Robert Leroy Green, Jr. v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00135-CR

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ROBERT LEROY GREEN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30137-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Robert Leroy Green, Jr., appeals from his jury conviction, on a guilty plea, for burglary of a building. In his points of error numbered one through four, Green asserts the evidence was legally and factually insufficient to convict him under state and federal law. In his fifth point of error, Green asserts the trial court erred in convicting him because he pled guilty to a count which had been abandoned by the State. We affirm.

Background

The indictment contains two charging paragraphs, paragraph A charging that Green

with intent to commit theft, enter[ed] a building or a portion of a building not then and there open to the public without the effective consent of Donna Stinson, the owner thereof,

and paragraph B charging that he

intentionally or knowingly enter[ed] a building and a portion of a building not then and there open to the public without the effective consent of Donna Stinson, the owner, and did therein attempt to commit and commit theft of property, to-wit: one cutting torch, three radios, one paint pump, two flashlights, and three ladders, of Donna Stinson, the owner.

After Green told the trial court he would plead guilty to burglary and true to prior enhancement offenses, the trial court, in the presence of the jury, (1) had the State elect to read one of the two charging paragraphs of the indictment, (2) heard the State read paragraph A of the indictment, (3) received Green's guilty plea to that count, (4) received Green's true plea to the enhancement offenses, (5) instructed the jury to find Green guilty, and (6) conducted Green's punishment trial to the jury.

Analysis

In his first four points of error, Green challenges the sufficiency of the evidence to support his conviction. In felony cases, when the defendant pleads guilty in the presence of the jury, he or she thereby admits all elements needed to establish guilt and avoids the need for the State to produce evidence of his or her guilt. Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984) (guilty plea before jury establishes guilt; evidence of guilt necessary in case of guilty plea before only trial court, but not where plea before jury); Schumacher v. State, 72 S.W.3d 43, 51 (Tex. App. Texarkana 2001, pet. ref'd). Once such a guilty plea is made before the jury, there is no question on appeal regarding the sufficiency of the evidence to support the conviction. Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988) (op. on reh'g); Schumacher, 72 S.W.3d at 51. We overrule Green's first four points of error.

In his final point of error, Green asserts that he did not plead to the charge contained in paragraph A of the indictment, but to the charge contained in paragraph B, and that therefore his conviction was error. Green focuses his argument on the "Stipulation of Evidence" and the evidence adduced by the State and argues that such evidence tended to prove the charge in the indictment's paragraph B, not that in paragraph A. Notwithstanding the Stipulation of Evidence and the evidence adduced by the State, the record reflects Green clearly pled guilty to the charge contained in paragraph A which had just been read to the jury immediately before Green's guilty plea and was, in context, tied to the charge in paragraph A. And, as we have noted above, since Green pled guilty in the jury's presence, no more evidence than his guilty plea was needed to establish his guilt. We overrule Green's final point of error.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 29, 2003

Date Decided: January 9, 2004

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