Appellant's contention, as I understand it, is that the trial judge did not approve in writing the appellant's written waiver of his right of confrontation and his consent to stipulate the evidence regarding his plea of guilty before the court on September 1, 1971.
He urges that as a result of the trial court's failure to approve the waiver and consent none of the stipulated evidence can be considered in an assessment of the sufficiency of the evidence to support his plea of guilty, and that, without the same, the evidence is not sufficient to sustain his conviction under Article 1.15, Vernon's Ann.C.C.P., or to justify the revocation of probation.
Article 1.15, supra, as amended in 19711 and effective June 15, 1971, provides that if evidence upon a plea of guilty before the court is to be stipulated, either orally or in writing, the waiver of the right of confrontation and the consent 'must be approved by the court in writing, and be filed in the file of the papers of the cause.'
The written waiver and consent and stipulation of evidence was signed by the appellant and sworn to before the clerk of the court and approved by his counsel. The place on the printed form for the approval of the trial judge was left blank.
Repeatedly throughout the proceedings, the trial judge inquired if the procedure of stipulating evidence was agreeable to the appellant and his counsel, and, upon receiving affirmative answers, permitted such stipulations and permitted the trial to proceed. Such stipulations were clearly sufficient to sustain the conviction. At the conclusion of the stipulated testimony, the court inquired personally of the appellant if the stipulations were 'true and correct' and the appellant answered, 'Yes, sir.'
Thereafter, the appellant was sworn and voluntarily took the witness stand.
He acknowledged that he had executed the written sworn stipulation of evidence and the same was introduced as State's Exhibit No. 2 without objection.
There exist then at least two reasons why appellant's contention is without merit. First, appellant's testimony while on the witness stand and the introduction of State's Exhibit No. 2 constituted a judicial confession which, independent of the oral stipulations, was sufficient to sustain the conviction. Beaty v. State, 466 S.W.2d 284 (Tex.Cr.App. 1971); Bell v. State, 455 S.W.2d 230 (Tex.Cr.App. 1970); Alvarez v. State, 374 S.W.2d 890 (Tex.Cr.App. 1964). Second, the written judgment entered and bearing the same date as the trial reflects that
'. . . (t)he Defendant, having in open court, in writing, waived the appearance, confrontation, and cross-examination of witnesses, consented to the stipulation of evidence and to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence; and such waiver and consent having been approved by the Court in writing and filed in the papers of the cause, the said plea of the Defendant was received and entered of record upon the minutes. . . .'
We do not find that a motion for new trial was filed or that there was an objection to approval of the record containing the written judgment. *Page 263
It was obviously the legislative purpose not to permit stipulated evidence to be used in proceedings under Article 1.15, supra, unless the same was approved by the trial judge and to keep a permanent record of the same. In the instant case, it is clear that in permitting the plea of guilty to proceed where stipulated testimony was being utilized, the trial court was of necessity giving his approval, and the entry of the written judgment approved by the court would certainly seem to satisfy the requirements of the statute. Cf. Schoolcraft v. State, 129 Tex.Crim. R., 91 S.W.2d 361 (1936). The statute does not require that the court's written approval be on the same instrument which constitutes the waiver and consent though that is the normal practice.
While the practice here used is not to be commended, it certainly does not present reversible error.
The evidence was sufficient to sustain the plea of guilty to the charge of forgery of a credit card.
Likewise, the evidence was sufficient to sustain the revocation of probation, it being noted that the requirements of Article 1.15, supra, are not applicable to hearings on revocation of probation.
It is for these reasons that I cannot agree with the majority's apparent holding that where a hearing on a revocation of probation and a trial upon a plea of guilty before the court are heard together that evidence admissible with regard to the revocation matter can be used to justify and overcome a failure to comply with statutory requirements and legislative mandate as to procedure involved in accepting pleas of guilty before the court. There is no necessity to reach such a conclusion under the circumstances of this case.
And, I might add that the practice of hearing such matters together and at the same time is not as desirable as it may appear. It smacks of judicial economy, but in attempting to attend to the details of both proceedings at the same time, courts frequently overlook required procedure in one or both matters. Thus, a fertile breeding ground for unnecessary appeals is established.
For the reasons stated, I concur.
ROBERTS, J., not participating.