Wade Padgett v. State ( 2007 )

                                                NO. 12-06-00412-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WADE PADGETT,   §                      APPEAL FROM THE SEVENTH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Wade Padgett appeals his conviction for burglary of a habitation.  On appeal, Appellant argues that the stipulation of evidence is insufficient to convict him of a first degree felony offense. We affirm.

Background

            Appellant was charged by indictment with four counts of burglary of a habitation.¹  On August 29, 2006, Appellant entered an open plea of guilty to burglary of a habitation and committing or attempting to commit the felony offense of stalking.²

On the same date, Appellant and his counsel signed an agreed punishment recommendation, an acknowledgment of admonishments, a waiver of jury trial, an agreement to stipulate testimony, a waiver of motion for new trial and motion in arrest of judgment, a waiver of his right to appeal, and a written stipulation of evidence in which Appellant swore that all allegations pleaded in the indictment were true and correct and constituted the evidence in the case.  The trial judge and the attorney for the State approved Appellant’s waiver of jury trial and agreement to stipulate testimony.  Further, the trial judge signed Appellant’s written stipulation of evidence.  The trial court accepted Appellant’s plea, adjudged him guilty of the charged offense, and, after a sentencing hearing, assessed his punishment at life imprisonment.³  This appeal followed.

Evidentiary Sufficiency

            In his sole issue, Appellant argues that the stipulation of evidence is insufficient to convict him of a first degree felony offense in accordance with article 1.15 of the Texas Code of Criminal Procedure.  More specifically, he contends that the stipulation of evidence is insufficient because it did not include a designation of whether the stalking offense was against a person or against property.  Appellant argues that the stipulated evidence is sufficient for a conviction of entry of a habitation to commit the offense of theft, a second degree felony.

Standard of Review

            According to article 1.15 of the Texas Code of Criminal Procedure, no person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless he, upon entering a plea, has in open court in person waived his right of trial by jury in writing.  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).  Article 1.15 also states that it is 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 without sufficient evidence to support the same.”  Id. This 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. Id.  If the defendant elects to stipulate to evidence against him, his stipulation is a kind of judicial admission, a “formal confession[ ] in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.”  Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005) (quoting John W. Strong, et al., McCormick on Evidence § 255 (5th ed. 1999)).

            Although a plea of guilty is an admission of guilt of the offense charged, it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support the plea and the judgment to be entered.  Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1979).  A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea and to satisfy the requirements of article 1.15.  Id. at 353.  Reviewing the sufficiency of the evidence to support a judgment under article 1.15 upon a plea of guilty requires that an appellate court apply a different standard of review than when it reviews legal sufficiency under the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).  Keller v. State, 125 S.W.3d 600, 604-05 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d, improvidently granted). Instead, the supporting evidence must simply embrace every essential element of the offense charged.  McGill v. State, 200 S.W.3d 325, 330 (Tex. App.–Dallas 2006, no pet.).

Applicable Law

            A person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation with the intent to commit a felony, theft, or an assault, or enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.  Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003).  The offense is a first degree felony if the premises are a habitation and any party to the offense entered the habitation with the intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.  Tex. Penal Code Ann. § 30.02(d) (Vernon 2003).  A person commits the offense of stalking if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that the actor knows or reasonably believes the other person will regard as threatening bodily injury or death for the other person, bodily injury or death for a member of the other person’s family or household, or the commission of an offense against the other person’s property.  Tex. Penal Code Ann. § 42.072(a)(1) (Vernon 2003).  An offense under section 42.072(a) is a third degree felony, except that the offense is a second degree felony if the actor has previously been convicted under this section.  Tex. Penal Code Ann. § 42.072(b) (Vernon 2003).

Analysis

            Appellant contends that his stipulation of evidence is insufficient, taken alone, to determine whether the charged offense should have been a first degree felony.  He argues that although stalking is always a felony offense, it may be a crime against either a person or property.  Unless the stipulation stated that the underlying offense of stalking was committed against a person, Appellant contends, the only evidence that comported with the stipulation was a crime against property or, more specifically, theft. Thus, he argues that the charged offense should have been punished as a second degree felony.  We disagree.

            The indictment stated that on or about July 3, 2005, Appellant “did then and there intentionally or knowingly enter a habitation, without the effective consent of Mandy Simmons, the owner thereof, and attempted to commit or committed the felony offense of stalking.” In the written stipulation of evidence, Appellant swore that these facts were true and correct and constituted the evidence in this case.  Moreover, he pleaded guilty to the offense in open court after being admonished as to the punishment range of a first degree felony.

            In order to elevate burglary to a first degree felony, the underlying felony can be any felony other than felony theft.  See Tex. Penal Code Ann. § 30.02(d). Stalking is always a felony offense, regardless of whether the conduct is regarded as threatening an offense against a person or against property.  See Tex. Penal Code Ann. § 42.072(a),(b).  Appellant stipulated that he “attempted to commit or committed the felony offense of stalking.”  Therefore, Appellant’s stipulation of evidence supports his conviction.  We overrule Appellant’s sole issue.  See Dinnery, 592 S.W.2d at 353.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    SAM GRIFFITH  

                                                                                                               Justice

Opinion delivered October 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ See Tex. Penal Code Ann. § 30.02 (a) (Vernon 2003).

² Burglary of a habitation, as charged here, is a first degree felony.  See Tex. Penal Code Ann. § 30.02 (a), (d) (Vernon 2003).

³ An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment for life or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.32 (Vernon 2003).