Chindaphone v. State

241 S.W.3d 217, 2007 Tex. App. LEXIS 8945, 2007 WL 3317953

• Court: Court of Appeals of Texas
• Decided: November 8, 2007
• Docket: 2-07-099-CR
• Status: Published

Opinions

OPINION

SUE WALKER, Justice.

Appellant Khanthavong Chindaphone pleaded guilty to the offense of sexual assault, and the trial court sentenced him to ten years’ confinement. In a single issue, Chindaphone contends that “the evidence is insufficient to support the conviction pursuant to Article 1.15 of the Texas Code of Criminal Procedure.” We will affirm.

In connection with his guilty plea, Chin-daphone executed a judicial confession that provided,

Upon my oath I swear my true name is Khanthavong Chindaphone and I am 24 years of age; I have read the indictment or information filed in this case and I committed each and every act alleged therein, except those acts waived by the State. All facts alleged in the indictment or information are true and correct. I am guilty of the instant offense as well as all lesser included offenses .... I swear to the truth of all of the foregoing.¹

On the same page as the judicial confession, Chindaphone’s attorney, the prosecutor, and the trial court signed Chindaphone’s waivers, which included the following:

In open court we join and approve the waiver of jury trial ... and the stipulations of evidence pursuant to Art. 1.15, Code of Criminal Procedure.... It is agreed that the Court may take judicial notice of this document and the Court takes judicial notice of same.

The victim of the sexual assault, Amanda X., testified at the sentencing hearing that she and Chindaphone had dated for about nine months and had engaged in a sexual relationship. She testified that after they had broken up, Chindaphone came to town to return some of her things. Amanda X. testified that, during Chinda-phone’s visit to return her things, he pushed her, slapped her, and choked her. Amanda next testified that she went to the hospital and submitted to a rape exam.²

Texas Code of Criminal Procedure article 1.15 provides,

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).

The appellate standards of review announced in Jackson v. Virginia3 and Clewis v. State⁴ are not applicable where the defendant enters a plea of nolo contendere or guilty. Praker v. State, No. 01-06-00030-CR, 2007 WL 1166381, at *2-3 (Tex.App.-Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem.op.) (not designated for publication). An appellate court will affirm the trial court’s judgment under article 1.15 if the State introduced evidence that embraces every essential element of the offense charged and that is sufficient to establish the defendant’s guilt. Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea and to satisfy the requirements of article 1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979) (op. on reh’g).

Here, Chindaphone executed a judicial confession stating that he had read the indictment and had committed each and every act alleged therein. When the trial court asked Chindaphone in open court, “To the charge of sexual assault, how do you plead, guilty or not guilty?” he responded, “I plead guilty.” Chindaphone also executed a waiver that provided, “It is agreed that the Court may take judicial notice of this document and the Court takes judicial notice of same.” The trial court’s signature appears under this provision.

When a trial court takes judicial notice of adjudicative facts, it authorizes the fact-finder to accept the facts as true without requiring formal proof. Watts v. State, 99 S.W.3d 604, 609-10 (Tex.Crim.App.2003). Thus, as here, when the trial court takes judicial notice of a judicial confession, the State is not required to introduce the judicial confession into evidence. Accord McDougal v. State, 105 S.W.3d 119, 120-21 (Tex.App.-Fort Worth 2003, pet. refd) (recognizing that “[t]he contents of the clerk’s record are not evidence unless the trial court takes judicial notice of them or they are offered into evidence.”) (emphasis added). And when the accused specifically states in the judicial confession, “I have read the indictment or information filed in this ease and I committed each and every act alleged therein,” the judicial confession standing alone is sufficient to support a guilty plea under article 1.15 of the code of criminal procedure. See, e.g., Dinnery, 592 S.W.2d at 353; Tabora v. State, 14 S.W.3d 332, 337-38 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that form “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” signed by appellant sufficiently supported plea of no contest under article 1.15); Scott v. State, 945 S.W.2d 347, 348 (Tex.App.Houston [1st Dist.] 1997, no pet.) (holding that appellant’s stipulation that he “agreefd] that the elements of the offense alleged [in the indictment] constitute the evidence in this case” sufficiently supported a plea of no contest under article 1.15).⁵

In support of his contention that the evidence does not support his guilty plea as required by article 1.15, Chindaphone relies on the case of Landon v. State, 222 S.W.3d 75 (Tex.App.-Tyler 2006, no pet.). In Landon, the defendant judicially confessed and stipulated that he had “recklessly caus[ed] bodily injury to a” child, a state jail felony. Id. at 77. But Landon was convicted of a third-degree felony. Id.; see also Tex. Penal Code § 22.04(f) (Vernon 2003) (categorizing bodily injury to a child as a third-degree felony if the conduct is committed intentionally or knowingly, but as a state jail felony if the conduct is committed recklessly). The appellate court noted that Landon “nowhere” stipulated that the allegations in the infor-mations returned against him were true. Landon, 222 S.W.3d at 79. Consequently, because mens rea is an essential element of the offense of injury to a child and the only mens rea stipulated to in Landon’s judicial confession was recklessness, which will not support a third-degree felony injury to a child offense, the appellate court held that the evidence was insufficient under article 1.15 to support Landon’s guilty plea. Id. The holding in Landon, however, is inapplicable to the present facts where Chindaphone executed a judicial confession that did indicate he had read the indictment and had committed each and every act alleged therein. In the present case Chindaphone’s judicial confession, unlike Landon’s, does embrace evéry element of the charged offense.

For the reasons explained above, we overrule Chindaphone’s sole issue and affirm the judgment of the trial court.

DAUPHINOT, J. filed a dissenting opinion.

1 . Contrary to the dissent’s position, a judicial confession which includes the defendant’s name and age and is signed specifically by the defendant is not "boilerplate.” Nor can we agree with the dissent’s characterization of the document at issue. The language quoted above is not included under the "Applications for Community Supervision” part of the document but instead is a paragraph signed separately and set off by stars. See Exhibit A.

2 . The State concedes that there is a gap in Amanda X.’s testimony but argues that Amanda’s testimony nonetheless embraces every element of the offense because she would not have submitted to a rape exam absent an assault.

3 . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4 . 922 S.W.2d 126 (Tex.Crim.App.1996).

5 . Nor can we interject some invalidity into Chindaphone’s judicial confession, as the dissent apparently does, from the fact that the trial court provided Chindaphone with rights that Chindaphone had waived. This inured to Chindaphone's benefit and surely does not diminish the sufficiency of the evidence supporting his guilty plea — which is the sole issue before us.