McClain v. State

697 S.W.2d 807, 1985 Tex. App. LEXIS 7194
CourtCourt of Appeals of Texas
DecidedSeptember 12, 1985
DocketNos. 01-83-0477-CR, 01-83-0478-CR
StatusPublished
Cited by5 cases

This text of 697 S.W.2d 807 (McClain v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClain v. State, 697 S.W.2d 807, 1985 Tex. App. LEXIS 7194 (Tex. Ct. App. 1985).

Opinion

OPINION

JACK SMITH, Justice.

Appellants were convicted in a non-jury trial of felony theft, and each was assessed punishment of three years in prison, probated, and a $500 fine. In reliance on Casey v. State, 633 S.W.2d 885 (Tex.Crim.App.1982), this court reversed and ordered acquittal because the appellants had no participation in the initial unlawful appropriation. The Texas Court of Criminal Appeals, 687 S.W.2d 350 (Tex.Crim.App.1985), overruled Casey and reversed and remanded those cases to this court to determine whether the evidence establishes that appellants’ exercise of control of the affected property was without the owner’s effective consent.

The appellants now assert, for the first time, that the trial judge did not sign the agreements to waive the appearance of witnesses and stipulate to the evidence. They contend that this oversight is fundamental error and requires reversal.

The appellants are correct in their assertion that Tex.Code Crim.P.Ann. art. 1.15 (Vernon 1977) requires a judge’s approval in writing of a waiver of the appearance of witnesses and consent to stipulate evidence. See also Ellard v. State, 650 S.W.2d 840 (Tex.Crim.App.1983) and Young v. State, 648 S.W.2d 6 (Tex.Crim.App.1983).

The record in the present cases shows that the appellants and their attorneys, as well as the state’s attorney, signed the written stipulations of evidence and waiver of rights. The signature lines on the instruments denoted for the judge were not signed. The statement of facts shows that the trial judge asked the parties several questions pertaining to the stipulations. After all the parties involved had reaffirmed their approval, the judge admitted the stipulations into evidence and announced in open court, “Very well, I will approve the stipulations.” The trial judge [809]*809also made the following entry in handwriting on the docket sheets: “stipulation offered and approved.”

The portion of article 1.15 relevant to this ground of error states: “Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.” In a special commentary to article 1.15 the Honorable John F. Onion, Jr., Chief Judge of the Texas Court of Criminal Appeals, stated:

These procedural amendments were designed to provide a permanent record in the event of any future question, by writ of habeas corpus proceeding or otherwise, as to the sufficiency of the evidence to corroborate the defendant’s plea or support the court’s judgment.

We first observe that article 1.15 does not require that the approval by the court in writing be placed upon the face of the instrument being approved. It only requires that the approval be in writing and be filed in the papers of the cause. As noted above, the trial judge in this case orally approved the stipulation, then made a handwritten notation of the approval on the court’s docket sheet, which is included in the file of the papers of this cause.

We next observe that Ellard and Young were 1983 cases which preceded the recent case of Almanza v. State, 686 S.W.2d 157, 160 (Tex.Crim.App.1984) (op. on reh’g). In Almanza, the Texas Court of Criminal Appeals, in discussing fundamental error and ordinary reversible error reasoned:

If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.
On the other hand, if no proper objection was made at trial and the accused must claim that the error was “fundamental,” he will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial” — in short “egregious harm.”

Id. at 171.

In Hoobler v. State, 695 S.W.2d 785 (Tex.App.-Houston [1st Dist.], 1985), this court applied the reasoning stated in Almanza to an alleged fundamental error under article 1.13 of the Texas Code of Criminal Procedure. In Hoobler, the prosecutor introduced into evidence a written waiver of jury trial signed by the appellant, the appellant’s attorney, and the trial judge, but not signed by the prosecutor. The appellant did not deny that he had waived a jury trial and did not claim that the prosecutor had not consented to the waiver of a jury trial. Further, the appellant did not claim that he was deprived of the right to a jury trial. He alleged no harm but simply urged that the state’s attorney never signed the printed waiver form. This court, in applying the standards set forth in Almanza, held that the appellant was not harmed as a result of the prosecutor’s error and affirmed the conviction.

In the instant case, the appellants are asserting fundamental error under article 1.15 of the Texas Code of Criminal Procedure, because the trial judge failed to approve in writing the waiver of appearance of witnesses and consent to stipulate evidence. Appellants do not claim that the trial court did not approve the waiver and stipulation; they simply urge that the trial judge never signed the form. Further, the appellants do not assert that they were denied a fair and impartial trial or that they were harmed in any manner by the court’s alleged procedural oversight. We first conclude that, although it would have been better procedure for the trial court to have signed the waiver and stipulation of evidence form on its face, the trial court’s oral pronouncement of its approval of the waiver and stipulation made by the parties together with its handwritten approval on its docket sheet satisfy the requirements of article 1.15. We secondly conclude that the appellants have neither alleged nor proved that they were injured in any manner by [810]*810this alleged fundamental error. Applying the reasoning set forth in Almanza, we hold no harm has been shown and fundamental error has not been proved. The appellants’ first ground of error is overruled.

The only issue remaining, the issue which the Texas Court of Criminal Appeals remanded for this court to determine, is the appellants’ contention that the evidence fails to establish that their exercise of control of the affected property was “without the owner’s effective consent.”

In the remand opinion, 687 S.W.2d at 350, the Court of Criminal Appeals fully set out the salient stipulated facts. We set forth in this opinion only the facts material to the issue at hand. A Houston police officer received information from a jail inmate regarding the appellants and their business operation. Acting on this information, the officer checked out of the police department property room various items of personalty, including 10 gold chains.

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Related

McClain v. State
730 S.W.2d 739 (Court of Criminal Appeals of Texas, 1987)
Berg v. State
747 S.W.2d 800 (Court of Criminal Appeals of Texas, 1984)

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Bluebook (online)
697 S.W.2d 807, 1985 Tex. App. LEXIS 7194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclain-v-state-texapp-1985.