Opinion issued May 13, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00525-CR
NO. 01-13-00526-CR
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KEVIN DENELL BENNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Case Nos. 16076, 16077
MEMORANDUM OPINION
Kevin Denell Bennett pleaded guilty, without a sentencing recommendation,
to tampering with physical evidence and possessing less than one gram of
cocaine. 1 The trial court found him guilty of both offenses, found two enhancement
paragraphs true, and assessed punishment at two 10-year terms of confinement, to
run concurrently. Bennett challenges the sufficiency of the evidence to support his
convictions. We affirm.
Background
In September 2011, a grand jury charged Bennett with tampering with
physical evidence and possessing less than one gram of a controlled substance. The
indictment for tampering with physical evidence stated that on June 13, 2011,
Bennett, “knowing that an investigation was in progress, to-wit: search of [his]
automobile, intentionally or knowingly alter[ed] a rock of cocaine, with intent to
impair its availability as evidence in the investigation.” The indictment for
possession of a controlled substance included two enhancement paragraphs for
prior offenses:
[P]rior to the commission of the aforesaid offense . . . on the 18th day
of August, 1997, in cause number 682094 in the 262nd District Court
of Harris County, Texas, the defendant was convicted of the felony
offense of robbery,
And it is further presented in and to said Court that, prior to the
commission of the primary offense, and after the conviction in cause
1
See TEX. PENAL CODE ANN. § 37.09 (West Supp. 2013) (criminalizing knowing
alteration, destruction, or concealment of anything with intent “to impair its verity,
legibility, or availability as evidence in the investigation or official proceeding”);
see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010)
(criminalizing possession of less than one gram of cocaine).
2
number 682094 was final, the defendant committed the felony offense
of Assault, family violence-second offender and was convicted on the
27th day of September, 2004, in cause number 999186 in the 177th
District Court of Harris County, Texas.
The indictment for tampering with physical evidence also included the
enhancement paragraph for the 1997 robbery conviction, but it did not include the
enhancement paragraph for the 2004 family violence conviction.
On March 5, 2013, the State moved to amend the indictment for tampering
with physical evidence to allege that Bennett, “knowing that an investigation was
in progress, to-wit: traffic stop and illegal narcotics, intentionally or knowingly
alter[ed], conceal[ed] and destroy[ed] a rock of cocaine, with intent to impair its
availability as evidence in the investigation.” (emphasis added). The trial court
granted the motion, but the State never took any of the actions generally accepted
as sufficient to amend an indictment, such as making a physical interlineation of
the original indictment, reading the amended indictment into the record, or
providing the trial court with an amended photocopy of the original indictment and
incorporating it into the record with the trial court’s approval. See Riney v. State,
28 S.W.3d 561, 565–66 (Tex. Crim. App. 2000) (holding that physical
interlineation of original indictment is not only means of effecting amendment to
indictment and that amended photocopy of original indictment was official
indictment). The trial court’s order also did not set out the substance of the
amended indictment. Cf. Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort
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Worth 2001, no pet.) (upholding interlineated indictment when original indictment
was reproduced before amending indictment). The State does not dispute that the
original, unamended indictment remained in place.
Two weeks later, Bennett pleaded guilty to both offenses. While testifying at
the hearing, Bennett confirmed that he pleaded guilty to both charges because he
was guilty “and for no other reason” and signed two documents confessing to his
guilt. After a presentence investigation was completed, Bennett testified regarding
his possible sentencing. The trial court accepted Bennett’s guilty pleas, found him
guilty of possessing a controlled substance and tampering with physical evidence,
found both enhancement paragraphs to be true, and sentenced Bennett to two 10-
year terms of confinement, to run concurrently.
Bennett timely appealed.2
Sufficiency of the Evidence
Bennett contends that there was insufficient evidence to support his
convictions for tampering with physical evidence and possessing a controlled
substance. Specifically, he challenges the form and substance of the indictments
supporting those convictions. He also challenges the sufficiency of the evidence to
support one of the enhancement paragraphs used to enhance his sentence. We first
2
Cause No. 01–13–00525–CR is his appeal from his conviction for tampering with
physical evidence. Cause No. 01–13–00526–CR is his appeal from his conviction
for possession of a controlled substance.
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address Bennett’s contentions regarding the conviction for tampering with the
evidence.
A. Standard of review
When a criminal defendant pleads guilty, he waives his right to challenge the
legal and factual sufficiency of the evidence. Keller v. State, 125 S.W.3d 600, 605
(Tex. App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently granted, 146
S.W.3d 677 (Tex. Crim. App. 2004) (per curiam); see also Staggs v. State, 314
S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In such cases, we
confine our review of the sufficiency of the evidence to determining whether the
evidence supports the conviction under article 1.15 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005) (stating that
State must “introduce evidence into the record showing the guilt of the defendant
and said evidence shall be accepted by the court as the basis for its judgment and in
no event shall a person charged be convicted upon his plea without sufficient
evidence to support the same.”); Keller, 125 S.W.3d at 605 (citing TEX. CODE
CRIM. PROC. ANN. art. 1.15 (West 2005)). The State must offer sufficient proof to
support any judgment based on a guilty plea in a felony case tried before a court.
Keller, 125 S.W.3d at 604 (citation omitted); see also Ex parte Williams, 703
S.W.2d 674, 678 (Tex. Crim. App. 1986). “The State, however, is not required to
prove the defendant’s guilt beyond a reasonable doubt; the supporting evidence
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must simply embrace every essential element of the charged offense.” Staggs, 314
S.W.3d at 159.
B. Tampering with physical evidence
Bennett contends that the original indictment for tampering with evidence
does not define a “separate criminal offense alleged to have already been
committed.” Second, Bennett contends that, even assuming the indictment was
amended, there was insufficient evidence that he tampered with physical evidence
because the amended indictment alleged that he altered, destroyed, and concealed
evidence but there was evidence that he, at most, concealed it.3
1. Waiver
The State responds that Bennett waived his right to challenge the sufficiency
of the indictment. Article 1.14 of the Texas Code of Criminal Procedure provides
that a defendant must object to a defect, error, or irregularity of form or substance
in an indictment before the date of trial; otherwise, he waives his right to challenge
that error on appeal. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005); see
Massey v. State, 933 S.W.2d 582, 584–85 (Tex. App.—Houston [1st Dist.] 1996,
no pet.) (holding defendant waived right to challenge indictment by not raising
issue at trial); see also Lemell v. State, 915 S.W.2d 486, 489 (Tex. Crim. App.
1995) (same).
3
But see TEX. PENAL CODE ANN. § 37.09 (stating tampering with the evidence
occurs when defendant “alters, destroys, or conceals” evidence) (emphasis added).
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Bennett did not object that the indictment was defective before trial.
Accordingly, we conclude that he waived any error as to the sufficiency of the
indictment.
2. Evidence to support conviction satisfies article 1.15
Next, Bennett contends that there was insufficient evidence to support his
guilty plea. A person commits the felony offense of tampering with physical
evidence if he knows that an investigation is pending or in progress and he alters,
destroys, or conceals something with intent to impair its verity, legibility, or
availability as evidence in the investigation or official proceeding. See TEX. PENAL
CODE ANN. § 37.09 (West 2013). Article 1.15 of the Texas Code of Criminal
Procedure requires 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
for its judgment and in no event shall a person charged be convicted upon his plea
without sufficient evidence to support the same.” TEX. CODE CRIM. PROC. ANN. art.
1.15; see Menefee v. State, 287 S.W.3d 9, 13–14 (Tex. Crim. App. 2009).
The evidence supporting a guilty plea may take several forms. Menefee, 287
S.W.3d at 13. Article 1.15 provides that “the evidence may be stipulated if the
defendant in such a case consents in writing, in open court, to waive the
appearance, confrontation, and cross-examination of witnesses, and further
consents either to an oral stipulation of the evidence and testimony or to the
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introduction of testimony by affidavits, written statements of witnesses, and any
other documentary evidence in support of the judgment of the court.” TEX. CODE
CRIM. PROC. ANN. art. 1.15. When a defendant pleads guilty, article 1.15 does not
require him to admit the truth of the evidence to which he stipulates, but if he does
so, the stipulation will be considered a judicial confession. Stone v. State, 919
S.W.2d 424, 426–27 (Tex. Crim. App. 1996); see also Guiterrez v. State, 176
S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding
“judicial confession or stipulation of evidence, by itself, suffices to sustain a
conviction rendered upon a guilty plea.”); cf. Menefee, 287 S.W.3d at 14 (holding
that “a stipulation of evidence or judicial confession that fails to establish every
element of the offense charged will not authorize the trial court to convict.”).
Evidence presented during a sentencing hearing may also substantiate a guilty plea.
Menefee, 287 S.W.3d at 18–19; see also Stewart v. State, 12 S.W.3d 146, 147–49
(Tex. App.—Houston [1st Dist.] 2000, no pet.).
The trial court admitted into evidence Bennett’s signed judicial confession,
in which he affirmed, “knowing that an investigation was in progress, to wit:
search of [his] automobile, [he] intentionally or knowingly alter[ed] a rock of
cocaine, with intent to impair its availability as evidence in this investigation.” The
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confession tracked the language of the original indictment and provided evidence
on each of its elements.4
Bennett also signed a document entitled Defendant’s Plea of Guilty, Waiver,
Stipulation and Judicial Confession. In that document, Bennett admitted, (1) “I
knowingly, intentionally, and unlawfully committed the acts alleged in the
indictment in this cause at the time and place and in the manner alleged” and (2) “I
am in fact guilty of the offense of tampering with physical evidence.” Regardless
of which indictment was before the court, there was evidence of his guilt.
These two documents covered every element of the offense of tampering
with physical evidence, and, therefore, satisfied article 1.15 of the Texas Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15.
We conclude, therefore, that there was sufficient evidence to support the trial
court’s verdict finding Bennett guilty of tampering with physical evidence.
We overrule Bennett’s first issue.
C. Enhancement Paragraph
In his second issue, Bennett contends that the second enhancement of the
indictment referencing a 2004 family violence conviction was not adequately set
forth in the indictment because it did not allege a felony, which is required to
4
Bennett asserts that the original indictment could not be the basis for a crime
because “a ‘search of the defendant’s automobile’ is not an investigation.” As
discussed above, Bennett waived his right to challenge the sufficiency of the
indictment.
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enhance his conviction. He also contends that the evidence supporting the
enhancement was legally insufficient.
1. Waiver
We first address the State’s contention that Bennett waived his right to
challenge the adequacy of the indictment.
To preserve an error for appellate review, the complaining party must object
or raise the matter in the trial court, giving the trial court sufficient notice of the
defect, error, or irregularity of the form or substance of the indictment. See TEX. R.
APP. P. 33.1(a)(1)(A); TEX. CODE CRIM. PROC. ANN. art. 1.14(b); see Massey, 933
S.W.2d at 584; see also Lemell, 915 S.W.2d at 489.
Bennett failed to object to the lack of notice in the indictment at trial and,
therefore cannot raise the issue on appeal. And, even if he had objected to the
adequacy of the indictment as to the enhancement paragraph, the State was not
obligated to allege a prior conviction in an indictment that it intended to use to
enhance punishment. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex. Crim. App.
2006); cf. Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (upholding
indictment—despite variance between name of offense offered and name of
offense proved—because defendant had sufficient notice of proposed
enhancement).
We conclude that Bennett waived this claim of error.
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2. Adequacy of the evidence to support enhancement offense
When a criminal defendant pleads that enhancement paragraphs are true, his
agreement is sufficient evidence to those enhancements on appeal. Hall v. State,
137 S.W.3d 847, 856 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding
“appellant’s plea of true precludes his complaint about the insufficiency of the
evidence to establish his enhancement paragraph.”); see also Dinn v. State, 570
S.W.2d 910, 915 (Tex. Crim. App. 1978) (same).
Bennett pleaded true in open court to a 2004 “felony offense of assault,
family violence, second offender.” At his sentencing hearing, Bennett similarly
confirmed that after being convicted for a family violence assault in 2003, he was
convicted of a second assault, family violence that “became a felony.”
We conclude that Bennett pleaded true to the 2004 felony and, therefore,
cannot now complain on appeal that the evidence was insufficient to support the
enhanced sentence.
We overrule Bennett’s second issue.
Conclusion
Having overruled both of Bennett’s issues, we affirm.
Harvey Brown
Justice
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Panel consists of Justices Keyes, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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