Dominique Shaquille Marquis Harvey v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00124-CR
DOMINIQUE SHAQUILLE MARQUIS HARVEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 47184-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After entering an open plea of guilty to murder, 1 Dominique Shaquille Marquis Harvey
asked the jury to assess his punishment. Following a punishment trial, the jury recommended a
sentence of seventy-five years’ confinement in prison. The trial court sentenced Harvey in
accordance with the jury’s recommendation, and Harvey appeals, maintaining that the trial court
erred when it admonished him because it failed to comply with Article 26.13 of the Texas Code
of Criminal Procedure, that the trial record lacked an oral record or document setting forth the
evidence used to convict Harvey in violation of Article 39.14 of the Texas Code of Criminal
Procedure, and that the State engaged in improper jury argument. Because we find that (1) Harvey
was not harmed by not being admonished that a guilty plea may affect his immigration status, (2)
the State did not improperly argue regarding the application of parole law, and (3) Harvey
preserved no claim that the State failed to provide him an evidence inventory, we affirm the trial
court’s judgment.
(1) Harvey Was Not Harmed by Not Being Admonished that a Guilty Plea May Affect His
Immigration Status
Harvey maintains that the trial court erred in accepting his guilty plea because it failed to
inquire as to his citizenship or admonish him regarding potential immigration consequences. We
conclude, however, that Harvey was not harmed by this omission.
Statutorily, trial courts must give a series of admonishments to defendants who plead
guilty. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Supp.). Germaine to Harvey’s current issue,
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Harvey’s indictment alleged that on September 21, 2017, Harvey intentionally or knowingly caused the death of
Cameron Brooks by shooting Brooks with a firearm. Harvey initially waived arraignment and entered a plea of not
guilty. Almost two years later, Harvey signed a stipulation of evidence and pled guilty to the charged offense.
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before a trial court accepts a guilty plea, it must admonish the 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 result in deportation, the exclusion from admission to this country, or the
denial of naturalization under federal law . . . .” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4).
“In admonishing the defendant . . . , substantial compliance by the court 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 admonishment of the court.” TEX. CODE CRIM. PROC. ANN. art.
26.13(c); see VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007); Seagraves v.
State, 342 S.W.3d 176, 183 (Tex. App.—Texarkana 2011, no pet.).
The failure to admonish in accordance with Article 26.13 of the Texas Code of Criminal
Procedure is a statutory error rather than a constitutional one. Burnett v. State, 88 S.W.3d 633,
637 (Tex. Crim. App. 2002). As such, we must disregard the error unless it affected the
“substantial rights” of the defendant. TEX. R. APP. P. 44.2(b). We review the entire record to
determine whether the defendant was misled or harmed by this failure to admonish. Burnett, 88
S.W.3d at 638. Because the record points to Harvey being a citizen of this country, the failure was
harmless.
This record reveals that, along with several other convictions, in 2014, Harvey pled guilty
to, and was convicted of, theft and evading arrest in Gregg County. Harvey’s thumb prints are
shown on documents attached to those judgments of conviction. In them, Harvey certified that the
prints belonged to him 2 and that the information contained in those documents was true and
2
Harvey was fingerprinted in open court.
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correct. In both documents, Harvey certified that he was born in Longview, Texas, on August 10,
1995. Thus, the documents demonstrated that, at that time of those pleas, Harvey was a citizen of
the United States.
Because there is nothing in the record showing that Harvey’s nationality was incorrectly
noted in the documents, that Harvey renounced his American citizenship, or that he became a
citizen of a foreign country before the plea proceeding, any error in failing to inquire as to his
citizenship or to admonish him on potential immigration consequences was harmless. 3 We
overrule this issue.
(2) The State Did Not Improperly Argue Regarding the Application of Parole Law
Harvey also argues that the State engaged in improper jury argument when it urged the jury
to consider how parole law applied to him. We disagree.
“Permissible jury argument falls into one of four areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel;
or (4) a plea for law enforcement.” Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).
Here, Harvey, and not the State, was the first party to discuss the issue of parole law as it
applied specifically to him. Before the State made its comments on parole law, Harvey argued,
In the Jury Charge, it talks about parole eligibility. What happens is on --
when you give a number on a murder case, you divide that by two -- it -- it’s half
or 30, whichever is less, is what you have to serve. Now, that means day for day.
And there’s one [instruction] in there that I want you to understand;
eligibility does not guarantee parole. Very rarely would it -- someone make parole
after half time on a -- especially a murder case. So it’s very important that you
3
Further, in a police department summary regarding Harvey, under “Ethnicity,” it showed that Harvey was “Not of
Hispanic origin.” The same document showed that Harvey had a social security number, a driver’s license number,
and a state criminal identification number. While those documents do not amount to conclusive evidence that Harvey
was a citizen of the United States, they support such a finding.
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don’t get in your mind thinking, “Well, if we give him this, he’s only got to do
half.” . . . But I just don’t want you [to] think that because it’s in the Charge, that
half time, that’s all he’s got to do.
(Emphasis added.) In the State’s final closing statement, it responded to Harvey’s statement in
relation to the issue of parole law as it applied to Harvey, by arguing, in relevant part,
[Defense Counsel] talked about the parole law and how in the Jury Charge
it talks about it, that it’s not really true, the half time.
....
Okay. As the law is in the Jury Charge, someone has to serve half the time
of whatever you give them, or 30 years, whichever is less, and you don’t take into
account the good conduct time. That’s what the law tells you. Okay?
So if you give someone 50 years, what are they going to do? They’re going
to do 25. . . . So 25 before they’re eligible for parole. If you assess 60 years, what
happens? They have to do, day for day, and [Defense Counsel] said, 30 years before
they’re eligible for parole. Okay. . . . The reason I bring that out is because the
defendant has helped us out. In his confession,[4] he tried to figure out what you
were going to do.
....
And he says, “Well, let’s see if, if I -- if they give me 40, I’ll only have to
do 75 percent,” which I figured that out before I got here, is 30 years. But the
detective says, “No, no, no. That’s not right. You have to do half before you’re
eligible.” And the defendant said, “Oh, okay. So if they give me 40, I’ll only have
to do 20.” He seemed very relaxed with that.
So I just want you to remember that when you go back there to assess
sentence, that the defendant is trying to help you out. So he knows that you will
probably, my opinion, start at 40, because that’s what he said in his confession.
And he seemed to be okay with it because -- what? -- immediately after that, I think
his questions were, “Well, can I have a cigarette?”
Here, the State was responding to Harvey’s argument regarding the potential time he would serve
before he would be eligible for parole. A response to the argument of opposing counsel is
4
The recording of Harvey’s statement was admitted into evidence without objection.
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permissible argument. Cannady, 11 S.W.3d at 213. Accordingly, the State’s closing argument
regarding parole was not improper. 5
We overrule this point of error.
(3) Harvey Preserved No Claim that the State Failed to Provide Him an Evidence Inventory
Harvey also contends that, pursuant to Article 39.14, subsections (i) and (j), of the Texas
Code of Criminal Procedure, the State was required to provide him with an inventory of the
evidence it intended to use to prove his guilt. He maintains, however, that, “while the inventory
was discussed, signed and admitted, it [was] neither part of the reporter’s record, nor the clerk’s
record.”
Article 39.14(i) states, “The State shall electronically record or otherwise document any
document, item, or other information provided to the defendant under this article.” TEX. CODE
CRIM. PROC. ANN. art. 39.14(i) (Supp.). In addition, Article 39.14(j) states, “Before accepting a
plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the
record in open court the disclosure, receipt, and list documents, items, and information provided
to the defendant under this article.” TEX. CODE CRIM. PROC. ANN. art. 39.14(j) (Supp.).
The State maintains that Harvey forfeited the issue because he failed to object to the alleged
error at trial. We agree that Harvey failed to preserve this issue.
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Even if the State’s argument had been improper, Harvey failed to preserve the issue for our review. To avoid the
forfeiture of a complaint on appeal, a party’s point of error on appeal must comport with the objection that was made
at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Here, Harvey’s objections at trial were based
on (1) the State’s alleged mischaracterization of a statement Harvey made during his closing argument and (2) the
State’s mischaracterization of how parole law works in general. Yet, on appeal, Harvey contends that it was improper
for the State to argue how parole law specifically applied to him. Thus, Harvey’s argument at trial, although similar,
differed from his point of error on appeal. Accordingly, Harvey has forfeited the issue for our review.
6
In general, to preserve error for appellate review, a defendant must make a timely and
specific objection. TEX. R. APP. P. 33.1(a), Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App.
1991). Specific to this case, the rights created by statute governing discovery “are neither systemic
or fundamental” and can be forfeited by failing to object properly to the claimed violation.
Rodriguez v. State, 553 S.W.3d 733, 746 (Tex. App.—Amarillo 2018, no pet.) (citing Glover v.
State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Here, Harvey did
not make a trial objection pursuant to Article 39.14, subsections (i) or (j), prior to the admission
of the evidence. Accordingly, he preserved no error based on the statutory language. We overrule
this point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 1, 2020
Date Decided: April 21, 2020
Do Not Publish
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