Massey v. State

777 S.W.2d 739, 1989 Tex. App. LEXIS 2665, 1989 WL 126338

Opinions

OPINION

BURGESS, Justice.

Appellant was indicted for unauthorized use of a motor vehicle with two prior felonies. On July 21, 1986, appellant pleaded guilty to the court. On July 28, 1986, the court assessed punishment of eighteen years in the Texas Department of Corrections. Appellant filed a post-conviction writ of habeas corpus in the federal system and was granted an out-of-time appeal. Appellant urges two points of error: insufficient evidence and ineffective assistance of counsel. We reverse and remand on the first point.

Appellant was properly admonished prior to his guilty plea, but he did not execute a written judicial confession, nor did he make an oral judicial admission other than stating he was pleading guilty. Appellant did sign an agreement that evidence could be “stipulated into the record by the State’s Attorney” or introduced through affidavits, written statements and other documentary evidence. The State, however, did not introduce such evidence. Appellant’s counsel introduced appellant’s confession.

Texas does not follow the common law doctrine of conviction by plea, but requires there be sufficient evidence to support a guilty plea. TEX. CODE CRIM.PROC. ANN art. 1.15 (Vernon 1977). See Thornton v. State, 601 S.W.2d 340, 348 (Tex.Crim.App.1980) (opinion on rehearing). Appellant’s written confession does not prove all the elements of the offense. It contains no evidence of ownership of the vehicle, nor any evidence of non-consent. Appellant never was asked whether the indictment was “true and correct.” See Dinnery v. State, 592 S.W.2d 343 (Tex.Crim.App.1979). There is insufficient evidence in the record to support appellant’s guilty plea. Therefore, we must reverse and remand for a new trial. Ex parte Martin, 747 S.W.2d 789 (Tex.Crim.App.1988) (opinion on rehearing).

Reversed and remanded.