a thoughtful young man who acknowle d ged a serious mistake borne of poor judgment but was a go od candidate for a “ second chance.” 5 Further, by vi rtue of the procedur e utiliz ed in appellant’s trial, his plea of guilty before the jury di d not invol ve wai ver of all the const itutional r ights a criminal defendant typically waives by ple adin g guilt y. See Aguirre-M ata II , 125 S.W.3d at 475 n.6 (constitut ional rig hts waived by a gui lty plea a re pr ivilege against compul sory sel f-incriminati on, and right s to counsel, trial by jury6 and confrontation of accu sers, citi ng Boykin , 395 U.S. at 243) . Here, appellant

wa s rep resented by counsel throug hout, was adj udged guil ty by t he jury and
cross-examined the State’switness es.
Under the circumstances presented, we find the tr ial court’s failure to make a record clearlyreflec ting admonis hme nt of appellant on the range of punishment did not equate7 See U.S. Cons t. amend. XI V, § 1; 8 U.S.C. § 1433(a) (each declaring persons born

in the United States as citizens).

8 W e note that appellant ’s issues complaining of the jury charge on guilt/innocence treat his convi ction as one based on the jury verdict , a view

inconsistent

with hi s first four issues treating it as based on his guilty plea. W e nonetheless address th e issues. 8 to a denial of due process. Boyk in , 395 U.S. at 240. His first and secon d issues are overrule d. Appellant’s third and fourth issues complai n of the trial court’s failure to admonish him of the immigration consequen ces of conviction. Courts h ave h eld such an error is harmless when the r

ecord shows that the defendant is a citiz en of t he United States. Anderson , 182 S.W.3d at 919; Cain v. State , 947 S.W .2d 262 (Tex.Crim.App.199 7). Appellant’s description of the record as “comp letely silent” as to his c i tizenship is inaccurate. It contains an affidavit of financia l status signed by appellant which recites his place of birth as Lubbock, Te xas. 7 Because the record affirmatively shows heis a citi zen, we overrule appellant’s third and fourth issues. Appellant ’s fin al two issues complain of the trial court’s fa ilure to define deadly weapon in the j ury char ge on guil t or innocence. 8 The def inition s section of the charge omitted the statutory

de finit ion of deadly w

eapon, and the appli cation parag raph can be read to define a knife as a deadly weapon. Appel lant concedes th e complaints w ere not preserved for review

by any objection tothe trial court and reversal is requi red only i f they caused harm so egr

egious as todeprive ap pellant of a fair trial

. Almanz a v. State , 686 S.W.2d 157, 171 (Tex.C rim.App. 1984). The harm must be actual , not just theor etical. Id. at174; Cormie r v. State , 955 S.W .2d 161, 164 (Te x.App .–Aust in 1997 , no pet .). To9

evaluate the actual harm caused by t he charge error, we review the entire j ury char

ge, the state of the evide nce, inclu ding t he co ntes ted i ssue s and weight of p roba tive evidence, t he argument

of counsel and any

other relevant information shown by the record. Al ma nza , 686 S.W.2d at 171. Appellant

cites usto Blanson v. State , 107 S.W.3d 103 (Tex.App.–Texarkana 2003,
no pet.), in w hich t he c ourt found egreg ious harm from a cha rge that contained the instruct ion, “[a] k nife is a deadly weapon.” Id . at 105. Here, though, we cannot ignore appellant’s plea of guilt y before the ju ry. Hi s plea establis hed the facts alleg ed in the indictment, which i ncluded the all egation appell ant used or ex hibited a dea dly weapon. S ee Fairfie ld , 610 S.W.2d at 776-77; Tex. Pen. C ode Ann. § 29.03(a) (Vernon 2003) (defining aggravated robbery). Too, unlike in Blanson , in whic h the nature of the unopene d kni fe as a deadly weapon was a “central issue,” id . at 106, the char acte riz atio n of t he kn ife
as a deadly w

eapon was nota contested is sue at appellant’ s trial. Further, the knife was before the jury. The record shows itwas a foldi ng or pocket knife, about

four inches long when closed and with a locking, cur ved serr ated blade about tw

o-and-three- quarters i nches long. The investigating sheri ff ’s deputy testified wi thout objection that the knife was capable of causing serious bod ily inj ury or dea th. See Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2006) (defini ng deadly weapon). We do not agree t he record refle cts9 Our conclusion appellant suf fered no egregious harm from the charge error also means his admission of guilt during puni shment testimony bars his complaint, under DeGa rmo v. State , 691 S.W.2d 657 (Tex.Crim.App. 1985). Kelley v. St ate , 22 S.W.3d 628, 631 (Tex.App.-- Fort Worth 200 0, pet. ref’d) (ad mission of gui lt at punishment waived charge err

or). 10 egregious

actual harm flow ing from the errors i n the jury charge. 9 We overrule appellant’s fifth and sixth i ssues. Finding no revers ible error in the judg mentof the trial court, we affir m the judgment.

James T. Campbell Justice

Do not publish

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