IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0894-18

VITH LOCH, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

YEARY, J., delivered the opinion of the Court in which KELLER, P.J., and 

RICHARDSON, KEEL, SLAUGHTER, and MCCLURE, JJ., joined. HERVEY, NEWELL, and 

WALKER, JJ., concurred in the result.

O P I N I O N

Appellant, Vith Loch, a Cambodian national, pled guilty to murder. A jury then 

assessed his punishment at confinement for life and a $10,000.00 fine. The First Court of 

Appeals reversed. It held that the trial court erred when it failed to properly admonish 

Appellant about the potential immigration consequences of his guilty plea and, importantly,

that the trial court’s error was not harmless. See Loch v. State, No. 01-16-00438-CR, 2018 

WL 3625190 (Tex. App.—Houston [1st Dist.] July 31, 2018) (mem. op., not designated 
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for publication); TEX. CODE CRIM. PROC. art. 26.13(a)(4). We granted the State 

Prosecuting Attorney’s (SPA) petition for discretionary review to determine whether the 

court of appeals erred by concluding that the failure to admonish Appellant was not 

harmless. 

I. BACKGROUND

a. The Plea

In 2016, at a pre-trial arraignment hearing on his murder charge, Appellant entered 

a plea of guilty. He also pled true to a single enhancement paragraph from his indictment. 

The trial court then gave Appellant a perfunctory pre-plea admonishment that included 

only the range of punishment that he faced. Appellant subsequently entered his plea of 

guilty before a jury, and a trial was had on the issue of his punishment. Both Appellant and 

the SPA agree that, prior to the entry of his pleas, the trial court failed to admonish him 

about the possibility that his plea might result in his deportation.

b. The Appeal

On direct appeal, Appellant complained that his plea was involuntary because of the 

trial court’s failure to admonish him, pursuant to Article 26.13(a)(4), that pleading guilty 

might result in his deportation. Article 26.13(a)(4) of our Code of Criminal Procedure 

provides that, “[p]rior to accepting a plea of guilty . . . , the court shall admonish the 

defendant of: . . . the fact that if the defendant is not a citizen of the United States of 

America, a plea of guilty . . . for the offense charged may result in deportation, the exclusion 

from admission to this country, or the denial of naturalization under federal law[.]” TEX.

CODE CRIM. PROC. art. 26.13(a)(4). The court of appeals reversed and remanded, holding 

that the trial court erred by failing to include the admonishment, and that this error was 
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harmful. Loch, 2018 WL 3625190, at *3. Although the court of appeals acknowledged in 

its harm analysis that the strong evidence of Appellant’s guilt “unquestionably favor[ed]

the State,” it concluded that it made no difference here because there was no evidence that 

Appellant knew about the deportation consequences of his plea. Id. Referencing the “fair 

assurance” standard that this Court announced in VanNortrick v. State, 227 S.W.3d 706, 

708 (Tex. Crim. App. 2007), the court of appeals concluded that “we cannot have fair 

assurance that his decision to plead guilty would not have changed had the trial court 

admonished him of the possible deportation consequences of his guilty plea.” Id.

c. Discretionary Review

In its petition for discretionary review, the SPA argues that Appellant was already 

removeable before he pled guilty as a result of his several prior convictions, including 

felonies in both Florida and Texas, and that, as a result, any failure on the trial court’s part 

to admonish him about possible deportation as a result of his guilty plea must have been 

harmless. In addition, the SPA argues that Appellant would not have changed his guilty 

plea, even if he had been admonished, because he knew he was already removeable, there

was strong evidence of his guilt, and he was morally motivated to plead guilty. We agree 

that the trial court’s error was harmless, and we reverse the decision of the court of appeals.

II. APPLICABLE LAW

The failure to give Article 26.13 admonishments is non-constitutional error. 

VanNortrick, 227 S.W.3d at 708 (explaining that, because Article 26.13’s admonishments 

are statutory, not constitutional, the failure to admonish a defendant under this section is 

non-constitutional error). Non-constitutional error resulting from a trial court’s failure to 

admonish a defendant pursuant to Article 26.13(a) is subject to a harmless error analysis 
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under Texas Rule of Appellate Procedure 44.2(b), which examines whether the defendant’s 

substantial rights were affected. Davison v. State, 405 S.W.3d 682, 688 (Tex. Crim. App. 

2013) (“Indeed, because [an alleged violation of Article 26.13(a)] is predicated solely upon 

a statutory violation, the standard for determining harm that pertains to claims of nonconstitutional error applies—Rule 44.2(b).”). Rule 44.2(b) provides that “[a]ny other error, 

defect, irregularity, or variance that does not affect substantial rights must be disregarded.” 

TEX. R. APP. P. 44.2(b).

To decide whether Appellant’s substantial rights were affected, a reviewing court 

must independently examine the record as a whole. VanNortrick, 227 S.W.3d at 708–09. 

Neither party has the burden to prove harm or harmlessness. Burnett v. State, 88 S.W.3d 

633, 638 (Tex. Crim. App. 2002). The Court has said in the past that the important question 

in examining admonishment harm under Rule 44.2(b) is, “considering the record as a 

whole, do we have a fair assurance that the defendant’s decision to plead guilty would not 

have changed had the court admonished him?” Anderson v. State, 182 S.W.3d 914, 919 

(Tex. Crim. App. 2006); VanNortrick, 227 S.W.3d at 709. The Court has also said that 

three issues are particularly relevant to a “fair assurance” inquiry: (1) whether an appellant 

knew the consequences of his plea; (2) the strength of the evidence of an appellant’s guilt; 

and (3) an appellant’s citizenship and immigration status. VanNortrick, 227 S.W.3d at 712.

However, the “knowledge of the consequences of his plea” issue does not wholly swallow 

the other two issues. And the “fair assurance” inquiry itself is not meant to utterly supplant 

the harm analysis that is called for by Rule 44.2(b), but rather to serve in aid of it. 

The issues that are addressed by a “fair assurance” inquiry are meant to be weighed 

by a reviewing court with an ultimate view toward determining whether an appellant’s 
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“substantial rights” have been violated by a trial court’s error. Id. Consequently, in cases 

in which we have been able to definitively determine, either that a defendant will not be 

deported (because he is a United States citizen), or that he is already unavoidably 

deportable regardless of the decision to plead guilty, we have found that the failure to 

admonish was harmless. See State v. Guerrero, 400 S.W.3d 576, 588–89 (Tex. Crim. App. 

2013) (undocumented immigrant deportable for that reason alone); and Cain v. State, 947 

S.W.2d 262, 264 (Tex. Crim. App. 1997) (United States citizen not subject to deportation).

The “fair assurance” inquiry presumes that Appellant is aware of the strength of the 

evidence of his guilt and his actual citizenship and immigration status as revealed by a 

complete and fair reading of the record.

III. ANALYSIS

When Appellant entered his plea, he stipulated that he had six prior convictions, in 

Texas and Florida. Those six prior convictions were: 

(1) Felony Aggravated Assault with a Deadly Weapon (Texas 1990); 

(2) Felony Burglary of a Habitation (Texas 1990);

(3) Misdemeanor Possession of Marijuana (Texas 1996);

(4) Second-Degree Felony Flight with Disregard for Safety to Persons 

(Florida 2005);

(5) Misdemeanor False Name or Identity to Police (Florida 2005); and

(6) Third-Degree Felony Neglect of Child (Florida 2005).

The record also contains a penitentiary packet (“pen packet”) with information about 

Appellant’s prior convictions from Florida. The pen packet shows that an Immigration and 

Customs Enforcement (ICE) detainer was issued for Appellant in Florida on December 20, 
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2005. And, while other detainers reflected in the packet show that they were eventually 

removed, the ICE detainer was not removed, even up to the date of the creation of the pen 

packet on December 15, 2015. This detainer “serves to advise . . . that the [government] 

seeks custody of [Appellant], for the purpose of arresting and removing [him].” 8 C.F.R. § 

287.7. Nothing else in this record suggests that the federal government has relinquished its 

efforts to arrest Appellant and remove him from the country. 

The trial court did not admonish Appellant about any possible deportation

consequence that might have resulted from his plea. In fact, Appellant was admonished, by 

the trial court, only about the punishment range for the offense in light of the enhancement

allegation to which he had pled true. Counsel took Appellant on a brief voir dire to 

demonstrate that Appellant was aware that he could have challenged the evidence of his 

guilt and that it was Appellant’s choice to plead guilty instead; but this exchange did not 

reach the issue of whether he was aware of the possible immigration consequences of his 

plea. We cannot, on this record, infer that he was actually aware of the immigration 

consequences of his plea. 

The evidence of Appellant’s guilt, however, was quite strong. Multiple witnesses 

testified that Appellant confessed his guilt to them. In VanNortrick, where we could not 

determine that the appellant knew the potential immigration consequences of his plea, we 

decided that “the strength or weakness of the evidence against [the appellant in that case

made] little difference to the harm analysis in the context of the whole record.” 

VanNortrick, 227 S.W.3d at 713. However, the record of this case is not on all fours with 

VanNortrick. 
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In VanNortrick, the appellant had one prior felony conviction from a different state,

years prior to the entry of his plea. The State argued that the fact that he still had not been 

deported allowed for an inference that he was a United States citizen. But the Court rejected 

that argument. The Court explained that the record was “not entirely ‘silent’ on the 

appellant’s citizenship and immigration status” because it showed the one prior deportable 

felony conviction, but “neither [was] it enough to support the inferences the State urge[d].” 

Id. at 711. The Court explained that there was no guarantee that Appellant would have been 

deported had he not been a citizen, and that “[t]here [were] simply too many possible 

scenarios by which a non-citizen who ha[d] been convicted of a deportable offense could 

have escaped the immigration consequences of his conviction.” Id. 

Here, we know that Appellant is not a citizen. We also know that he does not have 

just one single prior felony conviction from a different state, but instead multiple prior 

convictions, including felony convictions, from both Florida and Texas. We think it safe 

to assume that Appellant was aware of his own citizenship status (that he was not a citizen 

of this country). After all, he requested notification of the Cambodian consulate, suggesting 

knowledge that he was not a United States citizen. We also think it safe to assume that he 

knew that he had previously been convicted of multiple serious crimes while residing in 

this country. He did stipulate to allsix convictions. But perhaps more importantly, we know 

that the federal government filed an ICE detainer against Appellant in Florida, on 

December 20, 2005, seeking to arrest and deport him, and that the detainer was not 

removed, even as late as December 21, 2015. Even Appellant concedes in his brief on 

discretionary review that “it may have been true that, as the State argues, ‘Appellant was 

removable as a matter of law before his guilty plea[.]’” Appellant’s Brief at 6. But he 
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contends that he was “not necessarily removable as a matter of fact, due to the volatility of 

relations between the United States and his home country of Cambodia[,]” and that the 

record is silent about whether he actually knew he was removable. Id. (emphasis in 

original).

Federal immigration law is complex and subject to change. See Demore v. Kim, 538 

U.S. 510, 521 (2003); Martinez v. State, No. PD-1338-11, 2012 WL 1868492, at *3 (Tex. 

Crim. App. 2012) (not designated for publication). There are even periods of time when 

the federal executive branch refuses to enforce it. See McNary v. Haitian Refugee Ctr., Inc., 

498 U.S. 479, 482 n.4 (1991) (noting that the purpose behind the legalization programs in 

the Reform Act was the past failure to enforce the immigration laws). So, it is of course 

possible that Appellant may never be removed from the United States. On the other hand, 

it is also possible that, if he ever is removed, the United States Government may even rely 

in whole or in part upon his conviction in this case to compel his removal. But it is clear to 

this Court that, at the time of his plea, he was likely already subject to removal for multiple 

reasons. 

A single prior felony conviction can lead to the deportation of a non-United States

citizen. But as a non-citizen, Appellant’s numerous prior criminal convictions, including 

felonies in two states, presented what must be described as serious obstacles to his ability 

to avoid deportation.1 And the Florida pen pack reflects that, as of December 21, 2015, the 

federal government still sought to arrest and remove Appellant from the country.

1 First, at the time of Applicant’s guilty plea, he was a non-citizen who had already been 

convicted, while in this country, of aggravated assault with a deadly weapon and burglary of a 

habitation. Under federal law, “[a]ny alien who is convicted of an aggravated felony at any time 

after admission is deportable.” 8 U.S.C. § 1227(2)(A)(iii). The United States Code defines an 
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All of this suggests to us a strong likelihood that, even had Appellant been properly 

admonished, pursuant to Article 26.13(a)(4), that his plea “may result in deportation, 

exclusion from admission . . . , or denial of naturalization,” it would not have made a 

difference in his decision whether to plead guilty. TEX. CODE CRIM. PROC. Art. 26.13(a)(4) 

(emphasis added). Again, the question is not whether Appellant will in fact be deported, 

but only whether he is appreciably more susceptible to deportation now than he was before 

he entered his guilty plea in the instant case. If he was already susceptible to deportation, 

regardless of whether he may ever actually be deported, then the lack of an admonishment 

in this case cannot have been harmful.

A strong likelihood of Appellant’s removal already existed, and it would not have 

appreciably changed regardless of whether Appellant pled guilty, or he went to trial on the 

question of his guilt and was acquitted. See Guerrero, 400 S.W.3d at 588–89 (“Had 

“aggravated felony” to include “a crime of violence . . . for which the term of imprisonment [is] at 

least one year[,]” as well as “[a] burglary offense for which the term of imprisonment [is] at least 

one year[.]” 8 U.S.C. § 1101(a)(43)(F), (G). Further, “[a]ny alien who at any time after admission 

is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme 

of criminal misconduct, regardless of whether confined therefor and regardless of whether the 

convictions were in a single trial, is deportable.” 8 U.S.C. 1227(a)(2)(A)(ii). 

Second, Applicant was likely inadmissible to the United States at the time he pled guilty. 

Applicant had more than two prior convictions. “Any alien convicted of 2 or more offenses (other 

than purely political offenses), regardless of whether the conviction was in a single trial or whether 

the offenses arose from a single scheme of misconduct and regardless of whether the offenses 

involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more 

is inadmissible.” 8 U.S.C. § 1182(a)(2)(B). 

Finally, Applicant was likely ineligible for cancellation of removal by the Attorney 

General. There are certain circumstances under which the Attorney General can cancel the removal 

of an alien who is inadmissible or deportable. However, an alien who has been convicted of certain 

criminal offenses—including crimes of moral turpitude and crimes for which the sentence imposed 

was one year or longer—is ineligible for cancellation of removal by the Attorney General. 8 U.S.C. 

§ 1229b(b)(1)(C). 
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appellee gone to trial with counsel and been acquitted he would not have been transformed 

into a legal resident. He could have been deported immediately after walking out of the 

criminal courthouse.”). The fact that this strong likelihood existed, combined with the fact 

that the evidence of guilt in this case was strong, leads us to conclude that, even had he 

been properly admonished, it would not have had an impact on his decision to plead guilty. 

Of this we have a fair assurance. 

IV. CONCLUSION

Because Appellant was likely already subject to removal when he entered his guilty 

plea in this case, and because of the strong evidence of Appellant’s guilt, we have a fair 

assurance that Appellant would not have changed his mind about entering the plea, even 

had he been properly admonished by the trial court. Under these circumstances, we 

conclude that Appellant’s substantial rights were not affected. The judgment of the court 

of appeals is reversed, and this cause is remanded to that court for resolution of Appellant’s

remaining points of error.

DELIVERED: April 28, 2021

PUBLISH