Braggs v. State , 169 Tex. Crim. 405 ( 1960 )

DAVIDSON, Judge

(concurring).

Attention is 'called to the fact that we are not here dealing with a collateral attack upon a judgment of conviction. This is a direct attack by appeal, attacking the sufficiency of the evidence to support the conviction.

In 1931, by Chap. 43, Acts of the Regular Session of the 42nd Legislature, and by the amendment thereof in 1959, by Chap. 2, Acts 3rd Called Session of the 56th Legislature, provisions are made whereby one charged with an ordinary felony might waive a trial by jury and enter a plea of guilty before the court. Arts. 10a and 12, Vernon’s Ann. C.C.P., as amended.

The legislature, however, required that certain conditions must be complied with before a conviction of an ordinary felony might be lawfully obtained upon a plea of guilty before the trial court.

Chief among these requirements was “that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant * * * and in no event shall a person charged be convicted upon his plea of guilty * * * without sufficient evidence to support the same.”

Obviously the legislature had a good reason for making that requirement, that reason being that it did not want any man whom the state could not and did not prove guilty of the crime charged sent to the penitentiary upon his plea of guilty before a trial court.

In order to insure that said requirement be fulfilled and carried out, the legislature precluded conviction until sufficient evidence had been introduced. In other words, the legislature made proof of guilt jurisdictional, without which proof a valid judgment of conviction could not be entered.

Jurisdiction to enter the judgment that is entered must be established. It cannot be presumed or waived.

The statement of facts upon which this appellant was convicted reflects that not a single witness testified in the case under the sanction of an oath, duly administered.

Here is how the state discharged the burden resting upon it to prove the guilt of the appellant.

State’s counsel inquired of both appellant and her counsel if it was “agreeable” with them “that the formal reading of the indictment be waived and that the state be allowed to read from the examining trial testimony and certain reports from the chemist without bringing the witnesses in to testify in person.”

Both counsel and appellant agreed that the state could so prove its case and in that manner dispose of and set aside the mandate of the legislature that evidence be introduced showing the guilt of the defendant.

Thereupon state’s counsel read the testimony given by the witness Chavez, upon examining trial in justice court, to the effect that he and a fellow officer, upon information that appellant was violating the law by having narcotics in her possession, apprehended appellant while her automobile was stopped at a railway crossing. As the officers approached, appellant was seen to “ ‘ place a yellow cellophane capsule into her mouth.’ ”

The officers immediately placed appellant under arrest and carried her to a hospital, where she consented to take a saline solution. As a result, she vomited up the partially dissolved capsule.

The capsule was recovered and turned over to the city chemist.

That testimony related only to proof that appellant swallowed a capsule and vomited it up. The state was under the burden of proving that the capsule contained a narcotic.

To make that proof the state introduced “into evidence the report of Robert F. Crawford, Chemist and Toxicologist for the City of Houston Police Department showing that he ran a chemical analysis upon the yellow capsule submitted to him by Officer M. Chavez on July 10, 1959, and that an examination of that capsule revealed that it contained approximately 2.8 milligrams of heroin, and that heroin is a narcotic drug.”

Upon that statement, the state rested its case and relied thereon to show that the capsule contained a narcotic.

To demonstrate the insufficiency of the testimony to meet the requirements of the law, it is only necessary to point out that the only proof that appellant had a narcotic in her possession comes exclusively from the ex parte, unsworn, and hearsay report which state’s counsel said was that of the chemist of the city of Houston.

Such hearsay testimony is not legitimate evidence and, of itself, establishes nothing.

If the legislature had intended that one might be convicted of a felony upon his plea of guilty before the trial court upon hearsay testimony or by waiver of constitutional rights, all that would have been necessary to permit such action would have been to say nothing and provide no condition to the contrary.

But when the legislature required that such a conviction can be had only by the introduction of evidence showing the guilt of the defendant, which evidence must be sufficient to support the conviction, it occurs to me that it meant just what it said and thereby gave the courts of this state explicit directions to be followed in such cases.

The legislature having spoken, the courts would have no right to refuse to enforce the legislative will and mandate or to substitute other and different rules.

The state wholly failed to do that which the law requires to be done, and this conviction ought not to be approved.

I concur in the reversal of this conviction for the reasons stated.