Opinion
No. 05-04-01049-CR
Opinion issued November 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00476-SR. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
James Brian Johnson appeals his conviction for aggravated kidnapping of K.T. See Tex. Pen. Code Ann. § 20.04 (Vernon 2003). After appellant pleaded guilty without a plea bargain agreement, the trial judge found him guilty and assessed punishment at eighteen years' confinement. In three issues, appellant claims (i) the trial judge erred in accepting appellant's guilty plea and his conviction is void because the evidence failed to establish appellant committed aggravated kidnapping, and (ii) appellant's plea was involuntarily made because the trial judge failed to admonish appellant that he would be required to register as a sex offender. We affirm the trial court's judgment.
Evidence Supporting the Guilty Plea
In his first two issues, appellant claims the trial judge erred in accepting appellant's guilty plea and that the conviction is void because the evidence did not establish he committed aggravated kidnapping. Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex.R.App.P. 38.1(f), (h); see Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) (interpreting former rule 74); Aldrich v. State, 928 S.W.2d 558, 560 (Tex.Crim.App. 1996) (interpreting former rule 74). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App. 1995); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex.Crim.App. 1992); Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim.App. 1991); Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("Because appellant's argument on this point of error contains no citations to the record, he has waived appellate review of his complaint."); Huerta v. State, 933 S.W.2d 648, 650 (Tex.App.-San Antonio 1996, no pet.) (appellant must direct court to specific portion of record supporting complained of error). Although appellant sets forth the language of the appropriate penal code sections on aggravated kidnapping and criminal attempt, he provides no citation to or discussion or analysis of the record to support his argument. He does not explain why the testimony does not establish there was a kidnapping, nor does he discuss why the record does not support his guilty plea. His entire discussion of the facts and application of the same to the law is as follows:The only crime proved at trial was that of assault, not aggravated kidnapping as alleged in the indictment or kidnapping. The victim' [sic] mother lost a tooth and sustained a dislocated jaw. The evidence did not show that the child was "kidnapped" as legally defined. At most, the evidence showed that what occurred was a possible attempted kidnapping.Under these circumstances, we cannot conclude these issues have been adequately preserved for our review. See Stahle v. State, 970 S.W.2d 682, 692 (Tex.App.-Dallas 1998, pet. ref'd.) (issue not adequately preserved for review when appellant's conclusory argument contained only fleeting references to law and no discussion or analysis of relevant authorities or record cites); Jensen, 66 S.W.3d at 545 (appellant waived review when argument contained no citations to record). Moreover, even assuming we were to address appellant's complaints, the evidence embraces "every essential element" of the charged offense and establishes appellant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Appellant signed a judicial confession in which he stipulated to the evidence and confessed to each element of the offense as alleged in the indictment. Because appellant judicially confessed to the aggravated kidnapping of K.T., we conclude the trial judge did not err in accepting appellant's guilty plea and the conviction is not void. See Nix v. State, 65 S.W.3d 664, 668 n. 14 (Tex.Crim.App. 2001) ("For the judgment to be void, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence. And a guilty plea constitutes some evidence for this purpose." (citations omitted)). Finally, we note that the evidence adduced during punishment is sufficient to support appellant's guilty plea. Yaneth Garcia testified that on August 16, 2003, she had taken her three daughters and two other girls to a movie. They left the theater and were getting into the car when Garcia saw appellant "zigzagging through the cars" toward them. Something about the way he was approaching made Garcia nervous. She ran around to close the car door. Appellant walked up to her and said "What's up?" He then punched her, grabbed her three-year-old daughter, K.T., and left. Garcia chased him, grabbing his arm. He punched her in the face and head. Garcia yelled and screamed that he was taking her baby. Appellant dropped K.T. and left. Appellant testified that on August 16, 2003, he had been driving around and drinking when he saw a cute girl. She invited him inside the building where she was standing and handed him something to smoke. Thereafter, appellant felt good, "[l]ike everything was cool." He drove to the parking lot of a movie theater where he saw Garcia. According to appellant, he approached her to ask her for her phone number but she pushed him away. He punched her in the face, and she ran off. He then picked up Garcia's three-year-old daughter and carried her off several feet. According to appellant, he wanted to "freak out" Garcia by taking her child. When Garcia ran after him, he dropped her daughter and left. The above detailed evidence embraced every essential element of the offense, thereby establishing appellant's guilt. See Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (evidence that embraces every essential element of offense charged is sufficient evidence to establish defendant's guilt and is adequate to support defendant's guilty plea). We overrule appellant's first and second issues.
Failure to Admonish
In his third issue, appellant claims his guilty plea was involuntary because the trial judge failed to admonish appellant that he would be required to meet the requirements of the sex offender registration program. Article 26.13 provides that, prior to accepting a guilty plea, a trial judge shall give the necessary admonishments, either orally or in writing, to a defendant. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004-05). We have reviewed the record in this case. Appellant signed a plea agreement with written admonishments. The form included the following:I understand the admonitions regarding unadjudicated community supervision, and that I will be required to register as a sex offender if convicted of, or placed on community supervision for, one of the offenses enumerated under Court's Admonition to Sex Offenders, attached hereto.The clerk's record in this appeal, however, did not contain a copy of the Court's Admonition to Sex Offenders. On October 10, 2005, we ordered the Dallas County District Clerk to file a supplemental clerk's record containing the form by October 25, 2005. In a letter dated October 20, 2005, the District Clerk informed the Court he had been "unable to find" any such form in the trial court's file. Because there is no copy of the form in either the trial court's file or the appellate record, we cannot conclude the form was attached to the written admonishments given to appellant. Thus, the record does not show appellant was admonished of the sex offender registration consequences of his plea. This failure to admonish "violates the mandatory language of article 26.13(a) and constitutes error." Webb v. State, 156 S.W.3d 653, 655 (Tex.App.-Dallas 2005, pet. filed); see Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App. 2004) (sex-offender registration requirement is direct consequence of appellant's plea); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002) (failure to admonish defendant on direct consequences of guilty plea is statutory error). However, "the failure to admonish appellant does not necessarily render a plea involuntary." Mitschke, 129 S.W.3d at 136. We must determine whether the record shows "harm resulting from [appellant's] asserted lack of knowledge as to the registration requirement." Mitschke, 129 S.W.3d at 136; see Webb, 156 S.W.3d at 655. Under Texas Rule of Appellate Procedure 44.2(b), we disregard a statutory error unless it affected appellant's "substantial rights." See Webb, 156 S.W.3d at 655. We do not overturn a conviction unless, after examining the record as a whole, we conclude the error may have had a "substantial influence" on the outcome of the proceeding; if we have a "grave doubt" about whether the conviction was free from the substantial influence of the error, then we must treat the error as if it did. See Webb, 156 S.W.3d at 655 (citing Burnett, 88 S.W.3d at 637). Neither appellant nor the State has any formal burden to show harm or harmlessness under rule 44.2(b). Burnett, 88 S.W.3d at 638. Rather, we have a duty to assess harm after a proper review of the record. Burnett, 88 S.W.3d at 638. We examine the record for indications "appellant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial [judge's] failure to admonish on the sex offender registration consequences." Webb, 156 S.W.3d at 656. To warrant reversal on direct appeal, the record must "support an inference that appellant did not know the consequences of his plea." Webb, 156 S.W.3d at 656 (citing Burnett, 88 S.W.3d at 638); see Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd). A silent record, i.e., "one in which there is no indication that the appellant was ever informed about the specific consequences of his plea," may support such an inference. Webb, 156 S.W.3d at 656 (citing Burnett, 88 S.W.3d at 638 and Hwang, 130 S.W.3d at 499-500). A record that shows the appellant was informed, by the judge, trial counsel, or in some other way, about the specific consequences of his plea creates a rebuttable presumption that the appellant knew the consequences. See Webb, 156 S.W.3d at 656.
In this case, the indictment alleged appellant did intentionally and knowingly abduct complainant, [K.T.], by restraining the said complainant with intent to prevent her liberation by secreting and holding said complainant in a place where she was not likely to be found, and by using and threatening to use deadly force, and without the complainant's consent did then and there restrain her, so as to interfere substantially with her liberty, by moving said complainant from one place to another and by confining said complainant; and [appellant] did intentionally and knowingly abduct complainant with the intent to inflict bodily injury on the complainant and violate and abuse the said complainant sexually, and with the intent to terrorize complainant and a third person, namely, Yaneth Garcia.(Emphasis added.) And, as previously noted, appellant's written admonishments included the statement "I understand the admonitions regarding unadjudicated community supervision, and that I will be required to register as a sex offender if convicted of, or placed on community supervision for, one of the offenses enumerated under Court's Admonition to Sex Offenders, attached hereto." Thus, there is a slight inference appellant was aware of the sex offender registration consequence of pleading guilty. Nevertheless, assuming he was not aware of the consequences, we must examine the record for "indications of whether appellant was mislead or harmed by the lack of the admonishment." See Webb, 156 S.W.3d at 656 (defining harm as meaning "appellant probably would not have pleaded guilty but for the failure to admonish."). Although appellant argues he was "unaware of this provision" and "would not have waived his right to jury trial and entered a plea of guilty" if he had been aware, appellant does not cite us to any evidence in the record to support this contention. Appellant did not file a motion for new trial; thus, there is no record of a hearing in which appellant presented evidence to support his argument. Furthermore, the record shows that, at the plea hearing on June 7, 2004, appellant stated on the record he had read the papers and his attorney had explained "the different legal parts." Appellant stated he was pleading guilty because he was guilty and for no other reason. According to appellant, he was freely and voluntarily waiving his right to a jury trial and entering his guilty plea, and it was his understanding the State was dismissing an aggravated assault charge against him. Before accepting his guilty plea, the trial judge asked appellant if he understood everything that had been done in his case up to that point, to which appellant responded, "Yes, sir." After examining the record as a whole, we are not left with a grave doubt in this case as to whether appellant's substantial rights were affected. The record supports a conclusion that appellant would have pleaded guilty even if he had been given the admonishment. Therefore, we conclude the failure to admonish appellant did not render his plea involuntary. We overrule his third issue. We affirm the trial court's judgment.