Dinnery v. State

OPINION ON REHEARING ON COURT’S OWN MOTION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On April 3, 1975, appellant entered a guilty plea in a bench trial to burglary of a habitation by entering and committing theft, and the court assessed punishment at five (5) years’ imprisonment, but suspended the imposition of the sentence and placed the appellant on probation. No appeal was taken.

On August 11, 1978, appellant’s probation was revoked after it was shown that, commencing with the month after he was *350placed on probation, he failed to report to his probation officer for three years and moved to Canada without permission, etc., all in violation of his probationary conditions. Sentence was imposed and notice of appeal was given.

On appeal, although this is an appeal from an order revoking probation, appellant does not contend that the court abused its discretion in revoking probation. In fact, appellant entered a plea of “true” to the allegations in the revocation motion.

Appellant’s sole contention on appeal is that he was charged with burglary of a habitation by entering and thereafter committing theft, V.T.C.A., Penal Code, § 30.-02(a)(3), and that the evidence offered to support his guilty plea (Article 1.15, V.A.C. C.P.), was that he entered the habitation with intent to commit theft, a different kind of burglary, V.T.C.A., Penal Code, § 30.02(a)(1), than that charged in the indictment. At least the majority of the panel that reversed on original submission so viewed appellant’s contention.

Appellant’s brief simply states: “In his sole ground of error, defendant contends that under the doctrine announced in Whitlow (Whitlow v. State, Tex.Cr.App.), 567 S.W.2d 522 this conviction cannot stand . .” No references are made to the record, no argument is advanced, and no other authorities for this proposition are cited.

Whitlow held that where the defendant was charged by indictment with burglary by entering and committing theft and the court in its charge authorizes the jury to convict upon a different theory — entry with intent to commit theft — there is fundamental error. Whitlow did not involve a revocation of probation or a guilty plea, but the majority of the panel on original submission assumed that while appellant is not attacking the revocation of probation on appeal he is collaterally attacking the evidence to support the underlying conviction by the Whit-low citation. Said majority recognized that on appeal from an order revoking probation a collateral attack on the sufficiency of the evidence to support the underlying conviction is not normally permitted. The majority, bypassing for the moment the impact of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and seizing upon Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), holding that where there is no evidence on which the conviction could be based, a collateral attack is permissible, held the collateral attack here involved should be permitted.

This court has long held that in an appeal from an order revoking probation the review by this court is limited to the propriety of the revocation itself (whether the trial judge abused his discretion) and does not include a review of the original conviction. Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1967), and cases there cited. Thomas v. State, 571 S.W.2d 17 (Tex.Cr.App.1978); Burrell v. State, 492 S.W.2d 482 (Tex.Cr.App.1973). For example, in the past it has been held that the sufficiency of the evidence to support the original conviction could not be collaterally attacked on an appeal from an order revoking probation. See, e. g., Chavez v. State, 375 S.W.2d 729 (Tex.Cr.App.1964); Patterson v. State, 487 S.W.2d 736 (Tex.Cr.App.1972). In Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972), however, this court wrote:

“Ordinarily, collateral attacks are not permitted on the original conviction upon which probation has been revoked, but in the present case it has been shown that under the decisions of the United States Supreme Court the appellant was denied the right to counsel [at time of original conviction]. To require a separate habeas corpus proceeding to attack such a conviction would be to require a useless thing. See Smith v. State, 486 S.W.2d 374 (1972).”

Since the time of Ramirez it has been held that on an appeal from a revocation order an original conviction may be collaterally attacked and the judgment set aside if fundamental error was committed. Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). This exception to the general rule on appellate review of appeals from revocation orders has been most frequently used where *351the indictment upon which the original conviction is based is fundamentally defective. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Huggins v. State, supra; Bailey v. State, 559 S.W.2d 957 (Tex.Cr.App.1978); Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978); Morgan v. State, 571 S.W.2d 333 (Tex.Cr.App.1978).1

In addition to Chavez and Patterson cited above, and quite aside from appeals from revocation orders, it has been well settled that the sufficiency of the evidence may not be collaterally attacked. Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978); Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973).2 In Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), an exception was created to the foregoing rule. In Mof-fett we allowed a defendant, by habeas corpus proceedings, to collaterally attack an order revoking' the defendant’s probation where the revocation order was based on no evidence. We there held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, the defendant’s right to due process had been violated and that the violation of a defendant’s right to due process justified collateral attack by habeas corpus.

Considering as did the majority of the panel on original submission, that appellant’s contention is that there is no evidence to support his conviction on the original or underlying charge in the appeal from a revocation order, we shall examine the record before us.

The indictment charged the appellant with burglary of a habitation by entering and thereafter committing theft (V.T.C.A., Penal Code, § 30.02(a)(3)). On April 3, 1975, the appellant, represented by appointed counsel, entered a plea of guilty before the court to said indictment and was carefully admonished by the court in accordance with Article 26.13, V.A.C.C.P. Part of the colloquy between the court and appellant reflects the following:

“THE COURT: ... Do you understand what you’re charged with?
“THE DEFENDANT: Yes, sir.
******
“THE COURT: And are you guilty?
“THE DEFENDANT: Yes, sir.
“THE COURT: Are you pleading guilty because you are guilty and for no other reason?
“THE DEFENDANT: Yes, sir.
“THE COURT: Are you pleading guilty freely and voluntarily?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that by pleading guilty, you’re confessing your guilt?
“THE DEFENDANT: Yes, sir.
* * * **

A plea of guilty is an admission of guilt of the offense charged, but it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support such plea and the judgment to be entered. Article 1.15, V.A.C.C.P.; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971); Hoskins v. State, supra.

Therefore, we look to see what evidence was offered. The State offered into evidence the following written stipulation:

“I do judicially confess that on the 31 day of January, 1975, in Dallas County, Texas, I did with the intent to commit theft, enter a habitation which was not open to the public, without the effective consent of Robert E. Kimbrel, the owner, as charged in the indictment.” (Emphasis supplied.)

The stipulation was sworn to by the appellant and introduced into evidence. This stipulation or written “judicial confession” was on a printed form (Burglary — Habitation ID) with blanks only for the date and *352the name of the “owner” to be filled in. It was part and parcel of a form entitled “Waiver of Jury — Agreement to Stipulate — Application for Probation — .” It is obvious the form was drafted to be used in guilty pleas to burglary by entering a habitation with intent to commit theft rather than burglary by entering a habitation and thereafter committing theft. To add to the confusion, the name of the “owner” was written in on the form as “Robert E. Kim-brel” whereas the indictment alleged “Mrs. Robert E. Kimbrel” as the complaining witness.

If this written “judicial confession” was the only evidence in the record, we would have to conclude that the evidence was insufficient to sustain a conviction for burglary by entering a habitation and thereafter committing theft and to meet the requirements of Article 1.15, V.A.C.C.P. See Reid v. State, 560 S.W.2d 99 (Tex.Cr.App.1978).

While some of the elements of the offense charged are supported by this written “judicial confession,”3 we put them aside for the purpose of the discussion and turn to see if there is other evidence independent thereof which will support the plea of guilty.

The record reflects that after the introduction of the above described written “judicial confession” appellant took the witness stand and under oath the following occurred on direct examination by his counsel:

“Q You have gone over that indictment with me, have you not?
“A Yes, sir.
“Q We have read it?
“A Yes, sir.
“Q And is it true and correct?
“A Yes, sir.
“Q And how do you wish to plead to that indictment?
“A Guilty.
“Q Are you pleading guilty because you are guilty and for no other reason?
“A Yes, sir.
“Q Has anybody promised you anything, threatened you or forced you, or coerced you in an effort to induce you to plead guilty this morning?
“A No, sir.
“Q So, again, you’re saying you’re doing that of your own free will and accord?
“A Yes, sir.”4

It has been said that judicial confessions are confessions made in a legal proceeding, such as a confession made to an examining court before the trial or a confession made in open court during the course of the trial. 24 Tex.Jur.2d, Evidence, § 647; Speer v. State, 4 Tex.App. 474, 479 (1878); Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707, 708 (1958). In Harper v. State, 148 Tex. Cr.R. 354, 187 S.W.2d 570 (1945), it was held that the testimony of a defendant admitting guilty participation in a crime charged constituted a judicial confession of his guilt by which he is bound. See and cf. Ex parte Keener, 166 Tex.Cr.R. 326, 314 S.W.2d 93 (1958). Further, it is established that the rule requiring corroboration of extrajudicial confessions does not apply to a judicial confession made in the course of a judicial proceeding while testifying as a witness. Fancher v. State, supra; Martin v. State, 109 Tex.Cr.R. 101, 3 S.W.2d 90 (1927).

The above described testimony by the appellant that he had read the indictment and that it was “true and correct” was tantamount to a statement that all the allegations of the indictment were true and correct and was a judicial confession that he was a guilty participant in the offense charged. See and cf. Henderson v. State, 519 S.W.2d 654, 655 (Tex.Cr.App.1975).

*353In Rodriguez v. State, 375 S.W.2d 289 (Tex.Cr.App.1964), the defendant on appeal claimed the evidence offered to support his guilty plea to assault with intent to murder with malice was insufficient, and at the most, could only sustain a conviction for assault with intent to murder without malice. In Rodriguez this court said:

“By his own sworn testimony, appellant admitted that the allegations of the indictment of assault with intent to murder with malice aforethought, were true and correct. This was a judicial admission by him that the assault to murder was with malice.”

While there was other evidence to support the fact that the offense was committed with malice, it is important to note that his statement under oath as to the allegations of the indictment were characterized as and held to constitute a judicial admission.

In Wiley v. State, 486 S.W.2d 769 (Tex.Cr.App.1972), a defendant’s answer, “Yes, sir” when he was asked whether allegations in a felony theft indictment were true, was held sufficient to constitute a judicial admission that he had committed the theft alleged. See and cf. Sweeten v. State, 479 S.W.2d 297 (Tex.Cr.App.1972).

In Cooper v. State, 573 S.W.2d 533, 535 (Tex.Cr.App.1978), the written judicial confession contained an impossible date as it recited the offense occurred on June 24, 1977 and the indictment was shown to have been returned on January 27, 1977. There this court wrote:

“It is true that this written judicial confession cannot support the guilty plea. When appellant took the stand and testified, however, he stated that he was pleading guilty just as he was charged in the indictment, and that he was saying he was guilty regardless of what punishment the court would assess. We consider this was a sufficient judicial confession to support the plea under Art. 1.15, supra. Cf. Potts v. State, Tex.Cr.App., 571 S.W.2d 180, and authorities cited there.”

Likewise in the instant case, appellant’s testimony upon interrogation by his own counsel,5 while not in the most desirable form of a judicial confession, was nevertheless a judicial admission 6 that the indictment was “true and correct.” 7

It is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea, Ce-valies v. State, 513 S.W.2d 865 (Tex.Cr.App.1974); Battiste v. State, 485 S.W.2d 781 (Tex.Cr.App.1972), and to satisfy the requirements of Article 1.15, V.A.C.C.P., Bishop v. State, 507 S.W.2d 745 (Tex.Cr.App. 1974); Knight v. State, 481 S.W.2d 143 (Tex.Cr.App.1972); Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978).

In Sexton v. State, 476 S.W.2d 320 (Tex.Cr.App.1972), the claim on direct appeal was that the stipulations were insufficient to support the guilty pleas because they *354were oral rather than in writing as then required by Article 1.15, V.A.C.C.P. There this court wrote:

“While the stipulations were oral we observe that the appellant was sworn and made a judicial confession. Corroboration is not required of such a judicial confession and it alone is sufficient to sustain a conviction. Alvarez v. State, 374 S.W.2d 890 (Tex.Cr.App.1964), and cases there cited. See also Sprinkle v. State, 456 S.W.2d 387 (Tex.Cr.App.1970); Vasquez v. State, 477 S.W.2d 629 [Tex.Cr.App.1972]. It is true that appellant was not as thoroughly interrogated as he might have been, but he clearly admitted that all the allegations in both indictments were true and correct. This constituted a judicial admission of the offenses charged. Rodriguez v. State, 375 S.W.2d 289 (Tex.Cr.App.1964).” (Emphasis supplied.) See also Knight v. State, supra.

In Henderson v. State, 519 S.W.2d 654, 655 (Tex.Cr.App.1975), this court stated:

“Likewise, we reject appellant’s contention that the evidence is insufficient to support the conviction. Appellant testified that all the allegations in the indictment were true and correct. This judicial confession, standing alone, was sufficient to support the guilty plea. See Battiste v. State, 485 S.W.2d 781 (Tex.Cr.App.1972).” (Emphasis supplied.)

The dissenting opinion on the State’s motion for rehearing seemingly says that the above cases do not mean what they say because in those cases there was other evidence to support the guilty plea and to justify the conclusion reached. We disagree. It should be remembered that a judicial confession does not require corroboration, and the cases cited did not hold that a judicial confession, standing alone, is sufficient to sustain the guilty plea provided there is other evidence in the record to also support the conviction. The dissent misreads these cases.

We conclude that appellant’s judicial confession, standing alone, is sufficient to support his guilty plea. There is no merit to the contention on appeal from a revocation of probation order that there was no evidence to support the original or underlying conviction.

The court’s motion is granted, the judgment of reversal is set aside, and the judgment is now affirmed.

. It also has been applied where there was a failure to comply with the requirements of Article 26.13, V.A.C.C.P., in accepting a guilty plea at the time of original conviction. Perkins v. State, 504 S.W.2d 458 (Tex.Cr.App.1974).

. We need not determine in this appeal the impact of Jackson v. Virginia, supra, on this established rule.

. The fact that a defendant is shown to have entered a habitation with intent to commit theft is not inconsistent with a charge that he entered a habitation and thereafter committed theft.

. Amazingly enough, when the appellant was passed for cross-examination after the above interrogation, the prosecutor stated, “No questions.”

. The mere fact that a judicial confession is elicited from a defendant during interrogation by his own counsel attempting to establish the voluntariness of a guilty plea and to protect himself from future claims of ineffective assistance of counsel does not prevent the testimony from being considered for what it was.

. The majority panel opinion held that appellant’s statement about the indictment being “true and correct” was not a judicial confession and just part of an additional admonishment by his own counsel, citing Drain v. State, 465 S.W.2d 939 (Tex.Cr.App.1971). Drain is clearly distinguishable on its facts as noted by the original dissenting opinion. Drain never testified to having read the indictment, etc., nor was he ever asked if the indictment or its allegations were true and correct.

.Most attorneys think of a “judicial confession” as being a detailed interrogation of the defendant, usually on cross-examination, with the indictment being used as a guide, where the defendant admits to each element of the offense during the course of his testimony. This may well be the better practice and most desirable way to elicit a judicial confession. We cannot say that when the indictment is read to the defendant on the witness stand and he states the allegations therein are true and correct the interrogation does not constitute a judicial confession. Also, where the record shows the indictment was read to the defendant or that he knows or understands the contents and he admits the allegations are true and correct, such is a judicial confession.