dissenting.
Upon his plea of nolo contendere before the court appellant was convicted of the offense of aggravated sexual assault under the terms of Y.T.C.A. Penal Code, §§ 22.-011(a)(2)(A) and 22.021(a)(5), and his punishment was assessed at eight years in the Texas Department of Corrections. On appeal he challenged the sufficiency of the stipulated evidence to support the judgment of conviction, asserting that it failed to show that the victim of the alleged offense was not his spouse, or that she was a child younger than 14 years of age, as alleged in the indictment. In an unpublished opinion the First Court of Appeals in Houston sustained appellant’s contention, reversed the judgment of the trial court, and ordered a judgment of acquittal. Bender v. State, No. 01-84-0554-CR, delivered April 25, 1985. We granted the State’s petition for discretionary review to examine the State’s contention that the court of appeals erred in failing to apply “the rule that stipulations are reasonably and liberally construed with a view to effectuating the parties’ intentions.” O’Conner v. State, 401 S.W.2d 237, 238 (Tex.Cr.App.1966).
There was no agreed recommendation as to punishment in this cause. Nevertheless, the first paragraph of the indictment, alleging another theory of the same offense, was dropped by the State. The stipulation begins with an acknowledgement of the charges brought against him, reading in relevant portion:
“The charges against me allege that in Harris County, Texas, I, Harry Lincoln Bender, hereafter styled the Defendant, heretofore on or about January 18, 1984, did then and there unlawfully ... intentionally and knowingly cause the penetration of the vagina of [A.M.B.], hereafter styled the complainant, a person younger than fourteen years of age and not his spouse by placing his finger in the vagina of the complainant.”
This portion of the stipulation was for the most part a typewritten duplicate of the second paragraph of the indictment. What appears next is handwritten, and reads:
“I further stipulate that if [A.M.B.] were called to testify, she would testify that on January 18, 1984, in Harris Co., Texas, I caused penetration of her vagina with my finger.”
The form upon which the stipulation was made continues in the manner of a judicial confession, viz: “I understand the above allegations and I confess that they are true and that the acts alleged above were committed on ...,” after which a blank space is provided to supply the date. Through in-terlineation, and by filling in the applicable date, this provision was modified so that it now reads:
“I understand the above allegations and I stipulate that [A.M.B.] would testify to the above and that the acts alleged above were committed on January 18, 1984.” In construing this last, modified portion of the stipulation, the court of appeals observed, and then concluded:
“A subordinate clause may be used as a noun. In the instant case, both subordinate clauses are used as nouns; they are direct objects. Since the compound *282subordinate clauses are a series, a complete sentence should result when each clause is read with the introductory noun and verb, ‘I stipulate.’ Also, the subordinate clauses which are used as direct objects are compound; thus, both clauses receive the action of the verb ‘stipulate.’
“Therefore, the first subordinate clause stipulates that A.M.B. would testify that the appellant penetrated her vagina with his finger on January 18, 1984 (paragraph [2]). The second subordinate clause stipulates that the acts alleged in paragraph [2], i.e., penetration of the complainant’s vagina with appellant’s finger, occurred on January 18, 1974 [sic]. However, there is no judicial confession by the appellant that he committed the acts alleged within the indictment, and there is no stipulation that A.M.B. was a person younger than 14 years of age, or that she was not appellant’s spouse.” *
On this finding, the court of appeals found the evidence to be insufficient. In reaching this result the court of appeals interpreted the phrase in the third paragraph of the stipulation, “that [A.M.B.] would testify to the above ...,” to refer back only to the handwritten second paragraph wherein it was stipulated that if A.M.B. were to testify, it would be to the effect “that on January 18, 1984, in Harris Co., Texas, [appellant] caused penetration of her vagina, with [his] finger.” The State now argues that “the above” should be read also to refer back to the first paragraph of the stipulation, so as to include the assertion that A.M.B. would testify that on January 18, 1984 she had been “a person younger than fourteen years of age and not his spouse,” since this would effectuate the obvious intent of the parties that each element of the offense be covered in order to support the judgment.
There are a number of problems with the State’s position. In the first place, it seems reasonable to conclude that in making the handwritten modification in paragraph three of the stipulation, “that A.M.B. would testify to the above,” what is referred to is the earlier, also handwritten, second paragraph of the stipulation, wherein is explicitly set out the substance of what A.M.B. would “testify” to. Indeed, apparently no other interpretation even occurred to the court óf appeals.
Even if we read “the above” to refer back to the first paragraph, however, literally construed, all this would accomplish is to stipulate that A.M.B. would testify to what appellant himself had already acknowledged in that first paragraph, viz: that the indictment did indeed allege that she was younger than fourteen years of age and not his spouse. Obviously, stipulating that an allegation has been made does not prove the allegation. Therefore, simply interpreting “the above” to embrace the first paragraph does not of itself supply proof to establish the missing elements.
It is possible that, construed liberally, the stipulation that A.M.B. would testify to “the above” could be read to mean that she would substantiate every allegation made in the first paragraph of the stipulation, not simply testify that such allegations have in fact been made. The State argues such a construction would effectuate the obvious intent of the parties. All that bears on ascertaining the intent of the parties, however, is that, by modifying the third paragraph of the stipulation, appellant manifested an unwillingness to judicially confess to the allegations in the indictment. In view of this we will not presume, absent a clear indication on the face of the document itself, an intent on appellant’s part to stipulate to every element of the offense necessary to support the judgment of conviction. To hold otherwise would suggest that an intent to supply sufficient evidence to support a judgment of conviction will arise from the mere fact of a plea of guilty or nolo contendere, coupled with any stipulation of facts, regardless of whether that stipulation embraces every element of the alleged offense. We steadfastly refuse thus to “liberally construe” stipulations in such a way as to reduce the State’s statutorily prescribed burden of proof. See Thornton v.
*283State, 601 S.W.2d 340 (Tex.Cr.App.1980); Article 1.15, V.A.C.C.P.
O’Conner v. State, supra, relied on by the State, is factually inapposite. There, in a prosecution for possession of heroin, the defendant stipulated that the State would offer the testimony of the arresting officer given at his examining trial, and that a chemist would give testimony “as reflected” in a report made at the time of his analysis of the substance found in the defendant’s possession. He further stated that the contents of the officer’s testimony and of the chemist’s report were “true and correct.” Instead of actually offering these into evidence, however, the prosecutor paraphrased them for the court. Appellant did not object. On appeal he “insisted that the evidence presented by the State was not authorized by the stipulation entered into between the parties and was therefore insufficient to show appellant’s guilt.” Id., at 238. In effect, he argued that because the manner of presentation of the evidence in support of the plea was not that agreed upon, there was no valid evidentiary support for the judgment. Finding a clear intention that sufficient evidence should in some manner be presented, this Court construed the stipulation liberally, to include the actual manner utilized.
Having found no clear indication that appellant intended to stipulate to the full substance of the offense alleged against him, we decline to apply the rule of liberal construction to supply the missing elements of proof in the instant case.
The majority essentially agrees with my treatment of the sole ground for review presented by the State in its petition for discretionary review and, thus, the only issue before this Court. However, for it “the order of acquittal is another [matter].” At 280.
In its PDR the State prayed that this Court “reverse the decision of the Court of Appeals.” PDR, at 6. Because we have found the ground for review without merit, the relief prayed for by the State cannot be granted. The proper judgment rendered by this Court is an affirmance of the judgment of the court of appeals. That court did indeed order an acquittal, but propriety of its order has not been challenged.
The majority gratuitously surmises, “The order of acquittal may well rest upon Burks v. United States ... and Green v. Massey [.] ” at 280. However, as the Court of Appeals correctly discerned:
“... The state’s burden is not lessened by a plea of no contest, and the stipulation of evidence must contain every element of the offense to uphold the verdict. Thornton v. State 601 S.W.2d 340, 344 (Tex.Cr.App.1979) (op. on reh’g); Tex.Code Crim.P.Ann. art. 1.15'(Vernon 1977).”
Thus its order of acquittal does not rest on Burks-Massey. Neither does Thornton v. State, supra. Ex parte Martin, 747 S.W. 2d 789 (Tex.Cr.App.1988) (Clinton, J., dissenting, at 793-796).
DUNCAN, J., joins.Emphasis in the original. All other emphasis supplied unless otherwise indicated.