PD-0714-15 PD-0714-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/11/2015 1:30:47 AM Accepted 6/11/2015 4:30:34 PM NO. _______________ ABEL ACOSTA CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________
MICHAEL ALLEN CHAMBERLIN, PETITIONER
VS.
THE STATE OF TEXAS ___________________________________________________
PETITION IN CAUSE NO. 5332 FROM THE 100TH JUDICIAL DISTRICT COURT OF CARSON COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-14-00011-CR ___________________________________________________
PETITION FOR DISCRETIONARY REVIEW ___________________________________________________
Respectfully submitted,
BIRD, BIRD & RABE June 11, 2015 ATTORNEYS AT LAW P.O. BOX 1257 CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr. DALE A. RABE, JR., ATTORNEY FOR PETITIONER
TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638 IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL
1. The trial court presiding judge was the
Honorable Stuart Messer, 100th Judicial District
Judge, who may be served with process at P.O. Box
887, Clarendon, Texas 79226, Facsimile No. 806-874-
5146.
2. The Petitioner, Michael Allen Chamberlin, is
currently incarcerated in the Texas Department of
Criminal Justice – Institutional Division, and may
be served with process herein at the address of his
court appointed appellate counsel and he is
represented herein by the undersigned counsel whose
address is shown on the front cover of this brief.
The Petitioner, Michael Allen Chamberlin, was
represented at trial by Mr. Earl Griffin, Jr., who
may be served with process at his address 127 Avenue
B, NW,, Childress, Texas 79201, Facsimile No. 940-
937-6020.
3. The Appellee, the State of Texas, is
represented on appeal and was represented at trial
2 by Luke Inman, 100th Judicial District Attorney, 800
West Avenue, Box 1, Wellington, Texas 79095,
Facsimile No. 866-233-2738.
3 TABLE OF CONTENTS
Identity of the Judge, Parties, and Counsel 2
Table of Contents 4
Index of Authorities 5
Statement Regarding Oral Argument 6
Statement of the Case 7
Statement of Procedural History 8
Ground for Review: 8
IS A JUDICIAL CONFESSION, SIGNED BY THE TRIAL COURT AND FILED FIVE DAYS AFTER A PLEA, NOT INTRODUCED INTO EVIDENCE, AND NO JUDICIAL NOTICE TAKEN DURING TRIAL OR A MOTION TO ADJUDICATE GUILT HEARING, SUFFICIENT EVIDENCE TO ESTABLISH GUILT OF AN OFFENSE PURSUANT TO ARTICLE 1.15 OF THE TEXAS CODE OF CRIMINAL PROCEDURE?
Argument 8
Prayer for Relief 12
Appendix 13
Certificate of Compliance 14
Certification of Service 14
4 INDEX OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. art 1.15 (West 2015) 9
TEX. PENAL CODE ANN. § 12.34 (West 2011) 11
TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011) 11
CASE LAW
Jones v. State, 373 S.W.3d 790 9, 10 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
McDougal v. State, 105 S.W.3d 119 11 (Tex. App.—Fort Worth 2005, pet. ref’d)
Menefee v. State, 287 S.W.3d 9, 13 9 (Tex. Crim. App. 2009)
5 NO. _______________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________
THE STATE OF TEXAS ___________________________________________________
PETITION IN CAUSE NO. 5332 FROM THE 100TH JUDICIAL DISTRICT COURT OF CARSON COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-14-00011-CR ___________________________________________________
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS:
STATEMENT REGARDING ORAL ARGUMENT
The ground for review herein involves
interpretation of multiple opinions from the courts
of appeals. Oral argument may prove helpful to the
Court.
6 STATEMENT OF THE CASE
indicted for aggravated sexual assault of a child.
Petitioner pleaded guilty to the lesser included
offense of indecency with a child and was afforded
ten years deferred adjudication probation. The
stipulation of evidence signed by Petitioner
described indecency with a child by exposure, a
third degree felony. The judicial confession signed
by the Petitioner was never offered into evidence,
judicial notice was never taken of the clerk’s file,
and the judicial confession was not signed by the
trial judge until several days after the plea.
Petitioner never testified. The case proceeded on
the state’s motion to adjudicate guilt of the
Petitioner. The trial court granted the state’s
motion to adjudicate guilt and assessed punishment
at 20 years imprisonment in the Texas Department of
Criminal Justice. The court of appeals reformed the
judgment to reflect Petitioner was sentenced to
7 indecency with a child by sexual contact, a second
degree felony, and affirmed the judgment as
reformed. This Petition challenges that holding.
STATEMENT OF PROCEDURAL HISTORY
The court of appeals rendered its decision
reforming the judgment of the trial court and
affirming the conviction as reformed on April 16,
2015.
Petitioner filed his Motion for Rehearing on
May 1, 2015.
Petitioner’s Motion for Rehearing was overruled
on May 12, 2015.
GROUND FOR REVIEW
IS A JUDICIAL CONFESSION, SIGNED BY THE TRIAL COURT AND FILED FIVE DAYS AFTER A PLEA, NOT INTRODUCED INTO EVIDENCE, AND JUDICIAL NOTICE NOT TAKEN DURING TRIAL OR A MOTION TO ADJUDICATE GUILT HEARING, SUFFICIENT EVIDENCE TO ESTABLISH GUILT OF AN OFFENSE PURSUANT TO ARTICLE 1.15 OF THE TEXAS CODE OF CRIMINAL PROCEDURE?
ARGUMENT
It is respectfully submitted that the court of
appeals erred in holding that the judicial
8 confession, standing alone, that was not signed and
filed with the clerk until five days after the
plea, was not admitted into evidence, and was never
judicially acknowledged, was sufficient evidence to
convict Petitioner of indecency with a child by
sexual contact pursuant to Article 1.15 of the
Texas Code of criminal procedure.
Article 1.15 of the Texas Code of Criminal
Procedure provides that a court may not enter a
conviction in a felony case based on a guilty plea
unless evidence is presented establishing guilt in
addition to and independent of the plea. TEX. CODE
CRIM. PROC. art 1.15 (West 2015); Menefee v. State,
287 S.W.3d 9, 13 (Tex. Crim. App. 2009).
In the case at bar the court of appeals cites
the premise that a judicial confession need not be
offered into evidence as long as it has been
approved by the court and appears in the record.
Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). However, the
9 Jones court did not rely on the judicial confession
that was not introduced into evidence during
sentencing in affirming the trial court, the court
of appeals specifically stated, “we need not
consider whether the written confession could
nonetheless substantiate the guilty plea because the
evidence adduced during the sentencing hearing was
sufficient to substantiate the plea.” Id. This
case is distinguishable, there was no other evidence
offered during sentencing to substantiate the
finding of guilt for the second degree offense of
indecency with a child by sexual contact as
Petitioner did not take the stand and testify.
Moreover, the judicial confession in this case was
not signed by the trial judge and filed with the
clerk until five days after the plea. CR 66; CR 72.
Furthermore, case law contradictory to Jones
exists. In McDougal v. State the court of appeals
held that “the contents of the clerk’s record are
not evidence unless the trial court takes judicial
10 notice of them or they are offered into evidence.”
McDougal v. State, 105 S.W.3d 119, 120-21 (Tex.
App.—Fort Worth 2005, pet. ref’d). The evidence in
the case at bar is uncontroverted, the trial court
never took judicial notice of the clerk’s record and
the judicial confession was not offered into
evidence.
The only evidence in the case at bar
independent of the plea of guilty was the
stipulation of evidence signed by Petitioner and
introduced into evidence which is sufficient to
establish Petitioner’s guilt of the third degree
felony of indecency with a child by exposure. TEX.
PENAL CODE ANN. § 21.11(a)(2) (West 2011). Therefore,
the maximum sentence the trial court could have
imposed was ten years in the Texas Department of
Criminal Justice and a $10,000.00 fine. TEX. PENAL
CODE ANN. § 12.34 (West 2011).
11 Based on the foregoing, Petitioner respectfully
requests this Honorable Court grant his Petition for
Discretionary Review.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Petitioner
respectfully prays this Court grant this Petition
and, upon reviewing the judgment entered below,
reverse this cause and remand this case for
sentencing within the guidelines for a third degree
felony.
BIRD, BIRD & RABE ATTORNEYS AT LAW P.O. BOX 1257 CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr. DALE A. RABE, JR., ATTORNEY FOR PETITIONER
TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638
12 APPENDIX
1. Letter from Court of Appeals April 16, 2015
2. Judgment, Trial Court’s Rulings Affirmed
3. Memorandum Opinion
13 CERTIFICATE OF COMPLIANCE
I hereby certify that the above and foregoing
Petition for Discretionary Review is 1,524 words in
its completion, signed on this the 11th day of June,
2015, in accordance with the rules governing same.
/s/ Dale A. Rabe, Jr. DALE A. RABE, JR.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy
of the foregoing Petition for Discretionary Review
was delivered as indicated below on this the 11th
day of June, 2015, to the following:
Mr. Luke Inman VIA E-SERVICE District Attorney 800 West Avenue, Box 1 Wellington, Texas 79095
Mr. Michael Chamberlin VIA CMRRR TDCJ # 01905877 70140510000127094887 1391 FM 3328 Tennessee Colony, Texas 75880
14 FILE COPY
BRIAN QUINN Chief Justice Court of Appeals VIVIAN LONG Clerk
JAMES T. CAMPBELL Justice Seventh District of Texas MAILING ADDRESS: MACKEY K. HANCOCK Justice Potter County Courts Building P. O. Box 9540 79105-9540 501 S. Fillmore, Suite 2-A PATRICK A. PIRTLE Justice Amarillo, Texas 79101-2449 (806) 342-2650
www.txcourts.gov/7thcoa.aspx
April 16, 2015
Dale A. Rabe Luke McLean Inman BIRD, BIRD & RABE District Attorney P.O. Box 1257 800 West Ave Box 1 Childress, TX 79201-1257 Wellington, TX 79095 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Case Number: 07-14-00011-CR Trial Court Case Number: 5332 Style: Michael Chamberlain v. The State of Texas
Dear Counsel:
The Court this day issued an opinion and judgment in the captioned cause. TEX. R. APP. P. 48.
In addition, pursuant to Texas Government Code, Sec. 51.204(b)(2), exhibits on file with this Court, if any, will be destroyed three years after final disposition of the case or at an earlier date if ordered by the Court.
Very truly yours, Vivian Long VIVIAN LONG, CLERK
xc: Honorable Stuart Messer (DELIVERED VIA E-MAIL) Celeste Bichsel (DELIVERED VIA E-MAIL) FILE COPY
No. 07-14-00011-CR
Michael Chamberlain § From the 100th District Court Appellant of Carson County § v. April 16, 2015 § The State of Texas Opinion Per Curiam Appellee §
J U D G M E N T
Pursuant to the opinion of the Court dated April 16, 2015, it is ordered, adjudged
and decreed that the judgment of the trial court is reformed as set forth in the opinion
and affirmed.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have already been paid are adjudged.
It is further ordered that this decision be certified below for observance.
oOo In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-14-00011-CR ________________________
MICHAEL ALLEN CHAMBERLAIN, APPELLANT
V.
STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court Carson County, Texas Trial Court No. 5332; Honorable Stuart Messer, Presiding
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this case we are once again faced with an issue concerning the imposition of
an arguably illegal sentence based on deficiencies that went unnoticed by the trial
judge, prosecutor, and defense counsel.1 Appellant, Michael Allen Chamberlain,
1 See Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989 (Tex. App.—Amarillo 2013) (mem. op., not designated for publication), (affirmed by Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014); Melton v. State, No. 07-13-00032-CR, 2015 Tex. App. LEXIS 266 (Tex. App.—Amarillo Jan. 13, 2015, no pet.) (mem. op., not designated for publication). contends the judgment of the trial court should be set aside and the case remanded
because there is no evidence supporting the order originally placing him on deferred
adjudication community supervision for the second degree felony offense of indecency
with a child by sexual contact. We affirm the judgment of the trial court.
PROCEDURAL BACKGROUND
Because the disposition of this case does not require a detailed review of the
facts underlying the offense, we limit our discussion to the procedural facts pertinent to
the appeal. In that regard, on May 9, 2013, Appellant was charged by indictment with
two counts of aggravated sexual assault, a first degree felony. See TEX. PENAL CODE
ANN. § 22.021(a)(1)(B) (West Supp. 2014). On September 27, 2013, pursuant to a plea
bargain, Appellant entered a plea of guilty to the lesser-included offense of ―indecency
with a child‖—and this is where the issue in this case begins. That is so because there
are two types of indecency with a child: (1) indecency with a child by exposure,2 a third
degree felony, and (2) indecency with a child by sexual contact,3 a second degree
felony—and the plea bargain agreement did not specify which offense applied.
Appellant contends he pleaded guilty to indecency with a child by exposure, whereas
the State takes the position that he pleaded guilty to indecency with a child by sexual
contact. As discussed below, both positions have some merit; however, after
considering the entire appellate record, we ultimately conclude the trial court was
dealing with a plea agreement pertaining to the lesser-included offense of indecency
2 See TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011). 3 See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
2 with a child by sexual contact, and we will address the sufficiency issue pertinent to this
appeal from that perspective.4
At the September 27th hearing, pursuant to the agreed plea recommendation,
Appellant executed and filed a Stipulation of Evidence which states:
On or about the 14th day of March, 2013, in Carson County, Texas, [Appellant] did then and there with intent to arouse or gratify the sexual desire of the defendant, intentionally or knowingly expose the defendant‘s genitals knowing that [the victim], a child younger than 17 years of age, was present. (Emphasis added).
This stipulation describes the offense of indecency with a child by exposure. See TEX.
PENAL CODE ANN. § 21.11(a)(2)(A) (West 2011). Conversely, the stipulation does not
describe the offense of indecency with a child by sexual contact. See id. at
§ 21.11(a)(1) (West 2011).
In addition to the stipulation, Appellant signed another document entitled Waivers
of Parties, which included a paragraph entitled Judicial Confession, which states:
I, the defendant, state that I have read the indictment or information filed in this case and that I committed each and every allegation it contains. I am guilty of the offense alleged as well as all lesser included offenses. I swear to all of the foregoing and I further swear that all testimony I give in this case will be the truth, the whole truth, and nothing but the truth, so help me God. (Emphasis added).
4 In Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009), the Court of Criminal Appeals held that indecency with a child by sexual contact is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act. Id. at 143. The court explained why this is true despite the fact that the indecency offense contains what might appear to be an extra element of intent to arouse or gratify sexual desire. See id. at 141-43. The court reasoned that ―intent to arouse or gratify sexual desire‖ was not an extra element because it was already part of the definition of ―sexual contact,‖ and sexual contact was a form of touching subsumed within the ―penetration‖ required to prove aggravated sexual assault. Id.
3 Although the Waiver of Parties document contained a paragraph entitled Order
on Waivers and Judicial Confession, which included a signature line for the ―Presiding
Judge,‖ the copy of that document filed September 27th does not bear the signature of
the trial judge. Interestingly, however, a copy of the same document filed October 2,
2013, does contain the judge‘s signature.
Complicating matters further, the Punishment Recommendations signed by the
district attorney, defense counsel, and Appellant on September 27th indicates that the
State is recommending ―[p]rosecution for lesser included offense of INDECENCY WITH
A CHILD – PC 22.11(a) – A 2ND DEGREE FELONY‖ and a recommendation of ten
years deferred adjudication community supervision in exchange for Appellant‘s plea of
guilty. The problem here is that section 22.11(a) of the Texas Penal Code does not
describe the second degree felony offense of indecency with a child at all—instead, it
describes the third degree felony offense of harassment by persons in certain
correctional facilities. Because section 21.11 of the Texas Penal Code does describe
the offense of indecency with a child, we must assume the difference between 22.11
and 21.11 is but a scrivener‘s error, another lack of attention to detail.
But wait, the confusion does not stop there. At the hearing on the original plea,
for reasons that completely escape us, the trial court conducted three pleas, of three
separate defendants, with three separate defense counsel, from two separate counties,
in one consolidated proceeding. At the commencement of that proceeding, the
following exchange occurred:
4 THE COURT: The Court further calls Carson County Cause Number 5332, the State of Texas versus Michael Allen Chamberlain. State?
[Appearances made.]
DEFENSE COUNSEL: [Defense counsel] for the Defendant, Your Honor. We‘re ready under an agreed plea recommendation.
* * *
THE COURT: How do you plead to the first degree felony offense of aggravated sexual assault of a child?
DEFENSE COUNSEL: Judge, we‘re pleading under a lesser-included indecency charge, under the recommendation.
THE COURT: Let me back up a little bit. Mr. Chamberlain, if I accept you plea to a second degree felony, a second degree of indecency has a maximum punishment of 20 years and a minimum punishment of two. And again, there can be a fine not to exceed $10,000.
Do you understand that?
DEFENDANT: Yes, sir.
THE COURT: How do you plead to the lesser-included second degree felony offense of indecency with a child --
DEFENDANT: True.
THE COURT: -- guilty or not guilty?
DEFENDANT: Guilty.
5 After several admonishments to the various defendants, the proceeding
continued with this exchange:
THE COURT: And in Mr. Chamberlain‗s case?
PROSECUTOR: Your Honor, in that case, Cause Number 5332 out of Carson County, the plea bargain would be ten years deferred adjudication with a fine of $1,000, court costs of $665.
When it came time to offer evidence to support Appellant‘s plea, this additional
exchange occurred:
PROSECUTOR: Thank you. Your Honor, in the Chamberlain case, 5332 out of Carson County, Your Honor, we would offer the States Stipulation of Evidence which is State‘s Exhibit 1, bearing the Defendant‘s signature in the middle of the page, Your Honor.
State‘s Exhibit 1, the Stipulation of Evidence referenced above, only admits to
the offense of indecency with a child by exposure. Without the introduction of any other
evidence relevant to Appellant‘s plea, the record continues with the following statement:
PROSECUTOR: Your Honor, that‘s all the evidence the State would offer, at this time, in all three cases. The State would rest and close in all three cases, Your Honor.
During the plea proceeding, no inquiry was made of Appellant concerning the
facts necessary to substantiate the offense of indecency with a child by sexual contact
and no testimony from any other source was offered. Although the Judicial Confession
appears of record, it is never mentioned. Towards the conclusion of the multi-plea
proceeding, the trial court continued:
6 THE COURT: In Cause Number 5332 out of Carson County, I find there is sufficient evidence to find the Defendant, Michael Allen Chamberlain, guilty beyond a reasonable doubt of the second degree lesser-included offense of indecency with a child.
Pursuant to the plea agreement announced, and based on nothing other than the
plea of guilty, the stipulation of evidence and the judicial confession, the trial court
suspended the imposition of sentence and placed Appellant on deferred adjudication
community supervision for a term of ten years.5 Adding further complication to the
already confusing plea agreement, the Order of Deferred Adjudication recites the
offense as ―indecency with a child, a lesser included offense than alleged in the
indictment,‖ pursuant to Penal Code ―section 22.11(a)(2),‖ a ―second degree felony.‖
Again, as stated above, 22.11(a)(2) is harassment in a correctional facility; whereas,
21.11(a)(2) is indecency with a child by exposure. Because the record of the plea
clearly reflects both the trial court and Appellant were discussing a plea to a second
degree felony, again we assume the difference between subsection (a)(2) and
subsection (a)(1) is nothing more than another example of a long line of scrivener‘s
errors.
Forty days after being placed on deferred adjudication community supervision,
the State filed a motion to adjudicate. A hearing was held on January 14, 2014, and
5 A defendant convicted of the offense of indecency with a child by sexual contact pursuant to section 21.11(a)(1) of the Texas Penal Code is not eligible for deferred adjudication community supervision unless the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2014). Even though no such finding was made in this case (another lapse of attention to detail), the trial court‘s failure to do so is not grounds to set aside the plea, deferred adjudication, or any subsequent conviction or sentence. Id.
7 Appellant entered a plea of ―not true‖ to the allegations contained in the State‘s motion.
During the revocation hearing the following exchange took place:
THE COURT: The Court calls Carson County Cause Number 5332, the State of Texas versus Michael Allen Chamberlain.
THE COURT: And this is an aggravated sexual assault of a child case?
DEFENSE COUNSEL: No, Your Honor.
PROSECUTOR: Your Honor, it‘s a plea to a lesser included --
THE COURT: Lesser included.
PROSECUTOR: -- on indecency with a child, a second degree felony with a regular punishment range of --
THE COURT: Of two to 20?
PROSECUTOR: Yes, Your Honor.
THE COURT: [Defense Counsel], do you concur it‘s a two to 20 on an indecency?
DEFENSE COUNSEL: Yes. Indecency with a child is a second degree felony, two to 20.
Following the presentation of evidence pertaining to alleged violations of the
conditions of community supervision, the trial court revoked Appellant‘s deferred
adjudication and entered a finding of guilt, not as to the offense of indecency by
exposure, but rather as to the offense of indecency by sexual contact. The trial court
then assessed Appellant‘s sentence at the maximum period of confinement for that
offense, to-wit: twenty years. The written Judgment Adjudicating Guilt repeated the
same errors that appeared in the Order of Deferred Adjudication, reciting the offense as
8 ―indecency with a child,‖ pursuant to section ―22.11(a)(2),‖ a ―2ND degree felony.‖
Again, we construe these inconsistencies as additional scrivener‘s errors—the correct
recitation being ―indecency with a child by sexual contact,‖ pursuant to section
21.11(a)(1), a second degree felony.
By his sole issue, Appellant contends his conviction is ―void‖ because the only
evidence supporting the conviction is State‘s Exhibit 1, the Stipulation of Evidence,
which only confesses to the lesser-included offense of indecency with a child by
exposure.6 In response, the State contends (1) Appellant agreed to enter a plea of
guilty to the offense of indecency with a child by sexual contact and (2) while the
Stipulation of Evidence is insufficient to support a conviction as to that offense, the
written judicial confession filed of record compensates for that deficiency.
Based on the totality of the record before us, we begin our analysis with a finding
that, notwithstanding the inconsistencies and deficiencies that appear of record, both
the trial court and Appellant contemplated a plea to a lesser-included, second degree
felony offense of indecency with a child by sexual contact, and the trial court orally
pronounced guilt as to that offense (albeit, not specifying the offense to be indecency
with a child by sexual contact).7 While we see issues with both the stipulation of
evidence and the judicial confession, we find the overall record supports the trial court‘s
6 Appellant does not raise, and we do not address, any issues concerning the effective assistance of counsel or the voluntariness of his plea, issues more appropriately suited to an article 11.07, habeas corpus proceeding. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2014). 7 When a trial court‘s oral pronouncement of sentence conflicts with the written judgment, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2014)). In such circumstances, this Court should reform the judgment to reflect the sentence pronounced. Id. at 137.
9 judgment. Because we ultimately conclude the evidence supports the judgment
entered, we will affirm.
ANALYSIS
Under the Code of Criminal Procedure, the State is obligated to ―introduce
evidence into the record‖ of a defendant's guilt, and trial courts are not permitted to
render a conviction without evidence establishing a defendant's guilt. See TEX. CODE
CRIM. PROC. ANN. art. 1.15. See also Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
App. 2009). In that regard, an oral plea of guilty alone is insufficient because ―even if
the defendant states that he or she is pleading guilty to the charges in the indictment
under oath, [a guilty plea] does not constitute a judicial confession because the
defendant is merely entering a plea, ‗not confessing to the truth and correctness of the
indictment or otherwise providing substance to the plea.‖ Baggett v. State, 342 S.W.3d
172, 174 (Tex. App.—Texarkana 2011, pet. ref‘d) (quoting Menefee, 287 S.W.3d at 13,
15). As such, Appellant‘s guilt is not sufficiently supported by his plea of guilty alone.
Evidence establishing a defendant's guilt sufficient to satisfy the statutory
requirements of article 1.15 ―may take many forms,‖ including a ―written stipulation of
what the evidence against him would be, without necessarily admitting to its veracity or
accuracy.‖ Menefee, 287 S.W.3d at 13. See also TEX. CODE CRIM. PROC. ANN. art. 1.15
(providing that evidence establishing guilt may be stipulated to by the defendant).
When considering the sufficiency of a written stipulation of evidence, the stipulation will
be sufficient if ―it embraces every constituent element of the charged offense.‖
Menefee, 287 S.W.3d at 13. Conversely, a stipulation that fails to establish every
10 element of the offense does not authorize a conviction. Id. at 14. Here, Appellant
contends his stipulation of evidence is deficient because it does not provide proof of
sexual contact, an element essential to a finding of guilt of indecency with a child by
sexual contact. While the State does not disagree with Appellant‘s contention that the
stipulation is deficient, it contends the deficiency is one of form which may be
compensated for by other competent evidence in the record. Dinnery v. State, 592
S.W.2d 343, 352 (Tex. Crim. App. 1980). While we agree with Appellant that the
stipulation of evidence in this case does not support a finding of guilt as to the offense of
indecency with a child by sexual contact, we also agree with the State that other
evidence may satisfy the requirements of article 1.15.
PLEA OF GUILTY AND ORAL TESTIMONY AT TRIAL
As stated above, Appellant‘s oral plea of guilty alone does not satisfy the
requirement that the State introduce evidence to establish his guilt. Furthermore,
Appellant‘s oral testimony at trial does not compensate for the lack of evidence
supporting the plea because Appellant never testified at the plea hearing and never
verbally acknowledged any act constituting sexual contact. As such, neither Appellant‘s
plea of guilty nor his statements at trial are sufficient to satisfy the requirements of
article 1.15.
JUDICIAL CONFESSION
A sworn written confession acknowledging guilt as to the offense charged may,
however, constitute a form of permissible evidence that will satisfy the requirements of
article 1.15. Menefee, 287 S.W.3d at 13. ―A written judicial confession provides
11 evidentiary support for a plea of guilty to the charges alleged in the indictment or to
some lesser included offense of that which is alleged in the indictment.‖ See Puente v.
State, 320 S.W.3d 352, 358 (Tex. Crim. App. 2010) (citing Menefee, 287 S.W.3d at 13).
See also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no
pet.) (explaining that a ―judicial confession alone is sufficient to sustain a conviction‖ and
that a ―judicial confession may take the form of an affirmative acknowledgment by the
defendant that the indictment was true and correct‖). In that regard, it is well
established that a judicial confession alone is sufficient to support a plea of guilty.
Dinnery v. State, 592 S.W.2d at 352.
A judicial confession need not be offered into evidence to support a plea of guilty
as long as it has been approved by the court and appears in the record. See Jones v.
State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) But see
McDougal v. State, 105 S.W.3d 119, 120-21 (Tex. App.—Fort Worth 2005, pet. ref'd)
(stating that the contents of the clerk's record are not evidence unless the trial court
takes judicial notice of them or they are offered into evidence). Here, the trial court did
not sign the document containing the judicial confession and that document was not
offered into evidence, referred to, or otherwise recognized by judicial notice at any time
during the plea hearing; however, it does appear in the appellate record and as such,
we find it constitutes some evidence supporting Appellant‘s plea of guilty.
Although the stipulation of evidence in this case is deficient with respect to the
element of sexual contact and the record is devoid of any direct testimony which might
compensate for that deficiency, we nevertheless conclude the judicial confession, when
considered in conjunction with Appellant‘s acknowledgments to the trial court made in
12 open court, sufficiently support the trial court‘s finding of guilt as to the lesser-included
second degree felony offense of indecency with a child by sexual contact. Accordingly,
Appellant‘s issue is overruled.
CONCLUSION
Despite an imprecise and somewhat misleading plea agreement, a stipulation
that describes another offense, a convoluted plea hearing, the failure to offer the written
confession into evidence or conclusively establish that the trial court considered it, a
probation order that describes the wrong statutory basis of conviction and defers an
adjudication of guilt as to an offense not generally eligible for deferred adjudication, and
a judgment that repeats the wrong penal code section found in the order of deferred
adjudication, we hereby reform the judgment to reflect the offense of conviction to be
indecency with a child by sexual contact and the operable statute to be Penal Code
section 21.11(a)(1). As reformed, we affirm the judgment of conviction.
Per Curiam
Do not publish.