Marcus Levinsky Wade v. The State of Texas--Appeal from 265th District Court of Dallas County

wade TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00572-CR
NO. 03-94-00573-CR
Marcus Levinsky Wade, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF DALLAS COUNTY, 265TH JUDICIAL DISTRICT
NOS. F94-42090-R AND F94-42396-R, HONORABLE KEITH T. DEAN, JUDGE PRESIDING

Appellant Marcus Levinsky Wade appeals from convictions for the offense of burglary. Tex. Penal Code Ann. 30.02 (West 1994). In each case, the trial court assessed punishment, enhanced by a prior felony conviction, at imprisonment for forty-five years. In his sole point of error, appellant asserts that the evidence is insufficient to support his pleas of guilty to the offenses charged in the indictments. We will affirm the judgments.

When a plea of guilty is entered before the court in a felony case, the State must introduce evidence into the record showing the guilt of the defendant and in no event shall a defendant be convicted on his plea without sufficient evidence to support the conviction. Tex. Code Crim. Proc. Ann. art. 1.15 (West Supp. 1995). Evidence to support the conviction may be stipulated if the defendant in open court consents in writing and waives the appearance, confrontation, and cross-examination of witnesses. Id. The consent and waiver must be approved by the trial court in writing and the document filed in the papers of the cause. Id. A judicial confession is sufficient to sustain a conviction on a plea of guilty and to satisfy the requirements of Article 1.15. Dinnery v. State, 592 S.W.2d 343, 353-54 (Tex. Crim. App. 1979); Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. 1978); King v. State, 341 S.W.2d 654, 655 (Tex. Crim. App. 1960); Lopez v. State, 852 S.W.2d 695, 697 (Tex. App.--Corpus Christi 1993, no pet.) (evidence admitted during punishment phase of trial); see also Rexford v. State, 818 S.W.2d 494 (Tex. App--Houston [1st Dist.]), pet. ref'd, 823 S.W.2d 299 (Tex. Crim. App. 1991).

In reviewing the legal sufficiency of the evidence, an appellate court must determine whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991); Lopez, 852 S.W.2d at 697.

Appellant was charged with the burglary of two habitations. Each of the indictments alleged appellant's conviction of a prior felony to enhance his punishment. In each case, appellant waived his right to a jury trial and without the benefit of a plea bargain, entered a plea of guilty to the burglary charge and a plea of true to the enhancement allegation.

Appellant entered his pleas on July 29, 1994, and the court explained the charges and admonished appellant of the applicable punishment range. Appellant's pleas of guilty were accepted by the court, and appellant waived the reading of the indictments. The State offered and the trial court admitted State's Exhibits 1 and 2, which were appellant's signed and written judicial confessions, stipulations of evidence, factual summaries of the cases, and appellant's pleas of true. The causes were then reset for a punishment and sentencing hearing after the completion of a presentence investigation.

The statement of facts does not include State's Exhibits 1 and 2. The court reporter's notes explain that those exhibits are "contained in transcript." No documents in the transcript are marked as State's Exhibits 1 and 2. Appellant argues that since no documents in the transcript bear exhibit labels, the instruments found there do not appear to be the "judicial confession[s]" admitted in evidence.

In each case, the transcript includes the appellant's jury waiver and his consent to stipulate evidence all signed by appellant, his counsel, and the prosecutor. They were approved and signed by the trial court and filed in the papers of the trial court as required by Article 1.15. Included within those documents is appellant's judicial confession to each alleged offense:

 

I do further admit and judicially confess that I am the person named in the charging instrument and that I understand the charge contained therein and I am GUILTY of the offense of burglary of a habitation exactly as alleged in the charging instrument . . . and I confess that I did unlawfully commit the offense in Dallas County, Texas on the [dates alleged] exactly as alleged in the charging instrument . . . and agree that the Court can consider the evidence and stipulation of testimony in determining guilt . . . .

 

Those documents, as required by article 1.15, were filed in the papers of the cause, and they appear in the transcript in each case. The judicial confession which is an integral part of the filed documents in each case constitutes sufficient evidence to support appellant's convictions.

Appellant directs our attention to Pitts v. State, 896 S.W.2d 802 (Tex. App.--Dallas, pet. filed). The documents and procedural facts in this case are similar to those in Pitts, where the Fifth Court of Appeals found the evidence insufficient to support a guilty plea conviction. While we do not necessarily agree with the Pitts opinion, that case is distinguishable from the instant case. In Pitts, the court of appeals noted:

 

No oral or written stipulation of evidence appears in the record. Appellant gave no sworn testimony. The court did not ask appellant if he was pleading guilty because he was guilty. At no time did appellant testify that he read the charging instrument, nor was he asked if the charging instrument or its allegations were true and correct. We conclude this record contains no evidence to support appellant's conviction. We sustain appellant's third point of error.

 

Id. at 805. In this case immediately after State's Exhibits 1 and 2 were admitted in evidence, the appellant was asked, "Mr. Wade, you're pleading guilty to the indictment as it's alleged because you are guilty; is that right?" Appellant answered, "Yes." Since both cases were joined for trial we believe the reference to "indictment" in the singular referred to the indictment in each case. Moreover, there is other evidence in this case that distinguishes it from Pitts.

On August 11, 1994, after the presentence investigation was completed, appellant and his counsel appeared for the punishment and sentencing hearing, and the appellant was sworn and testified in answer to his counsel's questions.

 

Q: And both of these offenses were committed in order to get money to buy drugs; is that correct?

 

A: Yes, they were.

 

Q: In fact, during each one of these offenses, you were, at the time you were committing it, under the influence of drugs; is that correct?

 

A: Yes.

 

On cross-examination by the prosecutor, appellant testified:

 

Q: Mr. Wade, you previously entered a plea of guilty to each one of these cases admitting that you committed these offenses exactly as you're charged in the indictments; is that correct?

 

A: Yes.

 

Q: You've also entered pleas of true stating that the allegations regarding a previous conviction, previous felony conviction, is also true; is that correct?

 

A: Yes.

 

Q: And you're pleading guilty just exactly as you're charged and pleading true to each one of the enhancement paragraphs in each of the respective indictments; is that correct?

 

A: Yes.

 

While appellant was still on cross-examination he was asked about one of the offenses and testified:

 

Q: Well, what did you do to Ms. Childers, sir?

 

A: Well, when I went in, I didn't know anyone was there. I knocked on the door and I went in, and that's when I saw her there, and as I went through the room, she was following me around asking me to leave. You know, I told her I was on drugs and I asked for money, and she said, "No, just leave," and I was just putting stuff in my pocket as I went out the door.

 
* * *

Q: She's [Childers] not lying about the fact that you took her jewelry, took her credit cards, took other valuables, though, is she?

 

A: No, I took those things.

 

We hold that the evidence is sufficient to support appellant's conviction for burglary in each cause and to support the enhancement allegations.

The judgments are affirmed.

 

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices Davis* and Dally**

Affirmed

Filed: August 16, 1995

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

 

** Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).