Rodriguez v. State

442 S.W.2d 376

• Court: Court of Criminal Appeals of Texas
• Decided: June 25, 1969
• Docket: 41572
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

Represented by counsel of his choice, appellant waived a jury; entered a plea of not guilty and filed a motion praying that in the event he was convicted the court would grant probation.

The court, having heard the evidence, found appellant guilty of felony theft of a television set as charged and, having heard further evidence, assessed the punishment at three years in the Texas Department of Corrections.

Ground of error No. 1 complains that the district attorney propounded to appellant, on his cross-examination, a question about the truthfulness of the testimony of one of his co-indictees at his separate trial which implicated appellant in the theft.

Appellant’s counsel objected to the question and to the trial court’s ruling: “Counsel, I will overrule your objection, I heard the man testify.”

While the question should not have been asked, and the trial court’s comment should not have been made, we are unable to agree with appellant’s contention that the court “gave serious consideration to evidence outside the record in this case and considered testimony which was hearsay and inadmissible during the conduct of the case.”

In a trial before the court, the presumption is that the court disregarded all inadmissible evidence. Morgan v. State, Tex.Cr.App., 395 S.W.2d 644, and cases cited; Neely v. State, Tex.Cr.App., 409 S.W.2d 552; Johnson v. State, Tex.Cr.App., 428 S.W.2d 347.

The trial being before the court, the rule regarding prejudicial comments by the court as reversible error is not applicable and the court’s remark is not complained of as such.

Ground of error No. 2 relates to a stipulation made by the defendant and his counsel and counsel for the state, during the trial in open court, which was accepted by the court and dictated into the record, that if present J. M. Soliz, named in the indictment as owner of the television set alleged to have been stolen, would testify that he did not know appellant or his co-indictees and did not give any of them permission or consent to remove the set from the store.

Appellant’s complaint in this ground of error is that the stipulation was not in writing and was not signed by the defendant or approved by the court in writing, as required by Art. 1.15 Vernon’s Ann.C.C.P., and that without the stipulated testimony the record is devoid of any testimony that the person named in the indictment as special owner did not give his consent to the taking of the property alleged to have been stolen and that such being a material allegation of the indictment, the state has failed to establish its case. 55 Tex.Jur.2d, p. 314, and cases cited under Note 9.

The question raised differs from that decided in Smith v. State, Tex.Cr.App., 416 S.W.2d 425; Zulpo v. State, Tex.Cr.App., 415 S.W.2d 650, and Zulpo v. State, Tex.Cr.App., 415 S.W.2d 653, in that in those cases there was a plea of guilty and the agreement to stipulate was in writing, signed by the defendant and approved by his counsel and by the court, whereas in the case before us the plea was not guilty and the oral stipulations were dictated to the court reporter during the trial and orally accepted by the court and appear as a part of the record.

The portion of Art. 1.15, supra, relating to and restricting stipulations as to evidence must be construed in light of the fact that when the statute was enacted in 1931 (Art. 12 V.A.C.C.P.) it related only to pleas of guilty and to evidence accepted by the court as the basis for its judgment, and the evidence to be stipulated was that offered to support the plea of guilty.

To demonstrate the necessity of construing Art. 1.15, supra, as amended we quote a portion of the article as it would read if applied to pleas of not guilty only.

“No person can be convicted of a felony except upon the verdict of a jury * * * unless in felony cases * * * the defendant, upon entering a plea (of not guilty), has in open court in person waived his right of a trial by jury in writing; 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 of its judgment and in no event shall a person charged be convicted upon his plea (of not guilty) without sufficient evidence to support the same (the plea of not guilty). The evidence (to support the plea of not guilty) may be stipulated if the defendant * *

We construe the limitations in Art. 1.15, supra, regarding the stipulation to refer to evidence to support a plea of guilty. We do not construe it as mandatory where the plea is not guilty.

As to the constitutional right against self incrimination and the waiver of such right, we see no distinguishment that may be made between stipulations as to what a witness would testify if present in a trial before the court on a plea of not guilty and stipulations in jury trials or trials before the court in misdemeanor cases.

The third ground of error complains that prior to the commencement of the trial, on December 5, 1967, appellant was advised by his attorney that if he selected the jury to hear his case and he was found guilty, it would be mandatory for the jury to assess the punishment, and that it was solely for this reason that the defendant decided to submit his case to the judge and that the advice of his counsel was erroneous. Art. 37.07 C.C.P. as amended.¹

The testimony of the defendant furnishes the sole support for this ground of error. The ground of error is overruled.

The remaining ground of error presents the contention that the evidence established the offense of shoplifting defined in Art. 1436e Vernon’s Ann.P.C., for which reason the conviction for felony theft cannot stand.

The indictment contained all of the allegations necessary to charge the offense of felony theft (Art. 1410 P.C.) but did not contain all of the allegations necessary to charge shoplifting.

As to property of the value of $50.00 or over, the punishment for theft is the same as that for shoplifting.

The elements differ. Art. 1436e, supra, does not require the element of want of consent essential to a prosecution for theft under Art. 1410 P.C. and Art. 1436e, supra, requires that the accused be on the premises of a retail business establishment legally as an invitee or licensee.

Ground of error No. 4 is overruled.

The judgment is affirmed.

1 . Acts of the 60th Legislature, 1967, p. 1739.