IN THE

TENTH COURT OF APPEALS

No. 10-08-00130-CR

MARCUS ANTHONY WILSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 07-00049-CRF-272

MEMORANDUM OPINION

Wilson appeals his convictions for sexual assault and for burglary of a habitation 

with intent to commit sexual assault. See TEX. PENAL CODE ANN. § 22.011(a), (f) (Vernon 

Supp. 2008), § 30.02(a), (d) (Vernon 2003). We affirm.

Plea. In Wilson‖s first two issues, he complains concerning his plea of nolo 

contendere. “[T]he legal effect of a plea of nolo contendere is the same as a plea of 

guilty insofar as the criminal prosecution is concerned.” Young v. State, 8 S.W.3d 656, 

664 (Tex. Crim. App. 2000) (quoting Chavarria v. State, 425 S.W.2d 822, 823 (Tex. Crim. 

App. 1968)); accord Aguillar v. State, 170 Tex. Crim. 189, 190, 339 S.W.2d 898, 898 (1960).
Wilson v. State Page 2

Statutory Admonishments. In Wilson‖s first issue, he complains that the trial court 

failed to admonish Wilson pursuant to Texas Code of Criminal Procedure Article 26.13. 

TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2008). Article 26.13 requires, in 

relevant part:

Prior to accepting a . . . plea of nolo contendere, the court shall admonish 

the defendant of:

(1) the range of the punishment attached to the offense;

. . . .

(4) the fact that if the defendant is not a citizen of the United States, a plea 

of . . . nolo contendere for the offense charged may result in deportation, the 

exclusion from admission to this country, or the denial of naturalization under 

federal law; [and]

(5) the fact that the defendant will be required to meet the registration 

requirements of Chapter 62, if the defendant is convicted of or placed on 

deferred adjudication for an offense for which a person is subject to 

registration under that chapter . . .

. . . .

TEX. CODE CRIM. PROC. ANN. art. 26.13(a); see TEX. CODE CRIM. PROC. ANN. arts. 62.001-

62.405 (Vernon 2006 & Supp. 2008). 

Wilson argues that the trial court failed to admonish him on the range of 

punishment, and on the deportation, exclusion, and naturalization and sex-offender–

registration consequences of Wilson‖s plea. 

As to Article 26.13(a)(5) and the admonishment on sex-offender registration 

requirements, Wilson‖s complaint is not cognizable. Code of Criminal Procedure 

Article 26.13(h) provides, “The failure of the court to comply with Subsection (a)(5) is 

not a ground for the defendant to set aside the conviction, sentence, or plea.” TEX. CODE 

CRIM. PROC. ANN. art. 26.13(h). Article 26.13(h) means what it says. See James v. State, 
Wilson v. State Page 3

258 S.W.3d 315, 317-318 (Tex. App.—Austin July 2, 2008, no pet.); Standifer v. State, Nos. 

05-06-00078-CR & 05-06-00079-CR, 2006 Tex. App. LEXIS 9358, at *7 (Tex. App.—Dallas 

Oct. 30, 2006, no pet.) (not designated for publication).

As to the sex-offender registration consequences, Wilson thus does not show error. 

Otherwise, the State concedes that the trial court erred.1 We assume without deciding 

that the trial court failed to admonish Wilson pursuant to Code of Criminal Procedure 

Article 26.13(a), Subsections 1 and 4, and thus erred.

“When there is insufficient admonition, whether by total failure to admonish or an 

admonition that is not in substantial compliance, the violation of Article 26.13 comes 

within the” harmless-error “standard of Rule of Appellate Procedure 44.2(b): ―Any other 

[than constitutional] error, defect, irregularity, or variance that does not affect 

substantial rights must be disregarded.‖” Anderson v. State, 182 S.W.3d 914, 918 (Tex. 

Crim. App. 2006) (quoting TEX. R. APP. P. 44.2(b)) (alteration in Anderson); accord 

Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999); see TEX. CODE CRIM.

PROC. ANN. art. 26.13; TEX. R. APP. P. 44.2(b); Bessey v. State, 239 S.W.3d 809, 813-14 (Tex. 

Crim. App. 2007). “[T]he critical question is, ―[C]onsidering the record as a whole, do 

we have a fair assurance that the defendant‖s decision to plead guilty would not have 

 

1 “A defendant‖s right to be properly admonished is a waivable-only right.” Bessey v. State, 239 

S.W.3d 809, 812 (Tex. Crim. App. 2007); see Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993); 

TEX. R. APP. P. 33.1(a). A “waivable right” is a “right[] of litigants which must be implemented by the 

system unless expressly waived.” Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004) (quoting 

Marin at 279) (alteration added); accord State v. Moore, 225 S.W.3d 556, 567 (Tex. Crim. App. 2007). The 

State does not contend that Wilson affirmatively waived his admonishment rights. We assume without 

deciding that Wilson preserved his complaint for appellate review.
Wilson v. State Page 4

changed had the court admonished him?‖” Vannortrick v. State, 227 S.W.3d 706, 709 

(Tex. Crim. App. 2007) (quoting Anderson at 919) (1st alteration added).

As to Article 26.13(a)(1) and the admonishment on the range of punishment, Wilson 

concedes that any error was harmless. An appellant suffers no harm from the trial 

court‖s failure to admonish on the range of punishment where the appellant heard the 

venire panel examined on the punishment range. Gamble v. State, 199 S.W.2d 619, 622 

(Tex. App.—Waco 2006, order), disp. on merits, No. 10-05-00044-CR, 2007 Tex. App. 

LEXIS 5876, at *2-3 (Tex. App.—Waco July 25, 2007, pet. ref‖d) (not designated for 

publication) (mem. op.); Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.—Waco 1998, 

pet. ref‖d); Slaughter v. State, No. 2-07-050-CR, 2007 Tex. App. LEXIS 8452, at *16 (Tex. 

App.—Fort Worth Oct. 25, 2007, no pet.) (not designated for publication) (mem. op.); cf. 

Aguirre-Mata, 125 S.W.3d 473, 476-77 (Tex. Crim. App. 2003) (“The record contains 

references to the correct punishment range . . . .”). Here, for example, the State 

examined the venire panel in Wilson‖s presence as follows:

The punishment range in this case is: It‖s a 1st degree felony, it‖s a huge 

punishment range.

The way it reads in the Penal Code, if a person is found guilty of a 1st 

degree felony, the punishment range is not less than 5 years or more than 99 

years or life in Institutional Division of the Texas Department of Criminal 

Justice.

It‖s a huge range, 5 to 99. And also up to a $10,000 fine. And then you can 

extend the range further.

Probation is a possibility if the person is eligible.

(3 R.R. at 34); see TEX. PENAL CODE ANN. § 12.32 (Vernon 2003).

As to Article 26.13(a)(4) and the admonishment on the deportation, admission, and 

naturalization consequences of Wilson‖s plea, the State argues that the trial court‖s 
Wilson v. State Page 5

failure to admonish Wilson was harmless. “[W]hen the record shows a defendant to be 

a United States citizen, the trial court‖s failure to admonish him on the immigration 

consequences of his guilty plea is harmless error”; “such a defendant is not subject to 

deportation.” Vannortrick, 227 S.W.3d at 709; see generally 8 U.S.C.S. §§ 1101-1537 (1997-

2007 & Supp. 2008). Where there is evidence that the defendant was born in the United 

States, and evidence that the defendant has lived in the United States “a long time,” the 

record does affirmatively show that the defendant is a citizen of the United States. 

Gamble, 2007 Tex. App. LEXIS 5876, at *2-3. The State points to evidence that Wilson‖s 

“mother testified that [he] was born in Bryan, Texas and had lived in the Brazos Valley 

his entire life.” (Br. at 30 (citing 5 R.R. 152).) Wilson thus suffered no harm from the 

trial court‖s failure to admonish him on the immigration and naturalization 

consequences of the plea.

CONCLUSION. Wilson does not show harmful error from failure by the trial court to 

give Wilson statutory admonishments. We overrule Wilson‖s first issue.

Due Process. In Wilson‖s second issue, he complains under due process.2 Wilson 

argues primarily under Boykin v. Alabama. See Boykin v. Alabama, 395 U.S. 238, 243 

(1969).

 

2

In Wilson‖s second issue, he contends that the trial court failed to make the same statutory 

admonishments as Wilson complained about in Wilson‖s first issue, but Wilson now attributes 

constitutional error to that failure. See TEX. CODE CRIM. PROC. ANN. art. 26.13. “The Article 26.13 

admonitions, however, are not themselves constitutionally required.” Vannortrick, 227 S.W.3d at 708. We 

consider the matter further below.
Wilson v. State Page 6

The Fourteenth-Amendment Due-Process Clause provides, 

No State shall . . . deprive any person of life, liberty, or property, without due 

process of law . . . .

U.S. CONST. amend. XIV, § 1. “When a defendant pleads guilty he or she, of course, 

forgoes not only a fair trial, but also other accompanying constitutional guarantees.” 

Unites States v. Ruiz, 536 U.S. 622, 628 (2002) (citing Boykin, 395 U.S. at 243). Boykin 

holds, “It [i]s error, plain on the face of the record, for the trial judge to accept [a] 

petitioner‖s guilty plea without an affirmative showing that it was intelligent and 

voluntary.” Boykin at 242. “Given the seriousness of the matter, the” Due-Process 

Clause “insists, among other things, that the defendant enter a guilty plea that is 

―voluntary‖ and that the defendant must make related waivers ―knowing[ly], 

intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely 

consequences.‖” Ruiz, 536 U.S. at 629 (quoting Brady v. United States, 397 U.S. 742, 748 

(1970)) (alterations in Ruiz); see Parke v. Raley, 506 U.S. 20, 28-29 (1992); Marshall v. 

Lonberger, 459 U.S. 422 (1983); Bordenkircher v. Hayes, 434 U.S. 357 (1978); Anderson, 182 

S.W.2d at 917-18. “The standard . . . remains whether the plea represents a voluntary 

and intelligent choice among the alternative courses of action open to the defendant.” 

Raley, 506 U.S. at 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). 

The due-process “constitutional standard does not require a court to admonish a 

guilty-pleading defendant ―about every possible consequence of his plea, direct or 

collateral, only about those direct consequences that are punitive in nature.‖” Anderson, 

182 S.W.3d at 918 (quoting Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)). 
Wilson v. State Page 7

“Generally, a guilty plea is considered voluntary if the defendant was made fully aware 

of the direct consequences.” State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) 

(citing Brady v. United States, 397 U.S. 742, 755 (1970)). “A consequence has been defined 

as ―direct‖ where it is ―definite, immediate, and largely automatic.‖” Id. at 888 n.5 

(quoting United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir. 1997)). “It will not be 

rendered involuntary by lack of knowledge as to some collateral consequence.” Jimenez, 

987 S.W.2d at 888 (citing, e.g., United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 

1985)). “A consequence has been defined as ―collateral‖ where ―it lies within the 

discretion of the court whether to impose it,‖ or where ―its imposition is controlled by an 

agency which operates beyond the direct authority of the trial judge.‖” Jimenez, 987 

S.W.2d at 888 n.6 (quoting Kikuyama, 109 F.3d at 537; Beagen v. State, 705 A.2d 173, 175 

(R.I. 1998)). 

“[T]he failure to admonish [an] appellant as to a direct, non-punitive consequence 

of his plea . . . d[oes] not violate due process or render his plea involuntary.” Anderson, 

182 S.W.3d at 918 (quoting Mitschke, 129 S.W.3d at 136) (alterations added).

“Boykin clearly did not hold that due process requires the equivalent of the Article 

26.13(a) admonishments . . . .” Aguirre-Mata, 125 S.W.3d at 475 (citing McCarthy v. 

United States, 394 U.S. 459 (1969)); see Boykin, 395 U.S. 238; TEX. CODE CRIM. PROC. ANN.

art. 26.13(a).

“That a guilty plea may result in deportation is generally considered a collateral 

consequence.” Jimenez, 987 S.W.2d at 888-89 (citing, e.g., United States v. Campbell, 778 

F.2d 764, 767 (11th Cir. 1985)). “Deportation is considered a collateral consequence 
Wilson v. State Page 8

because ―it is a result peculiar to the individual‖s personal circumstances and one not 

within the control of the court system.‖” Id. at 889 n.7 (quoting, e.g., People v. Ford, 657 

N.E.2d 265, 268 (N.Y. 1995)). An admonishment on collateral deportation consequences 

is not constitutionally required, and the failure so to admonish does not render a plea 

constitutionally involuntary. See Jimenez, 987 S.W.2d at 889.

Moreover, “Boykin clearly did not hold that due process requires . . . an 

admonishment on the range of punishment.” Aguirre-Mata, 125 S.W.3d at 475; see 

Boykin, 395 U.S. 238.

Sex-offender registration, too, though a direct consequence of guilty plea, is a nonpunitive consequence. Bessey, 239 S.W.3d at 812 n.3; Anderson, 182 S.W.3d at 918; 

Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). Accordingly, “[F]ailure to 

admonish an appellant as to the sex offender registration requirement does not render 

his plea involuntary.” Bessey at 812 n.3 (citing Anderson at 918); accord Mitschke at 136. 

CONCLUSION. Wilson does not show harmful constitutional error from the trial 

court‖s admonishments to Wilson on the consequences of Wilson‖s plea. We overrule 

Wilson‖s second issue.

Evidence. In Wilson‖s third issue, he complains of evidence admitted in the 

punishment phase of trial.3 

“[A] trial court‖s ruling admitting or excluding evidence is reviewed on appeal for 

abuse of discretion.” Ramos v. State, 245 S.W.3d 410, 417 (Tex. Crim. App. 2008) (citing 

 

3 We assume without deciding that Wilson‖s issue is adequately briefed. See TEX. R. APP. P.

38.1(h); e.g., Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Mosley v. State, 983 S.W.2d 246, 

259 (Tex. Crim. App. 1998).
Wilson v. State Page 9

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)); accord Weatherred v. State, 15 

S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State, 810 S.W.2d 372, 391-92 

(Tex. Crim. App. 1991) (op. on reh‖g). “Under an abuse of discretion standard, an 

appellate court should not disturb the trial court‖s decision if the ruling was within the 

zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 

2008) (citing Hinojosa v. State, 4 S.W.3d 240, 250-51 (Tex. Crim. App. 1999)); accord 

Montgomery at 394 (op. on reh‖g).

Wilson complains of the admission of evidence that he “had left a note containing 

his name, jail address, the date and the words ―write me‖ in the secured part of the” 

courthouse inmate holding area, namely in the women‖s room, during trial. (Br. at 15.) 

Wilson objected that the evidence was irrelevant and unfairly prejudicial.

Relevance. Wilson argues, first, that the evidence was irrelevant pursuant to the 

Texas Rules of Evidence. See TEX. R. EVID. 401-402. The Texas Code of Criminal 

Procedure governs over the Rules of Evidence. Id. 101(c). Code of Criminal Procedure 

“Article 37.07, § 3(a), governs the admissibility of evidence during the punishment stage 

of a non-capital criminal trial.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 

2007) (citing Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004)); accord Valley v. 

State, 448 S.W.2d 474, 475 (Tex. Crim. App. 1969); see TEX. CODE CRIM. PROC. ANN. art. 

37.07, § 3(a) (Vernon Supp. 2008). Pursuant to the Code of Criminal Procedure, in the 

punishment phase of trial, “evidence may be offered by the state . . . as to any matter the 

court deems relevant to sentencing, including but not limited to . . . any . . . evidence of 

an extraneous crime or bad act . . . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) 
Wilson v. State Page 10

(Vernon Supp. 2008). Rule of Evidence 401‖s definition of relevance is only “‖helpful‖ to 

determine relevancy under Section 3(a).” Ellison v. State, 201 S.W.3d 714, 718 (Tex. 

Crim. App. 2006) (citing Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)); see 

TEX. R. EVID. 401. 

“[T]he admissibility of evidence at the punishment phase of a non-capital felony 

offense” trial “is” really “a function of policy rather than relevance.” Rodriguez v. State, 

203 S.W.3d 837, 842 (Tex. Crim. App. 2006); accord Miller-El v. State, 782 S.W.2d 892, 894-

95 (Tex. Crim. App. 1990); Rogers, 991 S.W.2d at 265; Murphy v. State, 777 S.W.2d 44, 63 

(Tex. Crim. App. 1988). “Evidence is ―relevant to sentencing,‖ within the meaning of” 

Article 37.07, Section 3(a), “if the evidence is ―helpful to the jury in determining the 

appropriate sentence for a particular defendant in a particular case.‖” McGee, 233 

S.W.3d at 318 (quoting Rodriguez at 842); see TEX. CODE CRIM. PROC. ANN. art. 37.07, 

§ 3(a). 

The State argued, and argues on appeal, that the evidence was relevant “to rebut 

[Wilson]‖s argument that the appropriate punishment for his crime was probation.” 

(Br. at 48-49.) Wilson had filed an application for community supervision, and had 

raised community supervision before the jury by examining the venire panel on it. See 

TEX. CODE CRIM. PROC. ANN. art. 27.02(7) (Vernon 2006), art. 37.07, § 2(b) (Vernon Supp. 

2008). Wilson argues, “The evidence was not relevant because there was nothing to 

show having or distributing solicitations for someone to write to appellant violated any 

jail rule.” (Br. at 15.) The State points primarily to the following evidence. A sheriff‖s 

deputy testified that the note constituted “contraband.” “Contraband” means “[g]oods 
Wilson v. State Page 11

that are unlawful to . . . possess.” BLACK‖S LAW DICTIONARY 341 (Bryan A. Garner ed., 

8th ed. 2004). When the contraband was found in the women‖s room, jailers were 

selecting inmates to transport to court. Jailers had to delay that process until they could 

determine the source of the contraband. 

The trial court did not abuse its discretion in finding that the evidence was helpful 

to the jury in assessing Wilson‖s punishment, and thus overruling Wilson‖s relevance 

objection.

Prejudice. Next, Wilson argues that the evidence was unfairly prejudicial.

Texas Rule of Evidence 403 provides, “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice . . . .” TEX. R. EVID. 403. “[T]he use of the word ―may‖ reflects the draftsman‖s 

intent ―that the trial judge be given a very substantial discretion in “balancing” 

probative value on the one hand and “unfair prejudice” on the other, and that he 

should not be reversed simply because an appellate court believes that it would have 

decided the matter otherwise.‖” Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 

2003) (quoting Montgomery, 810 S.W.2d at 379 (op. on orig. submission)); see State v. 

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

“Rule 403 creates a presumption of admissibility of all relevant evidence and 

authorizes a trial judge to exclude such evidence only when there is a ―clear disparity 

between the degree of prejudice of the offered evidence and its probative value.‖” 

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); accord Gallo v. State, 239 
Wilson v. State Page 12

S.W.3d 757, 762 (Tex. Crim. App. 2007); see Montgomery, 810 S.W.2d at 388-89 (op. on 

orig. submission).

“‖Unfair prejudice‖ does not, of course, mean that the evidence injures the 

opponent‖s case—the central point of offering evidence. Rather it refers to ―an undue 

tendency to suggest decision on an improper basis, commonly, though not necessarily, 

an emotional one.‖” Rogers, 991 S.W.2d at 266 (quoting Cohn v. State, 549 S.W.2d 817, 

820 (Tex. Crim. App. 1993)).

[A] Rule 403 analysis should include, but is not limited to, the following 

factors:

(1) how probative the evidence is;

(2) the potential of the evidence to impress the jury in some irrational, but 

nevertheless indelible way;

(3) the time the proponent needs to develop the evidence; and

(4) the proponent‖s need for the evidence.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006) (citing Montgomery, 810 

S.W.2d at 389-90) (op. on reh‖g)); see also Gigliobianco v. State, 210 S.W.3d 637, 641-42 

(Tex. Crim. App. 2006); e.g., Gallo, 239 S.W.3d at 762.

Here, the probative value of the evidence, though not strong, was substantial. The 

State‖s main theory of admissibility was that the evidence tended to show Wilson‖s 

inability to comply with rules, and thus inability to comply with the conditions of 

community supervision. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11 (Vernon 

Supp. 2008). As to prejudicial effect, Wilson argues only, “The error was harmful 

because the State‖s closing argument emphasized [his] failure to comply with jail rules.” 

(Br. at 16.) Although the evidence was thus prejudicial to Wilson‖s case, in proportion 
Wilson v. State Page 13

to its probative value, Wilson does not so establish undue prejudice. The time to 

present the evidence was negligible, about five pages of testimony. As for the State‖s 

need for the testimony, other than the evidence of which Wilson complains, the State 

had stronger evidence of Wilson‖s inability to comply with jail rules, in the form of 

testimony that Wilson was involved in fights with other inmates, offered physical 

resistance to jailers against Wilson‖s movement from cell to cell within the jail, and stole 

food. The parties point to no other factors.

Balancing those factors, we cannot say that the trial court abused its discretion in 

overruling Wilson‖s objection under Rule 403.

CONCLUSION. We overrule Wilson‖s third issue. 

CONCLUSION. Having overruled Wilson‖s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment with a note) *

Affirmed

Opinion delivered and filed December 17, 2008

Do not publish

[CRPM]

* “(I concur in the judgment with the following observations: 1) Because the 

right to be properly admonished is a waivable-only right, as footnote 1 correctly notes, 

preservation of the complaint for appellate review is not an issue. Marin specifically 

notes: “The [preservation] rule does not apply to rights which are waivable only or to 

absolute systemic requirements, the violation of which may still be raised for the first 

time on appeal.” Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Thus, the 

footnote misstates the requirement; 2) the opinion conflates the concepts of error and 

harm in discussing the failure to admonish on the immigration and naturalization 
Wilson v. State Page 14

consequences of the plea (issue one) and the consequences of his plea (issue two); and 3) 

the opinion says the probative value of the note admitted into evidence (issue three) 

“though not strong, was substantial.” Furthermore, the opinion states that the state 

“had stronger evidence” of the fact the evidence was intended to prove. Based on the 

opinion‖s own analysis, I would hold that the admission of evidence was error, but 

harmless under this record.)”