In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00011-CR
________________________
MICHAEL ALLEN CHAMBERLAIN, APPELLANT
V.
STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Carson County, Texas
Trial Court No. 5332; Honorable Stuart Messer, Presiding
April 16, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this case we are once again faced with an issue concerning the imposition of
an arguably illegal sentence based on deficiencies that went unnoticed by the trial
judge, prosecutor, and defense counsel.1 Appellant, Michael Allen Chamberlain,
1
See Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989 (Tex. App.—Amarillo
2013) (mem. op., not designated for publication), (affirmed by Grado v. State, 445 S.W.3d 736 (Tex. Crim.
App. 2014); Melton v. State, No. 07-13-00032-CR, 2015 Tex. App. LEXIS 266 (Tex. App.—Amarillo Jan.
13, 2015, no pet.) (mem. op., not designated for publication).
contends the judgment of the trial court should be set aside and the case remanded
because there is no evidence supporting the order originally placing him on deferred
adjudication community supervision for the second degree felony offense of indecency
with a child by sexual contact. We affirm the judgment of the trial court.
PROCEDURAL BACKGROUND
Because the disposition of this case does not require a detailed review of the
facts underlying the offense, we limit our discussion to the procedural facts pertinent to
the appeal. In that regard, on May 9, 2013, Appellant was charged by indictment with
two counts of aggravated sexual assault, a first degree felony. See TEX. PENAL CODE
ANN. § 22.021(a)(1)(B) (West Supp. 2014). On September 27, 2013, pursuant to a plea
bargain, Appellant entered a plea of guilty to the lesser-included offense of ―indecency
with a child‖—and this is where the issue in this case begins. That is so because there
are two types of indecency with a child: (1) indecency with a child by exposure,2 a third
degree felony, and (2) indecency with a child by sexual contact,3 a second degree
felony—and the plea bargain agreement did not specify which offense applied.
Appellant contends he pleaded guilty to indecency with a child by exposure, whereas
the State takes the position that he pleaded guilty to indecency with a child by sexual
contact. As discussed below, both positions have some merit; however, after
considering the entire appellate record, we ultimately conclude the trial court was
dealing with a plea agreement pertaining to the lesser-included offense of indecency
2
See TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011).
3
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
2
with a child by sexual contact, and we will address the sufficiency issue pertinent to this
appeal from that perspective.4
At the September 27th hearing, pursuant to the agreed plea recommendation,
Appellant executed and filed a Stipulation of Evidence which states:
On or about the 14th day of March, 2013, in Carson County, Texas,
[Appellant] did then and there with intent to arouse or gratify the sexual
desire of the defendant, intentionally or knowingly expose the defendant‘s
genitals knowing that [the victim], a child younger than 17 years of age,
was present. (Emphasis added).
This stipulation describes the offense of indecency with a child by exposure. See TEX.
PENAL CODE ANN. § 21.11(a)(2)(A) (West 2011). Conversely, the stipulation does not
describe the offense of indecency with a child by sexual contact. See id. at
§ 21.11(a)(1) (West 2011).
In addition to the stipulation, Appellant signed another document entitled Waivers
of Parties, which included a paragraph entitled Judicial Confession, which states:
I, the defendant, state that I have read the indictment or information filed in
this case and that I committed each and every allegation it contains. I am
guilty of the offense alleged as well as all lesser included offenses. I
swear to all of the foregoing and I further swear that all testimony I give in
this case will be the truth, the whole truth, and nothing but the truth, so
help me God. (Emphasis added).
4
In Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009), the Court of Criminal Appeals held
that indecency with a child by sexual contact is a lesser-included offense of aggravated sexual assault of
a child when both offenses are predicated on the same act. Id. at 143. The court explained why this is
true despite the fact that the indecency offense contains what might appear to be an extra element of
intent to arouse or gratify sexual desire. See id. at 141-43. The court reasoned that ―intent to arouse or
gratify sexual desire‖ was not an extra element because it was already part of the definition of ―sexual
contact,‖ and sexual contact was a form of touching subsumed within the ―penetration‖ required to prove
aggravated sexual assault. Id.
3
Although the Waiver of Parties document contained a paragraph entitled Order
on Waivers and Judicial Confession, which included a signature line for the ―Presiding
Judge,‖ the copy of that document filed September 27th does not bear the signature of
the trial judge. Interestingly, however, a copy of the same document filed October 2,
2013, does contain the judge‘s signature.
Complicating matters further, the Punishment Recommendations signed by the
district attorney, defense counsel, and Appellant on September 27th indicates that the
State is recommending ―[p]rosecution for lesser included offense of INDECENCY WITH
A CHILD – PC 22.11(a) – A 2ND DEGREE FELONY‖ and a recommendation of ten
years deferred adjudication community supervision in exchange for Appellant‘s plea of
guilty. The problem here is that section 22.11(a) of the Texas Penal Code does not
describe the second degree felony offense of indecency with a child at all—instead, it
describes the third degree felony offense of harassment by persons in certain
correctional facilities. Because section 21.11 of the Texas Penal Code does describe
the offense of indecency with a child, we must assume the difference between 22.11
and 21.11 is but a scrivener‘s error, another lack of attention to detail.
But wait, the confusion does not stop there. At the hearing on the original plea,
for reasons that completely escape us, the trial court conducted three pleas, of three
separate defendants, with three separate defense counsel, from two separate counties,
in one consolidated proceeding. At the commencement of that proceeding, the
following exchange occurred:
4
THE COURT: The Court further calls Carson County Cause
Number 5332, the State of Texas versus
Michael Allen Chamberlain. State?
[Appearances made.]
DEFENSE COUNSEL: [Defense counsel] for the Defendant, Your
Honor. We‘re ready under an agreed plea
recommendation.
* * *
THE COURT: How do you plead to the first degree felony
offense of aggravated sexual assault of a
child?
DEFENSE COUNSEL: Judge, we‘re pleading under a lesser-included
indecency charge, under the recommendation.
* * *
THE COURT: Let me back up a little bit. Mr. Chamberlain, if I
accept you plea to a second degree felony, a
second degree of indecency has a maximum
punishment of 20 years and a minimum
punishment of two. And again, there can be a
fine not to exceed $10,000.
Do you understand that?
DEFENDANT: Yes, sir.
* * *
THE COURT: How do you plead to the lesser-included second
degree felony offense of indecency with a child --
DEFENDANT: True.
THE COURT: -- guilty or not guilty?
DEFENDANT: Guilty.
5
After several admonishments to the various defendants, the proceeding
continued with this exchange:
THE COURT: And in Mr. Chamberlain‗s case?
PROSECUTOR: Your Honor, in that case, Cause Number 5332
out of Carson County, the plea bargain would
be ten years deferred adjudication with a fine
of $1,000, court costs of $665.
When it came time to offer evidence to support Appellant‘s plea, this additional
exchange occurred:
PROSECUTOR: Thank you. Your Honor, in the Chamberlain
case, 5332 out of Carson County, Your Honor,
we would offer the States Stipulation of
Evidence which is State‘s Exhibit 1, bearing the
Defendant‘s signature in the middle of the
page, Your Honor.
State‘s Exhibit 1, the Stipulation of Evidence referenced above, only admits to
the offense of indecency with a child by exposure. Without the introduction of any other
evidence relevant to Appellant‘s plea, the record continues with the following statement:
PROSECUTOR: Your Honor, that‘s all the evidence the State
would offer, at this time, in all three cases. The
State would rest and close in all three cases,
Your Honor.
During the plea proceeding, no inquiry was made of Appellant concerning the
facts necessary to substantiate the offense of indecency with a child by sexual contact
and no testimony from any other source was offered. Although the Judicial Confession
appears of record, it is never mentioned. Towards the conclusion of the multi-plea
proceeding, the trial court continued:
6
THE COURT: In Cause Number 5332 out of Carson County, I
find there is sufficient evidence to find the
Defendant, Michael Allen Chamberlain, guilty
beyond a reasonable doubt of the second
degree lesser-included offense of indecency
with a child.
Pursuant to the plea agreement announced, and based on nothing other than the
plea of guilty, the stipulation of evidence and the judicial confession, the trial court
suspended the imposition of sentence and placed Appellant on deferred adjudication
community supervision for a term of ten years.5 Adding further complication to the
already confusing plea agreement, the Order of Deferred Adjudication recites the
offense as ―indecency with a child, a lesser included offense than alleged in the
indictment,‖ pursuant to Penal Code ―section 22.11(a)(2),‖ a ―second degree felony.‖
Again, as stated above, 22.11(a)(2) is harassment in a correctional facility; whereas,
21.11(a)(2) is indecency with a child by exposure. Because the record of the plea
clearly reflects both the trial court and Appellant were discussing a plea to a second
degree felony, again we assume the difference between subsection (a)(2) and
subsection (a)(1) is nothing more than another example of a long line of scrivener‘s
errors.
Forty days after being placed on deferred adjudication community supervision,
the State filed a motion to adjudicate. A hearing was held on January 14, 2014, and
5
A defendant convicted of the offense of indecency with a child by sexual contact pursuant to
section 21.11(a)(1) of the Texas Penal Code is not eligible for deferred adjudication community
supervision unless the judge makes a finding in open court that placing the defendant on community
supervision is in the best interest of the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West
Supp. 2014). Even though no such finding was made in this case (another lapse of attention to detail),
the trial court‘s failure to do so is not grounds to set aside the plea, deferred adjudication, or any
subsequent conviction or sentence. Id.
7
Appellant entered a plea of ―not true‖ to the allegations contained in the State‘s motion.
During the revocation hearing the following exchange took place:
THE COURT: The Court calls Carson County Cause Number
5332, the State of Texas versus Michael Allen
Chamberlain.
[Appearances made.]
THE COURT: And this is an aggravated sexual assault of a
child case?
DEFENSE COUNSEL: No, Your Honor.
PROSECUTOR: Your Honor, it‘s a plea to a lesser included --
THE COURT: Lesser included.
PROSECUTOR: -- on indecency with a child, a second degree
felony with a regular punishment range of --
THE COURT: Of two to 20?
PROSECUTOR: Yes, Your Honor.
THE COURT: [Defense Counsel], do you concur it‘s a two to
20 on an indecency?
DEFENSE COUNSEL: Yes. Indecency with a child is a second
degree felony, two to 20.
Following the presentation of evidence pertaining to alleged violations of the
conditions of community supervision, the trial court revoked Appellant‘s deferred
adjudication and entered a finding of guilt, not as to the offense of indecency by
exposure, but rather as to the offense of indecency by sexual contact. The trial court
then assessed Appellant‘s sentence at the maximum period of confinement for that
offense, to-wit: twenty years. The written Judgment Adjudicating Guilt repeated the
same errors that appeared in the Order of Deferred Adjudication, reciting the offense as
8
―indecency with a child,‖ pursuant to section ―22.11(a)(2),‖ a ―2ND degree felony.‖
Again, we construe these inconsistencies as additional scrivener‘s errors—the correct
recitation being ―indecency with a child by sexual contact,‖ pursuant to section
21.11(a)(1), a second degree felony.
By his sole issue, Appellant contends his conviction is ―void‖ because the only
evidence supporting the conviction is State‘s Exhibit 1, the Stipulation of Evidence,
which only confesses to the lesser-included offense of indecency with a child by
exposure.6 In response, the State contends (1) Appellant agreed to enter a plea of
guilty to the offense of indecency with a child by sexual contact and (2) while the
Stipulation of Evidence is insufficient to support a conviction as to that offense, the
written judicial confession filed of record compensates for that deficiency.
Based on the totality of the record before us, we begin our analysis with a finding
that, notwithstanding the inconsistencies and deficiencies that appear of record, both
the trial court and Appellant contemplated a plea to a lesser-included, second degree
felony offense of indecency with a child by sexual contact, and the trial court orally
pronounced guilt as to that offense (albeit, not specifying the offense to be indecency
with a child by sexual contact).7 While we see issues with both the stipulation of
evidence and the judicial confession, we find the overall record supports the trial court‘s
6
Appellant does not raise, and we do not address, any issues concerning the effective assistance
of counsel or the voluntariness of his plea, issues more appropriately suited to an article 11.07, habeas
corpus proceeding. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2014).
7
When a trial court‘s oral pronouncement of sentence conflicts with the written judgment, the oral
pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing TEX.
CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2014)). In such circumstances, this Court should
reform the judgment to reflect the sentence pronounced. Id. at 137.
9
judgment. Because we ultimately conclude the evidence supports the judgment
entered, we will affirm.
ANALYSIS
Under the Code of Criminal Procedure, the State is obligated to ―introduce
evidence into the record‖ of a defendant's guilt, and trial courts are not permitted to
render a conviction without evidence establishing a defendant's guilt. See TEX. CODE
CRIM. PROC. ANN. art. 1.15. See also Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
App. 2009). In that regard, an oral plea of guilty alone is insufficient because ―even if
the defendant states that he or she is pleading guilty to the charges in the indictment
under oath, [a guilty plea] does not constitute a judicial confession because the
defendant is merely entering a plea, ‗not confessing to the truth and correctness of the
indictment or otherwise providing substance to the plea.‖ Baggett v. State, 342 S.W.3d
172, 174 (Tex. App.—Texarkana 2011, pet. ref‘d) (quoting Menefee, 287 S.W.3d at 13,
15). As such, Appellant‘s guilt is not sufficiently supported by his plea of guilty alone.
Evidence establishing a defendant's guilt sufficient to satisfy the statutory
requirements of article 1.15 ―may take many forms,‖ including a ―written stipulation of
what the evidence against him would be, without necessarily admitting to its veracity or
accuracy.‖ Menefee, 287 S.W.3d at 13. See also TEX. CODE CRIM. PROC. ANN. art. 1.15
(providing that evidence establishing guilt may be stipulated to by the defendant).
When considering the sufficiency of a written stipulation of evidence, the stipulation will
be sufficient if ―it embraces every constituent element of the charged offense.‖
Menefee, 287 S.W.3d at 13. Conversely, a stipulation that fails to establish every
10
element of the offense does not authorize a conviction. Id. at 14. Here, Appellant
contends his stipulation of evidence is deficient because it does not provide proof of
sexual contact, an element essential to a finding of guilt of indecency with a child by
sexual contact. While the State does not disagree with Appellant‘s contention that the
stipulation is deficient, it contends the deficiency is one of form which may be
compensated for by other competent evidence in the record. Dinnery v. State, 592
S.W.2d 343, 352 (Tex. Crim. App. 1980). While we agree with Appellant that the
stipulation of evidence in this case does not support a finding of guilt as to the offense of
indecency with a child by sexual contact, we also agree with the State that other
evidence may satisfy the requirements of article 1.15.
PLEA OF GUILTY AND ORAL TESTIMONY AT TRIAL
As stated above, Appellant‘s oral plea of guilty alone does not satisfy the
requirement that the State introduce evidence to establish his guilt. Furthermore,
Appellant‘s oral testimony at trial does not compensate for the lack of evidence
supporting the plea because Appellant never testified at the plea hearing and never
verbally acknowledged any act constituting sexual contact. As such, neither Appellant‘s
plea of guilty nor his statements at trial are sufficient to satisfy the requirements of
article 1.15.
JUDICIAL CONFESSION
A sworn written confession acknowledging guilt as to the offense charged may,
however, constitute a form of permissible evidence that will satisfy the requirements of
article 1.15. Menefee, 287 S.W.3d at 13. ―A written judicial confession provides
11
evidentiary support for a plea of guilty to the charges alleged in the indictment or to
some lesser included offense of that which is alleged in the indictment.‖ See Puente v.
State, 320 S.W.3d 352, 358 (Tex. Crim. App. 2010) (citing Menefee, 287 S.W.3d at 13).
See also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no
pet.) (explaining that a ―judicial confession alone is sufficient to sustain a conviction‖ and
that a ―judicial confession may take the form of an affirmative acknowledgment by the
defendant that the indictment was true and correct‖). In that regard, it is well
established that a judicial confession alone is sufficient to support a plea of guilty.
Dinnery v. State, 592 S.W.2d at 352.
A judicial confession need not be offered into evidence to support a plea of guilty
as long as it has been approved by the court and appears in the record. See Jones v.
State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) But see
McDougal v. State, 105 S.W.3d 119, 120-21 (Tex. App.—Fort Worth 2005, pet. ref'd)
(stating that the contents of the clerk's record are not evidence unless the trial court
takes judicial notice of them or they are offered into evidence). Here, the trial court did
not sign the document containing the judicial confession and that document was not
offered into evidence, referred to, or otherwise recognized by judicial notice at any time
during the plea hearing; however, it does appear in the appellate record and as such,
we find it constitutes some evidence supporting Appellant‘s plea of guilty.
Although the stipulation of evidence in this case is deficient with respect to the
element of sexual contact and the record is devoid of any direct testimony which might
compensate for that deficiency, we nevertheless conclude the judicial confession, when
considered in conjunction with Appellant‘s acknowledgments to the trial court made in
12
open court, sufficiently support the trial court‘s finding of guilt as to the lesser-included
second degree felony offense of indecency with a child by sexual contact. Accordingly,
Appellant‘s issue is overruled.
CONCLUSION
Despite an imprecise and somewhat misleading plea agreement, a stipulation
that describes another offense, a convoluted plea hearing, the failure to offer the written
confession into evidence or conclusively establish that the trial court considered it, a
probation order that describes the wrong statutory basis of conviction and defers an
adjudication of guilt as to an offense not generally eligible for deferred adjudication, and
a judgment that repeats the wrong penal code section found in the order of deferred
adjudication, we hereby reform the judgment to reflect the offense of conviction to be
indecency with a child by sexual contact and the operable statute to be Penal Code
section 21.11(a)(1). As reformed, we affirm the judgment of conviction.
Per Curiam
Do not publish.
13