Dinnery v. State

592 S.W.2d 343, 1980 Tex. Crim. App. LEXIS 1069

• Court: Court of Criminal Appeals of Texas
• Decided: January 23, 1980
• Docket: 61650
• Status: Published

Opinions

OPINION

CLINTON, Judge.

This appeal follows an August 11, 1978 revocation of appellant’s probation in which the trial court imposed a five year sentence for the offense of burglary by committing theft pursuant to V.T.C.A. Penal Code, § 30.02(a)(3).¹

By his sole ground of error, appellant claims that at the time of the entry of his guilty plea and the trial court’s suspension of his sentence on April 3, 1975, the only evidence introduced by the State was appellant’s written stipulation which confessed his entry to the habitation with the intent to commit theft. See n. 1, supra. Appellant contends that “under the doctrine announced in Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978),² this conviction cannot stand.” The State retorts that appellant’s argument is, in effect, a collateral attack on the sufficiency of the evidence to support the original conviction, and as such, may not be considered by this Court at this time.

It has been considered well settled by this Court that the sufficiency of the evidence to support a conviction may not be attacked by petition for writ of habeas corpus or otherwise collaterally,³ so long as the guilty plea is entered voluntarily and the accused is represented by counsel. Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972). See also generally Sosa v. United States, 550 F.2d 244 (5 Cir.1977). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), this Court determined that upon a showing that there is no evidence on which his conviction could be based, a habeas petitioner has shown a violation of his right to due process of law, and such abridgment will justify a collateral attack on that conviction. See also Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978).

The claim before us brought under the procedural facts of this case constitutes a collateral attack, e. g., Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978); we therefore must determine as a threshold issue whether all the evidence on which the trial court based his judgment that appellant was guilty of “burglary of a habitation as charged in the indictment,” is before this Court. We find that all of the evidence, including a transcription of the court reporter’s notes of the guilty plea hearing, is before us, and we therefore are in a position to consider appellant’s “no evidence” ⁴ claim at this time. Compare Wolfe, supra.

Omitting the formal portions, the indictment returned against appellant in the instant case alleges that on or about January 31, 1975, appellant did unlawfully,

without the effective consent of Mrs. Robert E. Kimbrel . . . enter a habitation owned by Complainant, and did then and there commit theft, to-wit: . . . unlawfully exercise control over personal property of Complainant, . . . without the effective consent of . Complainant, and with intent to deprive the said owner of [the] property.

In a single document, appellant executed his waiver of jury, agreement to stipulate,⁵ application for probation, waiver of delay in sentencing and waiver of appeal⁶ dated March 28, 1975.⁷ The written stipulation recites:

I do judicially confess that on the 31 day of January, 1975 in Dallas County, Texas, I did with the intent to commit theft, enter a habitation which was not open to the public, without the effective consent of Robert E. Kimbrel,⁸ the owner, as charged as in the indictment.

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, 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.”

The statement of facts reveals that at the April 3rd hearing, the trial judge admonished appellant of the consequences of his plea and the range of punishment and concluded:

The Court will accept your plea, if you make it, and find you guilty on your plea if the evidence proves you guilty beyond a reasonable doubt.

Appellant waived arraignment and informed the court that appellant’s true name was as that alleged in the indictment.

The State then offered “the confession of the defendant, which is signed in open court and approved by his lawyer,” without objection:

THE COURT: Mr. Dinnery, they have offered into evidence, which means they want me to consider as evidence, this confession made by you this judicial confession. Did you sign this confession?

THE DEFENDANT: Yes sir.

* * * * * *

THE COURT: And are the facts contained therein true and correct ?

THE DEFENDANT: Yes sir.

THE COURT: And you want me to consider this as evidence?

THE DEFENDANT: Yes sir.

THE COURT: In other words, what I will be doing is finding you guilty and sentencing you based upon your own confession.

THE DEFENDANT: Yes sir.

THE COURT: State’s Exhibit Number 1 is admitted.

[PROSECUTOR]: State rests.

The defendant was then sworn in his own behalf and his attorney, on affirmation that appellant was the same person charged by indictment, inquired:

Q: You’ve gone over that indictment with me, have you not?

A: Yes, sir.

Q: We have read it?

A: Yes, sir.

Q: And is it true and correct ?

A: Yes, sir.

Q: And how do you wish to plead to that indictment?

A: Guilty.

Q: Are you pleading guilty because you are guilty and for no other reason?

A: Yes, sir.

Q: Has anybody promised you anything, threatened you or forced you, or coerced you in an effort to induce you to plead guilty this morning?

A: No, sir.

Q: So, again, you’re saying you’re doing that of your own free will and accord?

A: Yes, sir.

Counsel then went over appellant’s waiver of all his rights and proceeded:

Okay. Now, prior to coming to Court today, we went over what the State has introduced ... as State’s Exhibit Number 1, is that correct?

A: Yes, sir.

Q: And you signed that, is that correct?

A: Yes, sir.

Q: And that, as I told you, is a judicial confession?

A: Yes, sir.

Q: And did you sign that freely and voluntarily?

A: Yes, sir.

Q: And is it true and correct?

A: Yes, sir.

* * * * * *

THE COURT: Mr. Dinnery, have you understood everything that has gone on here?

THE DEFENDANT: Yes, sir.

The court accepted appellant’s plea, assessed his punishment and suspended his sentence.

In Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978) this Court was confronted with that appellant’s two written stipulations concerning commission of two thefts; each stipulation omitted an essential element charged in the indictments: that the property was “taken without the owner’s effective consent.” The only testimony adduced was the defendant’s statement that the contents of the confessions were “substantially true and correct.” This Court held that this constituted sufficient proof of the indictment allegations, the determining factor being the stipulations’ incorporation by reference of the indictment with use of the phrase, “. . .as charged in the indictment,” citing Adam v. State,9 490 S.W.2d 189 (Tex.Cr.App.1973); and Miles v. State,10 486 S.W.2d 326 (Tex.Cr.App.1972).

The instant case, however, presents a significantly disparate situation because, unlike Potts, Adam or Miles, supra, the stipulations in which omitted indictment recitations, the stipulation here is on its face inconsistent with the indictment allegations. The instant stipulation’s incorporation by reference of a wholly inconsistent indictment recitation renders that stipulation a nullity; it therefore cannot support a conviction based on that indictment. Cf. Franco v. State, 552 S.W.2d 142 (Tex.Cr.App.1977).

Finally, the only other part of the record which might be argued as constituting “any” evidence of appellant’s guilt as alleged in the indictment, is appellant’s affirmative answer to his counsel’s query: “and is [the indictment] true and correct.” The testimony of appellant, particularly when read in context and as a whole, was clearly “not a judicial confession,¹¹ [but was in reply to] merely an additional admonishment by [defense] counsel.” Drain v. State, 465 S.W.2d 939, 940 (Tex.Cr.App.1971). It therefore will not support the judgment of conviction before us.

We hold that for lack of any evidence to support appellant’s conviction, the judgment declaring that conviction is reversed, and this cause is ordered remanded to the trial court with instructions for the entry of a judgment of acquittal.

1 . Section 30.02, V.T.C.A. Penal Code provides in relevant part:

(a) A person commits an offense if, without the effective consent of the owner, he:

(1) enters a habitation . . with intent to commit . . theft; or

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(3) enters a habitation and commits . . theñ.

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(d) An offense under this section is a felony of the first degree if:

(1) the premises are a habitation; . . .

(Emphasis throughout this opinion is supplied by the writer unless otherwise indicated.)

2 . Whitlow, supra, holds that the trial court commits fundamental error in authorizing the jury to convict an accused of burglary where the jury charge authorizes conviction if the entry was made with the intent to commit theñ while the indictment alleges that the defendant entered and then committed theñ. See also Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1978).

3 . We say that this rule “has been” considered well settled because it has recently been called into question by the United States Supreme Court’s disposition of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, because of our disposition of the instant case, the effect, if any, of Jackson v. Virginia, supra, on this Court’s traditional treatment of such claims, is left for another day.

4 .Further support for our treatment of this cause is found in Reid v. State, 560 S.W.2d 99 (Tex.Cr.App.1978). In Reid, direct appeal was taken from a conviction, upon a guilty plea to the court, for robbery by causing bodily injury. It was held that the only evidence admitted in support of the guilty plea was the accused’s written stipulation confessing to robbery by threatening and placing the complainant in fear of imminent bodily injury and death.

While the holding of Reid is that because “there was no proof that, during the robbery, appellant . . caused bodily injury to the complainant, the evidence was insufficient to sustain a conviction for robbery ... as alleged in the instant indictment,” a review of the original record on appeal reveals that Reid’s appellate counsel filed a brief in this Court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that the appeal was frivolous and wholly without merit.

Notwithstanding the deletion of this procedural fact in the published opinion, it may be concluded that the error in Reid was considered to be, and treated as, fundamental error calculated to prejudice the accused, and therefore, a denial of due process of law.

5 . Article 1.15, V.A.C.C.P. provides:

6 . This waiver of appeal is void on its face, Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App.1976), but nevertheless reflects that appellant’s failure to take a direct appeal from his original conviction was not a “tactical maneuver” or a “deliberate bypass.” See Sosa v. United States, supra.

7 . The jurat on this document reflects that it was subscribed and sworn by appellant on March 28, 1975 but this date was marked out and (in a different handwriting) an interline-ation was made reflecting: “the 3 [sic] day of April,” the date of the judgment.

The trial judge’s “approval” of appellant’s waiver of jury, agreement to stipulate, waiver of confrontation and judicial confession occurred simultaneously with the court’s grant of appellant’s motion for probation as reflected by a single signature.

The trial court’s failure to “approve” and “consent” to appellant’s waiver of trial by jury, “file it in the papers of the cause before the defendant enter[ed] his plea” and “enter [it] of record on the minutes of the court” was in clear violation of Articles 1.13 and 1.15, V.A.C. C.P. However, it has been held that such irregularities are not subject to collateral attack, and are therefore, not before us. Compare Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976), with Rodriguez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976).

8 . The indictment alleged the owner as Mrs. Robert E. Kimbrel.

9 . According to the opinion in Potts, supra, the stipulation in Adam, supra, contained a recitation “that all the acts and allegations in said indictment charging the offense of [sale of heroin] are true and correct.”

10 . The Potts opinion cites Miles, supra, as authority because in that stipulation it was averred that “[a] 11 the acts and allegations in said indictment charging the offense of Passing as True a Forged Instrument are true and correct

11 . The situation presented by this case has caused concern for the accuracy, as well as the desirability, of the law which has developed the constituents of a “judicial confession” which will “alone” support a conviction. The first case we find holding that a “catch-all” stipulation (that the “defendant is the identical person named in the indictment in the above styled and numbered cause and that all the acts and allegations in said indictment . . are true and correct”) is “sufficient to constitute a judicial confession which will alone support a conviction,” is Adam, supra, at 190.

Cited in support of such a conclusion are Miles, supra; Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971) and McNeese v. State, 468 S.W.2d 801 (Tex.Cr.App.1971). In Miles, the conviction was also supported by affidavits from witnesses. In Edwards the defendant’s stipulation was of detailed testimony which would be given by witnesses if called. In McNeese, there were also detailed affidavits of witnesses, plus one by the defendant in which each element of the offense was detailed. None of these convictions was --supported “alone” by the accused’s “catch-all” stipulation. Even in Adam, the conclusion that the “catch-all” stipulation was alone sufficient, is apparently dicta in view of the fact that “statements and reports admitted into evidence clearly presented all the requisite elements of the offense charged.” id. at 190.

The facts of this case further call into question the precedential value of cases which conclude that the evidentiary sufficiency is being provided by a “judicial confession,” a “judicial confession” which is not recited in the opinion.

Is the intent of Article 1.15 [see n. 5, supra] advanced when we hold that a “yes, sir” by the defendant to the question “was each and every allegation contained in the indictment true and correct?”, constitutes the “necessary evidence [to be introduced by the State] showing the guilt of the. defendant?”

The statute prohibits conviction “upon [the defendant’s] plea without sufficient evidence to support the same” and yet this Court has more “evidence” before it when a defendant enters a plea of guilty upon the complete reading of the indictment than we do when a defendant merely affirms that “each and every allegation of the indictment is true.” If we decline to delineate the requisites of a “judicial confession” (which by definition will support a conviction) and correlate those requisites to the adequacy of the conviction’s evidentiary support, we are compelled to review claims such as the instant one, on the basis of the record as a whole, on .a case-by-case basis, as has been done here. The record in this case reveals on its face that neither the plea of guilty, nor the affirmation that “[the indictment] is true” could have been made knowingly, or intelligently.