I respectfully dissent and would affirm the judgment of the trial court. The majority in the instant case have misconstrued and misapplied procedural rules which were not in existence at the time Appellant in the instant case entered his plea of guilty.
I. PROCEDURAL HISTORY The record in the instant case more accurately shows that on January 4, 1983, after having been admonished pursuant to TEX.CODE CRIM.PROC.ANN. art. 26.13 (Vernon 1989 and Supp. 1993), Appellant entered his plea of guilty to the offense of theft over $200 but less than $750. He additionally entered a plea of true to each of the two enhancement paragraphs found in the indictment.1 The trial court proceeded to hear evidence in support of Appellant's pleas. Appellant executed a document containing acknowledgment of rights, waiver of such rights, as well as his judicial confession. Although the above document provided for the trial court's consent and approval, the document itself *Page 883
remained unsigned by the trial court. In addition to the execution of the above document, Appellant was sworn and confessed to the offense as alleged in the indictment as well as his previous convictions.
On April 1, 1992, Appellant filed a post-conviction application for writ of habeas corpus pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.07 (Vernon 1977). Specifically, Appellant alleged as follows:
1) that his trial counsel failed to conduct an independent investigation into the facts and circumstances of the charge leveled against him; and,
2) that his trial counsel failed to advise him of his right to appeal.
The Court of Criminal Appeals, in Ex parte Duran, No. 71,563 (Tex.Crim.App., December 16, 1992, per curiam) (not designated for publication), found that Appellant's trial counsel had since passed away and thus was unable to answer the allegation. Under those circumstances, the Court found that the sworn allegations in the application for writ of habeas corpus that Appellant was not informed of his right to an appeal were true.2 Consequently, the Court granted Appellant an out-of-time appeal of any jurisdictionaldefects, vacated the judgment of the trial court in order that Appellant could give notice of appeal, and further set the appellate time limits as if the judgment of conviction had been entered on the day the mandate issued on the granting of the post-conviction writ.3 The mandate was issued on January 4, 1993, thus notice of appeal was due within thirty days, i.e., on or before February 3, 1993.
The record shows that Appellant gave timely notice of appeal on December 24, 1992. On March 5, 1993, Appellant timely requested preparation of the statement of facts. Finally, on June 9, 1993, this Court granted Appellant's motion to supplement the record with affidavits of the court reporters, each stating that the notes on Appellant's proceedings were lost or destroyed.
In Point of Error No. Two, Appellant argues that he is entitled to a reversal of his conviction and a new trial because the court reporter's notes from his 1983 plea proceeding have been lost or destroyed through no fault of his own.
In sustaining Appellant's second point of error and reversing and remanding the case, the majority relies almost exclusively on the application of TEX.R.APP.P. 50(e), a procedural rule which was promulgated in 1986, approximately three years after Appellant initially entered his plea of guilty.4 In the instant case, Appellant objected to the appellate record on the ground of incompleteness, i.e., the failure to have a statement of facts of proceedings conducted prior to the effective date of TEX.R.APP.P. 50. The majority opinion has simply ignored the fact that TEX.R.APP.P. 50(e) was not in existence at the time a transcription of Appellant's proceedings would have been taken in 1983.
The Court of Criminal Appeals, in Harris v. State,790 S.W.2d 568 (Tex.Crim.App. 1989), considered a case similar to the one at hand. In Harris, the defendant contended that he was entitled to a new trial because portions of the record had been lost. The
*Page 884 Court was faced with determining whether it should apply the Rules of Appellate Procedure or the former corresponding provisions of the Code of Criminal Procedure, in particular TEX.CODE CRIM.PROC.ANN. art. 40.09 (Vernon 1979). Judge Duncan, writing for the Court, applied the law as it stood prior to the effective date of the Rules because "the appellate procedures appropriate to preserve his Objection to the Record were 'completed or required to have been completed prior to September 1, 1986 . . .' ". Harris, 790 S.W.2d at 574. Judge Duncan recognized that other proceedings, necessary to perfect the appeal, occurred after the September 1, 1986 effective date for the Rules. However, he noted that:
Id. See also Payne v. State, 802 S.W.2d 686, 689 (Tex.Crim.App. 1990). The instant case, likePayne and Harris above, involves the application of procedures appropriate to preserving review of appellate issues which were required to have been completed prior to September 1, 1986, the effective date of TEX.R.APP.P. 50(e). Consequently, the majority is misguided in applying current appellate procedures to trial requests which are controlled by TEX.CODE CRIM.PROC.ANN. art. 40.09.It would be absurd . . . to require an appeal to be perfected under one standard and then arbitrarily apply another standard. Therefore, as to this appeal, we find that the provisions of the Code of Criminal Procedure . . . are applicable.
Prior to the promulgation of Texas Rules of Appellate Procedure on September 1, 1986, requests for transcription of criminal trial proceedings were specifically controlled by TEX.CODE CRIM.PROC.ANN. art. 40.09(4) (Vernon 1979) which provided in pertinent part as follows:
At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court's charge, and final arguments.
In Timmons v. State, 586 S.W.2d 509, 512 (Tex.Crim.App. 1979), the Court of Criminal Appeals in interpreting the application of TEX.CODE CRIM.PROC.ANN. art. 40.09 stated:
[T]he burden is on an appellant to establish that he ha[s] been deprived of his statement of facts. [Citation omitted]. To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant and his counsel. [Citations omitted].
Thus, under the rules of criminal trial procedure applicable at the time Appellant entered his plea of guilty, if a defendant appellant desired to have the proceedings or any part thereof reported, he or his attorney was under the duty to so advise the trial court. Brown v. State, 505 S.W.2d 277, 278 (Tex.Crim.App. 1974); Taylor v. State, 489 S.W.2d 890 (Tex.Crim.App. 1973); Jones v. State, 496 S.W.2d 566 (Tex.Crim.App. 1973); Garrett v. State,434 S.W.2d 142 (Tex.Crim.App. 1968).
The record in the instant case shows that Appellant, during the course of pleading guilty on January 4, 1983, and after having consulted with his trial counsel, elected to waive his right to file written pleadings, among other rights. Consequently, the record is silent as to any request of any party to have the court reporter take shorthand notes of all trial proceedings. See TEX.CODE CRIM.PROC.ANN. art. 40.09; and Brown v. State, 505 S.W.2d 277, 278 (Tex.Crim.App. 1974). Having waived his right to file written pleadings and finding no request for a transcription of the proceedings, I would hold that Appellant, with the advice of counsel, has contributed to the failure to present a statement of facts of the proceedings of January 4, 1983. Accordingly, I would overrule Appellant's Point of Error No. Two.5
In sustaining Appellant's Point of Error No. Two, the majority has found it unnecessary *Page 885 to address the first point of error. However, once again I respectfully note my dissent from the majority opinion, and would address and overrule Appellant's Point of Error No. One.
In his first point of error, Appellant maintains that the trial court erred by failing to approve Appellant's waiver and consent in writing as per Article 1.15 of the Texas Code of Criminal Procedure before considering the stipulations of evidence. TEX.CODE CRIM.PROC.ANN. art. 1.15 (Vernon Supp. 1994) provides:
The evidence may be stipulated if the defendant in such 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 introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.
Article 1.15 thus provides that in order for a stipulation to be valid, the defendant's consent and waiver of rights must be approved by the court in writing. However, it is not the stipulation itself that must be approved in writing by the trial judge; it is the defendant's consent to stipulate that must be approved in writing by the trial judge. McClain v.State, 730 S.W.2d 739, 742 (Tex.Crim.App. 1987);Messer v. State, 729 S.W.2d 694 (Tex.Crim.App. 1986) (disapproving Lopez v. State, 708 S.W.2d 446 (Tex.Crim.App. 1986); Young v. State, 648 S.W.2d 6 (Tex.Crim.App. 1983); and Landers v. State, 720 S.W.2d 538 (Tex.Crim.App. 1986)). Failure to consent, in writing, to such waiver of rights and stipulation of evidence precludes a trial court from considering stipulations in deciding whether sufficient evidence exists to convict a defendant of the offense charged. McClain v. State, 730 S.W.2d at 742. Nonetheless, the absence of a trial judge's signature on the stipulation does not preclude compliance with Article 1.15 where the written judgment filed in the papers of the cause sufficient to show the trial court's approval of defendant's written waiver and consent to stipulation as required by statute. Willhoite v. State, 642 S.W.2d 531 (Tex.App. — Houston [14th Dist.] 1982, no pet.). Moreover, if the record establishes the existence of sufficient evidence, absent the purported stipulations, then no error has been shown. Blacklock v. State, 820 S.W.2d 882, 884 (Tex.App. — Houston [1st Dist.] 1991, pet. ref'd).
The record in the instant case firmly establishes that Appellant executed a document containing acknowledgment of rights, waiver of such rights, although the waiver and stipulations themselves were unsigned by the trial court.6 The judgment of conviction, however, establishes that the trial court specifically gave its consent and approval for Appellant to waive such rights. Thus, I would hold that the trial court did comply with the mandatory *Page 886 provisions of TEX.CODE CRIM.PROC.ANN. art. 1.15. SeeMcClain v. State, 730 S.W.2d at 742; and Willhoitev. State, 642 S.W.2d at 533. Moreover, even if all the purported stipulated evidence in the trial court below were excluded, I would hold that the record establishes that Appellant was sworn under oath and confessed to the offense as alleged in the indictment as well as to each of the two enhancement paragraphs. A judicial confession is alone sufficient to sustain a conviction on a guilty plea under Article 1.15. Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Crim.App. 1978). Accordingly, I would overrule Appellant's Point of Error No. One, and would affirm the judgment of the trial court.
The trial court has informed the Court that applicant's trial counsel is deceased and therefore unable to answer the allegation. Under the circumstances, this Court finds that applicant's sworn allegations that he was not informed of his right to an appeal is true. Since Article 44.02 does not apply to open pleas of guilty, applicant is entitled to his right of first appeal of any jurisdictional defects. [Emphasis added.]
1) that he made a timely request for a statement of facts;
2) that the court reporter's notes and records have been lost or destroyed without any fault of his own; and,
3) that due diligence be exercised in attempting to secure a complete statement of facts.
TEX.R.APP.P. 50(e); see also Culton v. State, 852 S.W.2d 512, 514 (Tex.Crim.App. 1993).
As noted in the majority opinion, the record in the instant case contains affidavits from the current court reporter of the trial court as well as from the court reporter of that court at the time of Appellant entered his plea of guilty in 1983. Both affidavits indicate that after a diligent and thorough search, the notes from that proceeding have not been located. Consequently, in applying current rules of appellate procedure, the majority correctly concluded that Appellant demonstrated the legally required due diligence in attempting to obtain a statement of facts. The majority however, neglected to address the question whether Appellant's failure to file or otherwise have the statement of facts prepared and timely filed was due to any fault of his own, i.e., his failure to comply with the provisions of TEX.CODE CRIM.PROC.ANN. art. 40.09(4) (Vernon 1979).
I, Dionicio Contreras Duran, the defendant in the above entitled and numbered cause, do hereby in open court plead guilty to the charge in the indictment in said cause, and upon having entered my plea, hereby waive my right to a trial by jury after having obtained the consent and approval of the attorney representing the State to waive this right before entering this plea.
I hereby consent, in open court, to waive the appearance, confrontation and cross-examination of witnesses and further consent to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. I agree that the evidence may be stipulated and that the attorney representing the State may make a statement to the court embodying the testimony upon which the indictment was returned and the testimony which would have been produced against me in the trial of my case should I have demanded a jury trial.
I hereby request the consent and approval of the court to the foregoing waiver and consent.
I do now hereby, in open court, admit all the allegations in the indictment in the cause and I confess that I committed the offense charged in the indictment, waiving the rights to which Article 1.15 of the Texas Code of Criminal Procedure entitles me, particularly the right to require sufficient evidence to support the judgment of the court, in view of my judicial confession herein made.
I fully understand that the range of punishment for the offense of theft over two hundred dollars with two prior felonies is Life. I also understand that there has been no recommendation as to punishment made either to me or my attorney by any attorney or staff member of the District Attorney's Office. I further understand that no recommendation made by anyone is binding upon this Court in determining any punishment to be assessed by the court. [Emphasis added.]
/s/ Dionicio C. Duran
DEFENDANT