ACCEPTED
03-14-00729-CR
4302719
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/26/2015 3:51:35 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00729-CR
IN THE
COURT OF APPEALS FILED IN 3rd COURT OF APPEALS
OF THE THIRD SUPREME JUDICIAL DISTRICT AUSTIN, TEXAS
____________________________________________
2/26/2015 3:51:35 PM
JEFFREY D. KYLE
CLIFTON CARL LAMAR, Clerk Appellant,
v.
STATE OF TEXAS
____________________________________________
Appeal in Cause No. 72785 in the 264th District Court of Bell County, Texas
_____________________________________________
REPLY BRIEF FOR APPELLANT CLIFTON CARL LAMAR
_____________________________________________
JOHN A. KUCHERA 210 N. 6th St. Waco, Texas 76701 (254) 754-3075 (254) 756-2193 (facsimile) SBN 00792137 johnkuchera@210law.com Attorney for Appellant
Table of Contents
Page
Table of Contents ii
Table of Authorities iii-v
Argument
Stipulations in the context of article 1.15 are treated differently than 2-4 stipulations in the context of trial.
A document cannot properly be deemed a “judicial confession” when 4-8 it does not itself contain facts establishing that the defendant committed every element of the charged offense,
The doctrine of judicial notice cannot properly be used to shortcut 9-11 article 1.15’s requirement that the State put on evidence establishing the guilt of the defendant.
Certificate of Service 12
Certificate of Compliance 13
ii
Table of Authorities
Page(s)
Cases Brewster v. State, 606 S.W.2d 325 (Tex. Crim. App. 1980) ............................................................. 6
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005) ............................................................. 3
Chindaphone v. State, 241 S.W.3d 217 (Tex.App.—Fort Worth 2007, pet. ref.) .............................. 9, 11
Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990) ........................................................... 11 Cooksey v. State, No. 06-13-00096-CR, [2014 WL 3359278] (Tex.App.—Texarkana July 9, 2014, no pet.).....................................................................................2, 3, 4
Ernst v. Child & Youth Servs., 108 F.3d 486 (3d Cir. 1997) ............................................................................... 11 Garza v. State, 996 S.W.2d 276 (Tex.App.—Dallas, pet. ref’d)................................................. 10 Hammond v. State, 470 S.W.2d 683 (Tex. Crim. App. 1971) ............................................................. 5 Jones v. State, 857 S.W.2d 108 (Tex.App.-Corpus Christi 1993, no pet.) ............................... 2, 3
Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972) ............................................................. 7
Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009) ............................................................. 2, 5
Messer v. State, 729 S.W.2d 694 (Tex. Crim. App. 1986) ............................................................. 4
iii
Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978) ............................................................. 8 Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987) ............................................................. 4
Rodriguez v. State, 442 S.W.2d 376 (Tex. Crim. App. 1968) ............................................................. 8
Sexton v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972) ............................................................. 7
Shahar v. Bowers, 120 F.3d 211 (11th Cir. 1997) .............................................................................. 9
Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970) ............................................................. 7
Sprinkle v. State, 456 S.W.2d 387 (Tex. Crim. App. 1970) ............................................................. 6
Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) ............................................................. 6 United States v. Garland, 991 F.2d 328 (6th Cir. 1993) .............................................................................. 11 United States v. Hawkins, 76 F.3d 545 (4th Cir. 1996) ................................................................................ 11 United States v. Neil, 964 F.Supp. 438 (D.D.C. 1997) .......................................................................... 11
Waage v. State, 456 S.W.2d 388 (Tex. Crim. App. 1970) ............................................................. 7
Statutes Tex. Crim. Proc. Code Ann. Art. 1.15 ...................................... 2, 3, 4, 5, 6, 8, 10, 11
Other Authorities 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence (2nd ed. 2000) .................................................................................... 10 iv
Tex. R. Evid. 201(a) ................................................................................................... 9
v
IN THE
COURT OF APPEALS
OF THE THIRD SUPREME JUDICIAL DISTRICT
_____________________________________________________________
CLIFTON CARL LAMAR, Appellant,
v. No. 03-14-00729-CR
STATE OF TEXAS
____________________________________________________________
Appeal in Cause No. 72785 in the 264th District Court of Bell County, Texas
____________________________________________________________
REPLY BRIEF OF APPELLANT CLIFTON CARL LAMAR
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
NOW COMES CLIFTON CARL LAMAR, Appellant, by and through
undersigned counsel, and submits this reply brief pursuant to the provisions of the
Texas Rules of Appellate Procedure. Appellant raised four issues in his principal
brief. The State has filed its Brief. This Reply Brief is a response to several
assertions made by the State regarding Lamar’s first issue. Appellant otherwise rests
on his principal brief.
2
Regarding Lamar’s first issue: Whether the evidence offered by the State in support of Lamar’s guilty plea was sufficient to satisfy article 1.15 of the Code of Criminal Procedure.
1. The State cites an unpublished Texarkana case for the proposition that a sworn
statement is not a mandatory requirement to comply with article 1.15:
The Appellant contends that because a sworn statement “may” suffice, it is required. He ignores completely the express statement by the Court of Criminal Appeals that a sworn statement is an alternative, rather than a mandatory requirement. See Cooksey v. State, No. 06-13-00096-CR, [2014 WL 3359278] (Tex.App.—Texarkana July 9, 2014, no pet.)] at Op. Pg. 18, reconciling the statement in Menefee with the holding in Jones.
(State’s Brief, pg. 16).
Appellant’s reply
The Cooksey opinion treats stipulations in the context of article 1.15 in the
same way stipulations are treated in the context of trial. This holding is incorrect.
The contexts are not the same. The relevant language from Cooksey is as follows:
As per the language of Article 1.15, there is no legal requirement that an accused swear to a written judicial confession when it is introduced in open court. Jones v. State, 857 S.W.2d 108, 110 (Tex.App.-Corpus Christi 1993, no pet.)[.] If the defendant elects to stipulate evidence against himself, “his stipulation is a kind of judicial admission.” Bryant [v. State], 187 S.W.3d [397,] 400 [Tex Crim. App. 2005)]. “Judicial admissions are not evidence at all.” Id. “Rather, they are formal confessions in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Id. Because
3
“[a] fact that is judicially admitted needs no evidence from the party benefitting by the admission,” Cooksey's stipulation of evidence “d[id] away with the need for evidence” to be presented by the State. See Id. By stipulating, Cooksey “waived any right to contest the absence of proof on the stipulated elements.” See id. at 401[.] (emphasis added)
Cooksey, 2014 WL 3359278, at *4. The case cited as support for this Cooksey
holding is Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005). But in Bryant
the stipulation at issue took place in the context of a trial, not in the context of an
article 1.15 proceeding. The Court of Criminal Appeals held therein that the
defendant, by stipulating prior to trial to two prior DWI convictions (elements of the
charged felony DWI charge), thereby “judicially admitted” to the convictions,
removing the need for proof of the convictions during trial:
Judicial admissions are not evidence at all. Rather, they are formal concessions in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.
Id. at 400 (citing McCormick on Evidence). Cooksey takes the Bryant language and
applies it in the context of article 1.15, holding that one who “judicially admits”
obviates the need for the opposing party to put on otherwise-required evidence; i.e.,
because a stipulation does away with the need for evidence, it need not be sworn.
But article 1.15 provides “it shall be necessary for the state to introduce evidence
into the record showing the guilt of the defendant[.]” Tex. Crim. Proc. Code Ann.
Art. 1.15 (West 2005). So does a stipulation do away with the need for evidence or
is a stipulation in fact evidence itself?
4
In Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987), the Court of
Criminal Appeals described how a stipulation functions as a waiver of evidence in
the context of trial but actually functions as evidence in the context of article 1.15:
While it is sometimes said in civil law that a stipulation constitutes a waiver of evidence . . . , it is settled that, as a matter of Texas criminal law, the term “stipulation,” at least as used in Art. 1.15, . . . includes inter alia agreements as to what particular evidence or testimony would be, if presented in full in open court[.]
Robinson, 739 S.W.2d at 799 n. 5; see also Messer v. State, 729 S.W.2d 694, 699
(Tex. Crim. App. 1986) (en banc) (“Stipulations, oral or written, in criminal cases
where the plea of not guilty is entered before the jury do not have to comply with
Article 1.15[.]”) Cooksey is in conflict with Robinson and Messer.
2. The State argues that a document can be a judicial confession even though the
document itself does not contain facts establishing the commission of each element
of the charged offense. Stated another way, the State argues that a document can
function as a judicial confession by making reference to facts set forth in another
document – the indictment:
The judicial confession signed by the Appellant and approved by his counsel stated that he had read the indictment and that he committed each and every act alleged. The first paragraph of the indictment sets out all the elements of the felony driving while intoxicated offense.
5
(State Brief, pg. 13).
Appellant’s reply
First of all, the State’s argument is at odds with the language of article 1.15
which provides “it shall be necessary for the state to introduce evidence into the
record showing the guilt of the defendant[.]” Tex. Crim. Proc. Code Ann. art. 1.15
(West 2005). Nowhere in the document the State describes as a “judicial confession”
(and asked the trial court to take judicial notice of) are there any facts that in and of
themselves show that Lamar committed the offense of felony DWI.
Second, the State’s argument is at odds with Menefee v. State, 287 S.W.3d 9
(Tex. Crim. App. 2009), wherein the Court of Criminal Appeals cited nine cases as
examples wherein article 1.15 was satisfied by written or oral proffers/stipulations.
Id. at 13 n. 16 & n. 17. In every one of these nine cases, the facts necessary to satisfy
the charged conduct were actually introduced at the guilty plea – never by reference
to some other document, to-wit:
The record further reflects that after the waivers and consents were approved by the court, the state introduced the stipulated testimony of witnesses in each of the cases which established all elements of the offense charged.
Hammond v. State, 470 S.W.2d 683 (Tex. Crim. App. 1971).
The charge is simply possession of hydromorphone unlawfully intentionally and knowingly on August 1, 1978 in Harris County-in
6
Sutton's case only with intent to deliver. The stipulated testimony of Officer Dugger and Lt. Smith did not establish possession of the alleged substance by any appellant for, as already mentioned, exploration of that matter was pretermitted during examination of both witnesses. The stipulated opinion of the chemist that 480 tablets taken from the Cadillac is hydromorphone; his testimony is the only evidence that may be considered fruits of the stop, arrest and search. Putting aside all stipulated testimony of Dugger, Smith and the chemist, we are left with the written stipulation of evidence executed by each appellant and his attorney and approved by the trial court, characterizing it “the same thing as a judicial confession.” Again, basically each states that “the witnesses”-without naming or otherwise identifying them-would testify that on the day and in the place in question each appellant “did intentionally and knowingly possess ... Hydromorphone.”
Brewster v. State, 606 S.W.2d 325, 328-29 (Tex. Crim. App. 1980).
In the instant case, the stipulated testimony of the witnesses embraced every essential element of the offense charged and was sufficient evidence to establish the guilt of Appellant. As such, it was adequate to support Appellant's plea and the finding of guilt under Art. 1.15.
Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
The stipulated testimony was that if Paul E. McManus, the alleged injured party, were present he would testify that he was manager of a business house on Gaston Avenue and that he saw the appellant take a suit of clothing of the value of $120.00 from a display rack and leave the store without paying for it and that the suit was taken without his consent. Further, the testimony of J. L. Chadwick was to the effect that he was a member of the Dallas Police Department and that he stopped the appellant in an automobile on the day in question and saw a man's suit which was identified by Paul McManus as the suit that had been stolen.
Sprinkle v. State, 456 S.W.2d 387, 388 (Tex. Crim. App. 1970).
The record shows the stipulated testimony of Phil Cook was that he was employed by Skillern's Drug Store on McKinney Avenue; that he saw appellant take eleven bottles of tanning lotion which were exhibited for
7
sale of the value of $37.95; that she left the store without paying for them, and that these items were taken from his possession and without his consent. Appellant testified that she heard the stipulated testimony, and it was substantially true and correct and that she had been previously convicted in the two prior misdemeanor shoplifting cases under the name of Ella Dora Waage as alleged in the indictment.
Waage v. State, 456 S.W.2d 388, 389 (Tex. Crim. App. 1970).
It was stipulated that if one of the arresting officers were present he would testify that an informant, from whom he had received reliable information on numerous occasions, told him that appellant would be walking in the 2300 block of McCardy Street in a few minutes with heroin in his possession, and that the officer did not have time to obtain a warrant for the arrest of appellant. As the two officers approached, appellant took two small packages wrapped in cellophane from his pocket, one of which he threw to the ground and the other he tried to swallow. Appellant was placed under arrest and the cellophane packages taken. It was also stipulated that if the chemist were present he would testify that the chemical analysis of the substance in the cellophane packages proved it to be heroin.
Soto v. State, 456 S.W.2d 389, 390 (Tex. Crim. App. 1970).
While the stipulations were oral we observe that the appellant was sworn and made a judicial confession. . . . It is true that appellant was not as thoroughly interrogated as he might have been, but he clearly admitted that all the allegations in both indictments were true and correct.
Sexton v. State, 476 S.W.2d 320, 320-21 (Tex. Crim. App. 1972).
Appellant made the following judicial admission in writing which was introduced into evidence: 'On November 26, 1969, in Harris Co., Texas, I, Carol Knight, did without malice aforethought kill James Edward Knight by shooting him with a gun.'
Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972).
8
Appellant's confession in Cause No. F76-863-NJ reads: “I judicially confess that on the 18 day of December 1975, in Dallas County, Texas, with the intent to deprive the owner, Barney Topporoff, of property, namely, five pantsuits, I did intentionally and knowingly unlawfully exercise control over such property which had a value of at least $200.00 but less than $10,000.00, as charged in the indictment.” Appellant's confession in Cause No. F15-12384-MKJ reads: “I judicially confess that on the 1 day of November 1975, in Dallas County, Texas, with the intent to deprive the owner, Loretta Anderson, of property, namely, two pantsuits, I did intentionally and knowingly unlawfully exercise control over such property which had a value of at least $200.00 but less than $10,000.00, as charged in the indictment.”
Potts v. State, 571 S.W.2d 180, 181 n. 1 (Tex. Crim. App. 1978).
Third, the State’s argument is at odds with Rodriguez v. State, 442 S.W.2d
376 (Tex. Crim. App. 1968), wherein the Court of Criminal Appeals held that
stipulated testimony for purposes of article 1.15 is in fact “substituted testimony”:
Article 1.15 is clear and precise; it was an innovation in criminal procedure, and the Legislature was careful to set out in simple language the requirements of stipulated testimony. . . . Knowing the provision of [Old] Art. 12 [C.C.P.], the Legislature added certain requirements the State must follow to use ‘substituted’ testimony, and particularly when the evidence is stipulated.
Rodriguez, 442 S.W.2d at 384-85 (op. on reh’g). Nowhere in the document relied
upon by the State herein is there any “substituted testimony” establishing that Lamar
committed the offense of felony DWI on or about April 3, 2014.
9
3. The State cites Chindaphone v. State, 241 S.W.3d 217 (Tex.App.—Fort Worth
2007, pet. ref.), for the proposition that so long as the trial court takes judicial notice
of a “judicial confession”, the confession need not be introduced into evidence:
When the trial court takes judicial notice of a judicial confession the State is not required to introduce it into evidence in order to support the plea. (citing Chindaphone)
(State Brief, pg. 13).
Appellant’s reply
The State would appear to transform the legal doctrine of judicial notice into
a magical formula to turn lead into gold. Rule 201 of the Texas Rules of Evidence
allows a court to take judicial notice of adjudicative facts. Tex. R. Evid. 201(a). “A
judicially noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Id. “[T]he taking of judicial notice of facts is, as a matter
of evidence law, a highly limited process.” Shahar v. Bowers, 120 F.3d 211, 214
(11th Cir. 1997). As Lamar argued in his principal brief, it is one thing for a court
to take judicial notice of a document – it is a very different thing for a court to take
judicial notice of the truth of the statements contained in that document. (Appellant’s
Brief, pgs. 13-14).
10
“Rule 201’s basic purpose is to promote judicial convenience and economy.”
1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
201.02[2] (2nd ed. 2000). The State’s proposed use of the doctrine of judicial notice
would certainly accomplish that. A guilty plea colloquy under facts like those
charged against Lamar would consist of little more than the following:
State: Your Honor, we would ask the court to take judicial notice that the defendant before the court is the same defendant named in the indictment, and that on or about April 3, 2014, the defendant drove a vehicle in Bell County, Texas while intoxicated; The State would further ask that the court take judicial notice that this defendant was previously convicted of driving while intoxicated in Cause Number 10,446 in the County Court of Law of Williamson, Texas on November 14th, 1987, and also in Cause Number 2C13-04982 in the County Court at Law #2 in Bell County, Texas. Court. I will.
This streamlined procedure would certainly “promote judicial convenience and
economy.” Of course it would also effectively gut the requirements of article 1.15.
Nonetheless, this is implicitly what the State is arguing: “We’ll put these facts down
on a piece of paper, have the defendant sign the piece of paper, get the court to take
judicial notice of this piece of paper, and voilà, via the transforming power of judicial
notice, this piece of paper has become a “judicial confession.” But the facts set forth
in the document the State refers to as a judicial confession are not the sort of facts
that come within the purview of Rule 201. See e.g. Garza v. State, 996 S.W.2d 276,
279-80 (Tex.App.—Dallas, pet. ref’d) (“We are convinced . . . that assertions made
11
by an individual, even under oath, are not the type of facts that are capable of
accurate and ready determination by a source whose accuracy cannot be reasonably
be questioned.”); United States v. Hawkins, 76 F.3d 545, 551 (4th Cir. 1996) (identity
of defendant may not be proven by judicial notice)1; United States v. Neil, 964
F.Supp. 438, 445-46 (D.D.C. 1997) (judicial notice is not appropriate for reasonably
available documents that were referred to at trial but never offered into evidence);
Ernst v. Child & Youth Servs., 108 F.3d 486, 498-99 (3d Cir. 1997) (court did not err
by declining to take judicial notice of contents of affidavit that had been submitted
with defendant’s motion for summary judgment; court could take notice of filing of
affidavit but not its contents); United States v. Garland, 991 F.2d 328, 332 (6th Cir.
1993) (judicially noticing existence of criminal judgment in Ghana, but not noticing
“the truth of the statements contained in the Ghana judgment because some of these
facts may remain in dispute”).
To the extent the Chindaphone opinion suggests that judicial notice can be
taken of the truth of the statements included in plea papers, and that this alone
satisfies article 1.15, the case is incorrect. It should be noted however that in
Chindaphone, the defendant’s written confession was sworn to before a deputy
district clerk. Chindaphone, 241 S.W.3d at 223.
1 The Texas Rules of Evidence are patterned after the Federal Rules of Evidence and cases interpreting the federal rules should be consulted for guidance as to their scope of applicability. Cole v. State, 839 S.W.2d 798, 801 (Tex. Crim. App. 1990).
12
Respectfully submitted,
/s/ John A. Kuchera John A. Kuchera 210 N. 6th St. Waco, Texas 76701 (254) 754-3075 (254) 756-2193 (facsimile) SBN 00792137 johnkuchera@210law.com Attorney for Appellant
Certificate of Service
This is to certify that a true and correct copy of the above and foregoing
Appellant’s Brief has this day been mailed to the office of Mr. Bob D. Odom,
Assistant District Attorney, P.O. Box 540, Belton, Texas 76513.
SIGNED this 26th day of February, 2015.
/s/ John A. Kuchera John A. Kuchera, Attorney for Clifton Carl Lamar
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Certificate of Compliance with Rule 9.4
1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i) because the brief contains 3,006 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times New Roman, size 14 font.
/s/ John A. Kuchera John A. Kuchera, Attorney for Clifton Carl Lamar
Dated: February 26, 2015