dissenting.
The question before this Court involves the sufficiency of the evidence to sustain the convictions. Yet an examination of the appellate record quickly reveals the evidence consists entirely of stipulations entered in this trial before- the court on the pleas of not guilty. Such stipulations do not comply with the provisions of Article 1.15, V.A.C.C.P. The appellant’s waiver of the appearance, confrontation and cross-examination of witnesses and consent to the stipulations has not been approved by the trial court in writing. About this there is no dispute. Such stipulations cannot be considered as evidence. Without evidence the result of the majority’s opinion cannot be reached.
Article 1.15, supra, 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.” (Emphasis supplied.)
Compliance with the statute has long been held mandatory in order for the stipulation to be considered as evidence. Elder v. State, 462 S.W.2d 6 (Tex.Cr.App.1971); Rangel v. State, 464 S.W.2d 858 (Tex.Cr.App.1971); Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976).
In Rodriquez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976), it was held that a violation of the mandatory provisions of the statute constitutes reversible error, even if the matter is not raised in trial court or on appeal. The court said: “Fundamental error accompanied the admission of the stipulated evidence. ...”
In Clark v. State, 657 S.W.2d 121 (Tex.Cr.App.1983), this Court, en banc, in an unanimous opinion, speaking through Judge Tom Davis stated:
“This court has consistently held that compliance with this statute is mandatory, in the trial before the court, regardless of the plea, for a stipulation to be considered evidence. Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983); Valdez *357v. State, 555 S.W.2d 463 (Tex.Cr.App.1977).
“In this case the trial court did not consent to and approve the stipulation by affixing his signature to it. The failure of the court to comply with the requirements of Article 1.15, V.A.C.C.P. necessitates reversal of the judgment. Since this was a trial error an acquittal will not be entered. Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979).” (Emphasis supplied.)
In Young and Valdez as in Clark and Ellard v. State, 650 S.W.2d 840 (Tex.Cr.App.1983), the failure of the court to comply with Article 1.15, supra, called for reversal of the judgment involved. The stipulation could not be considered evidence.
The Courts of Appeals have followed these cases. In Green v. State, 666 S.W.2d 291 (Tex.App. [14th Dist.] 1984), it was held that in absence of the trial judge’s signature approving the defendant’s waiver and consent to the stipulation the stipulation was inadmissible evidence. See also Lewis v. State, 647 S.W.2d 753 (Tex.App. [3rd Dist.] 1983).
And only recently on March 20, 1985 this Court refused a State’s petition for discretionary review in Cause No. 0723-84 where the Houston [14th] Court of Appeals reversed a murder conviction where the stipulated evidence was not approved by the trial court in writing as required by Article 1.15, supra, although the issue was not raised in the trial court or on appeal. See Anderson v. State (Tex.App. [14th Dist.] No. A 14-83-343 CR — May 3, 1984), an unpublished opinion.
The instant case, like those above, involved violation of the mandatory provisions of the statute and constitutes reversible error even if the matter was not raised in the trial court or upon appeal in the Court of Appeals or this Court. Young v. State, supra; Hughes v. State, supra. See and cf. Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983).
The majority blithely ignores the undisputed condition of the record and this long line of cases. Perhaps in its eagerness to use this cause and only this cause as a vehicle to reach a desired result now, the majority chooses to close its eyes and turn a deaf ear to that of which it has been made acutely aware.
One may dislike, or even quarrel with the legislative mandate expressed in Article 1.15, supra, but it must be followed so long as it is the law. An appellate judge may not pass this cup from his lips. Article I, § 16, Tex.Const. He cannot ignore facts which bring into play laws he does not personally approve, or disregard certain laws in order to reach a desired result in a particular case.
Today’s majority does not mention, or even give a hint that the evidence it utilizes to reach its result is not properly before this Court. This is a situation of deliberate bypass. “Color me amazed” is not an adequate expression of concern here.
I vigorously dissent.