JOVELL WALLACE v. THE STATE OF TEXAS--Appeal from 24th District Court of Jackson County

NUMBER 13-03-436-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOVELL WALLACE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Jackson County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

Appellant Jovell Wallace pleaded guilty without the benefit of a plea bargain to the charge of delivery of cocaine in a drug-free zone, enhanced.[2] After an evidentiary hearing on punishment, the trial court sentenced him to a fifteen-year term in the Texas Department of Criminal JusticeBInstitutional Division. By two issues, Wallace asserts that the evidence is legally insufficient to sustain the guilty plea and that the punishment imposed amounts to cruel and unusual punishment. We affirm.

I. RELEVANT FACTS

The indictment alleged that, on or about June 20, 2002, within one thousand feet of a drug-free zone, Wallace intentionally and knowingly delivered less than one gram of cocaine. The indictment contained an enhancement paragraph alleging that Wallace had previously been convicted of felony delivery of cocaine on March 30, 1998.

 

On June 10, 2003, Wallace executed a sworn plea memorandum (which included an attachment titled, "Exhibit A," containing admonishments) indicating he was pleading guilty.[3] The documents were filed of record on the same day. During the plea hearing, the trial court asked Wallace if he read, understood, and signed the plea memorandum, and he affirmed he did. Wallace admitted he signed the document freely and voluntarily. He stated he chose to waive his right to a jury trial, plead guilty without a plea bargain, and have the court assess punishment.[4] The trial court made inquiries as to Wallace's understanding of the rights he was giving up and the voluntariness of his waivers, and Wallace acknowledged that he understood his rights and was waiving them voluntarily. The trial court then went over the range of punishment. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05). Wallace admitted he understood the range of punishment was two to twenty years with a possible fine up to $10,000. To the charge of unlawful delivery of a controlled substance in a drug-free zone, Wallace pleaded guilty, as follows, in part:

The Court: Are you pleading guilty because each and every allegation made in the indictment in this case is true and correct and you are guilty of the same?

[Wallace]: Yes, sir.

The Court: And, are you pleading guilty today freely, intelligently, knowingly and voluntarily?

[Wallace]: Yes, sir.

During the same proceeding, the prosecutor questioned Wallace as follows:

[Prosecutor]: Mr. Wallace, are you now looking at the indictment in Cause Number 02-11-6717 in the District Court of Jackson County, Texas? Are you looking at the indictment?

[Wallace]: Yes, sir.

[Prosecutor]: Do you stipulate and agree that all the matters contained within the indictment are true and correct?

[Wallace]: Yes, sir.

[Prosecutor]: Do you further stipulate and agree that if the State called their witnesses in they would testify to sufficient facts to prove your guilt beyond a reasonable doubt as to all those matters contained within the indictment?

 

[Wallace]: Yes, sir.

However, as Wallace points out in a sub-issue, he was not sworn.

Even so, the plea memorandum and written admonishments were given to Wallace, and they were signed by both Wallace and his trial counsel.[5] The admonish-ments state that Wallace (1) understands the admonishments and the consequences of his plea, see id., (2) waives his rights under article 1.14 of the Texas Code of Criminal Procedure;[6] and (3) agrees to the stipulation of evidence as follows:

(d) STIPULATION OF EVIDENCE. Pursuant to Art. 1.15 C.C.P., the defendant consents in writing, in open court, to waive and does waive the appearance, confrontation and cross-examination of witnesses. The defendant further consents to an oral stipulation of the evidence and testimony and to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary [end of sentence].

 

(e) WAIVER OF SELF-INCRIMINATION. . . . The defendant waives the right of self-incrimination, understanding that a defendant cannot be compelled to be a witness nor give evidence against himself or herself, that a defendant has the right to remain silent, is not required to make any statement, and that any statement a defendant makes may be used against him or her. The defendant agrees to testify if called as a witness and judicially confesses under oath that each and every allegation contained in the indictment or information which is not waived by the State is true and the defendant is guilty of the offense as charged.

Without any objection from Wallace, the trial court accepted his guilty plea after ascertaining that he pleaded guilty for no other reason than that he was guilty and not because of any promise made on behalf of the State.

 

The trial court convened a punishment hearing the following day. Wallace pleaded true to the enhancement paragraph.[7] For the State, several law enforcement officers and jailers testified regarding incidents of Wallace's conduct throughout his different arrests. Judgments were admitted in evidence, reflecting his convictions for felony delivery of cocaine in a drug-free zone, misdemeanor evading detention, misdemeanor failure to identify, and misdemeanor failure to identify fugitive from justice. Wallace testified on his own behalf. He stated, "I know I'm wrong." He asked that the trial court not assess the maximum punishment. On cross-examination, Wallace admitted that he (1) pleaded guilty on January 20, 1998, to delivery of cocaine, (2) used cocaine after pleading guilty for delivery of cocaine, (3) burglarized a vehicle on March 14, 1998, and stole a cell phone which he used to conduct drug deals, (4) used cocaine while awaiting sentencing for delivery of cocaine, and (5) had a gun in his possession on November 17, 2002. Before pronouncing sentence, the trial court asked Wallace whether he had anything to say as to why sentence should not be pronounced against him. Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004 05). Wallace stated, "No, Your Honor." The trial court imposed a fifteen-year prison term.

II. LEGAL SUFFICIENCY

By his first issue, Wallace asserts that the evidence is legally insufficient to support his guilty plea under article 1.15 of the Texas Code of Criminal Procedure.[8] Id. art. 1.15 (Vernon 2005). The State counters that the evidence is legally sufficient because Wallace orally confessed to the charged offense, and the trial court relied on his oral and written stipulations.

A. Standard of Review

 

In a bench trial, a plea of guilty will not support a felony conviction unless the State introduces sufficient evidence to support the plea. Id;[9] Johnson v. State, 722 S.W.2d 417, 422 (Tex. Crim. App. 1986) (en banc); Brewster v. State, 606 S.W.2d 325, 329 (Tex. Crim. App. 1980). The evidence is considered sufficient under article 1.15 if it embraces the essential elements of the offense charged and establishes the defendant's guilt. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). A judicial confession that encompasses the essential elements of the offense will, standing alone, discharge the State's burden under article 1.15. See, e.g., Craven v. State, 607 S.W.2d 527, 528 (Tex. Crim. App. [Panel Op.] 1980) (en banc); Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1980) (per curiam) (op. on reh'g).

B. Discussion

 

In a sub-issue in his first issue, Wallace asserts that his oral statements were unsworn. He further asserts that the plea memorandum was neither sworn to nor admitted in evidence and was, thus, ineffective. However, Wallace signed the plea memorandum under oath, and by his oath admitted "that each and every allegation contained in the indictment . . . is true and the defendant is guilty of the offense as charged." Wallace's sworn statement was a judicial confession. See Dinnery, 592 S.W.2d at 352. A judicial confession, standing alone, is an equally acceptable method of providing sufficient evidence to sustain a conviction on a guilty plea. Id. at 353 (stating that a judicial confession is generally defined as a confession made in a legal proceeding). Id. Moreover, article 1.15 does not require that the defendant swear to a stipulation of his guilt. See Jones v. State, 857 S.W.2d 108, 110 (Tex. App.BCorpus Christi 1993, no pet.). The plain language of the article requires that the waiver and consent "be filed in the file of the papers of the cause." Id. Here, the sworn document containing Wallace's waiver and consent was filed with the clerk of the court and is part of the appellate record in compliance with article 1.15. Further, the trial court treated the written stipulation and judicial confession as though it was formally admitted in evidence. Wallace did not object. Thus, both the waiver and confession may be considered in support of the judgment as if they had been formally admitted.[10] See Killion v. State, 503 S.W.2d 765, 766 (Tex. Crim. App. 1973); Kissinger v. State, 501 S.W.2d 78, 79 (Tex. Crim. App. 1973).

C. Disposition

Wallace asserts that the State offered no evidence to support his guilt. However, he concedes that in reviewing the sufficiency of stipulated evidence to support the trial court's finding of guilt, we view stipulations as if they were actual witness testimony. Robinson v. State, 739 S.W.2d 795, 799-800 (Tex. Crim. App. 1987) (en banc) (per curiam). The indictment alleged Wallace delivered cocaine in a drug-free zone. The sworn stipulations involved his admission that each allegation in the indictment was true and correct and that the State's witnesses would testify as to all matters contained in the indictment beyond a reasonable doubt. In the sworn court document, Wallace consented to the process by which evidence supporting his guilty plea was established.[11]

 

We conclude that Wallace judicially admitted his guilt. The stipulated testimony of the witnesses embraced every essential element of the offense charged and manifests Wallace's guilt. See Brewster, 606 S.W.2d at 329. Thus, Wallace's judicial confession, standing alone, provides sufficient evidence to support the trial court's judgment and satisfies the requirements of article 1.15. Dinnery, 592 S.W.2d at 353. Viewed in the appropriate light, we conclude the evidence was legally sufficient to sustain the finding of guilt and satisfies the requirements of article 1.15. See Lord v. State, 63 S.W.3d 87, 92 (Tex. App.BCorpus Christi 2001, no pet.) (citing Dinnery, 592 S.W.2d at 353); Williams v. State, 483 S.W.2d 460, 461 (Tex. Crim. App. 1972). We overrule Wallace's first issue.

III. CRUEL AND UNUSUAL PUNISHMENT

By his second issue, Wallace asserts that the sentence imposed constitutes cruel and unusual punishment.[12] He concedes that the sentence imposed is within the applicable range of punishment. The State counters that Wallace forfeited error and, alternatively, the sentence was neither disproportionate nor illegal.

 

A sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal on its face. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Mizell, 119 S.W.3d at 806 n.6. Here, however, the sentence assessed by the trial court was within the statutorily permissible range.[13] We find no reversible error in the sentence imposed.

Further, with respect to any allegation that the sentence was disproportionate, Wallace did not object at sentencing on the cruel and unusual or disproportionate-to-the-offense grounds he raises on appeal. "Our law is well established that almost every right, constitutional and statutory, may be waived by the failure to object." Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref'd). We conclude that Wallace forfeited at trial his challenges on appeal to the sentence imposed. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). We overrule his second issue.

IV. CONCLUSION

Having overruled both issues, we affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

 

 

[1] See Tex. R. App. P. 47.2, 47.4.

[2] See Tex. Health & Safety Code Ann. '' 481.112(b), 481.134(5) (Vernon 2003 & Supp. 2004-05).

[3] See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989).

[4] Included in the plea memorandum was a statement that the plea was being entered freely and voluntarily, and that appellant was totally satisfied with the representation provided by his counsel.

[5] In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 821 (Tex. Crim. App. 2002). The plea memorandum states:

On this day the defendant in the above captioned cause appeared before me, the undersigned clerk, and after being duly sworn stated under oath: "I am the defendant in this cause. I have read this PLEA MEMORANDUM, including the Exhibit A, understand all the information in it, am waiving the rights as stated in it, and swear that all the allegations of fact contained in it are true and correct."

Wallace signed the form. Underneath his signature is a jurat indicating that Wallace subscribed and swore to the statements in the document. It was also signed by the district clerk, signed and agreed to by both the prosecutor and defense counsel, and approved and signed by the trial court.

[6] Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon 2005).

[7] Wallace's plea of true relieved the State of its burden to prove the enhancement allegations. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (en banc) (op. on reh'g).

[8] A non bargaining defendant pleading guilty may be able to appeal an error not raised on a written pre trial motion, if it is otherwise preserved and survives Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000) (en banc). An open plea of guilty "forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error." Young, 8 S.W.3d at 667. We conclude that Wallace's first issue is one in which "the judgment would not be supported" absent the error. Id. Moreover, the Court of Criminal Appeals has stated in the past that "an appellate court must always address challenges to the [legal] sufficiency of the evidence." Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) (citing McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996) (op. on reh'g); Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986) (en banc)). A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so. Id. (citing Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998) (en banc); Lemell v. State, 915 S.W.2d 486, 490 (Tex. Crim. App. 1995) (en banc)).

[9] Article 1.15 states: "The evidence may be stipulated if the defendant . . . 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." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).

[10] "[N]othing in the record suggests that [Appellant's] judicial confession was admitted into evidence, and we do not presume that it was. On the other hand, we also do not presume that it was not." See McDougal v. State, 105 S.W.3d 119, 121 (Tex. App.BFort Worth 2003, no pet.).

[11] That procedure, when properly founded in compliance with article 1.15, provides evidence supporting a resultant conviction. See Brewster v. State, 606 S.W.2d 325, 329 (Tex. Crim. App. 1980). Wallace also personally confirmed to the trial court that he made the verified stipulation bearing his signature. Id.

[12] As grounds, Wallace asserts the evidence does not show the offense occurred in a drug-free zone, loss of life, serious injury, or monetary loss. Wallace further asserts that he has matured.

[13] See Tex. Health & Safety Code Ann. '' 481.112(b), 481.134(d)(1) (Vernon 2003 & Supp. 2004-05); Tex. Pen. Code Ann. _ 12.42(a)(3) (Vernon Supp. 2004-05).