Opinion
No. 14-05-00380-CR
Memorandum Opinion filed March 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 995,051. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN and FROST.
MEMORANDUM OPINION
Appellant, Walter Keith Groves, entered a no contest plea without a punishment recommendation to the felony charge of aggravated assault on a family member. TEX. PENAL CODE ANN. 22.02 (Vernon 2003). The trial court accepted appellant's no contest plea but deferred a finding of guilt until after the presentence investigation report (PSI) was completed. After reviewing the PSI and hearing testimony at the presentence investigation hearing, the trial court found appellant guilty and assessed punishment at ten years in prison. Appellant raises two issues on appeal: (1) the trial court violated his United States and Texas constitutional rights by sentencing him without a finding of guilt in open court; and (2) the trial court violated his United States and Texas constitutional rights by sentencing him when, as a matter of law, there was insufficient evidence upon which to make a finding of guilt. We affirm. In his first issue on appeal, appellant contends the trial court violated his United States and Texas constitutional rights by sentencing him without making an express oral finding of guilt. We disagree. The trial court admonished appellant on the consequences of his plea, accepted appellant's plea and deferred a finding of guilt until the presentence investigation hearing. At the end of the presentence investigation hearing the trial court assessed punishment at 10 years' confinement in prison. The written judgment recites that appellant was found guilty on February 7, 2005, the date of the presentence investigation hearing. While the trial court did not make an oral pronouncement of guilt, the judgment reflects that appellant was found guilty and sentenced. A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp. 2005). The absence of an express oral pronouncement of guilt by the trial court does not render the written judgment void. Parks v. State, 960 S.W.2d 234, 238 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (citing Villela v. State, 564 S.W.2d 750, 751 (Tex.Crim.App. 1978)). An oral pronouncement of guilt is not necessary when the written judgment and the sentence reflected therein comply with the Texas Code of Criminal Procedure and are supported by the record. See TEX. CODE CRIM. PROC. ANN. arts. 42.01 42.02 (Vernon Supp. 2005); Villela, 564 S.W.2d at 751; Parks, 960 S.W.2d at 238. We overrule issue one. In his second issue, appellant contends the trial court violated his United States and Texas constitutional rights by sentencing him when, as a matter of law, there was insufficient evidence upon which to make a finding of guilt. The State responds that appellant's waiver of a court reporter at the plea hearing prevents this Court from having an adequate record to review the sufficiency of the evidence. The State argues that appellant waived his right to challenge the sufficiency of the evidence supporting his conviction as he failed to bring forward a full statement of facts including a transcription of the plea proceedings. We agree with the State. When appellant entered his no contest plea on December 13, 2004, appellant expressly waived his right to have a court reporter make a record of the plea proceedings. Consequently, there is no court reporter's record from the plea hearing. In order to challenge the sufficiency of the evidence to support a judgment based on a plea of guilty or no contest, a defendant must bring forward a full statement of facts, including a transcription of the plea proceedings. See TEX. R. APP. P. 34.6(c)(5); Williams v. State, 950 S.W.2d 383, 385 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd.). In the present case, appellant's express waiver of the right to have a court reporter record his plea deprives this Court of a complete record from which to evaluate the sufficiency of the evidence. In the absence of a complete record, we must presume there was sufficient evidence to sustain and support the judgment. See Williams, 950 S.W.2d at 385. Without a statement of facts from the plea hearing, we cannot determine whether the evidence included in the transcript constitutes all of the evidence presented to the trial court. Campbell v. State, 942 S.W.2d 738, 740 (Tex.App.-Houston [1st Dist.] 1997, aff'd in part and rev'd in part on other grounds, 5 S.W.3d 693 (Tex.Crim.App. 1999). It is possible that at the plea hearing, appellant admitted committing the offense or that other evidence of guilt was presented. Id. Without a complete statement of facts, an appellate court cannot consider the facts of the case to determine whether or not sufficient evidence exists to support the conviction. Id. (citing Greenwood v. State, 823 S.W.2d 660, 661 (Tex.Crim.App. 1992) and Montoya v. State, 872 S.W.2d 24, 25 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd)). Due to his failure to provide a statement of facts from the plea hearing, appellant's challenge to the sufficiency of the evidence to support his conviction is overruled. In any event, even if appellant had presented a complete record to this Court, appellant's stipulation in the record is sufficient to support his conviction. A defendant charged with a felony offense may not be convicted on his plea of guilty or no contest alone; rather, the State must introduce sufficient evidence to support the plea. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005). The evidence is considered sufficient under Article 1.15 if it embraces every essential element of the offense charged and establishes the defendant's guilt. Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). 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). In this case, appellant modified the language in the "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" following the recitation of the charge so that it read: "I understand the above allegations and I stipulate that witnesses would testify that the acts alleged above were committed on July 11, 2004." (Italics represent interlineations made by appellant.) In addition, appellant executed the "Statements and Waivers of Defendant," which provide: "I have read the indictment and I stipulate that if the State's witnesses were sworn in and testified, they would testify that I committed each and every element alleged." These actions by appellant are nearly identical to the changes effected by the defendant in Stone v. State, 919 S.W.2d 424, 425 n. 2 (Tex.Crim.App. 1996). A defendant who pleads no contest need not concede the veracity of the evidence to which he stipulates, but if he does, the court will consider the stipulation to be a judicial confession. See Stone v. State, 919 S.W.2d 424, 426 (Tex.Crim.App. 1996). The Court of Criminal Appeals has routinely held a stipulation by a defendant that he does not contest the fact that the witnesses would testify he committed the alleged offense is sufficient to support the conviction in the context of Article 1.15. See id. Appellant's reliance on Pine v. State, 872 S.W.2d 25 (Tex.App.-Houston [14th Dist.] 1994, no pet.) is misplaced. In Pine, appellant pled not guilty and not true to the allegations in the indictment, and stipulated only that the State could introduce evidence to satisfy the State's burden under the DWI statute. Id. at 26. This Court observed that a stipulation that certain testimony could be offered is not a stipulation that such testimony would be true. Id. Accordingly, this Court held that the State failed to offer any evidence of appellant's guilt, requiring a reversal of the conviction and entry of a judgment of acquittal. Id. This Court's opinion in Pine does not address Article 1.15 in making its determination that the stipulated evidence was insufficient to support the conviction. Here, in contrast, appellant entered a plea of nolo contendere, which has the same legal effect as a plea of guilty. Stone, 919 S.W.2d at 426. He also signed two documents: the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession; and Statements and Waivers of Defendant. Appellant's statements in those two documents, set forth above, are consistent with precedent from the Court of Criminal Appeals that a defendant pleading no contest must only stipulate that he does not contest the fact that witnesses would testify he committed the alleged offense. Id. Appellant's stipulations here are sufficient to support a conviction in the context of Article 1.15. Id. (holding Court of Criminal Appeals has routinely found stipulation as to what witnesses would testify if present at trial is sufficient to support conviction in contest of Article 1.15). Because there was no such stipulation in Pine, it is of no moment here. In this case, the stipulated testimony of the witnesses embraced every element of the offense charged and was legally sufficient evidence to establish appellant's guilt. Therefore, it was adequate to support the trial court's judgment. Accordingly, we affirm the judgment of the trial court.
Other courts of appeals have consistently followed Court of Criminal Appeals precedent and ruled that a defendant pleading "no contest" must only stipulate that he does not contest the fact the witnesses would testify that he committed the alleged offense. Stone v. State, 919 S.W.2d 424, 426 (Tex.Crim.App. 1996). It is settled that, as a matter of Texas criminal law, the term stipulation, at least as used in Art. 1.15, includes agreements as to what particular evidence or testimony would be presented in full in open court, without conceding the truthfulness of that evidence or otherwise waiving the need for proof. Robinson v. State, 739 S.W.2d 795, 800-801, n. 5 (Tex.Crim.App. 1987). In order to be convicted under Art. 1.15, a defendant need not admit the truth of the prosecution's evidence. When a defendant does stipulate to the truth of the witness' testimony, such an admission constitutes a judicial confession. Stone, 919 S.W.2d at 426.