ACCEPTED
03-15-00237-CR
7174853
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2015 4:35:34 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00237-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 9/30/2015 4:35:34 PM
JEFFREY D. KYLE
Clerk
******
CHRISTOPHER RAY WEATHERSPOON
VS.
THE STATE OF TEXAS
******
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 71839
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ………………………………………………………………… 4
Statement Regarding Oral Argument ……………………………………….. 6
Statement of the Case ……………………………………………………………… 6
Statement of Facts ………………………………………………………………….. 7
Evidence Supporting Plea of Guilty ………………………………… 7
Trial Court’s Judgment ………………………………………………….. 9
Summary of State’s Argument ………………………………………………… 10
Argument and Authorities ……………………………………………………… 11
First Issue on Appeal ……………………………………………………. 11
EVIDENCE SUFFICIENT TO SUPPORT PLEA
OF GUILITY UNDER ART. 1.15?
Standard of Review …………………………………………….. 11
Application and Analysis …………………………………….. 12
Second Issue on Appeal ……………………………………………….. 14
EVIDENCE SUFFICIENT AT PUNISHMENT
PHASE TO SUPPORT PLEA OF GUILTY
UNDER ART. 1.15?
Application and Analysis ……………………………………. 14
Third Issue on Appeal …………………………………………………. 16
MUST JUDGMENT BE MODIFIED TO SHOW
NO PLEA BARGAIN?
Application and Analysis …………………………………… 16
2
Prayer ………………………………………………………………………………. 17
Certificate of Compliance with Rule 9 ………………………………… 17
Certificate of Service …………………………………………………………. 18
3
INDEX OF AUTHORITIES
CASES PAGE
Brooks v. State, No. 03-13-00252-CR, …………………………………….. 13
2014 Tex. App. LEXIS 6588 (Tx. App. Austin 3rd Dist.
2014 no pet.), not designated for publication.
Chindaphone v. State, 241 S.W.3d 217 …………………………………… 12-13
(Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.)
Jackson v. Virginia, 443 U.S. 307 (1979) ………………………………… 11
Jones v. State, 373 S.W. 3d 790 ……………………………………………… 13
(Tx. App. Houston 14th Dist. 2012 no pet.)
Jones v. State, 857 S.W. 2d 108 ……………………………………………… 13
(Tx. App. Corpus Christi 13th Dist. 1993 no pet.)
Ex Parte Martin, 747 S.W.2d 789 (Tx. Cr. App. 1988) …………….. 11
Taylor v. State, No. 03-14-0300-CR, 2014 Tex. App. ………………. 15
LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.),
not designated for publication.
Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. …………… 14
LEXIS 5935 (Tx. App. Austin 3rd Dist. 2003 no pet.),
not designated for publication.
OTHER
Texas Penal Code
Section 31.03 …………………………………………………………….. 12
Section 31.03(a) ………………………………………………………… 12
Section 31.03(b) ………………………………………………………… 12
4
Texas Code of Criminal Procedure
Article 1.15 ……………………………………………………………….. 7-8, 10-15
5
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
Christopher Ray Weatherspoon, was charged by indictment with
the state jail felony offense of theft. In Count I the indictment alleged
that he, acting individually and as a party with Kody Lee Braxton and
Zachary David Castlow, did unlawfully appropriate, by acquiring and
otherwise exercising control over, property, to-wit: metal castings of
the value of $1,500.00 or more, but less than $20,000.00 from Kevin
Canfield, the owner thereof, without the effective consent of the owner,
and with intent to deprive the owner of said property. (CR-4).
The Appellant entered a plea of guilty to the offense charged in
Count I (RR-2-9) and the trial court, without objection, took judicial
notice of the “plea papers” in the court’s file (CR-19), expressly
including the judicial confession. (RR2-11). The trial court then found
the evidence sufficient to support a finding of guilty and ordered a
presentence investigation. (RR-7). There was no plea bargain with the
State.(CR-19; RR2-10). The court found the evidence sufficient to
support a finding of guilty upon the plea of guilty. (RR2-11).
6
At the subsequent punishment hearing the court received and
examined the presentence report (RR3-5) and heard testimony from the
Appellant. The trial court assessed punishment at 2 years in State Jail
(RR3-57).
The Appellant gave timely notice of appeal (CR-36) and the trial
court certified his right to do so. (CR-39).
STATEMENT OF FACTS
The Appellant raises two issues concerning the sufficiency of the
evidence to support his plea of guilty under Article 1.15, Texas Code of
Criminal Procedure, and the recitation in the trial court’s written
judgment allegedly implying that there was a plea bargain with the
State.
Evidence Supporting the Plea of Guilty
The Appellant executed a packet of “plea papers” in the case. (CR-
19-28). Those papers included the following judicial confession:
“Upon my oath, I swear my true name is Chris
Weatherspoon and I am ___ years of age; I have read the
indictment or information filed in this case and I committed
each and every act alleged therein, except those waived by
the State. All facts alleged in the indictment or information
are true and correct. I am guilty of the instant offense as
well as all lesser included offenses. All enhancement and
habitual allegations set forth in the indictment or
7
information are true and correct except those waived by the
State. All deadly weapon allegations are true and correct.
All other affirmative findings to be made by the Court
pursuant to this Written Plea Agreement are true and
correct. I swear to the truth of all of the foregoing and
further, that all the testimony I give in this case will be the
truth, the whole truth and nothing but the truth so help me
God.” (CR-24)
That judicial confession was signed by the Appellant. (CR-24).
Furthermore, thereafter, the Appellant executed a declaration stating
under penalty of perjury that all of the matters contained in the plea
papers are true and correct. (CR-25).
The Appellant’s trial counsel also signed an acknowledgment that
expressly stated that he had explained everything, including the judicial
confession, to him and that he had waived his rights and executed the
documents intelligently, knowingly, and voluntarily. Counsel
specifically joined in the stipulations of evidence pursuant to Article
1.15 and consented to the trial court taking judicial notice of the
contents of the Written Plea Agreement. (CR-25). The State also
approved all of the contents of the plea papers. (CR-26).
The trial court approved the plea papers in writing and stated that
it was taking judicial notice of the matters contained therein. (CR-26).
8
During the hearing and after the Appellant entered his plea of
guilty to the information, the State asked the court to “…take judicial
notice of the contents of the court’s file including the plea papers which
will contain the defendant’s judicial confession to count one..” The
Appellant had no objection and the court did so. (RR2-11). Thereafter
the court immediately found the evidence sufficient to support a finding
of guilty. (RR2-11).
At the sentencing phase of the trial, while attempting to minimize
his culpability, the Appellant admitted helping Kody Broxton to take the
metal casings (RR3-16) and taking the property to Houston for sale and
sharing equally with Broxton in the profits. (RR3-37).
Trial Court’s Judgment
There was no plea bargain with the State in the case. (CR-19; RR2-
10). In the trial court’s written judgment on the line denoted as “Terms
of Plea Bargain” is found the phrase “SEE ATTACHED DISCLOSURE OF
PLEA RECOMMENDATIONS”. (CR-31). There is no such disclosure
attached to the judgment and the “plea papers” also contained in the
court’s file state that plea was “open” and thus recite no plea
recommendations. (CR-19).
9
SUMMARY OF STATE’S ARGUMENT
The trial court took judicial notice of judicial confession, signed by
the Appellant and approved by the State, his counsel, and the court, as
well as all of the “plea papers” in the case, without objection by the
Appellant. That judicial confession stated that all of the allegations in
the information were true and correct. The information contained all of
the statutory elements of the offense charged. The evidence was
sufficient to support the Appellant’s plea of guilty and for the court to
enter such a finding under Article 1.15.
Although unnecessary, the evidence at the punishment hearing
wherein the Appellant admitted participation in the theft as charged in
the indictment may be properly considered and sufficiently supports
the Appellant’s plea of guilty as well.
The written judgment of the trial court does not specifically state
that there was a plea bargain with the State and, in fact, there was not.
It merely says see attached disclosure. That disclosure states that it was
an open plea. The judgment does not, therefore, indicate that there was
a plea bargain in the case. If, however, it could be so construed then the
judgment should be modified to reflect that there was no plea bargain.
10
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Was the evidence sufficient to support the finding of guilty
pursuant to the Appellant’s plea of guilty as required by Article 1.15 of
the Texas Code of Criminal Procedure?
Standard of Review
When the accused enters a plea of guilty the standard of review
set out in Jackson v. Virginia, 443 U.S. 307 (1979), as to sufficiency of the
evidence are inapplicable. Ex Parte Martin, 747 S.W.2d 789, 792-93
(Tex. Crim. App. 1988). Instead the sufficiency of the evidence is
governed by Article 1.15 of the Code of Criminal Procedure.
Article 1.15 provides that in a non-capital felony case, where the
defendant waives trial by jury and enters a plea of guilty or nolo
contendere, it is necessary for the State to “introduce evidence into the
record” that shows the guilt of the defendant and that such evidence be
accepted by the trial court as the basis for its judgment. See Martin at
793. The appellate court will affirm the trial court’s judgment under
Article 1.15 if the State introduced evidence that embraces every
essential element of the offense charged that is sufficient to establish
11
the defendant’s guilt. A judicial confession stating that the defendant
has read the charging instrument and that he committed each and every
act alleged therein, standing alone, is sufficient to sustain a conviction
upon a guilty plea under Article 1.15. Chindaphone v. State, 241 S.W.3d
217, 219 (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.).
Application and Analysis
The Appellant was charged with the offense of theft as set out in
Section 31.03 of the Texas Penal Code. Section 31.03(a) states that a
person commits an offense if he unlawfully appropriates property with
the intent to deprive the owner of property. Section 31.03(b)(1) states
that appropriation of property is unlawful if it is without the owner’s
effective consent.
Count I of the indictment in this case set out all of the elements of
the offense under Section 31.03, alleging that the Appellant unlawfully
appropriated property, to-wit: metal castings, from the owner and
without the effective consent of the owner and with the intent to
deprive the owner of that property. (CR-4)
The Appellant’s judicial confession stated that he had read the
indictment and that everything alleged in it was true and correct and
that he committed the offense as alleged. (CR-24).
12
A judicial confession stating that the defendant has read the
charging instrument and that it is true and correct, where that charging
instrument contains each and every element of the offense is sufficient
to support a plea of guilty as required by Article 1.15. Chindaphone at
219. See also Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. LEXIS
6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for
publication, following Chindaphone.1
The Appellant would ignore his judicial confession because it was
not formally offered into evidence nor sworn to before a notary or
district clerk. That Appellant’s protestations to the contrary, however,
the judicial confession may be judicially noticed by the trial court and, in
that case, it need not be introduced formally into evidence. Chindaphone
at 219; Jones v. State, 373 S.W. 3d 790 (Tx. App. Houston 14th Dist. 2012
no pet.); Brooks op. at pg. 6.
Likewise, a judicial confession that was signed by the accused,
approved by his counsel, the State and the trial court and of which the
court takes judicial knowledge need not be sworn. Jones v. State, 857
S.W. 2d 108, 110 (Tx. App. Corpus Christi 13th Dist. 1993 no pet.);
1
Brooks also arose from the 264th District Court and involved essentially the same “plea
papers” and judicial confession as the present case.
13
Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. LEXIS 5935 (Tx.
App. Austin 3rd Dist. 2003 no pet.) (“There is no requirement that the
defendant swear to the waiver and stipulation before the clerk or
anyone else” Op. at pg. 4).
Here the Appellant signed the judicial confession and declared
under penalty of perjury that it was true and correct. That judicial
confession confirmed the truth of all of the allegations in the
information. The information contained all of the statutory elements of
the offense charged. The judicial confession was approved by defense
counsel, the State and the trial court. The judicial confession and other
“plea papers” were filed of record. The trial court expressly took
judicial notice of the papers, including the judicial confession, and based
its judgment upon that instrument. The evidence was certainly
sufficient to support the Appellant’s plea under Article 1.15.
Second Issue on Appeal
Was the evidence at the sentencing phase of the plea proceeding
sufficient to support the Appellant’s plea of guilty under Article 1.15?
Application and Analysis
It must first be observed that the evidence during the first phase
of the plea proceeding was sufficient to support the plea and, therefore,
14
it is not necessary to rely upon the events during the punishment
hearing. His contentions as to this issue are moot.
While the Appellant did not go down the list of elements of the
offense charged in his testimony at punishment one by one, he did tell
the trial court that he and Broxton took the property, that he knew it
was wrong and that he should have backed out (RR3-9, 17, 18), but that
they did it at least twice. He also said that they took the metal castings
to Houston on two occasions and sold it for a total of $9,000.00, which
they split evenly. (RR3-37). This certainly, coupled with his plea of
guilty and his judicial confession serves to satisfy the requirements of
Article 1.15.
A guilty plea is a unitary proceeding and Article 1.15 does not
distinguish between evidence offered at guilt/innocence or the
punishment phase. The courts may consider evidence at the
punishment phase in order to determine if the requirement of Article
1.15 has been fulfilled. See Taylor v. State, No. 03-14-0300-CR, 2014
Tex. App. LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not
designated for publication2, and cases cited therein.
2
Taylor also arose in the same district court concerning a virtually identical fact situation
as in this case and raising the same issues. Counsel for the Appellant also represented the
defendant in that case.
15
Third Issue on Appeal
Must the judgment of conviction be modified to reflect that the
Appellant entered his plea of guilty without a plea bargain?
Application and Analysis
The Appellant entered his plea of guilty to the trial court without a
plea bargain with the State. (RR2-10). The plea papers reflect that the
plea was “open”. (CR-19). The judgment of conviction recites: “Terms
of Plea Bargain: SEE ATTACHED DISCLOSURE OF PLEA
RECOMMENDATIONS. (CR-31). There is no apparent attachment to the
judgment in the record. The only disclosure of plea bargain shows an
open plea and therefore contains no plea recommendations (CR-19).
The judgment does not actually state that there was a plea bargain
in this case. There is no such attachment to the judgment and the
court’s file, as well as the reporter’s record clearly show that there was
no plea bargain. Thus there is really nothing in the judgment to reform.
If, however, the Court interprets the statement to imply otherwise then
the judgment should be reformed to delete that reference.
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PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,027 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, John A. Kuchera, Counsel for Appellant, by electronic
transfer via Email, addressed to him at johnkuchera@210law.com on
this 30th day of September, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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