Aubrey Edgar Walker v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00018-CR
Aubrey Edgar Walker, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 53,655, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING
MEMORANDUM OPINION
Aubrey Edgar Walker pleaded guilty to aggravated robbery and was sentenced to
twenty-five years in prison. By a single issue on appeal, he contends that the evidence supporting
his conviction was insufficient because his judicial confession was not sworn before the court clerk
and nothing identifies Walker as the person who signed the confession. We will affirm the
judgment.
Walker was indicted for placing a person in fear of imminent bodily injury or death
while committing a theft of property and using or exhibiting a firearm. Although Walker pleaded
not guilty at his arraignment, he pleaded guilty after reaching an agreement with the State for a
recommended cap on the upper limit of his sentencing range; the agreement reduced the upper limit
from a life sentence to one for twenty-five years. At his plea hearing, the State offered and the court
accepted a judicial confession signed by Walker. In the confession, Walker states that he
understands and waives his rights regarding trial. He then confesses that he committed the offense
described by the indictment. Walker’s attorney signed a statement that he advised Walker of his
rights regarding trial, and that Walker waived those and other rights knowingly and voluntarily. The
district attorney joined this stipulation and the district court approved it. The court found the
evidence sufficient to convict Walker, but postponed the adjudication of guilt until after the
preparation and presentation of a presentence investigation report (“PSI”).
At the punishment hearing, the court asked Walker if he had gone over the PSI1 with
his attorney, if it correctly stated the facts, and if Walker wanted to make any corrections. Walker
affirmed that he had gone over the report, that it accurately stated the facts, and that he did not want
to make any corrections. The PSI reported that Walker was a passenger in a car that deliberately
bumped another car. When the other car stopped, Walker and his co-defendant walked up to the
other car. The co-defendant pointed a gun at the other driver and demanded and received money.
The court found Walker guilty and sentenced him to twenty-five years in prison. Later, the court
gave Walker unrestricted permission to file a notice of appeal.
Walker complains that the evidence supporting his conviction was insufficient
because his judicial confession—the only evidence admitted to support his guilt—was not sworn
before the clerk of the court and there is nothing in the record to identify Walker as the person
executing the judicial confession. The standard for reviewing the legal sufficiency of the evidence
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The PSI states that Walker said, “We bumped the dude at the stop sign, and he got robbed.
The one who started it was someone else, but I went on and took it and signed the plea bargain . . . .
I’m very remorseful for my half of the situation.” The court also considered a victim impact
statement that describes the offense in more detail.
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is whether viewing the evidence in the light most favorable to the jury’s verdict, any rational trier
of fact could have found beyond a reasonable doubt all the essential elements of the offense charged.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex.
App.—Austin 1994, pet. ref’d). Because Walker asks for remand and a new trial, he is complaining
about the factual sufficiency of the evidence. When reviewing the factual sufficiency of the
evidence, we review all of the evidence in a neutral light and determine whether the proof of guilt
is so obviously weak as to undermine confidence in the jury’s determination, or if the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof. Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003).
The statutes governing the right to jury trial in felony cases list many requirements
for convictions based on guilty pleas; the waiver of rights and the stipulation of evidence must be
made in writing and in open court, the court must approve it in writing, and the waiver stipulation
must be filed in the court’s case file. See Tex. Code Crim. Proc. Ann. arts. 1.13-1.15. There is no
requirement that the defendant swear to the waiver and stipulation before the clerk or anyone else.
See id.; see also Jones v. State, 857 S.W.2d 108, 110 (Tex. App.—Corpus Christi 1993, no pet.).
The record in this case indicates that the applicable provisions were met.
Walker notes that the defendant in Jones also swore under oath in open court that the
charges in the indictment were true and correct. See Jones, 857 S.W.2d at 111. He intimates that
the absence of such sworn oral restatement renders the evidence insufficient to support his
conviction. The court in Jones, however, found the unsworn written judicial confession
independently sufficient to support the guilty verdict. Id.
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Walker further complains that nothing in the record identifies the maker of the
confession as the person found guilty. The State offered the waiver and stipulation in open court as
“defendant’s Judicial Confession” without objection. Walker affirmed when asked by the trial court
that his plea was free and voluntary and that he was pleading guilty because he committed the
offense. We find these circumstances sufficient to identify Walker as the person who signed the
confession and committed the offense. Sufficient evidence supports the finding of guilt.
Walker also argues that admitting the PSI at the punishment hearing violated his right
to avoid self-incrimination. He cites a case in which the court of criminal appeals found that a trial
court violated the defendant’s right to avoid self-incrimination at a punishment hearing following
a guilty plea. See Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App. 2001). In that case, the trial
court told the defendant that, if she invoked her right against self-incrimination, the trial court would
consider that as a circumstance against her when determining punishment. Id. at 131. The court of
criminal appeals held that the right to avoid self-incrimination persisted through punishment and that
a waiver of that right at the guilt-innocence phase was not sufficient to waive it at the punishment
phase, even when those phases are combined following a guilty plea. Id. at 133.
Aside from the existence of guilty pleas in both cases, this case is distinct from
Carroll. The trial court here did not compel Walker to testify by telling him that his silence would
be held against him. Walker himself submitted the PSI for the trial court’s consideration. Further,
Walker does not challenge his punishment by this appeal; his argument concerns only whether the
evidence was sufficient to support the finding of guilt. He argues that, because the judicial
confession was insufficient, the PSI was necessary to support the finding of guilt, and that the
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absence of a separate admonishment at the punishment phase concerning his right to avoid self-
incrimination means that the consideration of the PSI violated that right and taints the finding of
guilt. However, because we have found that the judicial confession sufficiently supports the finding
of guilt without the PSI, we determine beyond a reasonable doubt that any error at the punishment
hearing did not contribute to the conviction. See Tex. R. App. P. 44.2(a); see generally Kalisz v.
State, 32 S.W.3d 718, 723 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (applying harmless
error analysis to violation of right against self-incrimination).
We find the evidence legally and factually sufficient to support the finding of guilt.
We affirm the judgment.
David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: July 11, 2003
Do Not Publish
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