No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. JUAN LOPEZ SALAZAR, Appellant. THE STATE OF TEXAS, Appellee

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1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 04/17/ :00 Lisa Matz, Clerk JUAN LOPEZ SALAZAR, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 195 th Judicial District Court Dallas County, Texas Trial No. F N BRIEF FOR APPELLANT Attorney for Appellant: Christian T. Souza SBN: N. Central Expressway Dallas, Texas Tel. (214) Fax (214) Oral Argument Respectfully Requested

2 LIST OF PARTIES Appellant Juan Lopez Salazar Attorneys for Appellant Christian T. Souza 4303 N. Central Expressway Dallas, Texas (on appeal) Tom Cox 2603 Oak Lawn Avenue Suite 230 Dallas, Texas (at trial) Prosecutors Andrew Anagnostis Danielle Uher Assistant District Attorneys (at trial) Craig Watkins District Attorney (on appeal) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverside Blvd., LB 19 Dallas, Texas

3 TABLE OF CONTENTS INDEX OF AUTHORITIES STATEMENT OF THE CASE ISSUES PRESENTED...8 STATEMENT OF FACTS...8 SUMMARY OF ARGUMENT ARGUMENT Point of Error One The trial court s failure to admonish Appellant in connection with his guilty plea violated Appellant s due process right to enter a knowing, intelligent and voluntary plea. Point of Error Two The trial court violated Appellant s statutory right to be admonished about the immigration consequences of his guilty plea. Point of Error Three.21 The judgment should be reformed to indicate that Appellant pleaded guilty. PRAYER CERTIFICATE OF SERVICE..23 3

4 INDEX OF AUTHORITIES CASES Aguirre-Mata v. State, 125 S.W.3d 473 (Tex.Crim.App. 2003) Anderson v. State, 182 S.W.3d 914 (Tex.Crim.App. 2006).. 20 Asberry v. State, 813 S.W.2d 526 (Tex. App. Dallas 1991, pet. ref d)..21 Basham v. State, 608 S.W.2d 677 (Tex.Crim.App. [Panel Op.] 1980) Bessey v. State, 239 S.W.3d 809 (Tex.Crim.App. 2007)...19 Boykin v. Alabama, 395 U.S. 238 (1969)..16 Brady v. United States, 397 U.S. 742 (1970).16 Burke v. State, 80 S.W.3d 82 (Tex.App. Fort Worth 2002, no pet.) Carranza v. State, 980 S.W.2d 653 (Tex.Crim.App. 1998).. 19 Denton v. State, Nos /68-CR, 2004 Tex. App. LEXIS 1925, (Tex. App. Fort Worth Feb. 26, 2004, pet. ref d) (not designated for publication)...19 Ex parte Battle, 817 S.W.2d 81 (Tex.Crim.App. 1991) Ex parte Jose Ernesto Medellin, 280 S.W.3d 854 (Tex.Crim.App. 2008) (per curium) 17 Johnson v. Zerbst, 304 U.S. 458 (1938) 16 Shannon v. State, 723 S.W.2d 322 (Tex.App. Austin 1987, pet. ref d as untimely)..10 VanNortrick v. State, 227 S.W.3d 706 (Tex.Crim.App. 2007)

5 STATUTES 8 U.S.C. 1101(a)(20) U.S.C. 1101(a)(22) U.S.C. 1101(a)(23) U.S.C U.S.C. 1101(a)(43)(B).20 8 U.S.C. 1101(a)(48) U.S.C. 1227(a)(2)(B)...21 TEX. CODE CRIM. PROC. art (a)(4)...19 TEX. CODE CRIM. PROC. art (a)...9 TEX. CODE CRIM. PROC. art TEX. CODE CRIM. PROC. art TEX. CODE CRIM. PROC. art g(a)(2)...10 TEX. CODE CRIM. PROC. art TEX. HEALTH & SAFETY CODE TEX. HEALTH & SAFETY CODE (a)..7 TEX. HEALTH & SAFETY CODE (e)....7, 10 TEX. R. APP. P. 43.2(d)....19, 23 TEX. R. APP. P. 44.2(b) TEX. R. APP. P. 43.2(b)..21 5

6 CONSTITUTIONAL PROVISIONS U.S. CONST. amend. V U.S. CONST. amend. VI U.S. CONST. amend. XIV

7 TO THE HONORABLE COURT OF APPEALS: Juan Lopez Salazar respectfully submits this brief in support of his appeal from the judgment of the 195 th Judicial District Court in Trial No. F N. The trial judge was the Honorable Nathan White, Senior District Judge, sitting by assignment. The regular judge of the 195 th Judicial District Court is the Honorable Fred Tinsley. STATEMENT OF THE CASE The indictment alleged that Appellant possessed 200 or more but less than 400 grams of cocaine with intent to distribute. (CR: 5). TEX. HEALTH & SAFETY CODE , (a). The alleged offense was a first-degree felony that was punishable by confinement in the Institutional Division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and by a fine not to exceed $100,000. TEX. HEALTH & SAFETY CODE (e). (CR: 5, 29). The indictment alleged that the offense was committed on June 1, (CR: 5, 29). Appellant changed his not guilty plea to guilty during a jury trial. (RR3: 12-13; RR4: 84). The jury convicted Appellant on November 4, 2011 pursuant to an instructed verdict, and it sentenced Appellant to serve 20 years of confinement in the Institutional Division and to pay a fine of $1,000. (CR: 21, 29-30). Appellant filed Notice of Appeal on November 4, (CR: 34). Appellant s November 4, 2011 Motion for New Trial was denied by written order. (CR: 35). 7

8 ISSUES PRESENTED Point of Error One The trial court s failure to admonish Appellant in connection with his guilty plea violated Appellant s due process right to enter a knowing, intelligent and voluntary plea. Point of Error Two The trial court violated Appellant s statutory right to be admonished about the immigration consequences of his guilty plea. Point of Error Three The judgment should be reformed to indicate that Appellant pleaded guilty. STATEMENT OF FACTS Appellant admitted to the investigating officers and to the jury that he possessed about 220 grams of cocaine with intent to deliver. (RR3: 77, 116; RR4: 4-11, 16, 29-35, 39, 46, 73; RR6: SX-21, SX-24). Appellant also admitted that he possessed $125,000 in cash related to drug trafficking. (RR3: 26-41, 117; RR4: 32, 35, 46; RR6: SX-1). The cocaine and money were located in the attic of Appellant s one-story house at 302 Brazos in Garland around 6:00 p.m. on June 1, (RR3: 15, 18, 22-24, 48, 51-54, 57; RR4: 4, 49; RR6: SX-1). Appellant asserted that narcotics officers violated his rights by entering his home, by arresting him inside his home, by interrogating him inside his home, and by subsequently interrogating him during a videotaped interview at the Garland Police Station. 1 (RR3: ; RR4: 49-72). Appellant urged that he was not given requisite 1 See TEX. CODE CRIM. PROC. art (a) (providing that videotaped statements cannot be used unless the defendant voluntarily waived his rights); TEX. CODE CRIM. PROC. art (providing that the jury shall be instructed to disregard any evidence that it finds was obtained beyond a reasonable doubt in violation of a defendant s constitutional and statutory rights). 8

9 warnings about his rights and that the investigating officers acted coercively in obtaining consents and waivers from Appellant by threatening to take Appellant s children away 2 and by threatening to prosecute Appellant s wife, Rosa Salazar. 3 (RR3: ; RR4: 49-72). Non-testifying Garland Police Department Narcotics Division Officer Dennis Morrow 4 claimed that he obtained an anonymous tip that led him to Appellant. (RR3: 14-18, 39). When Officer Morrow went to Appellant s house, Officer Morrow asked another narcotics officer, Mark Mendoza, to accompany Officer Morrow as an interpreter. (RR3: 15). Officer Mendoza described the ensuing events for the jury. (RR3: 18-48). When Appellant saw Officers Morrow and Mendoza knocking on Appellant s front door and walking around Appellant s yard, Appellant hid in the attic above the garage. (RR3: 18-20; RR4: 11-12, 48-55). Meanwhile, Appellant s non-testifying wife drove up to the house, and she allowed the officers to enter. (RR3: 20-22). Appellant came down from the attic because his wife was calling out that the officers were threatening to take away their children. (RR3: 22, , 118; RR4: 63). When 2 Appellant and his wife have three children; at the time of trial they were five, eight and 10 years old. (RR3: 110; RR5: 10). The children were not home at the time of the search, but there were family photographs in the home. (RR4: 56). 3 Rosa Salazar did not testify; she invoked her Fifth Amendment rights outside of the hearing of the jury. (RR4: 77-78). 4 Officer Dennis Morrow did not testify because his lack of credibility was well known. (CR: 33; RR2: 13-14; RR3: 65-68). The State obtained an order to preclude Appellant from eliciting testimony about media reports concerning Officer Morrow or testimony about dismissals or reductions in cases where Officer Morrow was involved. (CR: 33; RR2: 13; RR3: 65-68). 9

10 Appellant came down from the attic, Officers Morrow and Mendoza pointed guns at him and placed Appellant in handcuffs. (RR3: ; RR4: 57, 60). Appellant began his admissions soon after being restrained. (RR3: ; RR4: 53-57). In addition to informing the officers about the cocaine and money in the attic and helping the officers locate those items, Appellant divulged that there was handgun that was in a closet in the master bedroom, but Appellant explained that the gun was not intended to protect the cocaine or money or to defend against law enforcement. 5 (RR2: 29-30, 75-78, 80-81; RR3: 32-33, 43, 48, 51-55, , ; RR4: 36, 41-44, 59; RR6: SX-1: 01:04; SX-9). The officers also found baggies and a scale in the attic, and they found $6,000 in cash, on top of a television in the master bedroom, which Appellant explained was proceeds from lawfully gambling on horse races. (RR3: 26-35, 43; RR4: 11, 29, 34, 36-39; RR5: 15; RR6: SX-1: 00:59-01:04). Mike Roberds, a drug enforcement task force officer, conducted Appellant s videotaped interrogation, with Officer Mendoza translating. (RR3: 73; RR6: SX-1: 00:27-54:00, 59:00-01:13). The conversation was translated haphazardly, but it was clear that Appellant admitted drug trafficking activity. (RR6: SX-1: 00:27-54:00, 59:00-01:13). Appellant volunteered that he had delivered cocaine on two recent occasions and that he had been holding the 220 grams in his attic pending delivery instructions. (RR6: SX-1: 00:31-00:45, 01:04-01:13). Appellant was paid $500 or $1000 per delivery. (RR3: ; RR4: 4-31). Appellant received all of the cocaine from a man whom Appellant knew 5 Appellant was eligible for community supervision even if the jury sustained the deadly weapon allegation. TEX. CODE CRIM. PROC. art , 3g(a)(2), 4(a), 4(b), 4(d); TEX. HEALTH & SAFETY CODE (e); Shannon v. State, 723 S.W.2d 322,323 (Tex.App. Austin 1987, pet. ref d, untimely filed). 10

11 only as Comanche, who was the same person who paid Appellant. (RR4: 4-33; RR6: 00:31-00:54). Appellant volunteered that each of the two prior deliveries involved two kilograms of cocaine and that he was holding the $125,000 in his attic for remittance to Comanche. (RR4: 30-33, 35, 42, 46). SUMMARY OF ARGUMENT Appellant went to trial on his plea of not guilty before a jury. After admitting to the jury that he was guilty of the charge that he possessed cocaine with intent to distribute, Appellant changed his plea to guilty. The trial continued before the jury on punishment. Appellant is entitled to a new trial because the trial court failed to admonish him concerning his rights, waivers, and the consequences of his guilty plea. The error in failing to warn Appellant about immigration consequences was not harmless considering various indications that he was a non-citizen, including that he retained immigration lawyers. ARGUMENT Point of Error One The trial court s failure to admonish Appellant in connection with his guilty plea violated Appellant s due process right to enter a knowing, intelligent and voluntary plea. The trial court violated Appellant s right to due process by failing to admonish Appellant about his rights, waivers, or about any circumstances for his consideration when he changed his plea from guilty to not guilty. 11

12 Additional Facts Appellant admitted the alleged offense conduct, but he rejected a plea bargain offer and pleaded not guilty in order to support his request for the jury to disregard the evidence due to the various unlawful aspects of the investigation. See discussion, supra, at pp. 8-9, and footnote 1, supra, at p. 8. (RR4: 68). Appellant also challenged whether he used the gun from his closet in connection with the offense. (RR3: ; RR4: 59). Appellant explained that he bought the gun when solicited to do so by a person who needed money; that he had the ammunition only because he scavenged it from the site of a fire long before he bought the gun; and that his only anticipated use of the gun was to protect his vehicle and his home. (RR3: ; RR4: 41-45). After a recess following a conference regarding the jury charge as it had been formulated for submission on Appellant s not guilty plea, Appellant advised the trial court outside of the presence of the jury as follows: [TRIAL COUNSEL]: Your Honor, for purposes of the record, the parties have come to a limited agreement. That agreement is that in return for the state s dropping the allegation of a deadly weapon, the defendant will change his plea from not guilty to guilty and that s the extent of the plea agreement. THE COURT: Okay. (RR4: 84). After a pause, the trial court brought the jury back into the courtroom and stated as follows: 12

13 THE COURT: Everyone be seated, please. Ladies and gentlemen of the jury, it has come to my attention that the state and the defense have reached an agreement, to a certain extent, and that the defendant intends to plead guilty to the -- change his plea to guilty to the offense of possession with intent to deliver, and the state is going to abandon the deadly weapon portion, or paragraph, of the indictment. Mr. Salazar, you and your attorney have discussed this action; is that correct? THE DEFENDANT: Yes. THE COURT: Then you have previously entered a plea of not guilty to the offense. Are you now pleading guilty to the offense of possession with intent to deliver? THE DEFENDANT: Yes. THE COURT: And it s your understanding that the state is going to abandon the deadly weapon charge? Is that correct? THE DEFENDANT: Yes. THE COURT: All right. And to the state, you have, in fact, abandoned the deadly weapon charge? [PROSECUTOR]: Yes, Your Honor. 13

14 THE COURT: Ladies and gentlemen, this means that we will still have a punishment phase 6 of this trial. We re going to start that [at] 9:00 in the morning. And we will then eventually, presumably, get to deliver a charge to you and you will deliberate on the matter of punishment for the offense to which the defendant has pleaded guilty. Anyone have any questions or anything at this point before we adjourn for the day, recess for the day? [PROSECUTOR]: No, Your Honor. [TRIAL COUNSEL]: No, sir. (RR4: 84-86). The trial court reiterated the following morning as follows: (RR5: 5). THE COURT: As I indicated to you yesterday afternoon, the defendant s pled guilty. You will be --included in the charge you will receive later, you will be directed to find him guilty on his plea. At this time we ll proceed with the punishment phase testimony. [PROSECUTOR]: State will rest at this time, Your Honor. The trial court did not verbally admonish Appellant regarding his rights, waivers, or any circumstances for consideration. (RR4: 84-86; RR5: 5). Appellant never signed any written admonishments in connection with his guilty plea. Appellant and some of his friends and family testified concerning punishment. 6 A plea of guilty made to a jury is the functional equivalent of a jury verdict of guilty. Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008); see Carroll v. State, 975 S.W.2d 630, (Tex. Crim. App. 1998) (noting that a guilty plea before a jury admits the existence of all facts necessary to establish guilt ). 14

15 (RR5: 6, 20, 23, 28, 32). The testimony established that Appellant was remorseful; that Appellant was a good parent; that Appellant financially supported his family; that Appellant s family was in need of Appellant s ongoing support; and that Appellant was suitable for community supervision. (RR5: 6-32). Appellant abandoned his objections to the lawfulness of the investigation. (RR5: 44). See discussion supra, at pp. 8-10, and footnote 1, supra, at p. 8. The trial court instructed the jury that the range of confinement was from 10 to 99 years, with the option to recommend community supervision if the confinement did not exceed 10 years. (CR: 15-16; RR5: 44). The jury sentenced Appellant to serve 20 years of confinement. (CR: 21, 29; RR6: 5). Involuntary Plea To satisfy the due process requirements for a voluntary plea, a defendant who pleads guilty must do so with a full understanding of the charges against him and the consequences of his plea. U.S. CONST. amends. V, XIV; Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App. [Panel Op.] 1980); Burke v. State, 80 S.W.3d 82, 93 (Tex.App. Fort Worth 2002, no pet.) (op. on reh g). In other words, a plea must be made with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App. 1991). To be valid, a plea must constitute an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Thus, a trial court must not accept a guilty plea without an affirmative showing spread on the record that the plea was intelligent and voluntary. U.S. CONST. 15

16 amends. V, VI, XIV; Boykin, 395 U.S. at 243. On appeal, proper plea proceedings cannot be presumed from a silent record. Boykin, 395 U.S. at ; Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex.Crim.App. 2003). Appellant s guilty plea was involuntary because the trial court did not ascertain whether Appellant understood the charges and because it did not discuss Appellant s rights 7 or warn Appellant about the waivers that would result from his guilty plea. U.S. CONST. amends. V, VI, XIV; Boykin, 395 U.S. at 239, 243 (holding that the defendant s plea was involuntary when, as far as the record showed, the judge asked no questions of [the defendant] concerning his plea, and [the defendant] did not address the court.) Without sufficient awareness of his rights and about the likely consequences of waiving those rights, Appellant did not intentionally relinquish or abandon his rights. Brady, 397 U.S. at 748; Johnson, 304 U.S. at 464; Ex parte Battle, 817 S.W.2d at 83. This Court must accordingly find that Appellant s guilty plea was involuntary in violation of his right to due process. U.S. CONST. amends. V, VI, XIV; Boykin, 395 U.S. at 243. For the reasons shown, this Court should sustain Point of Error One, reverse the conviction, and remand for a new trial. TEX. R. APP. P. 43.2(d). 7 The constitutional rights that are waived by a valid guilty plea are the defendant s Fifth Amendment privilege against compulsory self-incrimination and his Sixth Amendment rights, including the rights to proof of guilt beyond a reasonable doubt and to confront his accusers and cross-examine the witnesses against him. U.S. CONST. amends V, VI; Boykin v. Alabama, 395 U.S. 238, 243 (1969); Aguirre-Mata v. State, 125 S.W.3d 473, 479 (Tex. Crim. App. 2003) (Holcomb, J., dissenting). 16

17 Point of Error Two The trial court violated Appellant s statutory right to be admonished about the immigration consequences of his guilty plea. The trial court s silence when Appellant pleaded guilty included omission of warnings regarding deportation consequences. See discussion, supra, at pp It was not harmless for the trial court to overlook the immigration admonitions when there were various indications that Appellant might not be a citizen. Additional Facts There were clear indications in the trial court that Appellant was not a citizen of the United States of America: Appellant refused to state his citizenship in connection with the consular access warnings of the Vienna Convention at arraignment. 8 (CR: 10). The State agreed to redact immigration-related statements that Appellant made during his videotaped interview. (RR3: 49-50, 70). When questioned about a telephone number that was stored in his cell phone, Appellant attributed the number to his immigration lawyers. (RR3: 49-50, 70; SX-1: 54:40-55:05). Appellant testified that he was born in the Sactaca, Mexico and that he immigrated to the United States in 1993, when he was about 16 years old. (RR3: ; RR5: 7). There were numerous indications that Appellant did not speak English, despite having lived in the United States for about 15 years. (CR: 10; RR3: ; RR5: 21). Officer Roberd s questions and Appellant s answers had to be translated back and forth during 8 Article 36 of the Vienna Convention, an international treaty, provides that a person who is arrested in a country where he is not a citizen must be warned about his right to consult with consular officials. Ex parte Jose Ernesto Medellin, 280 S.W.3d 854, 855 (Tex.Crim.App. 2008) (per curium). 17

18 Appellant s videotaped interrogation; Appellant managed to speak only a few phrases in English during the hour-plus interrogation. (RR6: SX-1). Appellant s testimony at trial had to be translated from Spanish to English. (RR2: 16; RR3: 6). The English language testimony of the witnesses at trial had to be translated into Spanish for Appellant. (RR3: 6). Appellant elected court-appointed counsel in writing in Spanish. (CR: 11). Appellant s difficulty with the English language indicated a lack of assimilation, which supports an inference that he was not a citizen. Appellant worked in the Dallas area at menial jobs. Appellant washed cars, laid carpet, and worked in an automobile body shop. (RR3: ; RR5: 22, 24). The type of hard work that Appellant did, as Appellant s brother described it, further indicated a lack of assimilation. (RR5: 22). Appellant testified that he was able to obtain a Texas driver s license. (RR3: 109). Appellant s testimony implied that it would be reasonable to assume that he might have trouble obtaining a license, presumably due to his immigration status. Appellant maintained strong ties to Mexico, where he was born, which indicates that he was a citizen of Mexico. (RR3: ; RR5: 7). Appellant routinely sent money to relatives back in Mexico, and Appellant eventually brought his brothers to the United States. (RR5: 8-12, 22, 28-29). After Appellant was arrested, Appellant s brothers told Appellant s children that Appellant was living in a village in Mexico where there was no telephone. (RR5: 28-31). During jury argument, the State urged the jury to consider that Appellant caused drugs to go out to citizens in the community. (RR5: 45). Despite having agreed to redact the indications from the videotaped interview that Appellant was not a citizen, the State s argument implied a contrast that, unlike the jurors, Appellant was not a citizen of the United States. (RR3: 49-50, 70; SX-1: 54:40-55:05). 18

19 Omission of Immigration Admonishments Article of the Texas Code of Criminal Procedure requires a trial court to notify a defendant of various facts and conditions related to any guilty plea before accepting the plea. TEX. CODE CRIM. PROC. art ; Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App. 2007). Under Article 26.13(a)(4), a trial court must admonish a defendant that, if he is not a citizen of the United States of America, a guilty plea might result in deportation, the exclusion from admission to the United States, or the denial of naturalization under federal law. TEX. CODE CRIM. PROC. art (a)(4). The purpose of the immigration admonishments is to help assure the constitutional validity of pleas that are accepted by a trial court. Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). A trial court s failure to comply with the requirement to admonish a defendant who pleads guilty before a jury can be raised for the first time on appeal. Bessey, 239 S.W.3d at 812; Denton v. State, Nos CR, CR, 2004 Tex. App. LEXIS 1925, 2004 WL , at *1 (Tex. App. Fort Worth Feb. 26, 2004, pet. ref d) (not designated for publication). A trial court s error in failing to provide immigration admonitions can be disregarded as harmless error when there is a fair assurance that the error did not influence the decision to plead guilty. TEX. R. APP. P. 44.2(b); Bessey, 239 S.W.3d at 813; VanNortrick v. State, 227 S.W.3d 706, 709 (Tex.Crim.App. 2007). In determining whether there is such a fair assurance, an appellate court should draw reasonable inferences from facts in the record. VanNortrick, 227 S.W.3d at 710,

20 When the record is silent or ambiguous regarding citizenship, the trial court s failure to admonish a defendant on the immigration consequences of a guilty plea establishes harm under the standard of Rule 44.2(b). TEX. R. APP. P. 44.2(b); VanNortrick, 227 S.W.3d at 709, ; compare Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006) (holding that failure to admonish on immigration consequences is harmless error when the record showed that a defendant was a citizen of the United States). The strength or weakness of the evidence against a defendant makes little difference to the harm analysis regarding failure to provide immigration admonishments, since a non-citizen would not be unreasonable to weigh immigration consequences heavier then the risk of incarceration. VanNortrick, 227 S.W.3d at 713. The analysis shown in VanNortrick precludes a finding of harmless error in Appellant s case. VanNortrick, 227 S.W.3d at 710, Appellant was born in Mexico; Appellant had immigration lawyers; the State agreed that the jury should not hear indications that he was not a citizen; and there were various indications of nonassimilation that supported inferences that Appellant might not have obtained lawful permanent resident status, much less obtained citizenship through naturalization. Id.; see 8 U.S.C. 1101(a)(20) (defining a lawful permanent resident as a person who has attained the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ); 8 U.S.C (outlining the bases for permanent resident status, including family-sponsored or employment-based applications); 8 U.S.C. 1101(a)(23) (defining naturalization as the process of conferring nationality after 20

21 birth ); 8 U.S.C. 1101(a)(22) (defining national of the United States to include a citizen of the United States); 8 U.S.C. 1101(a)(43)(B), 1101(a)(48), and 1227(a)(2)(B) (providing that a lawful permanent resident convicted of a drug trafficking offense is deportable). See discussion, supra, at pp Since the record at least raises unanswerable questions about Appellant s citizenship status, there can be no fair assurance that the trial court s failure to admonish Appellant about the immigration consequences of his guilty plea did not influence his decision to plead guilty or had but a slight effect. TEX. R. APP. P. 44.2(b); VanNortrick, 227 S.W.3d at 714. For the reasons shown, this Court should sustain Point of Error Two, reverse the conviction, and remand for a new trial. TEX. R. APP. P. 43.2(d). Point of Error Three The judgment should be reformed to indicate that Appellant pleaded guilty. An appellate court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991, pet. ref d); see also TEX. R. APP. P. 43.2(b) (providing that an appellate court may modify a trial court s judgment and affirm it as modified). Since the judgment in Appellant s case erroneously indicates that he pleaded not guilty, this Court should sustain Appellant s Point of Error Number Three and it should exercise its authority to correct the judgment to show that Appellant pleaded guilty. (CR: 29; RR4: 84-86). 21

22 PRAYER For the reasons shown, Appellant prays that this Honorable Court will sustain Points of Error One and Two, reverse the conviction, and remand for new trial, or sustain Point of Error Three and reform the judgment. Respectfully submitted, Christian T. Souza SBN: N. Central Expressway Dallas, Texas Tel. (214) Fax (214) Attorney for Appellant 22

23 CERTIFICATE OF SERVICE A copy of this brief has been mailed to the Dallas County Criminal District Attorney s Office, Appellate Division, at 133 N. Riverside Blvd., Dallas, Texas or has been placed in the receiving box of the District Attorney at the Clerk s Office of the Fifth Court of Appeals on or before April 17, Christian T. Souza 23

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