Court's Failure to Admonish of Deportation Consequences

In Carranza v. State, 980 S.W.2d 653, (Tex. Crim. App. 1998), the court held the failure to admonish that defendant of deportation consequences affected a substantial right of that defendant because he affirmatively showed he was a citizen of Mexico and that he was in the United States illegally because his green card had expired. Because of his status, that defendant affirmatively showed he was subject to deportation. Id. at 658. Conversely, in Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), the court held that where the record reflected the defendant was a U.S. citizen, the court's failure to admonish him concerning the deportation consequences of his plea was harmless error. Id. at 264. A defendant pleading guilty to a felony must be admonished by the trial court regarding the immigration consequences of a plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West Supp. 2000). The admonishment may be extended orally or in writing. See id. art. 26.13(d) (West 1989). Before accepting appellant's guilty plea, the trial court failed to admonish appellant of the consequences of a guilty plea by persons who are not citizens of the United States. The clerk's record contains a written admonishment concerning the range of sentence but no evidence of an admonishment consistent with article 26.13(a)(4). Furthermore, the reporter's record reveals no evidence of an oral admonishment with respect to the immigration consequences to non-citizens of a voluntary plea of guilty. Substantial compliance with the admonishment requirement is sufficient "unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed" by the court's admonishment. Tex. Code Crim. Proc. Ann. art. 26.13(c) (West 1989); accord Carranza v. State, 980 S.W.2d 653, 658 (Tex. Crim. App. 1998). When a judge wholly fails to admonish a defendant, as here, substantial compliance has not been satisfied. See Carranza, 980 S.W.2d at 656. A judge's failure to admonish a defendant violates the mandatory language of article 26.13(a) and constitutes error. See Gorham v. State, 981 S.W.2d 315, 318 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd), cert. denied, 145 L. Ed. 2d 133, 120 S. Ct. 157 (1999). A trial court's failure to substantially comply with article 26.13(a)(4) is nonconstitutional error reviewable for harm pursuant to Texas Rule of Appellate Procedure 44.2(b). See Tex. R. App. P. 44.2; Gorham, 981 S.W.2d at 318; Carranza, 980 S.W.2d at 656.