Alexander, Jeffery Scott v. Texas, the State Of ( 1997 )

* '**&«"#^<< . . . . * ' :
AFFIRM and Opinion Filed February 24, 1997
In The
Court of Appeals
W\fttf Btstrtrt of (£*xas at Dallas
No. 05-92-02099-CR
No. 05-92-02100-CR
JEFFERY SCOTT ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F91-43146-KI & F91-44292-SI
OPINION
Before Justices Ovard, Maloney, and Wright
Opinion By Justice Maloney
The trial court convicted Jeffery Scott Alexander of forgery in cause number F91-
43146-KI (appellate cause number 05-92-02099-CR) and burglary ofa habitation in cause
number F91-44292-SI (appellate cause number 05-92-02100-CR). The trial court assessed
a ten year sentence and a $1,000 fine in the forgery and a thirty year sentence and a $1,000
fine in the burglary of a habitation. Appellant, in three points of error, argues that (1) his
,;fj^jfri^*^s^
plea was not entered knowingly or voluntarily because the trial court did not inform
appellant of all possible consequences of violating his deferred adjudication community
supervision, and (2) the evidence was insufficient to support his convictions. We affirm the
trial court's judgments.
BACKGROUND
The grand jury indicted appellant for forgery. Appellant and the State entered into
aplea bargain agreement. Appellant agreed to enter his plea of guilty in exchange for the
State recommending that the trial court defer finding appellant guilty, place him on
community supervision for six years, and assess a $1,000 fine. The trial court accepted
appellant's plea of guilty and assessed punishment in accordance with the plea bargain
agreement. The State subsequently moved to proceed with an adjudication of guilt in the
forgery, alleging that appellant violated several conditions of his community supervision.
Additionally, the grand jury indicted appellant for burglary of ahabitation. Appellant
pleaded true to the violations of his community supervision and guilty to the burglary of a
habitation without benefit of a plea bargain agreement. The trial court found appellant
guilty of the forgery and the burglary of a habitation.
CAUSE NUMBER F91-43146-KI-FORGERY
In appellant's first point of error, appellant argues that he did not enter his guilty
plea knowingly or voluntarily because the trial court did not admonish him as required by
article 42.12, section 5(a) of the code of criminal procedure. Specifically, appellant
-2-
&&^#^i4m^'&!09^
contends that the trial court did not admonish him either orally or in writing that he could
not appeal from the trial court's determination to proceed to an adjudication of guilt on the
forgery. The State responds that the failure to admonish under section 5(a) does not render
appellant's plea involuntary.
In appellant's second point of error, he contends the evidence is legally insufficient
to support his forgery conviction. He maintains an agreement to stipulate will not substitute
for the State's duty to offer evidence of appellant's guilt. The State responds that the record
contains a valid judicial confession which is sufficient to support appellant's conviction.
1. Jurisdiction-Sufficiency of the Evidence
a. Applicable Law
The Texas Rules of Appellate Procedure provide that if the trial court renders
judgment on a defendant's plea of guilty, and:
the punishment assessed does not exceed the punishment recommended by
the prosecutor and agreed to by the defendant and his attorney, in order to
prosecute an appeal for anonjurisdictional defect or error that occurred prior
to entry of the plea the notice shall state that the trial court granted
permission to appeal or shall specify that those matters were raised by written
motion and ruled on before trial.
Tex. R. App. P. 40(b)(1). Adefendant's notice of appeal must comply with rule 40(b)(1)
to give this Court jurisdiction to address nonjurisdictional errors. Lyon v. State, 872 S.W.2d
732, 736 (Tex. Crim. App.), cert, denied, 114 S. Ct. 2684 (1994). If a defendant enters a
plea of guilty to deferred adjudication and the trial court assesses punishment in accordance
-3-
:S*"^;y#s"rt*Sa#s*""^W^?^«T^
with the plea bargain agreement, even if appellant's plea of true in an adjudication is made
without benefit of aplea bargain agreement, rule 40(b)(1) applies. See Watson v. State, 924
S.W.2d 711, 713-15 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 42.12(5)(b).
Sufficiency of the evidence is a nonjurisdictional defect. Lyon, 872 S.W.2d at 736; Wolfe v.
State, 878 S.W.2d 645, 646 (Tex. App.-Dallas 1994, no pet.).
If appellant's notice of appeal alleges that the trial court granted permission to
appeal nonjurisdictional errors, we may review the record for support of that allegation.
See, e.g., Montalbo v. State, 885 S.W.2d 160, 161 (Tex. Crim. App. 1994) (remanding case
to court of appeals to determine whether recital of permission to appeal is sufficient to
comply with rule 40(b)(1)); Solis v. State, 890 S.W.2d 518, 520 (Tex. App.-Dallas 1994,
no pet.) (holding appellate court may review the entire record to determine whether the
trial court granted permission to appeal); Hutchins v. State, 887 S.W.2d 207, 210 (Tex.
App.-Austin 1995, pet. ref'd) (holding appellate court must examine the record to
determine if the recitals in the notice of appeal are true).
b. Application of Law to Facts
Appellant, in exchange for aplea bargain, entered aplea of guilty to forgery. The
trial court followed the plea bargain agreement. Appellant's'preprinted notice of appeal
alleges that the trial court granted permission to appeal. Nothing in the record, however,
supports appellant's assertion. Consequently, we have no jurisdiction to review appellant's
second point of error - anonjurisdictional sufficiency of the evidence point of error - in
-4-
^i;"*f>i!*§s^;"is~'^sra^ij^i&"mm"^
the forgery case.
2. Admonishments
a. Applicable Law
The version of article 42.12, section 5(a) in effect when the trial court placed
appellant on deferred adjudication community supervision required the trial court to inform
a defendant of the consequences of violating the conditions of his community supervision.
Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3500-01,
amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 4.01, 1993 Tx. Gen. Laws 3586,
3719, amended by Act of May 26, 1995, 74th Leg., ch. 256, § 2, 1995 Tex. Gen. Laws 2190,
2191, amended by Act of May 29, 1995, 74th Leg, ch. 318, § 53, 1995 Tex. Gen. Laws 2734,
2750 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, §5(a) (Vernon Supp.
1997)). Section 5(b) enumerated the possible consequences, one of which was that a
defendant could not appeal from a trial court's determination to proceed with an
adjudication of guilt on the original charge. See Act ofMay 29, 1989, 71st Leg., R.S., ch.
785, § 4.17, 1989 Tex. Gen. Laws 3471, 3500-01, amended by Act of May 29, 1993, 73rd
Leg., ch. 900, § 4.01, 1993 Tx. Gen. Laws 3586, 3719, amended by Act of May 29, 1995,
74th Leg, ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750 (current version at Tex. Code
Crim. Proc. Ann. art. 42.12, §5(b) (Vernon Supp. 1997)).
The trial court's failure to inform a defendant of the consequences before accepting
his plea, however, does not render his plea involuntary. Brown v. State, 915 S.W.2d 533,
-5-
s^s*.4*;H*Sia^?^
538 (Tex. App.-Dallas 1995, pet. granted), affd, No. 356-96 (Tex. Crim. App. Feb. 12,
1997). Because the legislature placed the informational requirement after the acceptance
of the plea language, it did not intend the informational requirement to be a condition
precedent to a voluntary plea.1 See Ray v. State, 919 S.W.2d 125, 127 (Tex. Crim. App.
1996) (holding that failure to give section five admonishments before accepting a non-
negotiated plea of guilty did not render that plea involuntary); see also Price v. State, 866
S.W.2d 606, 608-13 (Tex. Crim. App. 1993) (holding same could not render a guilty plea
involuntary in amisdemeanor case); Brown, 915 S.W.2d at 537-38 (comparing article 26.13
language to article 42.12 section 5(a) language).
b. Application of Law to Facts
The record contains no written admonishment warning appellant that he could not
appeal from the trial court's decision to adjudicate his guilt in the forgery. However, the
trial court's failure to inform appellant that he could not appeal from its decision to
adjudicate could not render his plea involuntary. We overrule appellant's first point of
error.
CAUSE NUMBER F91-44292-SI-SUFFICIENCY OF THE EVIDENCE
In appellant's third point of error, he contends the evidence is insufficient to support
his guilty plea under article 1.15 of the Texas Code of Criminal Procedure. Appellant
hn 1995, the legislature amended section 5(a). The new version of the statute specifies that the trial court must inform the
defendant of community supervision violation consequences after it grants the defendant deferred adjudxcatxon probata See
Act of May 29,1995, 74th Leg., R.S., ch. 318, §53,1995 Tex. Gen. Laws 2734, 2750.
-6-
iisj^jSji"^rti^.^:^
:fei3$!^ft^fWN^*:!ri"
maintains that his "judicial confessions" were simply written pleas of guilty and the State
offered no other evidence of appellant's guilt.
a. Applicable Law
In abench trial, aplea of guilty alone will not support afelony conviction. The State
must introduce sufficient evidence to support the conviction. See Tex. Code Crim. Proc.
Ann. art. 1.15 (Vernon Supp. 1997); Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App.
[Panel Op.] 1980) (op. on reh'g). Ajudicial confession alone, however, is sufficient to
support aconviction on aguilty plea. Dinnery, 592 S.W.2d at 353. Ajudicial confession
admitted into evidence and not found in the statement of facts, but contained in the
transcript, is sufficient to prove appellant's guilt. Pitts v. State, 916 S.W.2d 507, 510 (Tex.
Crim. App. 1996). Adefendant's sworn testimony is ajudicial confession. See Davenport
v. State, 858 S.W.2d 1, 3(Tex. App.-Dallas 1993, no pet.); Jones v. State, 857 S.W.2d 108,
110-11 (Tex. App.-Corpus Christi 1993, no pet.).
b. Application of Law to Facts
Appellant entered aplea of guilty without benefit of aplea bargain in the burglary
of a habitation. The State offered, and the trial court admitted, appellant's judicial
confession as State's exhibit number one. Appellant did not object. The transcript contains
aState's exhibit number one. Ajudicial confession admitted and contained in the transcript
is sufficient to support a plea of guilty.
Additionally, the transcript in cause number F91-44292-SI contains a document
-7-
i^HWWWSW'WW*'!"
entitled Waiver ofJury/Felony Plea of Guilty/Nolo ContendereIIndictmentIInformation. In this
document, appellant judicially confessed that he was "guilty of the offense of burglary of a
habitation exactly as alleged in the charging instrument. . . ." This second confession is in
the same type of document that the Pitts court found sufficient evidence to support aplea
of guilty. See Pitts, 916 S.W.2d at 509-10.
Moreover, appellant testified that he committed the burglary of ahabitation and that
he was pleading guilty because he was guilty. Appellant's sworn testimony that he was guilty
as charged in the indictment, without elaboration, was sufficient to support appellant's guilty
plea under article 1.15. We overrule appellant's third points of error.
We affirm the trial court's judgments.
FRANCES MALONEY
JUSTICE
Do Not Publish
Tex. R. App. P. 90
922099F.U05
-8-
mmisimimsmimmta
1*
^
Court of Appeals
iFtftlf Itstrtrt of ©*xas at lallas
No. 05-92-02099-CR
JEFFERY SCOTT ALEXANDER, Appeal from the Criminal District Court
Appellant No. 2 ofDallas County, Texas. (Tr.Ct.No.
F91-43146-KI).
V. Opinion delivered by Justice Maloney,
Justices Ovard and Wright participating.
THE STATE OF TEXAS, Appellee
JUDGMENT
Based on the Court's opinion of this date, we AFFIRM the judgment of the trial
court.
Judgment entered February 24, 1997.
FRANCES MALONEY
JUSTICE
u
1
©ourt of Appeals
¥\ftlj Itstrtrt of Qkxas at lallas
No. 05-92-02100-CR
JEFFERY SCOTT ALEXANDER, Appeal from the Criminal District Court
Appellant No. 2 of Dallas County, Texas. (Tr.Ct.No.
F91-44292-SI).
V. Opinion delivered by Justice Maloney,
Justices Ovard and Wright participating.
THE STATE OF TEXAS, Appellee
JUDGMENT
Based on the Court's opinion of this date, we AFFIRM the judgment of the trial
court.
Judgment entered February 24, 1997.
X^Tfe&xTZjclcu~
FRANCES MALONEY
JUSTICE