X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Olugbenga Fakeye pleaded guilty to organized criminal activity with the underlying offense of fraudulent use or possession of identifying information. A jury assessed punishment at five years of confinement and a $1,652 fine. The trial court, however, failed to admonish Fakeye of the deportation consequences of his plea, as required by Texas Code of Criminal Procedure Art. 26.13(a)(4). Fakeye appealed his conviction, claiming that his guilty plea was involuntary as a result of the trial court’s failure to admonish him of the deportation consequences of his plea. The 2nd Court of Appeals reversed the trial court’s decision, holding that the trial court’s failure to correctly admonish him was harmful error, and remanded the case to the trial court for further proceedings. The CCA granted the state’s petition for discretionary review. HOLDING:Affirmed. In its first issue, the state argued that the 2nd Court erred in relying on allegations in a motion in limine as some evidence that Fakeye was not a citizen of the United States when conducting its harm analysis. The CCA disagreed. Texas Code of Criminal Procedure Art. 26.13(a)(4) requires that, before accepting a guilty plea, the trial court admonish the defendant of the possibility of deportation. The failure, the CCA stated, of a trial court to admonish a defendant as required by Art. 26.13 is a statutory error rather than a constitutional error. Under Texas Rule of Appellate Procedure 44.2(b), the CCA stated, when conducting the harm analysis of statutory errors, courts of appeals must disregard the error unless it affected Fakeye’s substantial rights. The CCA found that the 2nd Court of Appeals correctly examined the entire record for indications that Fakeye was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court’s failure to admonish him. The court did not merely assume that Fakeye was an immigrant, but relied on several circumstances found in the record, which it held would support such an inference. Thus, the CCA found that the 2nd Court’s conclusion that Fakeye was an immigrant was a reasonable inference based on the record as a whole, including the motion in limine. The 2nd Court correctly stated that a silent record supported the inference that the defendant was unaware of the consequences. Next, the state contended that Texas Rule of Appellate Procedure 44.4 required the 2nd Court to abate the appeal and remand to the trial court for a hearing on Fakeye’s citizenship status and his awareness of the deportation consequences of his guilty plea. But the CCA disagreed with this contention, finding Rule 44.4 irrelevant. Rule 44.4, the CCA stated, is implicated when a trial court’s error prevents the proper presentation of the case to the appellate court and that error can be remedied without requiring an entire new trial or new punishment hearing. OPINION:Meyers, J., delivered the opinion of the unanimous court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.