NO. 07-04-0398-CR
NO. 07-04-0399-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 13, 2005
______________________________
TAMMIE SCHULENBERG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 114 TH DISTRICT COURT OF SMITH COUNTY;
NOS. 241-0612-02 AND 241-0613-02; HON. CYNTHIA KENT, PRESIDING
_______________________________
DISMISSAL
_______________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Appellant, Tammie Schulenberg, appeals from orders revoking her community supervision and sentencing her to imprisonment, such orders being entered in cause numbers 241-0612-02 and 241-0613-02. The certifications of appeal executed by the trial court do not disclose that she has a right to appeal from either order; rather they state that she waived same. By letter dated April 25, 2005, this court notified appellant of these circumstances and that the appeals were subject to dismissal. The court also requested that she either supply it with an amended certification illustrating that she has a right to appeal from the orders or inform us why we should continue the appeals. This was to be done by May 10, 2005. That deadline lapsed and we received neither a response nor amended certifications. Thus, we dismiss these appeals. See Tex. R. App. P. 25.2(d) (requiring that the appeal be dismissed if a certification that shows that the defendant has a right to appeal has not been made part of the record).
Accordingly, these appeals are dismissed.
Brian Quinn
Justice
Do not publish.
%íêAT AMARILLO
PANEL D
AUGUST 5, 2008
______________________________
DETTA SANDERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 25TH DISTRICT COURT OF GUADALUPE COUNTY;
NO. 06-1792-CR; HONORABLE DWIGHT E. PESCHEL, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Detta Sanders, was indicted on six counts of theft, enhanced by three prior theft convictions. Pursuant to her plea of no contest without an agreement on punishment, she was convicted and sentenced to two years confinement in a state jail facility. Presenting a sole issue, she maintains the evidence is legally insufficient to support her conviction. We affirm.
Background
By four counts in the indictment, Appellant was charged with theft of items valued at less than $50 and by the remaining two counts, with theft of items valued at more than $50 but less than $500. The crimes were committed against six different complainants. The indictment further alleged that Appellant was convicted of theft on three previous occasions.
Discussion
Appellant contends by her sole issue that the trial court lacked jurisdiction to sentence her because the evidence is legally insufficient to raise the misdemeanor thefts to the level of a felony. (footnote: 1) Specifically, she asserts the State failed to prove the prior theft convictions. We disagree.
An appellate court will affirm a trial court’s judgment under article 1.15 of the Texas Code of Criminal Procedure Annotated (Vernon 2005), if the State introduced evidence that embraces every essential element of the offense charged and is sufficient to establish the defendant’s guilt. (footnote: 2) Chindaphone v. State , 241 S.W.3d 217, 219 (Tex.App.–Fort Worth 2007, pet. ref’d) (citing Wright v. State , 930 S.W.2d 131, 132 (Tex.App.–Dallas 1996, no pet.). When a misdemeanor theft is elevated to a felony theft, the prior theft convictions create a new offense and vest jurisdiction in the district court. Diamond v. State , 530 S.W.2d 586, 587 (Tex.Crim.App. 1975). The prior theft convictions become jurisdictional elements of the theft charge and cannot be waived. Gant v. State , 606 S.W.2d 867, 871 (Tex.Crim.App. 1980). As such, each count in the indictment charged Appellant with a state jail felony. See generally Tex. Penal Code Ann. § 31.03(e)(4)(D) (Vernon Supp. 2007) (providing that the offense is a state jail felony if the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft).
A “catch-all” stipulation in which a defendant stipulates that all allegations contained in the indictment are true and correct is sufficient to constitute a judicial confession which will alone support a conviction. See Potts v. State , 571 S.W.2d 180, 181 (Tex.Crim.App. 1978). A judicial confession together with an in-court affirmation thereof constitutes compliance with the requirements of article 1.15. Id. at 182.
Appellant and her attorney executed a document entitled “Waivers, Stipulations and Admonishments for Plea of Guilty or No Contest.” The document lists all six counts of the indictment as well as the enhancement allegations and was introduced into evidence at the hearing on Appellant’s plea. Paragraph E of the document, entitled “Voluntariness of Plea and Stipulation of Evidence”, provides in relevant part:
[t]he defendant further admits and stipulates each and every allegation contained in the indictment herein is true and correct.
Additionally, at the hearing on Appellant’s plea, the trial court asked her numerous questions about her prior theft convictions. Although Appellant describes the discussion in the record as “confusing” as to whether she was admitting to the three convictions alleged in the indictment, the following response to the trial court’s inquiry concerning those prior theft convictions is unequivocal:
The Court: If you pled guilty, and you were sentenced and placed on probation, that counts as a conviction.
The Defendant: Okay, I did twice.
Although the indictment alleged three prior theft convictions, section 31.03(e)(4)(D) only requires two prior convictions. Therefore, this admission alone is sufficient to satisfy the requirements of section 31.03(e)(4)(D). Furthermore, later in the colloquy, Appellant admitted to the three prior convictions. During this discussion the trial court also determined that none of the prior convictions had been expunged.
Notwithstanding that the State did not introduce copies of the previous judgments into evidence, Appellant’s stipulation and judicial admission are sufficient proof of prior convictions for enhancement purposes. See Beck v. State , 719 S.W.2d 205, 209-10 (Tex.Crim.App. 1986). We conclude the evidence is legally sufficient to support Appellant’s conviction. Appellant’s sole issue is overruled.
Conclusion
Consequently, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
FOOTNOTES
1:
2: