Chamberlain, Michael Allen

PD-0714-15
PD-0714-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/11/2015 1:30:47 AM
Accepted 6/11/2015 4:30:34 PM
NO. _______________ ABEL ACOSTA
CLERK

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
___________________________________________________

MICHAEL ALLEN CHAMBERLIN, PETITIONER

VS.

THE STATE OF TEXAS
___________________________________________________

PETITION IN CAUSE NO. 5332 FROM THE 100TH JUDICIAL
DISTRICT COURT OF CARSON COUNTY, TEXAS
AND
THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF
TEXAS OF AMARILLO, TEXAS, NO. 07-14-00011-CR
___________________________________________________

PETITION FOR DISCRETIONARY REVIEW
___________________________________________________

Respectfully submitted,

BIRD, BIRD & RABE
June 11, 2015 ATTORNEYS AT LAW
P.O. BOX 1257
CHILDRESS, TEXAS 79201

BY: /s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.,
ATTORNEY FOR PETITIONER

TELEPHONE NO.: 940-937-2543
FACSIMILE NO.: 940-937-3431
E-MAIL: birdbirdrabe@gmail.com
STATE BAR NO.: 24027638
 IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

1. The trial court presiding judge was the

Honorable Stuart Messer, 100th Judicial District

Judge, who may be served with process at P.O. Box

887, Clarendon, Texas 79226, Facsimile No. 806-874-

5146.

2. The Petitioner, Michael Allen Chamberlin, is

currently incarcerated in the Texas Department of

Criminal Justice – Institutional Division, and may

be served with process herein at the address of his

court appointed appellate counsel and he is

represented herein by the undersigned counsel whose

address is shown on the front cover of this brief.

The Petitioner, Michael Allen Chamberlin, was

represented at trial by Mr. Earl Griffin, Jr., who

may be served with process at his address 127 Avenue

B, NW,, Childress, Texas 79201, Facsimile No. 940-

937-6020.

3. The Appellee, the State of Texas, is

represented on appeal and was represented at trial

2
by Luke Inman, 100th Judicial District Attorney, 800

West Avenue, Box 1, Wellington, Texas 79095,

Facsimile No. 866-233-2738.

3
 TABLE OF CONTENTS

Identity of the Judge, Parties, and Counsel 2

Table of Contents 4

Index of Authorities 5

Statement Regarding Oral Argument 6

Statement of the Case 7

Statement of Procedural History 8

Ground for Review: 8

IS A JUDICIAL CONFESSION, SIGNED BY THE
TRIAL COURT AND FILED FIVE DAYS AFTER A
PLEA, NOT INTRODUCED INTO EVIDENCE, AND
NO JUDICIAL NOTICE TAKEN DURING TRIAL
OR A MOTION TO ADJUDICATE GUILT
HEARING, SUFFICIENT EVIDENCE TO
ESTABLISH GUILT OF AN OFFENSE PURSUANT
TO ARTICLE 1.15 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE?

Argument 8

Prayer for Relief 12

Appendix 13

Certificate of Compliance 14

Certification of Service 14

4
 INDEX OF AUTHORITIES

STATUTES

TEX. CODE CRIM. PROC. art 1.15 (West 2015) 9

TEX. PENAL CODE ANN. § 12.34 (West 2011) 11

TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011) 11

CASE LAW

Jones v. State, 373 S.W.3d 790 9, 10
(Tex. App.—Houston [14th Dist.] 2012, no pet.)

McDougal v. State, 105 S.W.3d 119 11
(Tex. App.—Fort Worth 2005, pet. ref’d)

Menefee v. State, 287 S.W.3d 9, 13 9
(Tex. Crim. App. 2009)

5
 NO. _______________

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
___________________________________________________

MICHAEL ALLEN CHAMBERLIN, PETITIONER

VS.

THE STATE OF TEXAS
___________________________________________________

PETITION IN CAUSE NO. 5332 FROM THE 100TH JUDICIAL
DISTRICT COURT OF CARSON COUNTY, TEXAS
AND
THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF
TEXAS OF AMARILLO, TEXAS, NO. 07-14-00011-CR
___________________________________________________

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS OF TEXAS:

STATEMENT REGARDING ORAL ARGUMENT

The ground for review herein involves

interpretation of multiple opinions from the courts

of appeals. Oral argument may prove helpful to the

Court.

6
 STATEMENT OF THE CASE

The Petitioner, Michael Allen Chamberlin, was

indicted for aggravated sexual assault of a child.

Petitioner pleaded guilty to the lesser included

offense of indecency with a child and was afforded

ten years deferred adjudication probation. The

stipulation of evidence signed by Petitioner

described indecency with a child by exposure, a

third degree felony. The judicial confession signed

by the Petitioner was never offered into evidence,

judicial notice was never taken of the clerk’s file,

and the judicial confession was not signed by the

trial judge until several days after the plea.

Petitioner never testified. The case proceeded on

the state’s motion to adjudicate guilt of the

Petitioner. The trial court granted the state’s

motion to adjudicate guilt and assessed punishment

at 20 years imprisonment in the Texas Department of

Criminal Justice. The court of appeals reformed the

judgment to reflect Petitioner was sentenced to

7
indecency with a child by sexual contact, a second

degree felony, and affirmed the judgment as

reformed. This Petition challenges that holding.

STATEMENT OF PROCEDURAL HISTORY

The court of appeals rendered its decision

reforming the judgment of the trial court and

affirming the conviction as reformed on April 16,

2015.

Petitioner filed his Motion for Rehearing on

May 1, 2015.

Petitioner’s Motion for Rehearing was overruled

on May 12, 2015.

GROUND FOR REVIEW

IS A JUDICIAL CONFESSION, SIGNED BY THE TRIAL
COURT AND FILED FIVE DAYS AFTER A PLEA, NOT
INTRODUCED INTO EVIDENCE, AND JUDICIAL NOTICE NOT
TAKEN DURING TRIAL OR A MOTION TO ADJUDICATE GUILT
HEARING, SUFFICIENT EVIDENCE TO ESTABLISH GUILT OF
AN OFFENSE PURSUANT TO ARTICLE 1.15 OF THE TEXAS
CODE OF CRIMINAL PROCEDURE?

ARGUMENT

It is respectfully submitted that the court of

appeals erred in holding that the judicial

8
confession, standing alone, that was not signed and

filed with the clerk until five days after the

plea, was not admitted into evidence, and was never

judicially acknowledged, was sufficient evidence to

convict Petitioner of indecency with a child by

sexual contact pursuant to Article 1.15 of the

Texas Code of criminal procedure.

Article 1.15 of the Texas Code of Criminal

Procedure provides that a court may not enter a

conviction in a felony case based on a guilty plea

unless evidence is presented establishing guilt in

addition to and independent of the plea. TEX. CODE

CRIM. PROC. art 1.15 (West 2015); Menefee v. State,

287 S.W.3d 9, 13 (Tex. Crim. App. 2009).

In the case at bar the court of appeals cites

the premise that a judicial confession need not be

offered into evidence as long as it has been

approved by the court and appears in the record.

Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—

Houston [14th Dist.] 2012, no pet.). However, the

9
Jones court did not rely on the judicial confession

that was not introduced into evidence during

sentencing in affirming the trial court, the court

of appeals specifically stated, “we need not

consider whether the written confession could

nonetheless substantiate the guilty plea because the

evidence adduced during the sentencing hearing was

sufficient to substantiate the plea.” Id. This

case is distinguishable, there was no other evidence

offered during sentencing to substantiate the

finding of guilt for the second degree offense of

indecency with a child by sexual contact as

Petitioner did not take the stand and testify.

Moreover, the judicial confession in this case was

not signed by the trial judge and filed with the

clerk until five days after the plea. CR 66; CR 72.

Furthermore, case law contradictory to Jones

exists. In McDougal v. State the court of appeals

held that “the contents of the clerk’s record are

not evidence unless the trial court takes judicial

10
notice of them or they are offered into evidence.”

McDougal v. State, 105 S.W.3d 119, 120-21 (Tex.

App.—Fort Worth 2005, pet. ref’d). The evidence in

the case at bar is uncontroverted, the trial court

never took judicial notice of the clerk’s record and

the judicial confession was not offered into

evidence.

The only evidence in the case at bar

independent of the plea of guilty was the

stipulation of evidence signed by Petitioner and

introduced into evidence which is sufficient to

establish Petitioner’s guilt of the third degree

felony of indecency with a child by exposure. TEX.

PENAL CODE ANN. § 21.11(a)(2) (West 2011). Therefore,

the maximum sentence the trial court could have

imposed was ten years in the Texas Department of

Criminal Justice and a $10,000.00 fine. TEX. PENAL

CODE ANN. § 12.34 (West 2011).

11
 Based on the foregoing, Petitioner respectfully

requests this Honorable Court grant his Petition for

Discretionary Review.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the Petitioner

respectfully prays this Court grant this Petition

and, upon reviewing the judgment entered below,

reverse this cause and remand this case for

sentencing within the guidelines for a third degree

felony.

Respectfully submitted,

BIRD, BIRD & RABE
ATTORNEYS AT LAW
P.O. BOX 1257
CHILDRESS, TEXAS 79201

BY: /s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.,
ATTORNEY FOR PETITIONER

TELEPHONE NO.: 940-937-2543
FACSIMILE NO.: 940-937-3431
E-MAIL: birdbirdrabe@gmail.com
STATE BAR NO.: 24027638

12
 APPENDIX

1. Letter from Court of Appeals April 16, 2015

2. Judgment, Trial Court’s Rulings Affirmed

3. Memorandum Opinion

13
 CERTIFICATE OF COMPLIANCE

I hereby certify that the above and foregoing

Petition for Discretionary Review is 1,524 words in

its completion, signed on this the 11th day of June,

2015, in accordance with the rules governing same.

/s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

of the foregoing Petition for Discretionary Review

was delivered as indicated below on this the 11th

day of June, 2015, to the following:

Mr. Luke Inman VIA E-SERVICE
District Attorney
800 West Avenue, Box 1
Wellington, Texas 79095

Mr. Michael Chamberlin VIA CMRRR
TDCJ # 01905877 70140510000127094887
1391 FM 3328
Tennessee Colony, Texas 75880

/s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.

14
 FILE COPY

BRIAN QUINN
Chief Justice
Court of Appeals VIVIAN LONG
Clerk

JAMES T. CAMPBELL
Justice
Seventh District of Texas MAILING ADDRESS:
MACKEY K. HANCOCK
Justice
Potter County Courts Building P. O. Box 9540
79105-9540
501 S. Fillmore, Suite 2-A
PATRICK A. PIRTLE
Justice Amarillo, Texas 79101-2449 (806) 342-2650

www.txcourts.gov/7thcoa.aspx

April 16, 2015

Dale A. Rabe Luke McLean Inman
BIRD, BIRD & RABE District Attorney
P.O. Box 1257 800 West Ave Box 1
Childress, TX 79201-1257 Wellington, TX 79095
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Case Number: 07-14-00011-CR Trial Court Case Number: 5332
Style: Michael Chamberlain v. The State of Texas

Dear Counsel:

The Court this day issued an opinion and judgment in the captioned cause. TEX.
R. APP. P. 48.

In addition, pursuant to Texas Government Code, Sec. 51.204(b)(2), exhibits on
file with this Court, if any, will be destroyed three years after final disposition of the case
or at an earlier date if ordered by the Court.

Very truly yours,
Vivian Long
VIVIAN LONG, CLERK

xc: Honorable Stuart Messer (DELIVERED VIA E-MAIL)
Celeste Bichsel (DELIVERED VIA E-MAIL)
 FILE COPY

No. 07-14-00011-CR

Michael Chamberlain § From the 100th District Court
Appellant of Carson County
§
v. April 16, 2015
§
The State of Texas Opinion Per Curiam
Appellee §

J U D G M E N T

Pursuant to the opinion of the Court dated April 16, 2015, it is ordered, adjudged

and decreed that the judgment of the trial court is reformed as set forth in the opinion

and affirmed.

Inasmuch as this is an appeal in forma pauperis, no costs beyond those that

have already been paid are adjudged.

It is further ordered that this decision be certified below for observance.

oOo
 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

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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

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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.

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