LOCH, VITH

Loch, a citizen of Cambodia, was not admonished according to Tex. Code Crim. Proc. art. 26.13(a)(4) about possible deportation consequences when he pleaded guilty to murder. During the proceedings, he stipulated to having six prior convictions.

On appeal, Appellant complained about the failure to admonish under Article 26.13(a)(4). The court of appeals held it was reversible error. It concluded that, even though evidence of guilt is overwhelming, there is no evidence that he was aware of deportation consequences at the time of his plea.

The State contends the court of appeals erred to find harm because immigration consequences were immaterial to his plea. Most of Loch’s prior convictions made him deportable before he entered his plea. Indeed, documents showed that Loch had an ICE detainer placed on him when previously imprisoned in Florida.  Because he had no lawful right to be in the U.S., he cannot show his guilty plea might lead to deportation.  And, even if Loch subjectively believed he was not already deportable, he still did not suffer harm. A non-citizen defendant’s false belief about immigration status does not implicate a “substantial right” as required by Rule 44.2(b).  If it could have had no impact on his decision then, in hindsight for purposes of a harm assessment, it cannot rationally be said that it would have had an impact. Finally, harm cannot be shown because the evidence is overwhelming, Loch was motived by a sense of duty and religion to plead, and he was already deportable, his plea would have been the same had he been properly admonished.