Reverse and Remand and Opinion Filed February 3, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-12-01705-CR JULIO EDGAR RUIZ JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F08-24859-P 

### MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice Francis In a bench trial, Julio Edgar Ruiz Jr. plead ed no contest to the offense of aggravated sexual assault of a child. The trial court found Ruiz guilty and assessed punishment at eighteen years in prison and a $3000 fine. In his sole issue on appeal, appellant argues the trial court reversibly erred by failing to admonish him about the immigration consequences of his plea. The State concedes the issue. After reviewing the r ecord, we agree the trial court erred in failing to give the required admonishment and that the error was harmful. We therefore reverse the trial court’s judgment and remand for further proceedings. 1

1 The judgment in this cause contains a number of errors, incl uding the offense for which appellant was convicted, the statute f or the offense, appellant’s plea, and the punishment assessed. Generally, we would modify the judgment to correct these errors; howev er, our disposition of this appeal makes such action unnecessary.–2– Appellant was indicted on a charge of con tinuous sexual abuse of a young child. Before jury selection was to begin, appe llant appeared before the court. A translator was present to interpret from English to Spanish and vice-ver sa. The court explaine d that if convicted, appellant faced a punishment range of twenty-five years to ninety-nine years or life in prison with no possibility of probation or parole. The c ourt advised appellant that the State had made a plea bargain offer. Thereafter, defense counse l outlined a prev ious plea offer rejected by appellant in which the State offered twenty-five y ears in exchange for a pl ea of guilty. Counsel then outlined another offer made by the State earlier that day to “reduce” the charge to aggravated sexual assault of a child in exchange for a plea of guilty. Defense counsel explained to appellant that the ra nge of punishment on the re duced charge was five to ninety-nine years or life with the possibility of paro le and the possibility of deferre d probation. Appe llant rejected that offer. The trial court then spoke to appellant and explained the possible out comes if he pleaded guilty to aggravated sexual assault. The court th en informed appellant of yet another offer in which the State would reduce the charge to aggravat ed sexual assault if ap pellant would agree to waive his right to a jury trial and try the case before the court. After conferring with counsel, appellant informed the trial court that he accepted th e offer. The next day, the State made an oral motion to amend the indictment to reflect a charge of aggravated sexual assault of a child, which the trial court granted. After a brief discussion, appellan t pleaded no contest to aggravated sexual assault of a child. After hearing the evidence, the trial court found appellant guilty. Article 26.13 of the Texas Code of Crim inal Procedure requires that certain admonishments must be given to a defendant who is pleading guilty or nolo contendere. T EX
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. art. 26.13(a) (West Supp. 2013). Among other things, the trial court must admonish a defendant of “the fact that if the defendant is not a citizen of the United States–3– 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 th e denial of naturalizatio n under federal law[.]” Id . § 26.13(a)(4). Substantial compliance is suffi cient unless the defendant shows he did not understand the consequences of the plea and was harmed or misled by the admonishments given. See id. § 26.13(c). When the trial court wholly fails to give the required admonishment, there is no substantial compliance with the requirements of article 26.13. See VanNortrick v. State , 227 S.W.3d 706, 708 (Tex. Crim. App. 2007). Failure to give the requir ed admonishment is subject to non-constitutional harm analysis set out in ru le of appellate procedure 44.2(b), which provides that “[a]ny other error, defect, irre gularity, or variance that does not affect substantial rights must be disregarded.” Id .; T EX
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. P. 44.2(b). The critical inquiry is whether, considering the record as a whole, there is a fair assurance that the defendant’s decision to plead guilty or nolo contendere would not have changed had the court admonished him. VanNortrick , 227 S.W.3d at 709. We consider the following rele vant factors: (1) whether appellant knew the consequences of his plea; (2) the strength of the evidence of appellant’s guilt; and (3) appellant’s citizenship and immigration status. Id . at 712. Neither party has the burden to prove harm or harmlessness. Id

. With respect to first factor, there is no discus sion or reference to appellant’s citizenship, immigration status, or deportation consequences of appellant’s plea at any of the hearings. Further, the clerk’s record doe s not contain any written plea papers that explain such consequences. Consequently, the record does not contain any indicati on that appellant was aware of the immigration conse quences of his no-contest plea. As to the second factor, the court of criminal appeals has indicated that the strength or weakness of the evidence against an appellant ma kes “little difference” to the harm analysis–4– where the record does not reveal the defendant knew about the immigration consequences of his plea. Id . at 713. Thus, even if the ev idence in this case is comp elling, we would have no fair assurance appellant would not have changed his no-contest plea had he been properly admonished. See id . Finally, the clerk’s record in this case includes the arraignment sheet, which shows appellant is a citizen of Mexico. Appellant and his sister made references during their testimony to appellant’s having grown up out side the United States and to his living in Mexico. Having reviewed the fa ctors, we conclude appellant was harmed by the trial court’s failure to admonish him on the immigration conse quences of his plea. We sustain appellant’s sole issue. We reverse the trial court’s judgment and remand for further proceedings.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JULIO EDGAR RUIZ JR., Appellant
No. 05-12-01705-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F08-24859-P. Opinion delivered by Justice Francis; Justices Lang-Miers a nd Lewis participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered February 3, 2014

/Molly Francis/ MOLLY FRANCIS JUSTICE