Butler, Terrance Jarrod v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed October 7, 2004

Affirmedand Memorandum Opinion filed October 7, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00031-CR

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TERRANCE JARROD BUTLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 919,000

M E M O R A N D U M O P I N I O N

Appellant waived a jury trial and pleaded guilty to the felony of aggravated kidnapping. The trial court assessed punishment at twenty years confinement in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant contends the evidence was legally insufficient to support his conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant initially met with Officer Larry Allen in July of 2002 when the officer attempted to buy crack cocaine from appellant as part of a narcotics operation. Appellant later forced Officer Allen into a car at gunpoint and threatened to kill him. On August 9, 2002, the State filed an indictment that charged appellant with using and threatening to use deadly force in the officer s abduction. The indictment recited that this felony took place on or about July 24, 2002. R.R. at 7 (emphasis added). Appellant ultimately signed a judicial confession, waived his right to a trial by jury, and pleaded guilty. In addition to admitting that the indictment s allegations were true, appellant s judicial confession recited that he committed the offense on July 24, 2003. R.R. at 45 (emphasis added).

ANALYSIS

In his sole point of error, appellant contends that the evidence was legally insufficient to support his conviction because the State s proof showed that he committed a crime in 2003 while the indictment charged that he committed a crime in 2002. The State argues that appellant waived any objection to the variance between his indictment (alleging a 2002 offense date) and the proof (of a 2003 offense date) by failing to comply with Rule 33.1(a)(1) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 33.1(a)(1) ( As a prerequisite to presenting a complaint for appellate review, the record must show that. . .the complaint was made to the trial court by a timely request, objection, or motion. . . . ); Mackintosh v. State, 845 S.W.2d 361, 361 (Tex. App. Houston [14th Dist.] 1992, no pet.) (variances must be brought to trial court s attention to preserve error).

In this case, appellant s failure to object is not dispositive. Appellant was convicted only after he waived a jury trial and pleaded guilty as article 1.15 provides.[1] Article 1.15 is a mandatory statute. McClain v. State, 730 S.W.2d 739, 742 (Tex. Crim. App. 1987) (en banc). A criminal defendant cannot waive article 1.15 s requirement that the State introduce evidence showing his or her guilt. Id. at 741 ( [E]rror in failing to satisfy the mandatory requirements of the statute may be raised for the first time on direct appeal. ); Stewart v. State, 12 S.W.3d 146, 148 (Tex. App. Houston [1st Dist.] 2000, no pet.) ( [F]ailure to comply with this mandatory statute cannot be waived by the accused. ) (citing McClain); see also Keller v. State, 125 S.W.3d 600, 605 (Tex. App. Houston [1st Dist.] 2003, pet. granted) (limiting review to whether sufficient evidence supported the judgment of guilt under article 1.15 where appellant did not object in the trial court). Therefore, we will address appellant s assertion that the State failed to introduce evidence to support his conviction as article 1.15 requires.

The evidence the State introduces to support a conviction may consist of only a judicial confession. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979). The State introduced some evidence that did not vary at all from the indictment. Appellant s judicial confession, admitted as State s Exhibit 1, restated the allegation in the indictment on or about July 24, 2002, did then and there unlawfully, intentionally and knowingly abduct Larry Allen. . . . Appellant then acknowledged the truth of these charges in his judicial confession: I understand the above allegations and I confess that they are true. . . . This judicial confession, standing alone, satisfies article 1.15 s requirement that the State introduce evidence supporting appellant s conviction. See id.; Stewart v. State, 12 S.W.3d 146, 148 (Tex. App. Houston [1st Dist.] 2000, no pet.); Lemons v. State, 953 S.W.2d 825, 828 (Tex. App. Corpus Christi 1997, no pet.).

Although in the same judicial confession appellant states that the acts were committed on July 23, 2003, this is merely conflicting evidence. Burger v. State, 920 S.W.2d 433, 435 (Tex. App. Houston [1st Dist.] 1996, pet. ref d) ( 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. ). Contrary to appellant s assertions, this contradiction does not require reversal. See Boiles v. State, 662 S.W.2d 170, 172 (Tex. App. Austin 1983, no pet.) (upholding conviction where defendant pleaded guilty to the felony as charged in the indictment even though defendant s judicial confession stated a different offense date); Moraski v. State, No. 05-01-01929, 2003 WL 187422 (Tex. App. Dallas Jan. 29, 2003, pet ref d.) (not designated for publication) (upholding conviction where defendant confessed in a jury waiver to the offense charged in the indictment even though defendant s judicial confession stated a different offense date).

Because the State introduced legally sufficient evidence to support appellant s conviction, we overrule appellant s sole point of error and affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 7, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Article 1.15 addresses the procedure for a defendant accused of a felony to waive the right to trial by jury:

[I]t 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.

Tex. Code Crim. P. art 1.15.