Mansur Muneer Saleh v. State ( 2007 )

Affirmed and Memorandum Opinion filed July 3, 2007

Affirmed and Memorandum Opinion filed July 3, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-01148-CR

_______________

MANSUR MUNEER SALEH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 300th District Court

 Brazoria County, Texas

Trial Court Cause No. 47,939

M E M O R A N D U M  O P I N I O N

Appellant, Mansur Muneer Saleh, appeals his conviction for aggravated assault of a public servant.  He waived his right to a jury and pleaded guilty without an agreed recommendation regarding punishment.  The trial court sentenced appellant to eighteen years= confinement.  In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction, and the trial court erred by making a deadly weapon finding in the judgment where use of a deadly weapon was an element of the offense.  Our disposition is based on clearly settled law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

On September 13, 2004,  appellant stole a pick-up truck the owner had parked, with the engine running, in front of a convenience store.  The owner of the truck alerted police, and a high speed chase ensued.  Appellant drove with the truck windows down and played music so loud that it could be heard over police sirens. Appellant drove north on a southbound lane, sped through two school zones, hit two police vehicles, momentarily lost control and went off the roadway, and made an obscene hand gesture to police.  Ultimately, appellant slammed the truck into Officer Matt Kohls=s cruiser on the driver=s side.  The impact pushed  Officer Kohls=s right knee into the metal-equipment console.  Officer Kohl=s knee was lacerated, bruised, and swollen, and required medical treatment.  When appellant was arrested, he said, AI hope y=all had fun because I sure in the f**k did.@ 

Appellant was charged with aggravated assault of a public servant by striking Officer Kohls with a vehicle.  In two other indictments, he was charged  with unauthorized  use of a vehicle and evading arrest in a motor vehicle. Appellant plead guilty to all three charges.  He signed an AAffidavit of Admonitions, Waivers, Judicial Confession, Statements, Plea, Probation and Appeal@ in which he confessed that the Aallegations and facts contained in the indictment[s]@ were Atrue and correct.@  On the scheduled trial date, the presiding judge reset the case to allow time for preparation of a presentence investigation report.  Subsequently,  the court sentenced appellant to eighteen years= confinement.

II.  Legal and Factual Sufficiency

In his first and second issues, appellant contends the evidence is legally and factually insufficient to prove he intentionally, knowingly, or recklessly caused bodily injury to Officer Kohls by striking his patrol vehicle.

Sufficiency of the evidence following a guilty plea is reviewed under article 1.15 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).  The State must offer sufficient proof to support any judgment based on a guilty plea in a felony case tried to the court.  See id. (providing that the State must Aintroduce 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@); see also Ex Parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). 

We do not use the traditional Jackson standard for reviewing legal sufficiency, or the Johnson standard for reviewing factual sufficiency,^[1] in a guilty plea case.  Keller v. State, 125 S.W.3d 600, 604B05 (Tex. App.CHouston [1st Dist.] 2003), pet. dism=d, improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 318B19 (1979) and Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  Legal-sufficiency-review analysis under Jackson applies only when the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt and does not apply when a defendant knowingly, intelligently, and voluntarily enters a plea of guilty.  Id. at 605 (citing Ex Parte Williams, 703 S.W.2d at 682).  There is no federal constitutional requirement of corroborating evidence when a state criminal defendant pleads guilty, and Jackson does not apply.  Id.  A plea of guilty waives all nonjurisdictional defenses, including challenges to the sufficiency of the evidence.  Id. Similarly, a defendant who pleads guilty to the court by executing a valid judicial confession waives any challenge to factual sufficiency of the evidence.  Id. at 605 (citing Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.CDallas 1997, no pet.). 

Under article 1.15, a judicial confession alone is sufficient evidence to sustain a conviction upon a guilty plea.  Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 352B53 (Tex. Crim. App. 1979); see also McGill v. State, 200 S.W.3d 325, 330 n.1 (Tex. App.CDallas 2006, no pet.)  The judicial confession may take the form of an affirmative acknowledgment by the defendant that the indictment was true and correct.  Id. 

Here, appellant executed a sworn judicial confession in which he  Aadmit[ted] and judicially confess[ed]@ to the allegations and facts in the indictment and Astipulat[ed] that the allegations and facts [were] true and correct and constitut[ed] evidence in this case.@  This judicial confession standing alone is sufficient under article 1.15 to support appellant=s convictions.  See Keller, 125 S.W.3d at 605B06 (holding judicial confession that provided, AI understand the above allegations and I confess that they are true . . .@ was sufficient evidence to support judgment under article 1.15 and Athe record need not otherwise provide proof@).  Accordingly, appellant=s first and second issues are overruled.

III.  Sentence Enhancement

In his third issue, appellant contends the trial court erred by enhancing his punishment based on use of the Asame motor vehicle@ as a deadly weapon. Specifically, appellant contends the trial court erred by making a deadly weapon finding because (1) the State gave no notice of its intent to seek an affirmative finding of the use or exhibit of a deadly weapon, and (2) the affirmative deadly weapon finding was improper because it was an element of the offense.  

  A.      Notice 

A defendant is entitled to notice when the State seeks an affirmative finding that a deadly weapon was used during commission of the charged crime.  Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App.1993); see also Flenteroy v. State, 187 S.W.3d 406, 411 n.8 (Tex. Crim. App. 2005).  Specifically, pleading use of a deadly weapon in an indictment gives a defendant sufficient notice that the State will seek a deadly weapon finding.  See Ex parte Patterson, 740 S.W.2d 766, 776 (Tex. Crim. App. 1987), overruled on other grounds by, Ex  parte Beck, 769 S.W.2d 525, 527 (Tex. Crim. App. 1989); Alexander v. State, 868 S.W.2d 356, 361 (Tex. App.CDallas 1993, no pet.). 

Here, the State alleged in the indictment that appellant Aintentionally or knowingly or recklessly caused bodily injury to Matt Kohls by striking a vehicle occupied by Matt Kohls with a vehicle operated by the defendant, and the defendant did then and there use or exhibit a deadly weapon, to wit: a motor vehicle, during the commission of said assault . . .@ (emphasis added). Because the State explicitly included the words Adeadly weapon,@ appellant had sufficient notice that the State would seek a deadly weapon finding. 

B.      Deadly Weapon Finding

Appellant=s argument pertaining to the deadly weapon finding is not entirely clear.  Appellant seems to argue that the trial court was precluded from making a deadly weapon finding in the judgment because use of a deadly weapon was an element of the offense of aggravated assault of a public servant.^[2]

We note that Article 42.12, section 3g(a)(2) of the Code of Criminal Procedure, which pertains to judge-ordered community supervision, does not apply to a defendant when there is an affirmative finding that he used or exhibited a deadly weapon during commission of a felony offense or during immediate flight from commission of a felony offense or was a party to an offense and knew that a deadly weapon would be used or exhibited.  Tex. Code Crim. Proc. Ann. Art. 42.12, ' 3g(a)(2) (Vernon 2006).  This section further provides that, on an affirmative finding, the trial court shall enter the finding in the judgment of the court.  Id. Several Texas courts of appeals, including this court, have recognized the same conduct that was an element of an offense can also be the basis for a deadly weapon finding under article 42.12, section 3g(a)(2).  See  Martinez v. State, 883 S.W.2d 771, 773 (Tex. App.CFort Worth 1994, pet. ref=d) (explaining the deadly weapon finding statutes Arefer generally to a trial of a felony, making no exception for those felonies where the use of a deadly weapon finding constitutes an essential element of the offense@); see also Jones v. State, No. 14-03-00650, 2005 WL 549541, at *10S11 (Tex. App.CHouston [14th Dist.] March 10, 2005, pet. ref=d) (mem. op.) (holding same conduct can be used as an element of an offense and also serve as the basis for a deadly weapon finding under article 42.12, section 3g(a)(2) of the and explaining to hold otherwise would Aconflict with the unambiguous language of article 42.12, section 3g(a)(2)@); Thomas v. State, 2 S.W.3d 640, 642B43 (Tex. App.CDallas 1999, no pet.) (holding in case where defendant pleaded guilty to aggravated assault with a deadly weapon, that same conduct could be used as an element of an offense and also serve as the basis for a deadly weapon finding).

 Finally, appellant contends there is a conflict between the range of punishment statute for evading arrest and the range of punishment for aggravated assault.   However, appellant does not explain the purported Aconflict.@  Based on this Aconflict,@ he argues that the State should be required to plead under the Aspecific statute@ and Anot be allowed to utilize the use of a motor vehicle twice.@  Appellant cites Chalin v. State for support. 645 S.W.2d 265, 272 (Tex. Crim. App. 1982).  In Chalin, the Court of Criminal Appeals explained that Awhen a proscription for a general class of acts, such as theft, and one for a specific form of that general class of offenses, such as welfare fraud, conflict as to the range of punishment, the more specific statute will prevail.@  Id.  However, evading arrest and aggravated assault are two separate offenses.  They are not in the same Ageneral class of acts@ as in the example in Chalin.  Appellant=s third issue is overruled. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Opinion filed July 3, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  We note that the Court of Criminal Appeals recently clarified the proper standard for factual sufficiency review.  See Watson v. State, 204 S.W.3d 404, 405 (Tex. Crim. App. 2006).  In Watson, the court disavowed the factual sufficiency standard of review articulated in Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), effectively resurrecting the Johnson factual sufficiency formulation.  Id. at 414S17.  Watson does not change our analysis in this case. 

^[2]  The judgment on plea of guilty signed by the trial court on October 13, 2005, provides, AFindings on use deadly weapon (in detail): Affirmative Ca motor vehicle.@