Vicky Trevino A/K/A Vicky Stickell v. State ( 2004 )

  NUMBER 13-02-702-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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VICKY TREVINO A/K/A VICKY STICKELL,                            Appellant,

v.

THE STATE OF TEXAS,                                                   Appellee.

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On appeal from the 28th District Court

of Nueces County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, Vicky Trevino, also known as Vicky Stickell, waived trial by jury and pleaded guilty to three counts of an indictment charging theft of United States currency of a value of $1,500 or more but less than $20,000. Following a hearing before the court, appellant was sentenced to a one-year term of confinement at a state jail facility. By two points of error, appellant contends (1) the evidence is insufficient to support a conviction of felony theft, and (2) the trial court should have sua sponte withdrawn her plea. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). We affirm the trial court's judgment.

         Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

I. Sufficiency of the Evidence

         By her first point of error, appellant contends the evidence submitted by stipulation and oral testimony at the time of her open plea is insufficient to support a conviction of felony theft. However, a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea and does not require corroboration. Dinnery v. State, 592 S.W.2d 343, 353-54 (Tex. Crim. App. 1980) (op. on reh'g); Jones v. State, 857 S.W.2d 108, 110 n.1 (Tex. App.–Corpus Christi 1993, no pet.) (an affirmative answer to question of whether defendant agreed and stipulated under oath that charges and allegations in indictment are true and correct constituted judicial confession which would alone support judgment); see Lord v. State, 63 S.W.3d 87, 92 (Tex. App.–Corpus Christi 2001, no pet.).

         In the present case, the trial court accepted appellant's guilty plea and found appellant guilty based on her judicial confession and stipulation. The confession and stipulation tracked the language of the three counts of the indictment and included all elements of the felony theft offenses charged. See Tex. Pen. Code Ann. § 31.03(a), (e)(4) (Vernon Supp. 2004) (setting out elements for state jail felony theft). Under Dinnery, appellant's judicial confession did not require corroboration, and such evidence was sufficient under article 1.15 of the Texas Code of Criminal Procedure to show appellant's guilt and to support her conviction on the three felony theft offenses. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004) (when defendant pleads guilty to felony in trial to bench, State must introduce evidence into record showing guilt of defendant). Moreover, appellant was sworn in at the hearing, and the trial court asked her questions. After appellant resonded that she was guilty as to each count identified individually, the trial court asked, "Are you pleading guilty to each of these counts, Ms. Trevino, because you are in fact guilty?" Appellant answered, "Yes, I am." Under Dinnery, appellant's answers to the trial court constitute a judicial confession which would alone support the judgment. See Dinnery, 592 S.W.2d at 354; Jones, 857 S.W.2d at 111. Accordingly, the evidence is sufficient to sustain the conviction. Appellant's first point of error is overruled.

II. Withdrawal of Guilty Plea

         In point of error two, appellant contends the trial court should have sua sponte withdrawn her guilty plea when she raised issues about her innocence. However, "when a plea of guilty is before the court it need not be withdrawn and a plea of not guilty entered when evidence is introduced that might reasonably and fairly raise the issue of fact as to the guilt of the defendant." Sullivan v. State, 573 S.W.2d 1, 4 (Tex. Crim. App. 1978) (op. on reh'g) (en banc); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); see Aldrich v. State, 104 S.W.3d 890, 892-93 (Tex. Crim. App. 2003); see also Coronado v. State, 25 S.W.3d 806, 808 (Tex. App.–Waco 2000, pet. ref'd) (recognizing that where guilty plea is before court, trial court has no duty to sua sponte withdraw plea when evidence raises question concerning defendant's innocence).

         In the present case, appellant waived a jury trial and entered her plea of guilty before the trial court. Under Moon, as followed in Sullivan, the trial court had no duty to sua sponte withdraw appellant's guilty plea. Accordingly, appellant's second point of error is overruled.

III. Conclusion

         We affirm the judgment of the trial court.  

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 29th day of July, 2004.