Pamela Sue Garza v. State ( 2005 )

NO. 07-04-0431-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 16, 2005
______________________________
PAMELA SUE GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;
NO. 1096; HONORABLE STEVEN EMMERT, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Pamela Sue Garza, pled guilty to a jury to possession of a controlled
substance with intent to deliver. The jury returned a guilty verdict and sentenced appellant
to seven years incarceration in the Institutional Division of the Texas Department of
Criminal Justice. Appellant appeals her conviction. We affirm.
Background
Based on information from a confidential informant, the Lipscomb County Sheriff’s
Office obtained a search warrant for appellant’s home and gathered evidence indicating
her participation in drug trafficking between Amarillo and Higgins, Texas.
At trial, appellant pled guilty before a jury. The trial court judge then informed the
jury that instead of a bifurcated trial, there would be only one phase of the trial. After
presentment of evidence on punishment, the jury, per its verdict form, stated “We, the jury
having found the defendant, Pamela Sue Garza, guilty . . .” sentenced appellant to seven
years incarceration in the Institutional Division of the Texas Department of Criminal Justice.
Appellant presents two issues on appeal. Appellant contends that the trial court
erred by (1) failing to submit the issue of guilt/innocence to the jury, and (2) failing to
admonish appellant as required. TEX . CODE CRIM . PROC . ANN . art. 26.13 (Vernon Supp.
2005).1 We affirm.
Issue One: Failure to submit issue of guilt to the jury after guilty plea
Appellant contends that the trial court should have submitted the issue of guilt to the
jury, and obtained a written verdict, see art. 37.01, even on a guilty plea. See Fairfield v.
State, 610 S.W.2d 771, 780 n.15 (Tex.Crim.App. 1981). Thus, appellant contends that the
trial court erred by proceeding directly into punishment evidence without first directing the
1
Further reference to the Texas Code of Criminal Procedure will be by reference
to “art. __.”
2
jury to return a finding of guilt. However, once a defendant pleads guilty to an offense, the
plea itself is sufficient evidence to establish all the facts alleged in the indictment, id. at
780, and the trial no longer has separate guilt/innocence and punishment phases. Barfield
v. State, 63 S.W.3d 446, 449 (Tex.Crim.App. 2001) (bifurcation statute, art. 37.07 § 2(a),
applies only to pleas of not guilty before a jury). Appellant’s guilty plea precluded
submission of the issue of guilt to the jury, Fairfield, 610 S.W.2d at 776-77, and left only
the issue of punishment to be determined during an unitary trial. See Carroll v. State, 975
S.W.2d 630, 631 (Tex.Crim.App. 1998). Thus, the jury had to return a verdict only on the
issue submitted to it, which was the issue of punishment. See art. 37.01; Brinson v. State,
570 S.W.2d 937, 939 (Tex.Crim.App. 1978).
However, even assuming that appellant was entitled to a written verdict by the jury
on the issue of guilt, the verdict form returned in this case stated that the jury “found the
defendant, PAMELA SUE GARZA, guilty of the offense of POSSESSION OF
CONTROLLED SUBSTANCE WITH INTENT TO DELIVER . . .” and assessed punishment
within the same verdict form. This verdict is sufficient to fulfill the requirements of art.
37.01. See Brinson, 570 S.W.2d at 939. Appellant’s first issue is overruled.
Issue Two: Failure to admonish upon guilty plea
Both parties agree that the trial court did not give any written or oral
admonishments, as required by art. 26.13. Specifically, appellant complains that the trial
court failed to admonish her as to the applicable punishment range, art. 26.13(a)(1), and
the possible consequences of a guilty plea on citizenship and immigration related issues,
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art. 26.13(a)(4). Failure to admonish a defendant consistent with art. 26.13 is non-
constitutional error subject to harm analysis. TEX . R. APP. P. 44.2(b);2 see also Aguirre-
Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 1999). Under Rule 44.2(b), “Any
other error, defect, irregularity, or variance [not under Rule 44.2(a)] that does not affect
substantial rights must be disregarded.”
Appellant contends that she was unsure of the punishment range because the
prosecutor misstated the correct punishment range,3 and that she was not aware of the
correct punishment range until it was “too late for her to withdraw her plea.” The State
contends that appellant’s substantial rights were not affected because it correctly stated
the punishment range of incarceration during voir dire and the trial court correctly stated
the applicable punishment range in the court’s charge. Thus, the State contends that
appellant knew the applicable punishment range, even though the judge erred in failing to
give the admonishments. Although, appellant contends that without the admonishments
“doubt is cast upon the voluntariness of her plea,” our independent review of the record
reveals no “grave doubt” that appellant’s plea was voluntary. Burnett v. State, 88 S.W.3d
633, 638 (Tex.Crim.App. 2002). Further, appellant could have withdrawn her plea at any
time prior to the retirement of the jury. See Fairfield, 610 S.W.2d at 776 (citing Alexander
v. State, 69 Tex. Crim. 23, 152 S.W. 436, 437 (1912)).
2
Further reference to the Texas Rules of Appellate Procedure will be by reference
to “Rule __.”
3
During voir dire, the prosecutor incorrectly stated the maximum fine as being up
to $10,000. On a charge of delivery of a controlled substance within a drug free zone, the
maximum fine is up to $20,000. See TEX . HEALTH & SAFETY CODE ANN . § 481.134(c)(1)
(Vernon Supp. 2005).
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Appellant also contends the trial court’s failure to admonish her of possible
deportation consequences of her plea substantially harmed her and requires reversal even
though the record is silent to appellant’s citizenship status. The State counters that harm
cannot be presumed by the trial court’s failure to admonish appellant of deportation
consequences given the lack of evidence concerning appellant’s citizenship status.
Contrary to appellant’s position, without evidence of appellant’s citizenship status, we have
no basis to determine whether appellant’s substantial rights were affected and are,
therefore, required to disregard any error as harmless. Rule 44.2(b); see also Gorham v.
State, 981 S.W.2d 315, 319 (Tex.App.–Houston [14th Dist.] 1998, pet. ref’d).
Under our duty to assess harm after a proper review of the record, we do not find
any indication that appellant’s substantial rights were affected by the trial court’s failure to
admonish appellant as to the applicable punishment range or of the possible deportation
consequences of her plea. Further, the record does not indicate that appellant’s plea was
involuntary. We overrule appellant’s second issue.
Conclusion
Having overruled appellant’s two issues, we affirm.
Mackey K. Hancock
Justice
Do not publish.
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