Gonzales v. State , 1985 Tex. App. LEXIS 6540 ( 1985 )

CANTU, Justice,

concurring.

I concur in the result, but I disassociate myself from that portion of the opinion which relies on O’Conner v. State, 401 S.W.2d 237 (Tex.Crim.App.1966) for authority to consider as evidence those documents attached to the “Written Waiver and Consent to Stipulation of Testimony and Stipulations” which constitute statements or reports of witnesses whose names are not specifically included in the waiver portion of the instrument.

The majority opinion needlessly discusses, I believe, evidence not validly before the trial court or before this Court in arriving at its conclusion. As I see it the probative evidence in the case is much weaker than the majority assumes inasmuch as it consists solely of two witness’ statements and the handwritten stipulation alluded to in the majority opinion.

In support of my position I refer to the Written Waiver and Consent to Stipulation of Testimony and Stipulations and especially those portions which read:

Now comes the defendant ... and understanding that he has the right to have any witness against him appear in Court, to be confronted by such witness and the right to cross-examine such witness through counsel, deliberately and knowingly agrees and consents in writing to waive the appearance, confrontation and cross-examination of witnesses against him in said cause, to-wit:

ARNULFO LOPEZ

STEPHEN DUNK

HECTOR GARZA

RENE ARIZOLA

As well as any other witnesses that might be called by the State.

* * * ‡ * *

Said defendant in person together with his counsel and the attorney representing the State of Texas further agrees and consents in writing in open court to the introduction of testimony on behalf of the State by affidavits, written statements of witnesses, and any other documentary evidence that may be offered in support of any judgment that may be entered in said cause, all of which are attached hereto, marked Exhibit Nos. SX-1 (1-14) inclusive, and made a part hereof ...

The exhibit then contains the statements of Stephen Dunk, and Arnulfo Lopez. Also included are xerographic copies of two checks, one forming the basis of the instant indictment and another indicating a possible extraneous offense. There follows the inclusion of numerous police reports prepared by several police officers whose names are not included within the waiver of confrontation and cross-examination portion of the stipulations.

Not included in the exhibit although confrontation and cross-examination were waived as to them are statements of the witnesses Hector Garza and Rene Arizola.

The constitutional right of an accused to confrontation and the right to cross-examine witnesses against him is a right which may be waived. Griffith v. State, 391 S.W.2d 428 (Tex.Crim.App.1965). But if waiver of a constitutional right is to have any meaning, it must remain “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314, 317 (1966).

By specifically naming those witnesses appellant was willing to waive confrontation and cross-examination of, appellant, I do not believe, was giving the State Carte Blance to attach the statements of every other potential witness which could be dragged up. This is especially true in a case tried upon a plea of not guilty and which is not purely one tried upon stipulated proof.

In O’Conner v. State, supra and O’Conner v. State, 401 S.W.2d 240 (Tex.Crim.App.1966), cases involving guilty pleas, both opinions by Commissioner Dice, the issue was not one of identifying the witness whose confrontation and cross-examination were the subject of waiver. Rather, the narrow question presented was whether the State could substitute in the absence of an objection, a narrative statement by the prosecutor of what the evidence would be for the prior testimony of the witnesses which appellant agreed could be offered.

I find nothing in either case authorizing the majority to consider statements of witnesses whose confrontation and cross-examination have not been waived constitutionally and pursuant to TEX.CODE CRIM. PROC.ANN. art. 1.15. Furthermore, both O’Conner eases, insofar as they permit the State to substitute on the manner of stipulation agreed upon by the parties are correctly decided only if failure to object at the trial level constitutes a waiver by silence.

In all other respects I agree that the State’s proof falls short of that required for conviction.