Morris v. State

¶1dissenting.

¶2Appellant has been blindsided!

¶3The trial court found appellant guilty on his plea of “nolo contendere” to an indictment charging him with possession of cocaine. Pursuant to a plea bargain arrangement whereby the State dropped two enhancement paragraphs from the indictment, the trial court assessed the recommended punishment of seven years confinement. All parties agreed that appellant would appeal the trial court’s ruling on his pretrial motion to quash the indictment.

¶4Instead, in his sole ground of error before the First Court of Appeals in Houston appellant challenged the sufficiency of the evidence to support his plea as required by V.A.C.C.P., Article 1.15. In an unpublished opinion that court rejected the State’s responsive contention that it had no jurisdiction to entertain appellant’s ground of error under Y.A.C.C.P., Article 44.02, since the trial court had not given appellant permission to appeal this point. The court of appeals ruled that where the assertion is made that no evidence was raised to support an essential element of the offense, it could review the asserted error in the interest of justice, citing Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983). Having so ruled, however, the court of appeals then found the written stipulation entered into by appellant to contain a judicial confession, sufficient to support the plea under Article 1.15, supra.1Morris v. State, (Tex.App. — Houston [1st], No. 01-82-0534-CR, delivered December 15,1983). We granted appellant’s petition to review the court of appeals’ finding in this regard.

¶5The State also filed a petition for discretionary review, alleging substantially that which they had argued unsuccessfully to the court of appeals but upon which the majority now relies in overruling appellant’s petition, viz., that the court of appeals was without jurisdiction to entertain appellant’s sufficiency claim in the first place due to operation of Article 44.02, supra. On June 6, 1984, however, the Court refused the State’s petition for discretionary review. Now, without affording him notice or an opportunity to be heard on the matter, the majority has ignored appellant’s petition for discretionary review and *776resurrected the State’s. The “decision” of the court of appeals which we initially and specifically agreed to “review,” V.A.C.C.P., Article 44.45(b)(1), has been forgotten. To this action I cannot accede.

¶6Considering the merits of appellant’s petition for discretionary review, I would sustain his ground for review, and reverse and remand for entry of a judgment of acquittal. Because the majority does not, I dissent.

¶7The only evidence introduced at the plea hearing was State’s Exhibit No. 1, a form “WAIVER OF CONSTITUTIONAL RIGHTS, AGREEMENT TO STIPULATE, AND JUDICIAL CONFESSION.” By way of this document appellant waived his right to the appearance, confrontation and cross-examination of witnesses, in writing and in open court, as required by Article 1.15, supra. He also thereby consented to the oral and written stipulation of evidence and to the introduction of any affidavits, written statements of witnesses and any other documentary evidence. Other than the instant form, however, there was no such documentary evidence introduced.

¶8The “judicial confession” purportedly contained in this document consists of a recitation of the allegations in the indictment, viz: that on February 23, 1982 the appellant did unlawfully “intentionally and knowingly possess a controlled substance, namely, cocaine, weighing less than 28 grams by aggregate weight, including any adulterants and dilutants.” Following this recitation appears on the printed form; “I understand the above allegations and I confess that they are true and that the acts alleged above were committed on (Feb. 23, 1982).” Through handwritten deletion and interlineation this phrase was modified, presumably by appellant’s counsel, to read: “I understand the above allegations and I plead ‘no contest’ to the acts above alleged to have been committed on (Feb. 23, 1982).” The document was sworn to by appellant, and signed by the judge presiding. The court of appeals held this to constitute a judicial confession, sufficient in itself to support the conviction.

¶9A number of methods of satisfying the evidence requirement of Article 1.15, supra, short of a full blown presentation of witnesses and physical evidence, have been recognized and approved by this Court. Thus, affidavits or statements of witnesses and stipulations as to what witnesses would testify to if present have been found sufficient so long as every element of the alleged offense was embraced therein.2 When the defendant has also stipulated that what those witnesses would testify to is “substantially true and correct,” we have deemed it a judicial confession,3 though certainly in this context the confessional component is superfluous.4 We have also *777held that a judicial confession alone is sufficient to support a conviction under Article 1.15, supra. Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980).5 Accordingly we have sustained convictions where the accused has sworn, in writing or by testimony, that he committed the alleged offense, specifically admitting each element thereof.6 Additionally we have held the evidence sufficient when the accused has confirmed, by sworn testimony or written stipulation, that he had read and understood the indictment and that it was “true and correct,” 7 or that he committed the particular offense alleged therein.8

¶10The change made in the instant form effectively transformed what would undoubtedly have constituted a judicial confession, viz: “I understand the above allegations and I confess that they are true,” see Dinnery v. State, supra,9 into a simple, albeit sworn acknowledgment that appellant was in fact pleading no contest to the charge. The question arises whether his having sworn that he does not choose to contest the allegations provides “evidence ... showing the guilt of [appellant]” in satisfaction of Article 1.15, supra.

¶11While it is true, as the court of appeals recognized, that a plea of no contest has the same legal effect as a plea of guilty, Y.A.C.C.P., Article 27.02(5); Snyder v. State, 629 S.W.2d 930 (Tex.Cr.App.1982); Brewster v. State, 606 S.W.2d 325 (Tex.Cr. App.1980); and that the legal effect of a guilty plea, and ergo, a plea of nolo conten-dere, is an admission of guilt of the offense charged, a naked plea of guilty or no contest before the judge will not support conviction under Article 1.15, supra. Dinnery v. State, supra. Simply to invest the plea itself with the trappings of an oath does not elevate it to the status of evidence. Appellant merely swore to the fact that he understood the indictment and was pleading no contest to it. This does not amount to confirmation that such allegations are true and correct or that appellant committed the offense so alleged. Patently, as modified, the stipulation constitutes neither a “judicial confession” nor any other manner of evidence contemplated under Article 1.15 as necessary to support the trial court’s judgment. See Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980).

¶12In Drain v. State, 465 S.W.2d 939 (Tex.Cr.App.1971) an oral stipulation was dictated into the record in support of the judgment. Because as Article 1.15, supra, read at that time it did not authorize conviction upon oral stipulations,10 the Court proceeded to examine the defendant’s sworn testimony at the plea hearing. As set out, 465 S.W.2d at 940, that testimony was:

“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 *778right 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.”

¶13This was held not to constitute a judicial confession, and the conviction was reversed. For this Court to have held otherwise would have been tantamount to approving convictions in bench trials upon the entry of the guilty or nolo contendere plea alone, so long as the plea was entered under oath. “Thus, without any statutorily authorized process the accused [would be] convicted on what is essentially no more than his plea — the very vice the statute was designed to combat!” Dinnery v. State, supra, at 359, n. 14 (Clinton, J., dissenting). This we should refuse to do.11

¶14Accordingly, I would hold that the purported “JUDICIAL CONFESSION” in the instant case was not “evidence” for purposes of supporting the trial court’s judgment pursuant to Article 1.15, supra.

¶15The State refers us to the following colloquy from the statement of facts at the hearing on appellant’s plea:

“[PROSECUTOR]: This is a plea of guilty, Mr. Morris, and have you discussed with your attorney the effect of your signing this document?

DEFENDANT: Yes, sir.

[PROSECUTOR]: Now is it true that you are pleading no contest to the fact that you possessed cocaine?

DEFENDANT: Yes, sir, I am.

[PROSECUTOR]: In a quantity of less than twenty-eight grams; is that correct?

DEFENDANT: Yes, sir.”

¶16The State argues that because appellant thus stated he did not contest the fact that he possessed cocaine, (rather than, as in State’s Exhibit No. 1, that he did not contest the allegation he possessed cocaine), he thereby orally judicially confessed to the alleged offense. Any analysis of this asserted distinction is pretermitted, however, by the fact that the above colloquy was not sworn testimony. Appellant had not taken the witness stand and was not under oath. Therefore, as in James v. State, 640 S.W.2d 910, 911 (Tex.Cr.App.1982) (Onion, P.J., concurring on refusal of petition for discretionary review without written opinion), “[t]here was no judicial confession as such.”

¶17Because “the evidence introduced by the State to show the guilt of [appellant] and accepted by the trial court fail[s] as a matter of law to constitute sufficient evidence to support the judgment of conviction,” Thornton v. State, supra, at 348, an acquittal is mandated. See also LaFlore v. State, 595 S.W.2d 862 (Tex.Cr.App.1980).

¶18The judgment of the court of appeals should be reversed and the cause remanded to the trial court for entry of a judgment of acquittal.

¶19Nevertheless, as the majority addresses and decides the State’s petition in this cause, I find I must dissent to its resolution of that question as well.

¶20In Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983) the Court opined:

“Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute.”

¶21Id., at 469. The State argues, and now the Court holds, that Art. 44.02, supra, is a “valid restrictive statute,” limiting jurisdiction of the court of appeals under its terms to “those matters which have been raised by written motion filed prior to trial” or those matters not raised timely but nonetheless appealable by virtue of the accused’s having obtained “permission of the trial court.” I cannot agree.

¶22Prior to amendment in 1977, see Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977, Art. 44.02, supra, simply provided that “[a] defendant in any crimi*779nal action has the right of appeal under the rules hereinafter prescribed.” Thus it is clear that before the 1977 amendment an accused in appellant’s shoes had an unqualified, legislatively endowed right to appeal; and of course this Court had jurisdiction, as do now the various courts of appeals by operation of Article V, § 6, and V.A.C.C.P., Art. 4.03. Both the accused’s right and the appellate court’s jurisdiction extended to review of criminal cases involving pleas of guilty or nolo contendere, whether or not accomplished through the plea bargaining process.

¶23However, though the right to appeal was given under Art. 44.02, supra, even to an accused pleading guilty or nolo contendere, it was held as a matter of decisional law that by so pleading an accused had waived appellate determination of certain matters. As properly stated, the rule which has come to be called the “Helms ” rule, after Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972), reads:

“The guilty plea under the circumstances is conclusive as to the defendant’s guilt, admits all the facts charged and waives all non-jurisdictional defects in the pri- or proceedings.”

¶24King v. State, 687 S.W.2d 762, 766 (Tex.Cr.App.1985) (Clinton, J., Concurring). Accordingly, prior to amendment of Art. 44.02 in 1977 an accused pleading guilty or nolo contendere was said to have waived appellate complaint as to such matters as lawfulness of a search, voluntariness of a confession, competency to stand trial or sufficiency of the charging instrument. He had not waived, however, defects in the entry of the plea itself, such as an improper admonishment under Y.A.C.C.P., Art. 26.13, or, as in the instant cause, insufficiency of the evidence required by Art. 1.15, supra, to support the judgment of conviction. See King v. State, supra. Presumably, then, the majority would have reached the merits of appellant’s present contention had it been brought before the 1977 amendment to Art. 44.02.

¶25The effect of the 1977 amendment, as noted by a panel of the Court in Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App.1978), was to abrogate the Helmsrule as it applied to those plea bargains wherein punishment assessed does not exceed the agreed recommendation of the State. Apparently the purpose behind such legislative abrogation was “to conserve judicial resources by encouraging guilty pleas” where an accused would otherwise find it necessary to force a full trial on the merits in order to preserve error in the trial court’s ruling on a pretrial matter.12 See also Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985); Prochaska v. State, 587 S.W.2d 726 (Tex.Cr.App.1979).

¶26The Court now reads post 1977 Art. 44.02 to foreclose appeal of a claim which would have been cognizable by an appellate court in spite of the Helmsrule prior to the 1977 amendment. If indeed it is agreed that Art. 44.02 was amended in order to abrogate the Helmsrule under the prescribed circumstances, it is absurd now to read the amendment to cut off an appellate avenue that Helmsitself had left open.

¶27In the instant cause jurisdiction of the court of appeals was invoked when notice of appeal was given, albeit notice of appeal as to “the action of the court in overruling and denying [appellant’s] Motion to Quash Indictment.” Galitz v. State, 617 S.W.2d 949, 951 (Tex.Cr.App.1981). Thus, exercise of the court of appeals’ reviewing function “is limited only by its own discretion or a valid restrictive statute.” Carter, supra. Because I do not interpret amended Art. 44.02 to restrict review of alleged deficiencies in the entry of the plea itself, e.g., *780improper admonishment or insufficient evidence, I would hold that the court of appeals could properly entertain appellant’s ground of error in this cause, “in the interest of justice” or otherwise.

¶28For the foregoing reasons I respectfully dissent.

¶42ON APPELLANT’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

¶43Appellant’s motion for rehearing on petition for discretionary review denied.

¶44dissenting.

¶45At the threshold it should be noted that since September 1, 1981, the rules of this Court have not in terms required a “motion for leave to file motion for rehearing.” See former rule 309, Tex.Cr.App.R., and now Tex.R.App.Pro. Rule 230. Indeed, in this cause there is no motion for leave to file.

¶46Nevertheless, rules promulgated November 30, 1977, provided for a motion for leave to file a motion for rehearing after initial disposition by the Court En Banc, but none was required for a motion for rehearing after initial disposition by a Court Panel. See former rule 11; cf. former rule 12(c). Without support in and contrary to current rules, the old ways still obtain. See former transitional rule 401, Tex.Cr.App.R. Thus the caption of this opinion.

¶47On original submission a new majority of the Court continued to demonstrate its will and determination to retreat from the holding of State constitutional dimension in Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980).1 It began with Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986) (guilty pleading accused may not collaterally attack sufficiency of evidence to support conviction, but may challenge on direct appeal, id., at 678). Recently it turned into full rout.

“The failure to comply with such state statute [Article 1.15, V.A.C.C.P.] does not a federal constitutional violation make, nor does it render Burks [v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ] and Greene [v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) ] applicable to such proceedings so that the defendant who knowingly, intelligently and voluntarily enters a guilty plea goes free and stands acquitted for evermore of the crime to which he had pleaded guilty. To the extent that Laflore v. State, 595 S.W.2d 862 (Tex.Cr.App.1980), and Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980) (opinion on rehearing), and their progeny are in conflict with today’s holding, they are overruled to the extent of the conflict.”

¶48Ex parte Martin, 747 S.W.2d 789 at 793 (Tex.Cr.App.1988). Never mind that the statute mandates “in no event shall a person charged be convicted upon his *781plea WITHOUT SUFFICIENT EVIDENCE TO SUPPORT THE SAME”

¶49In his motion for rehearing appellant argues:

“If this decision stands, in plea bargain situations, a trial court can abrogate the mandate of Article 1.15, V.A.C.C.P. with impunity by simply refusing appellant the right to appeal. Therefore, defendants who plea bargain in Texas may be convicted upon a plea of guilty or nolo contendere, even though no evidence is introduced upon which the Court may base his decision.”

¶50When he wrote the first sentence appellant correctly perceived the situation then extant. Now with Martin and its overruling Thornton, his conclusion in the second sentence proves he is prescient.

¶51For the reasons given ante and in my dissenting opinion on original submission in this cause, and for reasons stated in my opinion dissenting to refusal of appellant’s PDR in Schwerdtfeger v. State, 749 S.W.2d 781 (Tex.Cr.App.1988), to this judicial nullification of Article 1.15, Y.A.C.C.P., I dissent.

¶52TEAGUE and DUNCAN, JJ., join.