Juan Ballesteros v. State ( 2009 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00022-CR ______________________________



JUAN BALLESTEROS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 7th Judicial District Court Smith County, Texas Trial Court No. 007-0955-08

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

     Juan Ballesteros was convicted of aggravated robbery, a first-degree felony. ⁽¹⁾ It was alleged that during the course of a theft, Ballesteros caused bodily injury to Mary Wood, a person over the age of sixty-five. An enhancement paragraph was included in the indictment, alleging a prior felony conviction for driving while intoxicated. After Ballesteros pled guilty to the underlying charge, but not the punishment enhancement, the case was submitted to the jury for a punishment determination. The jury found the enhancement paragraph "true" and assessed Ballesteros's punishment at life in prison and a $10,000.00 fine.

Ballesteros argues that there is legally and factually insufficient evidence that he pled guilty, and in the event he did plead guilty, that there is insufficient evidence to support the plea. ⁽²⁾ We disagree.

We affirm the judgment because Ballesteros pled guilty and there is sufficient evidence to support the plea.

"No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, 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). The State is required to introduce evidence showing the defendant's guilt. ⁽³⁾ See id. Evidence is sufficient under Article 1.15 if it embraces every essential element of the offense charged and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). A judicial confession alone is usually sufficient to satisfy the requirements of Article 1.15, but a judicial confession that omits an element of the offense is insufficient to support a guilty plea. ⁽⁴⁾ An oral confession may also constitute sufficient evidence to support the judgment and to satisfy Article 1.15. See Tex. Code Crim. Proc. Ann. art. 1.15; Lord v. State, 63 S.W.3d 87, 92 (Tex. App.--Corpus Christi 2001, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh'g) (holding oral exchange with court at time plea accepted constituted judicial confession sufficient to support judgment and satisfy Article 1.15)); McFarland v. State, 644 S.W.2d 17, 18 (Tex. App.--Dallas 1982, no pet.) (defendant's oral judicial confession he is pleading guilty just as he is charged in indictment sufficient evidence to support plea).

An exception to this rule provides that if the judicial confession contains a "catch-all" phrase that the defendant is guilty "as charged in the indictment," the confession is sufficient evidence to support the conviction even where an element of the offense has been omitted. See Snyder v. State, 629 S.W.2d 930, 932 (Tex. Crim. App. 1982). This exception seems also to apply to sworn oral statements made by the defendant during the course of the plea proceedings that the indictment is "true and correct." Breaux v. State, 16 S.W.3d 854, 857 n.2 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).

Aggravated robbery occurs when a person commits robbery as defined in Section 29.02 ⁽⁵⁾ and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03 (Vernon 2003).

In this case, Ballesteros made several clear guilty pleas. During the trial, Ballesteros affirmatively stated that he understood the charges of the indictment and the range of punishment. Then, the following two exchanges took place between the trial court and Ballesteros:

THE COURT: As to that underlying first-degree felony charge, I think you pled guilty to that, correct?

[BALLESTEROS]: Yes.

. . . .

THE COURT: . . . Are you pleading guilty today because you're, in fact, guilty of each of those charges and for no other reason? Are you pleading guilty because you are guilty?

[BALLESTEROS]: Guilty because I am guilty.

In the signed and sworn stipulation of evidence, Ballesteros admits to committing the specific acts alleged in the indictment. The indictment alleged that "while in the course of committing theft of property and with intent to obtain or maintain control of said property [Ballesteros] intentionally, knowingly, or recklessly cause[d] bodily injury to Mary Wood, a person 65 years of age or older, by pulling Mary Wood to the ground and pushing Mary Wood to the ground." In stipulation of evidence, Ballesteros confessed that the allegations in the indictment were true and correct, repeating the allegations verbatim. The oral statements and the stipulation of evidence amount to a judicial confession of the acts alleged in the indictment. Therefore, there is sufficient evidence that Ballesteros pled guilty and there is sufficient evidence to support the plea. We overrule Ballesteros's points of error and affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: August 31, 2009

Date Decided: September 11, 2009

Do Not Publish

1. Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.

2. Ballesteros's arguments are apparently based upon the premise that documentation of the plea and stipulation of evidence are absent from the record. However, the supplemental clerk's record containing the acknowledgment of admonishments, stipulation of evidence, waiver of jury trial, and agreement to stipulate testimony was filed after Ballesteros's brief.

3. Article 1.15 provides that:

The evidence may be stipulated if the defendant in such case 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.

Tex. Code Crim. Proc. Ann. art. 1.15.

4. A defendant's written stipulation that the evidence admitted is true and correct qualifies as a judicial confession. Roberson v. State, 879 S.W.2d 250, 254 (Tex. App.--Dallas 1994, no pet.).

5. Under Section 29.02 of the Texas Penal Code, a person commits robbery if "in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02 (Vernon 2003).

Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00029-CR

                                                ______________________________

                                     THE STATE OF TEXAS, Appellant

                                                                V.

                                  LARRY BURNEL WILSON, Appellee

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                            Trial Court No. 20187

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                    Opinion by Chief Justice Morriss

                                                                   O P I N I O N

            The State of Texas asserts on appeal that the time credit given to Larry Burnel Wilson for time Wilson spent in a Substance Abuse Felony Punishment (SAFP) Facility made his sentence illegal.  Finding that time credits are not part of the sentence, but merely a credit to the sentence, we conclude we have no jurisdiction to address the State’s attempted appeal regarding the time credits to Wilson’s sentence.

            Wilson was adjudicated^[1] guilty of aggravated assault causing serious bodily injury.  See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011).  The trial court assessed a five-year prison sentence as punishment but, in its judgment, credited Wilson’s sentence with the time he spent in a SAFP Facility.  The State argues that the sentence is illegal because the trial court erred in applying the SAFP time credit, as Texas law allegedly did not permit such a credit at the time Wilson was placed on community supervision.  Wilson contends the State is not attacking the sentence assessed, but rather, is seeking to attack the award of time credits to the sentence.  We agree.

            The State may “appeal a sentence in a case on the ground that the sentence is illegal.”  Tex. Code Crim. Proc. Ann. art. 44.01(b) (West Supp. 2010).  Appellate jurisdiction under the statute “does not hinge on the legality of a sentence.”  State v. Ross, 953 S.W.2d 748, 749 (Tex. Crim. App. 1997).  Rather, “jurisdiction turns on whether the State appeals a sentence.”  Id. at 749–50; see also State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim App. 1998).  To invoke jurisdiction under Article 44.01(b), the State must appeal the sentence, not something that merely affects the sentence.  Ross, 953 S.W.2d at 750.

            We, therefore, address the threshold jurisdictional question of whether the State is appealing Wilson’s five-year sentence for aggravated assault causing serious bodily injury and whether time credit is actually part of the sentence.  A sentence is only a part of the judgment.  It is “that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.”  Tex. Code Crim. Proc. Ann. art. 42.02 (West 2006).  As explained in Ross, a sentence is “nothing more than the portion of the judgment setting out the terms of the punishment.” Ross, 953 S.W.2d at 750.  The Texas Court of Criminal Appeals more recently clarified its holding in Ross, stating that a sentence “consists of the facts of the punishment itself, including the date of commencement of the sentence, its duration, and the concurrent or cumulative nature of the term of confinement and the amount of fine, if any.” State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004) (duration of punishment for habitual and repeat offenders is part of sentence).

            Here, the State does not contend Wilson’s five-year sentence is illegal; that is, it does not contend that this period of confinement falls outside the maximum or minimum range of punishment.  See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (sentence outside either maximum or minimum range of punishment is illegal).  Rather, the State contends Wilson should not have been credited with time spent in the SAFP Facility.^[2]

            For this Court to have jurisdiction pursuant to Article 44.01(b), the time credit awarded in the judgment against Wilson must be a part of the sentence.  While we find no cases directly on point, we are guided by Ross, which recognized the narrow definition of sentence as encompassing only a part of the judgment.

            Before the 1981 amendment of Article 42.02 of the Texas Code of Criminal Procedure, the term “sentence” was more broadly defined as “the order of the court . . . pronouncing the judgment and ordering the same to execute.”  Ross, 953 S.W.2d at 750 (citing Thornton v. State, 576 S.W.2d 407, 408 (Tex. Crim. App. 1979)); see Tex. Code Crim. Proc. Ann. art. 42.02 (as enacted by Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, § 1, eff. Jan. 1, 1966).  Now, however, the sentence includes only the terms of punishment.^[3]  Ross, 953 S.W.2d at 750.^[4]  On the other hand, credit for time served in a SAFP Facility affects the sentence, but

almost everything in the judgment affects the “sentence,” including the jury verdict, the offense for which defendant is convicted and affirmative findings.  For example, if the defendant is found not guilty, he cannot be punished at all.  Likewise, the fact that he is convicted of shoplifting, as opposed to capital murder, also necessarily affects his sentence.  Like the jury verdict and the offense for which a defendant is convicted, a deadly weapon finding also impacts the sentence.  Yet, to consider any of these findings as part of the “sentence” disregards the fact that the legislature has narrowed, not broadened, the definition of “sentence.”

Id. at 750–51.^[5]  A deadly weapon finding, although it affects a defendant’s sentence, is not part of the sentence.  Id. at 752; Marshall v. State, 860 S.W.2d 142 (Tex. App.—Dallas 1993, no pet.) (trial court not required to orally pronounce deadly weapon finding; such finding not part of sentence).  Similarly, a time credit affects a defendant’s sentence.  It does not logically follow, however, that a time credit is part of the sentence.^[6]  Even though the judgment must address any credit for time served,^[7] such credit does not reflect the actual terms or facts of punishment as we understand the sense of the Texas Court of Criminal Appeals in Ross.

            As a practical matter, credit for time served is often included as a part of the oral pronouncement of sentence in the defendant’s presence.  See, e.g., Fragel v. State, Nos. 03-10-00285-CR, 03-10-00286-CR, 2011 WL 1237626 (Tex. App.—Austin Mar. 31, 2011, no pet.) (mem. op., not designated for publication); Franqui v. State, No. 03-08-00028-CR, 2009 WL 280981 (Tex. App.—Austin, Feb. 6, 2009, no pet.) (mem. op., not designated for publication); Ferrow v. State, No. 03-08-00326-CR, 2008 WL 5423210, at * 1 (Tex. App.—Austin Dec. 31, 2008, no pet.) (mem. op., not designated for publication) (written judgment modified to conform to sentence orally pronounced).^[8]  These cases do not, however, address the issue of whether time credit is part of a defendant’s sentence for purposes of invoking appellate court jurisdiction pursuant to Article 44.01(b) of the Texas Code of Criminal Procedure.

            In this regard, the language of Article 42.03, Section 2 (pronouncing sentence; time; credit for time spent in jail between arrest and sentence or pending appeal) is instructive.  It provides, “[I]n all cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time spent . . . in jail . . . .”  Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West Supp. 2010) (emphasis added).  This language differentiates the sentence itself from credit given on the sentence. If the time credit were part of the sentence, the above-quoted language would be at least misleading.

            The time credit accorded Wilson merely affects the sentence, but does not set forth the terms or facts of punishment as we understand the meaning of the statutory scheme and the Ross opinion.  Accordingly, the State is not appealing the sentence on the grounds that it was illegal. See Tex. Code Crim. Proc. Ann. art. 44.01(b).  Rather, this appeal involves the propriety of granting credit for time served in a SAFP Facility.  This Court is therefore without jurisdiction to hear the State’s appeal.

            We dismiss this appeal for want of jurisdiction.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          July 28, 2011  

Date Decided:             August 24, 2011

Publish

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^[1]In 2002, Wilson had pled guilty to the offense and was placed on ten years’ deferred adjudication community supervision. In 2009, the conditions of Wilson’s community supervision were modified to require completion of a program of treatment in a SAFP Facility, to be followed thereafter by a continuum of care program.  Wilson failed to complete the continuum of care program on release from the SAFP Facility in 2010.  Wilson pled true to failing to complete the continuum of care program, but pled not true to failing to complete his time in the SAFP Facility. 

^[2]Since we conclude that we have no jurisdiction to address any substantive issue in this attempted appeal, we do not address the State’s claim that the trial court had no discretion or authority to grant Wilson credit for his SAFP Facility time and, thus, violated a statutory duty not to grant credit for that time.  See Ross, 953 S.W.2d at 751–52 (suggesting mandamus remedy may be available).

^[3]Such terms include the date the sentence is to commence, its duration, and the “concurrent or cumulative nature of the term of confinement and the amount of the fine, if any.”  Kersh, 127 S.W.3d at 777.

^[4]The 1981 amendment to Article 42.02 of the Texas Code of Criminal Procedure narrowed the definition of sentence to include “that part of the judgment . . . order[ing] that the punishment be carried into execution in the manner prescribed by law.”  Ross, 953 S.W.2d at 750 (citing Tex. Code Crim. Proc. Ann. art. 42.02 (as amended by Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 112, Tex. Gen. Laws 761, 809, eff. Sept. 1, 1981)).

^[5]In Ross, for example, the sentence “would include the facts that appellant is to serve sixteen years in the penitentiary beginning July 28, 1995, that his term is concurrent and that he must pay a $500 fine.”  Ross, 953 S.W.2d at 750.

^[6]The case before us, while apparently similar to Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007), in which the jurisdiction of the court of appeals to hear a State’s appeal was addressed, is distinguishable from Collins.  Collins involved a defendant who entered into a plea bargain by which he would plead guilty and receive time credit in the amount of thirty-four days for pretrial jail time.  After judgment was entered, the defendant filed a motion for judgment nunc pro tunc, seeking additional time credits to his sentence.  The trial court entered a judgment nunc pro tunc giving additional credit for pretrial jail time.  The Texas Court of Criminal Appeals held that the court of appeals had jurisdiction to hear the State’s appeal pursuant to Article 44.01(a)(2), because the order of the trial court modified the judgment.  Id. at 927.  Article 44.01(a)(2) permits an appeal by the State in a criminal case if the order arrests or modifies a judgment.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (West Supp. 2010).  Collins stands for the proposition that the State may appeal when a trial court modifies a judgment, not for the proposition that the State may appeal when time credits have been given.  Here, the State attempts to appeal a sentence on the basis that it is illegal, under the authority of Article 44.01(b), a different statutory authorization for appeal.

^[7]See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(18) (West Supp. 2010).  Credit for time served is an element of the judgment.  Collins, 240 S.W.3d at 928.

^[8]Although these unpublished cases have no precedential value, we may take guidance from them “as an aid in developing reasoning that may be employed.”  Carillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).