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465 S.W.2d 939

Drain v. State

Court of Criminal Appeals of Texas

Decided April 20, 1971

Court of Criminal Appeals of Texas · decided 1971-04-20

Key passage — most relied on by later courts

““MR. GARNER: A few moments ago, I made certain waivers of your constitutional rights including the reading of the indictment in each case and the right to a trial by jury in each one of these cases and the appearance of witnesses for and against you in each one of the cases, and you also agreed that the assistant district attorney could stipulate prima facie cases into the record in each of the five cases; did I have your authority and permission to do this ? “THE DEFENDANT: Yes, sir. “MR. GARNER: I further entered your plea of guilty to the indictments charged in each of these five cases. Do you now tell the Court under oath that I had your permission and authority to make these waivers and to enter your pleas of guilty in these five cases ? “THE DEFENDANT: Yes. “MR. GARNER: Are you entering your plea of guilty in each of these five cases because you are guilty and for no other reason? “THE DEFENDANT: Yes, sir. “MR. GARNER: Are the matters stipulated by the District Attorney in each one of those cases substantially true and correct? “THE DEFENDANT: Yes.””

quoted by 2 later decisions, including Wallace v. State, Morris v. State

“`The requirements of Article 1.15, supra, relating to stipulated testimony, are two-fold. First, the defendant must consent in writing and in open court to waive the appearance, confrontation and cross-examination of witnesses. This was fully complied with in the case at bar.”

quoted by 1 later decision, including Martinets v. State

Relies on Orozco v. State · Elder v. State · Rangel v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1971-04-20

How this case has been cited

Cited by 20 later decisions — most recently July 2009

20 state decisions

1601971198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

ROBERTS, Judge.

¶2 This is an appeal from a conviction for felony theft. Trial was before the court on a plea of guilty. The punishment was assessed at two years.

¶3 The appellant, in his third ground of error, alleges that insufficient evidence was introduced to support his plea of guilty. We believe, that this contention is with merit. The record contains the appellant’s agreement to stipulate testimony and a waiver of jury. No written judicial confession appears in the record.

¶4 Oral stipulations concerning this cause were dictated into the record. The *940 stipulations were to the effect that a television set was acquired in Dallas County by means of a fraudulent check and that appellant was one of the co-conspirators to the crime.

¶5 The defendant then took the stand and testified as follows:

“Q Your name is Dyon Weslie Drain?
“A Yes, sir.
“Q And you heard me make several waivers for you, and did I have the right to make those waivers for you?
“A Yes, sir.
“Q And are you guilty of this charge and are you pleading guilty because you are guilty and for no other reason?
“A Yes, sir.
“MR. SMITH: I believe that is all.
“THE COURT: Do you acknowledge to the Court that his name is Dyon Weslie Drain and he waives further arraignment?
“MR. SMITH: Yes, Your Honor.
“THE COURT: All right. Drain, the Court will accept your plea and find you guilty on your plea, and the Court will assess your punishment at confinement in the Texas Department of Corrections for a period of two years. Do you have anything to say why you should not be sentenced at this time?
“THE DEFENDANT: No, sir.
(Whereupon, the defendant was sentenced by the Court.)”

¶6 Art. 1.15, Vernon’s Ann.C.C.P., provides: (Emphasis added)

“ … unless in felony cases less than capital the defendant, upon entering a plea, has in open court in person waived his right of a trial by jury in writing; provided, however, that it 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. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed, with all of such evidence, in the file of the papers of the cause.”

¶7 The above stipulations being oral and not written are in violation of Art. 1.15, supra, and cannot be considered as evidence to support the plea of guilty. Elder v. State, Tex.Cr.App., 462 S.W.2d 6; Rodriguez v. State, Tex.Cr.App., 442 S.W.2d 376. See also: Rangel v. State, Tex.Cr.App., 464 S.W.2d 858, 1971.

¶8 The testimony of the appellant herein is not a judicial confession, but is merely an additional admonishment by counsel. 1

¶9 For the reasons pointed out above, the judgment is reversed and the cause is remanded.

1

¶10 . A judicial confession is sufficient to support a conviction after a plea of guilty. A procedure used in many of the trial courts of this State is recommended; after a plea of guilty the defendant testifies before the court and judicially confesses the elements of the offense.

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