960 SW2D 234 - Parks v. State

ANDELL, Justice,

¶1concurring and dissenting.

¶2I concur with the majority’s judgment in trial court cause number 562,719 (appellate cause number 01-95-01194-CR) because there is sufficient evidence — independent from appellant’s guilty plea — to affirm her conviction for theft.1 I respectfully dissent, however, from the majority’s judgment in trial court cause number 620,032 (appellate cause number 01-95-01193-CR). There is no independent evidence in the record on which this Court can affirm appellant’s bond-jumping conviction.

¶3The majority relies on the trial court’s docket sheet and appellant’s trial testimony and letter to Judge Keel to demonstrate that appellant failed to appear in court. First, the docket sheet is not part of the appellate record. Pifer v. State, 893 S.W.2d 109, 111 (Tex.App. — Houston [1st Dist.]1995, pet. *240ref'd).2 Second, appellant’s trial testimony and letter are tainted by the trial court’s failure to sign her consent to stipulate to evidence of guilt. If a defendant’s oral testimony and letter requesting leniency in punishment were sufficient to uphold a conviction in a case with defective stipulations, then article 1.15 would be effectively eviscerated. Tex. Code Crim. P. Ann. art. 1.15 (Vernon Supp. 1998).3 I do not believe this Court is empowered to judicially repeal article 1.15. I, therefore, dissent from the judgment of affirmance in trial court cause number 620,-032.

¶4I agree in affirming the trial court’s judgment in cause number 562,719. I would reverse the trial court’s judgment in cause number 620,032 and remand that cause to the trial court for further proceedings.

¶5. The State does not argue on appeal that other evidence exists in the record to support appellant's convictions. The State instead argues that: (1) the consent to stipulate to evidence of guilt was not defective; (2) error, if any, is harmless; and (3) harmful error, if any, can be corrected by a nunc pro tunc judgment. Surprisingly, the State neither attempts to distinguish the leading case on the acceptance of guilty pleas, McClain v. State, nor otherwise address it. McClain, 730 S.W.2d 739 (Tex.Crim.App.1987).

¶6. The procedural history of Piferwarrants an explanation. In Pifer, this Court abated the appeals of the defendant’s two convictions and remanded the cases to the trial court for an eviden-tiary hearing on his complaints about his trial counsel and the State’s alleged failure to reveal exculpatory evidence. Pifer, 893 S.W.2d at 112. Mandates were issued even though the abate-ments and remands were interlocutory. The State filed petitions for discretionary review, which the Court of Criminal Appeals refused. After the trial court held the evidentiary hearing, this Court withdrew the mandates, considered the appeals on the merits, and affirmed the convictions. Pifer v. State, Nos. 01-92-00948-CR & 01-92-00949-CR, 1997 WL 549149 (Tex.App.—Houston [1st Dist.] Aug. 29, 1997, no pet.h.) (not designated for publication).

¶7. Appellant orally pleaded guilty to both theft and bond jumping. If her testimony is sufficient to uphold the convictions, then why waste time discussing any other evidence in the record?