Andrew Milligan v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-92-251-CR



ANDREW MILLIGAN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NO. 7611, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING

In a trial before the court, appellant entered a plea of guilty to the offense of unauthorized use of a motor vehicle. See Tex. Penal Code Ann. § 31.07 (West 1989). Punishment, enhanced by two prior convictions, was assessed at confinement for sixty years. Appellant asserts three points of error, contending that the trial court erred by: (1) imposing sentence without a hearing; (2) permitting the State to elicit testimony concerning the terms of a proffered plea bargain and his refusal of same; and (3) finding that there was sufficient evidence to support a conviction. We will overrule appellant's points of error and affirm the judgment of the trial court.

In his first point of error, appellant contends that punishment was assessed without furnishing him a hearing. Appellant directs our attention to the fact that the court reporter did not furnish a transcription of a punishment hearing. The court reporter's certificate certifies that she included all of the proceedings requested to be included in the statement of facts in "the above styled and numbered cause, all of which occurred in open court or in chambers and were reported by me." The instant cause was tried jointly with another cause in which appellant entered a plea of guilty. While the hearings on the pleas of guilty were shown to have been held together, the statement of facts of the punishment hearing bears only the number of the companion cause.

The judgment and sentence in the instant cause reflect the following:

ON THE 25TH DAY OF FEBRUARY 1992, THIS CAUSE BEING AGAIN CALLED, THE STATE APPEARED BY HER DISTRICT ATTORNEY AND THE DEFENDANT, ANDREW MILLIGAN APPEARED IN PERSON AND REPRESENTED BY COUNSEL PHIL DUCLOUX AND THE COURT HAVING HEARD ALL THE EVIDENCE FOR THE STATE AND FOR THE DEFENDANT PRESENTED FOR THE PURPOSE OF DETERMINING THE PUNISHMENT TO BE ASSESSED, IS OF THE OPINION AND SO FINDS THE PUNISHMENT OF THE DEFENDANT SHOULD BE FIXED AT CONFINEMENT IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE THE INSTITUTIONAL DIVISION FOR A PERIOD OF SIXTY (60) YEARS.

The recitations in the judgment and sentence are binding upon appellant "in the absence of direct proof to the contrary." Harvey v. State, 485 S.W.2d 907, 909 (Tex. Crim. App. 1972). We find no direct or affirmative proof to overcome the presumption of regularity of the judgment and sentence. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in allowing the prosecutor to elicit testimony from appellant about a plea bargain he had been offered by the State. We find our disposition of an identical point of error in Milligan v. State, No. 3-92-132-CR (Tex. App.--Austin Mar. 2, 1994, no pet. h.), handed down this day dispositive of appellant's contention. Appellant's second point of error is overruled.

In his third point of error, appellant urges that the evidence is insufficient to support the conviction.

The appellant testified under oath as follows:

MR. PENICK [prosecutor]: And are you the same Andrew Morris Milligan that on the 9th day of September, 1991, in Bastrop County, Texas intentionally and knowingly operated a motor propelled vehicle, a 1987 Ford Crown Victoria four-door without the effective consent of the owner, David Outon?

MR. MILLIGAN [appellant]: Yes, sir.

We find the above testimony sufficient to constitute a judicial confession that appellant committed the offense. See Dinnery v. State, 592 S.W.2d 343, 352 (Tex. Crim. App. 1980); Milligan v. State, No. 3-92-132-CR (Tex. App.--Austin Mar. 2, 1994), handed down this date. We reject appellant's argument that the foregoing could be considered nothing more than a clarification of the indictment. Appellant and defense counsel had earlier stated to the trial court that they had "plenty time" and "much time" to discuss the offense, and that appellant "understood what he was charged with" and "understood what he was doing." We hold that appellant's judicial confession, standing alone, was sufficient to sustain the conviction. Appellant's third point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

Before Justices Powers, B. A. Smith and Davis^*

Affirmed

Filed: March 2, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).