Capistran v. State

759 S.W.2d 121, 1988 Tex. Crim. App. LEXIS 185, 1982 WL 2

Opinions

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for possession of marijuana. Punishment was assessed by the trial court at five years confinement in the Texas Department of Corrections. The appellant contends that the trial court erred in receiving stipulated evidence without the appellant’s written agreement to stipulate contrary to Art. 1.16, V.A.C.C.P. After a jury trial and a verdict of guilty, the appellant was granted a new trial, from which this appeal is taken. At the second trial the appellant signed a written waiver of jury trial and such waiver was accepted by the trial court, and he entered a plea of not guilty. Although the appellant orally agreed to stipulate to the evidence, the record does not contain written agreement to stipulate and waiver of the appearance, confrontation and cross-examination of witnesses signed by the appellant¹ nor any written approval by the court of such waiver and consent.

This Court has held that although Art. 1.15, V.A.C.C.P. provides that stipulated evidence may be either oral or written, the agreement to stipulate and the concomitant waiver must be executed in writing. Valdez v. State, 566 S.W.2d 463 (Tex.Cr.App.1977); Duran v. State, 552 S.W.2d 840 (Tex.Cr.App.1977); Rodriguez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976).

The special commentary accompanying Art. 1.15, V.A.C.C.P. states that, “... the new article is now applicable to pleas of not guilty before the court where the jury has been waived ..., and if during such trial a stipulation is entered into, it must comply with written consent, waiver and stipulation and other procedure required by this article rather than the usual trial stipulation.” Id. Further, this Court in Rodriguez v. State, supra, held the absence of a written agreement to stipulate and a written waiver of the appellant’s right to the appearance, confrontation, and cross-examination of witnesses is fundamental error and a judgment must be reversed because of such error. See Valdez v. State, supra; Duran v. State, supra; Huges v. State, 533 S.W.2d 824 (Tex.Cr.App.1976). Without the written agreement to stipulate, no evidence of guilt was introduced at the trial that we may properly consider. See Valdez v. State, supra; Rodriguez v. State, supra. Pursuant to the preceding authorities, we must reverse the judgment in the instant case.

The judgment is reversed and the cause remanded.

1 . The jury waiver form signed by the appellant also contained a waiver of the confrontation of witness; however, this section was marked out.