Mickey Ray Taylor Jr. v. the State of Texas ( 2022 )

Opinion filed December 1, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00256-CR
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MICKEY RAY TAYLOR JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR54221
MEMORANDUM OPINION
Mickey Ray Taylor Jr. entered an open plea of nolo contendere to evading
arrest or detention with a motor vehicle, a third-degree felony. TEX. PENAL CODE
ANN. § 38.04(a), (b)(2)(A) (West 2016). The trial court found Appellant guilty and
assessed his punishment at confinement for five years in the Institutional Division
of the Texas Department of Criminal Justice. In his sole issue on appeal, Appellant
contends that the trial court’s failure to admonish him about the immigration
consequences of his plea pursuant to Article 26.13(a)(4) of the Texas Code of
Criminal Procedure constitutes reversible error. TEX. CODE CRIM. PROC. ANN.
art. 26.13(a)(4) (West Supp. 2022). We affirm.
Background Facts
On August 16, 2019, Deputy Rusty Winn with the Midland County Sheriff’s
Office responded to a disturbance call indicating that “there was a male inside of the
residence with a knife, trying to defend his family from something that was not
there.” When Deputy Winn arrived on scene, he found Appellant in the driver’s seat
of an SUV and a woman standing outside of the vehicle. Deputy Winn testified that
Appellant refused to comply with orders to step out of the vehicle, so he deployed
his taser. After Deputy Winn tased Appellant, Appellant “jumped back into the
driver’s side” of the vehicle and drove away from the scene.
Deputies Winn, Rodriguez, and Cortinas began the pursuit, which eventually
involved numerous officers from multiple agencies attempting to stop Appellant’s
vehicle. During the pursuit, Appellant drove erratically throughout the city of
Midland and in Midland County, reaching speeds of up to 90 miles per hour.
Officers ultimately deployed tire “spikes” to disable Appellant’s vehicle, and
Appellant was taken into custody.
Following the events on August 16, 2019, the State charged Appellant with a
three-count indictment for assault family violence with a previous conviction,
evading arrest in a vehicle, and aggravated assault against a public servant. The
State dismissed the assault charges and proceeded on the evading charge. Appellant
entered an open plea of nolo contendere on the evading charge. The trial court
accepted Appellant’s plea and found him guilty of the offense. The trial court did
not admonish Appellant of the immigration consequences of his plea.
During the punishment trial to the bench, the State presented the testimony of
three officers involved in the pursuit and offered two in-car camera videos, which
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the trial court admitted into evidence. At the conclusion of the evidence, the trial
court assessed Appellant’s punishment at five years in the Institutional Division of
the Texas Department of Criminal Justice.
Analysis
Prior to accepting a plea of nolo contendere, the trial court must admonish a
defendant of “the fact that if the defendant is not a citizen of the United States of
America, a plea of guilty or nolo contendere for the offense charged” may have
immigration consequences under federal law. CRIM. PROC. art. § 26.13(a)(4).
Failure to admonish a defendant under Article 26.13 constitutes nonconstitutional
error. Loch v. State, 621 S.W.3d 279, 281 (Tex. Crim. App. 2021). Accordingly,
we disregard such an error if it “does not affect substantial rights.” TEX. R.
APP. P. 44.2(b); Loch, 621 S.W.3d at 282. An error does not affect a defendant’s
substantial rights if, after examining the record as a whole, the appellate court has
fair assurance that “the defendant’s decision to plead guilty would not have changed
had the court admonished him.” Loch, 621 S.W.3d at 282. To make this
determination, we consider the following factors to aid in our harm analysis:
“(1) whether an appellant knew the consequences of his plea; (2) the strength of the
evidence of an appellant’s guilt; and (3) an appellant’s citizenship and immigration
status.” Id. (citing VanNortrick v. State, 227 S.W.3d 706, 712 (Tex. Crim. App.
2007)).
Neither party bears the burden to prove harm. Id. Accordingly, the reviewing
court “should draw reasonable inferences from facts in the record when conducting
a harm analysis due to a trial court’s failure to admonish a defendant about the
consequences” of his plea. VanNortrick, 227 S.W.3d at 710. Direct evidence of
citizenship is not required to support an inference made by the appellate court.
Fakeye v. State, 227 S.W.3d 714, 716 (Tex. Crim. App. 2007). However, “when the
record is silent regarding the consequences of conviction in the context of a guilty
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plea,” we must infer that Appellant meets the first factor—that Appellant did not
know the consequences of his plea. VanNortrick, 227 S.W.3d at 710–11.
As an initial matter, Appellant does not contend that he would have changed
his plea had the trial court given him the admonishment in Article 26.13(a)(4), nor
does Appellant assert that he is not a United States citizen or claim that he has
suffered any adverse immigration consequences because of his plea. Instead,
Appellant asserts that the trial court committed reversible error in failing to
admonish Appellant under Article 26.13(a)(4) and requests this court to set aside
Appellant’s plea and remand the case for a new trial. In response, the State contends
that the error is harmless.
We turn to the three factors delineated in Loch. Here, Appellant meets the
first factor because the trial court did not admonish Appellant of the possible
immigration consequences of his plea as required by Article 26.13(a)(4).
VanNortrick, 227 S.W.3d at 710. However, the second and third factors foreclose
Appellant’s assertions of harm based on the lack of the admonishment.
The record shows overwhelming evidence of Appellant’s guilt. As stated
above, the State presented the testimony of three officers involved in the pursuit and
two in-car camera videos of the pursuit. The testimony and video evidence clearly
show that Appellant evaded arrest or detention in a vehicle for over twenty minutes,
driving erratically and, at times, at a very high rate of speed. Deputy Winn testified
that Appellant endangered himself, the officers, and “[a]ny civilian that was on the
roadway [by] going into oncoming traffic” and by driving through numerous red
lights and stop signs during the offense. The strength of the evidence indicating
Appellant’s guilt weighs against a finding of harm. Loch, 621 S.W.3d at 283, 285.
Next, it appears from this record that Appellant is a United States citizen. In
Appellant’s petition for a writ of habeas corpus requesting a reduction of Appellant’s
bail, accompanied by a sworn affidavit, Appellant’s trial counsel states that
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Appellant “was born, raised, and has continuously lived in either Midland County
or Ector County for his entire life.” Additionally, Appellant, in his “Affidavit in
Support of Counsels Motion to Withdraw,” states that he is “incarcerated in violation
of Texas Law . . . [and that] my rights as a Texas Citizen of the U.S. are being
violated.” Drawing reasonable inferences in our determination of Appellant’s
citizenship and immigration status, we infer from these facts in the record that
Appellant is a United States citizen. See Fakeye, 227 S.W.3d at 716 (“Statements
made by the attorneys are not ‘evidence’ . . . , but they are references found in the
record that can support an inference.” (citing Burnett v. State, 88 S.W.3d 633, 641
(Tex. Crim. App. 2002))); Hines v. State, 396 S.W.3d 706, 709 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (defendant born in the United States). As a
citizen, Appellant would not suffer any immigration consequences as a result of his
nolo contendere plea. Appellant’s citizenship status weighs against a finding of
harm.
Considering the overwhelming evidence of Appellant’s guilt and Appellant’s
status as a United States citizen, we have a fair assurance that Appellant’s plea of
nolo contendere would not have changed had the court admonished him under
Article 26.13(a)(4). Accordingly, the trial court’s failure to admonish Appellant of
any possible immigration consequences of his plea constituted harmless error. We
therefore overrule Appellant’s sole issue.
Court-Appointed Attorney’s Fees
Although not raised by Appellant, the State asserts that the district clerk’s
assessment of court appointed attorney’s fees is in error because Appellant is
indigent. On this issue, we note that the trial court waived all court costs and fines
in the case and affirmatively stated in the judgment that Appellant “does not have
the sufficient resources or income” to pay such fees.
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An indigent defendant cannot be taxed the cost of services rendered by his
court-appointed attorney unless the trial court finds that the defendant has the
financial resources to repay those costs in whole or in part. Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010)); see TEX. CODE CRIM. PROC. ANN.
art. 26.05(g) (West Supp. 2021). The Texas Court of Criminal Appeals has held that
the trial court must find that the defendant had the ability to repay court-appointed
attorney’s fees prior to assessing such fees against an indigent defendant. Cates v.
State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d
at 556 (“[T]he defendant’s financial resources and ability to pay are explicit critical
elements in the trial court’s determination of the propriety of ordering
reimbursement of costs and fees.”). Further, a “defendant who is determined by the
[trial] court to be indigent is presumed to remain indigent for the remainder of the
proceedings in the case unless a material change in the defendant’s financial
circumstances occurs.” Cates, 402 S.W.3d at 251 (quoting CRIM. PROC.
art. 26.04(p)).
On August 23, 2019, Appellant filed an affidavit of indigence certifying that
he did not have the necessary funds to hire an attorney for his defense. The trial
court determined that Appellant was indigent and appointed counsel to represent
Appellant’s interest in all proceedings in the case. Subsequent to this appointment,
the trial court did not receive evidence, nor did it issue a finding, that Appellant had
the ability to pay any portion of the attorney’s fees that were incurred by his court-
appointed attorney. Counsel’s filings and the district clerk’s statement that it would
not assess costs for the clerk’s record following a signed Pauper’s Affidavit
additionally indicate that Appellant remained indigent throughout the proceedings.
Nothing in the record indicates that Appellant is no longer indigent or that the
trial court made a subsequent determination that Appellant’s financial circumstances
had materially changed. On the contrary, the trial court’s judgment expressly states
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that Appellant does not have sufficient resources or income and waives the costs and
fees assessed in this case. Therefore, the district clerk’s amended bill of costs
erroneously includes attorney’s fees as costs for which Appellant is responsible. We
modify the district clerk’s bill of costs to delete the court-appointed attorney’s fees
assessed against Appellant. See TEX. R. APP. P. 43.6 (“The court of appeals may
make any other appropriate order that the law and the nature of the case require.”).
This Court’s Ruling
We modify the district clerk’s amended bill of costs to delete the court-
appointed attorney’s fees assessed against Appellant. We affirm the judgment of the
trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 1, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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