NO. 07-11-0200-CR NO. 07-11-0201-CR NO. 07-11-0202-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 18, 2011
______________________________
JOSHUA COBBS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2010-427,391, 2010-428,785, 2010-428,786;
HONORABLE JOHN McCLENDON, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Upon pleading guilty in open court, Appellant, Joshua Cobbs, was convicted of
aggravated assault with a deadly weapon in three causes and sentenced to sixty years
confinement in each cause, with the sentences running concurrently. The State
candidly concedes the trial court committed reversible error in Cause Nos. 07-11-0200- CR and 07-11-0201-CR; however, it maintains the judgment in Cause No. 07-11-0202-
CR is supported by the record. We agree.
CAUSE NO. 07-11-0200-CR (TRIAL COURT CAUSE NO. 2010-427,391)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Ashley Shedd, by striking her with
his hand. See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). Appellant raises four
issues contending the trial court erred: (1) by including a deadly weapon finding; (2) by
accepting Appellant's plea in contravention of article 1.15 of the Texas Code of Criminal
Procedure;1 (3) by proceeding without adequate jurisdiction; and (4) by finding Appellant
guilty of an uncharged offense. The State candidly concedes the trial court‟s judgment
is void in finding Appellant guilty of aggravated assault by the use or exhibition of a
deadly weapon; see Tex. Penal Code Ann. § 22.02(a)(2), an uncharged offense that is
not a lesser-included-offense. We accept the State's concession of error.
Accordingly, as to this cause, we sustain Appellant‟s fourth issue. Our sustention
of issue four pretermits Appellant‟s remaining issues. See Tex. R. App. P. 47.1.
CAUSE NO. 07-11-0201-CR (TRIAL COURT CAUSE NO. 2010-428,785)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Lanika Moore, by stabbing her
with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and, during the
commission of the assault, he did use or exhibit a deadly weapon. See Tex. Penal
1 Throughout the remainder of this opinion, we will refer to provisions of the Texas Code of Criminal Procedure as “article ___” or “art. ___.”
2 Code Ann. § 22.02(a)(2) (West 2011). Appellant raises two issues contending the trial
court erred: (1) by accepting his plea in contravention of article 1.15 of the Texas Code
of Criminal Procedure; and (2) by finding him guilty of an uncharged offense. The State
candidly concedes the trial court‟s judgment is void in finding Appellant guilty of an
uncharged offense, to-wit: “us[ing] a deadly weapon during the commission of the
assault and caus[ing] serious bodily injury to a person whose relationship to or
association with the defendant is described by Section 71.0021(b), 71.003, or 71.005,
Family Code.” See Tex. Penal Code Ann. § 22.02(b)(1) (emphasis added). Again, we
accept the State's concession of error.
Accordingly, as to this cause, we sustain Appellant‟s second issue. Our
sustention of issue two pretermits Appellant‟s remaining issue. See Tex. R. App. P.
47.1.
CAUSE NO. 07-11-0202-CR (TRIAL COURT CAUSE NO. 2010-428,786)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Alecia Logan, by stabbing her
with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and by the use or
exhibition of a deadly weapon, during the commission of the assault. See Tex. Penal
Code Ann. § 22.02(a)(2) (West 2011). The indictment further alleged that Alecia Logan
was a person with whom Appellant has or has had a dating relationship, as described
by Section 71.005 of the Texas Family Code. See Tex. Penal Code Ann. § 22.02(b)(1).
By a single issue, Appellant contends the State‟s evidence was insufficient to show
either the use of a deadly weapon or the infliction of serious bodily injury in the
3 commission of the offense and the trial court therefore erred by accepting his plea in
contravention of article 1.15 of the Texas Code of Criminal Procedure.
In support of Appellant‟s guilty plea, the State introduced Appellant‟s “Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” By way of this
document, Appellant consented to the stipulation of evidence and waived certain rights.2
See art. 1.15. This document also represented that Appellant understood the "foregoing
allegations" and confessed to their truth.3 In that regard, the indictment alleged that,
"[Appellant] . . . on or about September 7, 2010, did then and there intentionally,
knowingly or recklessly cause serious bodily injury to Alecia Logan by stabbing [her]
with a knife, and [he] did then and there use or exhibit a deadly weapon, to-wit: [a] knife,
during the commission of said assault, and the said Alecia Logan was a person with
whom [Appellant] has or has had a dating relationship, as described by Section 71.005
of the Family Code . . . ." The stipulation and confession was signed by Appellant,
witnessed by his counsel, and approved by the prosecutor and trial court before being
filed with the court.
The State contends Appellant‟s admission of guilt contained in this stipulation
and confession is sufficient to meet the requirements of article 1.15. Appellant
2 Under article 1.15, the State‟s evidence may be stipulated if the defendant consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents to an oral stipulation of the evidence or the introduction of affidavits, written statements or other documentary evidence in support of the judgment. 3 The caption of the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession indicates that it was a legal instrument filed in conjunction with "No. 2010428786, THE STATE OF TEXAS VS. JOSHUA COBBS, . . . Felony Charge: AGG ASSAULT DV - DW & SBI, . . . Agency/Rpt#: LPD / 10- 44897 . . . ." The following page contained in the Clerk's Record is an unsigned document also entitled Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, reciting the specific allegations contained in the indictment. From this, we conclude that the "foregoing allegations" refer to the allegations contained in the indictment in this cause.
4 acknowledges that a judicial confession alone would be sufficient to support a plea, but
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NO. 07-11-0200-CR NO. 07-11-0201-CR NO. 07-11-0202-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 18, 2011
______________________________
JOSHUA COBBS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2010-427,391, 2010-428,785, 2010-428,786;
HONORABLE JOHN McCLENDON, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Upon pleading guilty in open court, Appellant, Joshua Cobbs, was convicted of
aggravated assault with a deadly weapon in three causes and sentenced to sixty years
confinement in each cause, with the sentences running concurrently. The State
candidly concedes the trial court committed reversible error in Cause Nos. 07-11-0200- CR and 07-11-0201-CR; however, it maintains the judgment in Cause No. 07-11-0202-
CR is supported by the record. We agree.
CAUSE NO. 07-11-0200-CR (TRIAL COURT CAUSE NO. 2010-427,391)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Ashley Shedd, by striking her with
his hand. See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). Appellant raises four
issues contending the trial court erred: (1) by including a deadly weapon finding; (2) by
accepting Appellant's plea in contravention of article 1.15 of the Texas Code of Criminal
Procedure;1 (3) by proceeding without adequate jurisdiction; and (4) by finding Appellant
guilty of an uncharged offense. The State candidly concedes the trial court‟s judgment
is void in finding Appellant guilty of aggravated assault by the use or exhibition of a
deadly weapon; see Tex. Penal Code Ann. § 22.02(a)(2), an uncharged offense that is
not a lesser-included-offense. We accept the State's concession of error.
Accordingly, as to this cause, we sustain Appellant‟s fourth issue. Our sustention
of issue four pretermits Appellant‟s remaining issues. See Tex. R. App. P. 47.1.
CAUSE NO. 07-11-0201-CR (TRIAL COURT CAUSE NO. 2010-428,785)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Lanika Moore, by stabbing her
with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and, during the
commission of the assault, he did use or exhibit a deadly weapon. See Tex. Penal
1 Throughout the remainder of this opinion, we will refer to provisions of the Texas Code of Criminal Procedure as “article ___” or “art. ___.”
2 Code Ann. § 22.02(a)(2) (West 2011). Appellant raises two issues contending the trial
court erred: (1) by accepting his plea in contravention of article 1.15 of the Texas Code
of Criminal Procedure; and (2) by finding him guilty of an uncharged offense. The State
candidly concedes the trial court‟s judgment is void in finding Appellant guilty of an
uncharged offense, to-wit: “us[ing] a deadly weapon during the commission of the
assault and caus[ing] serious bodily injury to a person whose relationship to or
association with the defendant is described by Section 71.0021(b), 71.003, or 71.005,
Family Code.” See Tex. Penal Code Ann. § 22.02(b)(1) (emphasis added). Again, we
accept the State's concession of error.
Accordingly, as to this cause, we sustain Appellant‟s second issue. Our
sustention of issue two pretermits Appellant‟s remaining issue. See Tex. R. App. P.
47.1.
CAUSE NO. 07-11-0202-CR (TRIAL COURT CAUSE NO. 2010-428,786)
The indictment in this cause alleged Appellant committed the offense of
aggravated assault by causing serious bodily injury to Alecia Logan, by stabbing her
with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and by the use or
exhibition of a deadly weapon, during the commission of the assault. See Tex. Penal
Code Ann. § 22.02(a)(2) (West 2011). The indictment further alleged that Alecia Logan
was a person with whom Appellant has or has had a dating relationship, as described
by Section 71.005 of the Texas Family Code. See Tex. Penal Code Ann. § 22.02(b)(1).
By a single issue, Appellant contends the State‟s evidence was insufficient to show
either the use of a deadly weapon or the infliction of serious bodily injury in the
3 commission of the offense and the trial court therefore erred by accepting his plea in
contravention of article 1.15 of the Texas Code of Criminal Procedure.
In support of Appellant‟s guilty plea, the State introduced Appellant‟s “Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” By way of this
document, Appellant consented to the stipulation of evidence and waived certain rights.2
See art. 1.15. This document also represented that Appellant understood the "foregoing
allegations" and confessed to their truth.3 In that regard, the indictment alleged that,
"[Appellant] . . . on or about September 7, 2010, did then and there intentionally,
knowingly or recklessly cause serious bodily injury to Alecia Logan by stabbing [her]
with a knife, and [he] did then and there use or exhibit a deadly weapon, to-wit: [a] knife,
during the commission of said assault, and the said Alecia Logan was a person with
whom [Appellant] has or has had a dating relationship, as described by Section 71.005
of the Family Code . . . ." The stipulation and confession was signed by Appellant,
witnessed by his counsel, and approved by the prosecutor and trial court before being
filed with the court.
The State contends Appellant‟s admission of guilt contained in this stipulation
and confession is sufficient to meet the requirements of article 1.15. Appellant
2 Under article 1.15, the State‟s evidence may be stipulated if the defendant consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents to an oral stipulation of the evidence or the introduction of affidavits, written statements or other documentary evidence in support of the judgment. 3 The caption of the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession indicates that it was a legal instrument filed in conjunction with "No. 2010428786, THE STATE OF TEXAS VS. JOSHUA COBBS, . . . Felony Charge: AGG ASSAULT DV - DW & SBI, . . . Agency/Rpt#: LPD / 10- 44897 . . . ." The following page contained in the Clerk's Record is an unsigned document also entitled Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, reciting the specific allegations contained in the indictment. From this, we conclude that the "foregoing allegations" refer to the allegations contained in the indictment in this cause.
4 acknowledges that a judicial confession alone would be sufficient to support a plea, but
contends the requirements of article 1.15 were not met here because this document
was not introduced into evidence by the State and the trial court did not take judicial
notice of it. In that regard, Appellant cites this Court to no authority specifically requiring
that a stipulation and confession be formally admitted into evidence or be judicially
noticed in order to meet the requirements of article 1.15, and we find none.
As used in article 1.15, the term “stipulation” includes “agreements about what
particular evidence or testimony would be, if presented in full and open court, without
conceding the truthfulness of that evidence or otherwise waiving the need for proof.”
Nixon v. State, 928 S.W.2d 212, 214 (Tex.App.—Beaumont 1996, no pet.) (citing
Robinson v. State, 739 S.W.2d 795, 799 n.51 (Tex.Crim.App. 1987)) (Emphasis added).
“In reviewing our sufficiency of stipulated evidence to support the trial court‟s finding of
guilt, we view stipulations as if they were actual witness testimony.” Id. (quoting Stell v.
State, 496 S.W.2d 623, 626 (Tex.Crim.App. 1973)). Therefore, because the stipulation
and confession was filed as a legal document in this cause and became a part of the
record of this case, we find that the stipulation was "as if" presented by actual witness
testimony.
Moreover, because Appellant‟s judicial confession is sufficient to show that he
committed the offense alleged in the indictment, the record need not contain other
evidence to satisfy the State‟s burden under article 1.15. See Keller v. State, 125
S.W.3d 600, 605 (Tex.App.—Houston [1st Dist.] 2003, pet. dism‟d), (evidence sufficient
where Appellant read and signed a similar “Waiver of Constitutional Rights, Agreement
to Stipulate, and Judicial Confession stating „I understand the above allegations and I
5 confess they are true”‟), cert. denied, 544 U.S. 906, 125 S.Ct. 1603, 161 L.Ed.2d 280
(2005). Accordingly, we conclude that the filing of Appellant‟s stipulation and judicial
confession was sufficient to support the judgment under article 1.15. See Dinnery v.
State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (“It is well settled that a judicial
confession, standing alone, is sufficient to sustain a conviction upon a guilty plea.
[collected cases cited therein]”). Appellant‟s single issue is overruled.
CONCLUSION
Agreeing with the State's position, the trial court‟s judgments in Cause Nos. 07-
11-0200-CR and 07-11-0201-CR are reversed and those causes are remanded to the
trial court for further proceedings; and the trial court‟s judgment in Cause No. 07-11-
0202-CR is affirmed.
Patrick A. Pirtle Justice
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