I cannot fault the court of appeals for conducting the Rule 44.2(b) ⁽¹⁾ harm analysis this Court instructed it to perform on remand. However, regardless of whether I believe this Court's initial opinion was correctly decided, the appellant, at least on remand, raised, as harm, the constitutional claim this Court found he failed to adequately raise previously. Therefore, I would remand the case to the court of appeals to perform an analysis in line with this opinion. Because the majority does not agree, I must dissent.

Additionally, the court of appeals' harm analysis under Rule 44.2(b) was faulty. I therefore cannot agree that the court of appeals did not err in reaching its conclusion that the error was harmless. Because the majority disagrees, I must dissent.

Finally, there are additional points of error, raised by the appellant on direct appeal, that were never addressed by the court of appeals, due to the disposition of the court's initial opinion and the limited scope of the remand order. I would remand the case to allow the court of appeals to address the remainder of appellant's contentions. Because the majority does not do so, I must dissent.

I.

This Court's prior decision concluded that because the statutory admonishments were not constitutionally mandated, failure to admonish the appellant on the applicable range of punishment is merely statutory error. ⁽²⁾ In that decision, this Court did not address whether the Constitution requires the record to affirmatively show the appellant's knowledge and understanding of the range of punishment before a guilty plea is valid, and if so, what the effect on the appellant's constitutional rights might be of the trial court's failure to admonish on punishment. There are two reasons for this omission. First, this Court determined the appellant had not sufficiently raised the constitutional issue. ⁽³⁾ If he had not previously, the appellant has now done so. Second, this Court relied on its reasoning and conclusion in Carranza ⁽⁴⁾, a case in which the appellant did not allege constitutional error. ⁽⁵⁾ Carranza, however, involved the trial court's failure to admonish non-citizens of the possibility of deportation, a consequence about which the appellant's knowledge is not required for a plea to be valid. ⁽⁶⁾

Although the appellant raised the constitutional issue on remand, the majority continues to ignore the constitutional implications of the trial court's failure to admonish on punishment range. In fact, the majority, in footnote 4, suggests that a defendant's knowledge or understanding regarding the applicable range of punishment may not be constitutionally required. I disagree with both the majority's implication and with its refusal to address the effect of the constitutional issue now before us on determining the appropriate harm analysis to apply to a trial court's error in failing to admonish an appellant on the applicable punishment range.

Boykin requires that the record show the defendant voluntarily and understandingly entered his plea of guilty. ⁽⁷⁾ Boykin also requires a defendant have "a full understanding of what the plea connotes and of its consequence." ⁽⁸⁾ This Court, as well as most federal circuit courts, following the language in Brady ⁽⁹⁾, have used a direct consequence test to determine which consequences of a guilty plea the defendant is constitutionally required to know for the plea to be valid. ⁽¹⁰⁾ A consequence is direct if it is a definite, practical consequence of a defendant's guilty plea. ⁽¹¹⁾ The range of punishment to which a defendant will be subject upon pleading guilty is a definite, practical consequence of a defendant's guilty plea. Therefore, the range of punishment is one of the consequences that the record must affirmatively show the defendant understands for the plea to be valid.

Performing the statutory admonishment on the applicable punishment range ensures an affirmative showing on the record of the defendant's knowledge of that consequence. Failing to admonish on range of punishment, on the other hand, could result in a trial judge accepting a guilty plea without an affirmative showing that it was intelligent and voluntary. In such a case, the statutory error would be one of constitutional dimension, reviewed for harm under 44.2(a). However, because Boykin does not specify that the affirmative showing must appear in the form of an admonishment, an affirmative showing of the defendant's knowledge of the range of punishment may possibly exist in the absence of the statutorily required admonishment. For example, the defendant, without being questioned by the court, could state the punishment range on the record and that he understood he would be sentenced within that range if he pled guilty. If the record affirmatively shows the defendant's knowledge of the applicable punishment range, the failure to admonish the defendant on the range of punishment would constitute mere statutory error, evaluated for harm under 44.2(b).

This Court's prior decision did not acknowledge that the failure to admonish could rise to the level of a constitutional error when the Boykin requirement for an affirmative showing of the defendant's knowledge is not otherwise satisfied. This Court has recognized that some evidentiary errors can amount to constitutional error. ⁽¹²⁾ Just as a reviewing court must determine that there was error before determining if that error was harmless, when an error is alleged that could be constitutional or mere statutory or evidentiary error, the reviewing court must determine the character of the error to determine which harm analysis to apply. Logically, this entails performing two distinct error analyses, first to determine if there was error and second to determine if that error amounted to constitutional error.

The distinction between the determination of error and the harm analysis is crucial, but can become confusing when applied to the record of a case. In Potier, this Court found the court of appeals properly applied the harmless-error standard for non-constitutional errors, rather than the standard for constitutional errors, because the erroneous exclusion of evidence did not amount to a denial of due process or other constitutional rights. ⁽¹³⁾ In making this determination, this Court reviewed what evidence of the appellant's defense was admitted and what evidence was excluded. ⁽¹⁴⁾ It determined that although the erroneously excluded evidence was relevant to the appellant's defense, the exclusion did not significantly undermine fundamental elements of the accused's defense. ⁽¹⁵⁾ The court of appeals, in applying the Rule 44.2(b) harmless-error standard, found the trial court's error in refusing to admit certain testimony was harmless because appellant's self-defense claim had been presented to the jury by other evidence. ⁽¹⁶⁾

This Court's error analysis and the court of appeals' harm analysis sound somewhat similar. They both required the courts to look beyond the erroneous exclusion of evidence to the other evidence the appellant was able to present. However, they are distinct. The consequence of the determination that the error was not constitutional error was that the reviewing court, to affirm, did not have to find the error harmless beyond a reasonable doubt, ⁽¹⁷⁾ but only had to find fair assurance that the error did not effect the outcome of the proceeding. ⁽¹⁸⁾

Similarly, in order to determine if the trial court's failure to admonish the appellant amounted to a constitutional error subject to the harmless error standard under 44.2(a) by causing the trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary, the reviewing court must look beyond the failure to admonish and review the entire record. In this case, although the court of appeals did review the entire record in performing its 44.2(b) harmless error analysis, the court of appeals did not perform a constitutional error analysis to determine if the error is subject to harmless error analysis under 44.2(a) or 44.2(b). As demonstrated by the different results in the court of appeals' opinions, ⁽¹⁹⁾ the harmless error standard may determine the disposition of the case.

The scope of the order of remand to the court of appeals did not allow that court to perform a constitutional error analysis. I believe we should remand to allow the court of appeals to make this determination. Because the majority does not address the constitutional issue and remand for further determination by the court of appeals on this issue, I dissent.

II.

The court of appeals erred in the performance of the 44.2(b) harmless error analysis. Therefore, I cannot conclude that the court did not err in reaching the conclusion that the trial court's error was harmless. Because the majority holds that the trial court's failure to admonish on punishment range is mere statutory error subject to harm analysis under 44.2(b), I will elaborate on my disagreement with the court of appeals' application of the 44.2(b) analysis.

In Carranza, this Court maintained that there was no need to determine the exact analysis required under Rule 44.2(b) for failure to admonish, because the standard could not require the appellant to prove more than when there was substantial compliance. ⁽²⁰⁾ Therefore, this Court found that "a defendant is required to show no more than that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." ⁽²¹⁾

This Court's opinion in Burnett clarified the harm analysis required under 44.02(b) for failure to admonish the defendant on the applicable punishment range. ⁽²²⁾ The reviewing court must independently, without placing a burden on either party to show harm or harmlessness, examine the record for indications of whether a defendant was aware of the punishment range and whether the trial judge's failure to admonish the defendant about the punishment range materially affected his decision to plead guilty. ⁽²³⁾ The reviewing court must reverse if (1) the record supports an inference that the defendant did not know the consequences of his plea, which a silent record would do, and if (2) after simultaneously considering facts supporting an inference that the defendant did know the consequences of his plea, (3) the reviewing court is left with "grave doubt" on the matter. ⁽²⁴⁾

Because the court of appeals' decision on remand was delivered before this Court's opinion in Burnett, the court of appeals cited the harmless error standard from Carranza, that for a non-constitutional error harm analysis, "a defendant must show no more than that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." ⁽²⁵⁾ The court of appeals stated further that "To show harm in this case, a defendant must show he did not know the punishment range, and if he had, he would not have pleaded guilty." ⁽²⁶⁾

In determining the error was harmless, the court of appeals stated "nothing in this record shows appellant was harmed. There was no motion for new trial, and appellant neither claimed nor proved that he did not know the punishment range and that, if he had known it, he would have pleaded not guilty." ⁽²⁷⁾ The court of appeals further found "nothing shows that appellant did not hear and understand [the prosecutor's statements regarding range of punishment], that his interpreter was not present, or that his attorney had not already told him the same thing." ⁽²⁸⁾

The first problem is that the language the court of appeals used demonstrates that the court consistently placed on the appellant the burden to bring forth affirmative proof of his ignorance and harm.

Also, the appellant, in his brief on remand, did claim that he did not know the punishment range and that if he had known it he would have pleaded not guilty. In his brief, appellant states:

[T]he instant record shows on appellant's part, instead of a knowledge and comprehension of the full and correct range of punishment applicable to his case, shows a lot of confusion... appellant was apparently of the understanding that he was actually limiting his prison exposure by what he was doing, which is clearly what he wanted to do. Had the Appellant had known for sure that his actual risk was a life sentence or a 99 year sentence and a fine of $250,000.00, he may have been unwilling to accept, by pleading guilty to the jury, that level of risk and instead tried to avoid that exposure by taking a plea bargain, or even by pleading not guilty... . (Errors in original)

Moreover, there was something in the record to indicate the appellant did not understand the prosecutor's statements. The record affirmatively shows the appellant required the use of an interpreter. This fact supports an inference that the appellant would not understand the prosecutor's statements if they were not translated for him. A record silent as to provision of a translation when one would be required for the appellant to understand the proceedings, just as a record void of comment on punishment range, would support an inference that the appellant did not understand the untranslated statement and therefore the range of punishment. Although a record might also support an inference that a translation was provided, the court of appeals did not conclude that the record in this case provided fair assurance that the appellant did in fact hear and understand the prosecutor's statements, instead, it concluded that nothing in the record affirmatively demonstrated that the appellant did not hear and understand the comments.

In this case, though the record was silent regarding whether the interpreter translated the prosecutor's comments on voir dire, it did affirmatively show that the interpreter was present for at least part of voir dire. Additionally, the fact that the record was almost equally as silent regarding translations at the punishment hearing, where the only comment in the record was the trial court asking if the interpreter believed the appellant understood the translations, may support an inference that the interpreter was translating even though the record does not explicitly show that she was. Whether the inference, based on a record equally silent at trial as on voir dire, provides "fair assurance" that the appellant heard and understood the prosecutor's comments or leaves "grave doubt" that the appellant may not have heard and understood, is a matter for the court of appeals to determine. However, by placing the burden on the appellant to affirmatively show no translation was provided, the court of appeals never addressed this issue.

Additionally, the appellant's argument that he was confused regarding the punishment range to which he would be subject when pleading guilty undermines the effectiveness of the prosecutor's statement on voir dire, made while everyone still believed the appellant was going to plead not guilty, in ensuring the appellant knew and understood the range of punishment that would apply if he pled guilty. Although the applicable range of punishment does not change based on the plea, the appellant may not have understood that.

Further, the court of appeals' suggestion that, even if the court had found that the appellant did not understand the statements made at voir dire, harm would not be shown unless the record affirmatively showed that his attorney had not informed him of the range of punishment flies in the face of the statement in Burnett that a silent record would support an inference that appellant did not know the consequences of his plea. Courts should not speculate about what counsel may have discussed with the appellant. ⁽²⁹⁾ The lack of showing on the record that defense counsel did not inform his client of the range of punishment cannot support an inference that the attorney did. Moreover, in this case the fact that the appellant surprised everyone, including his own attorney, by deciding to enter a guilty plea after the jury was selected and right before trial suggests that the appellant's attorney did not discuss the consequences of a guilty plea or the possibility of a plea agreement with his client.

What is more, it seems that at least one member of the court of appeals' panel not only placed a burden of proof on the appellant, but did not apply the standard that the error is not harmless if the court is left with a "grave doubt" on the matter. In concurrence, Justice O'Connor states "For this error on this record, it is impossible for the appellant to show that he did not hear or understand what the prosecutor was talking about when he mentioned the range of punishment. ... I remain convinced that our original opinion was correct... . ⁽³⁰⁾ In the court of appeals' original opinion, with which O'Connor agrees, the court found no affirmative showing that appellant had full knowledge of the range of punishment and concluded that the error involved defied analysis by harmless error standards. ⁽³¹⁾

Next, the court of appeals, on remand, evidently finding the prosecutor's statements to be a prima facie showing that the appellant did know and understand the range of punishment, moved on to determine that the appellant's comments during the plea colloquy did not show that despite hearing and understanding the prosecutor's statements the appellant did not understand the punishment range. Though I might disagree with this conclusion based on the appellant's request for "some time or bond or something," his request for consideration for him "because I have children," and his statement that he did not want "to be wasting time," all possibly indicating the appellant did not understand the minimum time to which he would be sentenced was fifteen years, such doubt might not rise to the level of "grave doubt." The record also revealed the appellant had been convicted of drug possession in California and had served less than two years. Although there is scant evidence regarding the facts of that crime, the possible punishment range for that crime or whether he pled guilty or entered into a plea bargain, the relatively short sentence may indicate his expectations of the range of punishment to which he could be sentenced were much different than the actual applicable range of punishment.

Finally, the court of appeals did not mention that, as in Burnett, the punishment range was discussed in closing arguments to the jury and was included in the jury charge which was read aloud in open court. Defense counsel did not object to the charge, there was no reaction on the record or protest from the appellant when the charge was read, when the jury returned its verdict on punishment, or at appellant's sentencing. Nor did defense counsel attempt to develop a record to support a motion for new trial on the grounds that the plea was not knowing and voluntary. Again, however, such reaction is only necessary if the court finds the record otherwise affirmatively shows the appellant knew and understood the punishment range, otherwise the lack of such reaction would merely present the court of appeals with a silent record, which would support an inference that the appellant did not know or understand the applicable punishment range.

Although the court of appeals' conclusion ultimately might not be erroneous, I believe the analysis the court used to reach the conclusion is faulty and thus undermines the reliability of the court's conclusion.

III.

On direct appeal, Aguirre-Mata raised three points of error. The court of appeals, finding the first point of error to be dispositive, did not address the second and third points of error. This Court granted the State's petition for review, determined that the court of appeals had applied the wrong harmless error standard, and remanded the case for the court of appeals specifically to conduct a harm analysis under the proper standard. On remand from this Court, the court of appeals applied the non-constitutional harmless error standard as instructed, but did not proceed to address the second and third points of error after concluding the error alleged under point one was harmless and thus not dispositive of the case. Because in the previous remand order this Court failed to direct the court of appeals to consider the other points of error left unaddressed in its original opinion, we should remand the case to the court of appeals to review those remaining points of error at this time.

IV.

The harmless error standard this Court directed the court of appeals to apply may not be appropriate in light of the appellant's allegations of harm on remand suggesting the statutory error is of a constitutional magnitude. However, even if 44.2(b) is the appropriate harmless error standard, the court of appeals erred in its application, rendering its conclusion unreliable. Also, the appellant raised other points of error on direct appeal which have not been addressed by the court of appeals. Therefore, the case should be remanded to the court of appeals to perform a constitutional error analysis, determine and apply the appropriate harmless error standard, and consider the remainder of the appellant's original points of error raised on direct appeal if necessary. Because the majority does not agree and remand for such action, I dissent.

FILED MAY 14, 2003.

PUBLISH

1. Tex. R. App. P. 44.2(b). Rule 44.2(a) and Rule 44.2(b) will refer to the corresponding rules in the Texas Rules of Appellate Procedure throughout this opinion.

2. See Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999).

3. See Aguirre-Mata, 992 S.W.2d at 499. It is unclear whether the court of appeals interpreted the appellant's claim to include an allegation that the trial court's failure to admonish him regarding the range of punishment caused his plea to be invalid. The court of appeals determined that the claimed error was constitutional, but the only error analysis the court included in its opinion was statutory error, determining that the prosecutor's statements on voir dire did not constitute substantial compliance. Aguirre-Mata v. State, 962 S.W.2d 264 (Tex. App. - Houston [1^st Dist.] 1998).

4. See Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998).

5. See Aguirre-Mata, 992 S.W.2d at 498.

6. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).

7. Boykin v. Alabama, 395 U.S. 238, 242, 244 (1969).

8. Id. at 244.

9. Brady v. United States, 397 U.S. 742, 755 (1970).

10. See State v. Jimenez, 987 S.W.2d 886, 889 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d at 536.

11. Id.

12. See Potier v. State, 68 S.W.3d 657, 659, 665, 666 (Tex. Crim. App. 2002)(holding the erroneous exclusion of evidence did not amount to a denial of due process.) Although this Court said it did not reach the question whether such an error "could deny due process if it infringed on an interest of a defendant so heavily as to deny the right to defend," the Court recognized that the exclusion of a defendant's evidence can amount to a constitutional violation and stated a rule for determining if the exclusion of a defendant's evidence amounts to constitutional error.

13. See Potier, 68 S.W.3d at 665-666.

14. Id.

15. Id.

16. Id. at 658.

17. Tex. R. App. P. 44.2(a).

18. Tex. R. App. P. 44.2(b); Ford v. State, 73 S.W.3d 923, 925, 930 (Tex. Crim. App. 2002)(Holcomb, J. dissenting, but agreeing with the non-constitutional harmless error standard contemplating a finding of fair assurance.).

19. Aguirre-Mata v. State, 962 S.W.2d at 267 (applying 44.2(a) reversed and remanded); Aguirre-Mata v. State, 26 S.W.3d 922, 926 (Tex. App. - Houston [1^st Dist.] 2000)(applying 44.2(b) affirmed the conviction).

20. Carranza v. State, 980 S.W.2d at 658.

21. Id.

22. Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002).

23. Id. at 637-639.

24. Id. at 638.

25. Aguirre-Mata v. State, 26 S.W.3d at 925.

26. Id. (Citing High v. State, 991 S.W.2d 925 (Tex. App. - Houston [1^st Dist.] 1999)(op. on remand)(record affirmatively showed defendant was unsure of the maximum and wrong about the minimum punishment).

27. Id.

28. Aguirre-Mata, 26 S.W.3d at 925.

29. See United States v. Vonn, 535 U.S. 55, 74 (2002).

30. Aguirre-Mata, 26 S.W.3d at 929 (O'Connor, J. concurring).

31. Aguirre-Mata, 962 S.W.2d at 267.