William Sanford Fitzsimmons v. State ( 1996 )

Fitzsimmons v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-95-134-CR

No. 10-95-135-CR

No. 10-95-136-CR

No. 10-95-137-CR

No. 10-95-138-CR

No. 10-95-139-CR

        WILLIAM SANFORD FITZSIMMONS,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the Criminal District Court No. 3

Dallas County, Texas

Trial Court Nos. F95-00861-J, F95-00862-J,

F95-31241-J, F95-31242-J, F95-31243-J & F95-31244-J

O P I N I O N

          William Sanford Fitzsimmons, pursuant to a plea agreement, pled guilty to five counts of aggravated sexual assault of a child and nolo contendere to one count of aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon 1994 and Supp. 1996). Fitzsimmons waived his right to a jury, and the trial judge found him guilty of all six counts and sentenced him to life in each. Fitzsimmons appeals on one point asserting that insufficient evidence exists to support his conviction in the case in which he pled nolo contendere. We will affirm the judgments.

          Fitzsimmons complains that no evidence supports the State's allegation that he sexually assaulted David Wayne Martin. He essentially argues that although he pled nolo contendere to this sexual assault charge, the State did not introduce a judicial confession or stipulation of evidence to support his plea. Article 1.15 of the Texas Code of Criminal Procedure mandates that a jury must convict a defendant unless he expressly waives his right to a jury in writing when he enters his plea in person and in open court. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1996). After a defendant waives his right to a jury and enters his plea, article 1.15 requires:

the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. 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 evidence and testimony or to introduction of testimony by affidavits, written statements of the witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Id.

          In other words, article 1.15 imposes a burden on the State to offer proof to support a plea of guilty or nolo contendere. Ex Parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). The trial court accepts this evidence to support the judgment, not the plea of guilty or nolo contendere. Id. Additionally, evidence supporting a plea of guilty or nolo contendere can consist of oral or written stipulations which do not "contain a confession of guilt by the accused." Burger v. State, 920 S.W.2d 433, 435 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd); see also Galitz v. State, 617 S.W.2d 949, 954-55 (Tex. Crim. App. 1981) (affirming the defendant's conviction although the defendant executed a written stipulation to the State's witnesses but struck the words "judicial confession" and "truth of the allegations" from the plea form); Matheson v. State, 832 S.W.2d 692, 693 (Tex. App.—Corpus Christi 1992, no pet.) (holding that the supporting evidence may include a judicial confession alone or written or oral stipulations of evidence containing a confession of guilt by the accused).

          After reviewing the record in this case, we find that there is sufficient evidence to support Fitzsimmons' conviction. Fitzsimmons signed a written stipulation of evidence in which he admitted committing every element of the offense, aggravated sexual assault of a child. In the stipulation, he also waived appearance, confrontation, and cross-examination of witnesses and agreed to stipulate to the oral testimony, affidavits, written statements of witnesses, and other documentary evidence. At the hearing, the State introduced the stipulation as exhibit four, and Fitzsimmons acknowledged that he waived his right to a jury, confrontation, and cross-examination and that his plea was voluntary and freely given. The trial judge then proceeded to ask if he understood all the allegations in the indictment and if he had committed the offense. Fitzsimmons confirmed that he understood all the allegations and that he had committed the offense. Thus, we hold that the plea of nolo contendere and the stipulation of all the elements in the indictment are sufficient to support the trial court's finding of guilt, and we overrule the point.

          The State has asked us to reform the judgment in cause number 10-95-137-CR which shows that Fitzsimmons pled guilty instead of nolo contendere. We reform the judgment so that it reflects Fitzsimmons' plea of nolo contendere and affirm it as modified. We also affirm the other judgments.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed October 30, 1996

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Tex. Pen. Code Ann

. § 31.09. The charge contained an alternative of a lesser-included misdemeanor conviction, but the jury found her guilty of the felony.

      The State counters that there are not two thefts but rather one theft which occurred over a twenty-minute period. Therefore, it says, the aggregation statute does not apply, and the total value of all the tickets is automatically combined. The State uses the example of a shoplifter who wanders around a store for a period of time stealing several items. It points out that the tickets were taken by Burleson while she worked her shift at the convenience store. If the store owner had not come into the store and spoken to Burleson during this time, the time between the takings would have been much less.

      In Younger v. State, in the early evening the defendant made four trips into a building, each trip stealing various items which were placed under a warehouse. Younger v. State, 124 S.W.2d 383, 385 (Tex. Crim. App. 1939). Later, the defendant retrieved all the items at one time from under the warehouse. Id. The defendant argued that each trip was a separate offense, and the evidence did not show that the value of the items taken in any one trip constituted a felony. Id. The Court held that “even if the [defendant] entered four times and each time stacked the stolen property under the warehouse and went back for more, it would still constitute one continuous transaction.” Id.

      Similarly, in Wilson v. State, the defendant took items from different locations in a department store where he worked and placed them in two bags in the basement of the store. Wilson v. State, 158 S.W. 516 (Tex. Crim. App. 1913). The Court said: “The fact they were taken from different sections of the store under the circumstances of this case would not constitute different takings, and would support the proposition that they were taken in pursuance of one purpose, and, legally speaking, at the same time, so far as the doctrine of theft is concerned when applied to different takings.” Id.; see also Deem v. State, 318 S.W.2d 649, 650 (Tex. Crim. App. 1958) (pants of a suit stolen one day and the coat the next constituted a single theft); Flynn v. State, 83 S.W. 206, 207 (Tex. Crim. App. 1904).

      Without commenting on what period of time must elapse between separate acts before the thefts become separate, we find that under the facts of this case there was but one theft, and therefore section 31.09 is not applicable.

      We overrule the issue.

Conclusion

      Having overruled Burleson’s issues, we affirm the judgment.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed August 28, 2002

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