dissenting.
Remaining convinced of the soundness of my treatment of this cause on original submission, I take this opportunity only to identify some of the more presumptuous assertions expressed by the majority on rehearing, as well as to re-emphasize crucial portions of the instant proceeding which, through disregard, the majority has apparently deemed inconsequential.
The sole ground of error raised herein is recited verbatim in the opinion on original submission. While a bare assertion that “under the doctrine announced in Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978), this conviction cannot stand,”1 may be characterized as “general,” “vague” and “technically defective,” this Court, upon consideration of such assertion, is able to identify and understand the point of objection; thus our treatment of this imperfect ground of error is required by operation of pertinent portions of Article 40.09, §§ 9 and 13, V.A.C.C.P.2 Far from “seizing upon Ex parte Moffett . . . ” as indicted by the majority en banc, this writer surely did no more through the original disposition of this case than did the author of Reid,3 — also author of the majority on rehearing here— where reversal occasioned unassigned error *355of the nature presented here: a stipulation of evidence admitting to acts constituting a crime but different from the acts alleged in the indictment.4 [See n. 4, opinion on original submission.]
The majority on rehearing recognizes the inconsistency between the indictment allegations and the conduct admitted by appellant in his written stipulation of evidence, but the majority nullifies any significance of such inconsistency by revealing that “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 committing theft,” thus implying that the “wrong” form was selected. Such an implication — which is in no wise supported by the record as I read it5 — rejects outright the idea that the appellant was possibly, in fact, guilty of the conduct he confessed in the stipulation of evidence; such presumption further assumes beyond a reasonable doubt that appellant, instead, committed the acts charged in the inconsistent indictment. More perilous still, such presumption abrogates the presumption of innocence accorded every individual accused of a crime.6
Having thus glossed over the import of the contents of appellant’s written stipulation, it is but characteristic for the majority opinion to omit completely the facts that: (1) the State introduced only the written stipulation as State’s Exhibit No. 1, then rested; (2) the trial court asked appellant whether the contents of the stipulation were true, to which appellant replied “yes;” (3) the trial court advised appellant he would be finding him guilty on the basis of his stipulation;7 and finally, after appellant had been sworn and affirmed on direct examination that he had “gone over that indictment with [his attorney]” and “it is true and correct,” (4) defense counsel also elicited from appellant that the stipulation was “true and correct.” [See opinion on original submission for sequential recitation of these proceedings.]
It is not disputed that during the proceeding appellant once orally affirmed that the indictment “is true and correct.” The question then, is twofold: whether such affirmation comprised a “judicial confession” which in turn constituted “evidence” sufficient to support the conviction; and, to what extent such affirmation is affected by the remainder of the record which reflects three admissions by appellant — one in written detail — to conduct variant from that alleged in the indictment? This troublesome question is easily dispensed with by the majority opinion through ignoring ev*356ery reference contained in the record to the written stipulation, then merely labeling as a “judicial confession” appellant’s affirmative answers to defense counsel’s queries as to whether he had read the indictment and whether “it was true and correct.”
This justification for the majority’s result is unacceptable to me for two reasons: First, from a complete reading of the transcription of the court reporter’s notes, the impartial observer is unable to discern exactly to what this appellant intended to, and did in fact, plead guilty. Thus the record patently reveals that appellant’s entry of the guilty plea was neither a knowing nor intelligent act,8 and, further, that the effectiveness of his counsel is doubtful. Compare Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974). A collateral attack of this conviction is alone justified for this reason under Ex parte Moffett, supra.
Secondly, the majority opinion’s crucial determination — “that [appellant’s testimony regarding the indictment] was tantamount to a statement that all the allegations of the indictment were true and correct and was a judicial confession ” — is made without principled and reasoned authority to support it.9 While it is ostensibly “well settled” that a judicial confession standing alone is sufficient to sustain a conviction *357upon a guilty plea,10 the law is far from settled as to what constitutes a judicial confession.11 The majority opinion cites two errant cases to support its expansion of the “judicial confession” line of cases to include the facts of the instant case.12 A *358review of the other cited authorities reveals that in no case was the evidence sustained as alone sufficient by a reflection in the record of anything even resembling what is characterized here as a “judicial confession.”13 Indeed, had the procedures evidenced by the later cited cases been employed here, this writing would be obviated. Additionally, it cannot be overlooked that this Court was not presented with facts by any of the cited authorities, which were in the posture of the instant case, e. g., a single affirmation that the indictment is true vis-a-vis three affirmations that the inconsistent stipulation of evidence is true.
In my view, this case serves to illuminate the past error of loosely labeling a word or words of various defendants as “a judicial confession” without regard for the policy considerations advanced by Article 1.15, V.A.C.C.P. Why does that provision prescribe “that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same[?]” Why does Article 1.15, supra, then provide methods of evincing the sufficiency of the evidence: the accused’s consent “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[?]” Clearly, Article 1.15, supra, provides prophylaxis, when applied in a manner consistent with its intent, against a proceeding such as the one before us in which it cannot be ascertained from *359the record precisely what acts the accused has confessed.14
Remaining convinced that a fair reading of this record as a whole supports the conclusion that the words seized upon by the majority do not constitute “any evidence” which will support the judgment of conviction, I would so hold. At a minimum, I would hold that the record affirmatively reflects that the plea was entered unintelli-gently. For these reasons, I respectfully dissent.
ROBERTS and PHILLIPS, JJ., join.. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Indeed, the majority on rehearing has treated and disposed of this cause in a manner which reflects a perception of the merits presented to be the same as that perceived by the majority on original submission, and by the State in its brief.
.Reid v. State, 560 S.W.2d 99 (Tex.Cr.App.1978).
. A careful reading of the dissent filed on original submission reveals that author’s quarrel to be primarily with what is now settled law: that authorization of conviction on a theory not alleged in the State’s indictment constitutes fundamental error. See Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977) and its progeny, including Whitlow, supra.
. Without indicia from the record, it is curious that the asserted error in form selection is so “obvious” to a majority of this Court, when such error was clearly not obvious to appellant, (who signed the “wrong” form under oath in open court), his attorney, the prosecutor or the trial judge, all of whom approved the “wrong” form by signature. Moreover, during his sworn testimony appellant reaffirmed that the written stipulation was “true and correct,” as excerpted in some detail in opinion on original submission.
. Section 2.01, V.T.C.A. Penal Code provides:
“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been . . . indicted for . . the offense gives rise to no inference of guilt at his trial.”
Article 38.03, V.A.C.C.P. prescribes:
“The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case of reasonable doubt as to his guilt he is entitled to be acquitted.” -
Article 1.15, V.A.C.C.P. mandates that in cases where the defendant elects to plead guilty to a criminal offense,
“. . .it shall, [however], be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his [guilty] plea without sufficient evidence to support the same.
.See recitation of Article 1.15, V.A.C.C.P. set out in n. 6, supra.
. In the last sentence of footnote 7 the majority opinion curiously notes that "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.”
The majority opinion,‘however, does not address the significance of a reflection by the record that the defendant does not know or understand what is contained in the charging instrument returned against him.
. Henderson v. State, 519 S.W.2d 654 (Tex.Cr.App.1975), which the majority suggests the reader see and compare, demonstrates the point. It does, indeed, contain the three sentences and reference to Battiste v. State, 485 S.W.2d 781 (Tex.Cr.App.1972) set out near the end of the majority opinion, but upon analysis it is shown to be a startling affirmation of idiomatic decision making. In Battiste the accused aborted a jury trial in progress by announcing his desire to change his plea to guilty; the trial court duly admonished him of the consequences of his plea and accepted it; the accused executed a written judicial confession. The State then reintroduced all evidence presented to the jury and introduced the signed judicial confession. Accused took the stand and, in what detail we are not informed, made an oral judicial confession. Reciting all this, the Battiste opinion then summarily states, “It is clear that a judicial confession, standing alone, would be sufficient to support a guilty plea.” Battiste does not identify which “judicial confession” is sufficient, but it does cite as primary authority Alvarez v. State, 374 S.W.2d 890 (Tex.Cr.App.1964). Alvarez holds that the testimony of Alvarez as to the theft with which he was charged, that is summarized as we will quote it, “is a judicial confession and as such needs no corroboration,” viz:
“In the instant case, after his plea of guilty, appellant was placed on the stand and testi-fled that each and every allegation contained in the indictment was true and correct; that he was the same Hector G. Alvarez named in said indictment, and that he took possession of the tape recorder, over the value of $50.00, without the owner’s consent and with the intent to appropriate it to his own use. He further testified that the theft in question took place in Bexar County, Texas.”
The other direct authority cited by Battiste is 2 McCormick & Ray, Texas Law of Evidence § 1223, wherein it is stated that the rule requiring corroboration of extrajudicial confessions is not applicable to formal judicial confessions. Battiste also invites seeing Bell v. State, 455 S.W.2d 230 (Tex.Cr.App.1970) and Drain v. State, 465 S.W.2d 939 (Tex.Cr.App.1971). In Bell appellant did not testify but executed a written stipulation in which he judicially confessed; holding that writing sufficient to support the conviction, the Bell court pointed out that it “recites all of the elements of the offense of statutory rape, and such affidavit is of probative value.” Drain, on the other hand, held that his testimony was not sufficient because it did not constitute a judicial confession, pointing out in a footnote a recommended procedure whereby the accused “testifies before the court and judicially confesses the elements of the offense." Thus, from this examination of the authorities cited by Battiste, the judicial confession which, standing alone, was thought sufficient to support a plea, is one that confesses to the elements of the offense charged — just as in Alvarez, from the witness stand, in Bell, by written affidavit, and in Drain, again from the witness stand.
The Henderson statement and result, therefore, are not authorized by “seeing” Battiste, and Henderson cites no other authority. The Battiste idiom does not fit the Henderson form.
. But see opinion on original submission, footnote 11, discussing the apparent evolution of such principle.
. Merely saying, as the majority does, that a judicial confession is one made in a legal proceeding, such as “a confession made in open court during the course of trial” and citing textual material or cases like Speer v. State, 4 Tex.App. 474, 479 (Ct.App.1878) that does so, is not too helpful in defining a judicial confession.
Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707, 708 (1958), also cited by the majority, is more instructive. Charged with driving while intoxicated, Fancher was reported by a testifying officer to have made an extrajudicial confession that he was driving the automobile; testifying in his behalf, however, Fancher denied that he was the driver, claiming that another had been. In finding sufficient proof of corroboration of the extrajudicial confession to establish the corpus delicti, the Court pointed to appellant’s own factual testimony that he was the owner of the car, and opined that by that testimony appellant himself “supplied a very material element of the corroboration necessary.”
Harper v. State, 148 Tex.Cr.R. 354, 187 S.W.2d 570 (Tex.Cr.App.1945), when examined beyond the shorthanded paraphrasing by the majority, provides better illumination for my own view. Thus, like Fancher, supra, Harper had made an extrajudicial confession detailing the murder he was charged with committing; but testifying at trial Harper claimed the confession was extorted from him by force and threats. Nevertheless, his trial testimony admitted “every fact contained in the purported confession” except two gruesome acts of maiming. The Court held that his “evidence given in court was a judicial confession of his guilt by which he is bound,” id. at 571, and was sufficient to support the verdict even if the purported written confession be entirely disregarded.
Harper was relied on by the Court in Ex parte Keener, 314 S.W.2d 93 (Tex.Cr.App.1958), also referred to by the majority. While what occurred does not, in my view, amount to a judicial confession, the holding and result seem sound enough. Keener entered a plea of guilty, his attorney and the prosecutor waived presence of witnesses and entered into a stipulation to the effect that if they were presented and testified they would testify to a certain state of facts. Keener then was sworn and he testified he had heard “this testimony as was stipulated” and that it was substantially true and correct. This is certainly not a confession of guilt nor an acknowledgement that allegations in the indictment are true and correct; rather Keener was actually admitting that certain facts to which witnesses could and would testify were true. That evidence through stipulation and his admission were held sufficient.
Martin v. State, 109 Tex.Cr.R. 101, 3 S.W.2d 90 (1927) is the final case cited by the majority in the paragraph discussing just what a judicial confession is. While it is used for the notion that a judicial confession need not be corroborated, the description of the actual confession — held to support a finding of guilt on a plea of guilty for unlawful possession of intoxicating liquor — is much more edifying; thus;
“. . The appellant himself took the witness stand in the trial of his case and admitted that he was in possession of the intoxicating liquor (introduced after being seized in a valid search) and that he had sold about a half gallon of it. His own testimony in the court below clearly shows his guilt.”
Thus, not a single case relied on by the majority for establishing a workable definition of a judicial confession comes even close to holding that it is the sworn testimony of an accused that the allegations in the indictment are true and correct. Rather, in each instance there was some material factual matter either “confessed” or admitted by the testifying accused.
.Henderson v. State, supra, which, upon being assayed in note 9, supra, turns out to be unsupported, and Cooper v. State, 573 S.W.2d 533 (Tex.Cr.App.1978) which compares Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978) for its authority. Not an apt comparison, for the problem in Potts was that her written judicial confessions of theft introduced by the State were full and complete in every respect except they did not expressly include an admission that the property was taken without the owner’s consent. Potts testified that the contents of the confessions were “substantially true and correct,” but did not otherwise supply the missing element of lack of consent. What the Court found it had to do in deciding sufficiency of the evidence was to look to the written confession. Canvassing two of the several decisions reviewed in footnote 11 of the opinion on original submission in this cause, the Potts court determined “that an affirmation of the indictment as true and correct will constitute a judicial confession,” and since the written confessions ended with the phrase “as charged in the indictment” and Potts affirmed those confessions, Article 1.15, V.A.C.C.P., was satisfied. In Cooper, however, there was no written judicial confession for him to affirm because what purported to be one stated an impossible date. Moreover, if in testifying Cooper did more than say he was pleading guilty just as charged in *358the indictment and that he was saying that he was guilty regardless of whatever punishment was assessed, the opinion does not indicate what it was; in this respect, then, without acknowledging that it is doing so, Cooper practically overrules the holding in Drain, supra, that it is not a judicial confession for a testifying accused to confirm that he is “guilty of this charge and . . . [is] . . . pleading guilty because ... [he is] ... guilty and for no other reason,” even though he had heard oral stipulations made in open court as to the facts of the matter.
. In Rodriguez, in addition to the accused’s sworn admission that the indictment allegations were true and correct, the State introduced evidence that the accused had shot a gun into an icehouse where he knew there were several people; in Wiley, in addition to the accused’s affirmation that the allegations in the indictment were true, the accused admitted, under oath, each element of the offense; in Sweeten, the prosecutor dictated the stipulation of evidence into the record specifically stating what each witness would have testified to, and when the accused was asked if the testimony, as the prosecutor had read it, was substantially true and correct, he stated “yes”; in Cevalles, a written confession admitting the elements of the offense was introduced into evidence by the State; in Battiste, the accused changed his plea to “guilty” in the course of a jury trial and the State reoffered all evidence which had been adduced before the jury, and introduced a written' stipulation of evidence and further adduced the accused’s sworn testimony; in Bishop, written stipulations of evidence in three causes were introduced and read in open court by the State, and the accused affirmed under oath that the contents were true; in Knight, a written statement in which the accused admitted each element of the offense was introduced by the State; in Sexton, detailed statements as to what the testimony of witnesses would be regarding two offenses, were dictated into the record by the prosecutor, and on cross examination after having been sworn, the accused affirmed that the salient elements of the offense were true; in Alvarez, the accused testified in detail as to the facts of the offense; in Sprinkle, a detailed stipulation of evidence was offered by the State, along with the testimony of witnesses, and the accused affirmed under oath that he had heard what the prosecutor read and it was all true; in Vasquez, an oral stipulation containing each element of the offense was dictated into the record, and the accused testified that he had heard the stipulation and it was reasonably true and correct; Ferguson focuses on whether grounds of error, complaining of an adverse ruling on motion to suppress, present anything for review when appellant judicially confesses to commission of the offense, rather than sufficiency of that confession to support a conviction. Ferguson does cant the familiar idiom that now appears to have first issued in Guerra v. State, 138 Tex.Cr.R. 120, 134 S.W.2d 679 (1939) where only 18 Tex.Jur. 183 is cited, and that reference is to a “confession” made in some other proceeding such as a coroner’s inquest, an examining trial and a grand jury investigation.
. Surely the aversion of post conviction collateral attacks on the grounds of ineffective assistance of counsel or the absence of a knowledgeable and intelligent plea entry, is not the least of the policy underlying the prescriptions of Article 1.15, supra. As well are considerations of protection of related rights of the accused against overreaching and equally to hold an accused accountable in futuro. We do not effectuate the intent and purpose of Article 1.15, supra, by finding that an oral affirmation of guilt drawn from an accused by his own counsel seeking to protect himself and by a perfunctory question from the prosecutor is sufficient compliance — especially where the oral aftirmation is contradictory of a written confession and of other sworn testimony. Instead the provisions are emasculated since the State is now relieved of carrying its burden of proof and the trial court of assaying evidence produced by the State. Thus, without any statutorily authorized process the accused is convicted on what is essentially no more than his plea — the very vice the statute was designed to combat! See Bolton v. State, 123 Tex.Cr.R. 543, 59 S.W.2d 833, 834 (1933); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460, 462-463 (1942); Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386 (1940); see also Franklin v. State, 140 Tex.Cr.R. 251, 144 S.W.2d 581 (1940).