Ronald Jones v. Massachusetts Mutual Life Insurance Company Bank of America N. A. R. Dwayne Danner Kelly Orlando And Robert Mowery ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00194-CR
MATTHEW CAMERON APPELLANT
HANSBERGER
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Matthew Cameron Hansberger pled guilty to aggravated sexual
assault of a child, and the trial court sentenced him to twenty years’ confinement.
In two issues, Appellant contends that there is no evidence to support his guilty
plea as required by article 1.15 of the Texas Code of Criminal Procedure and that
his lawyer rendered ineffective assistance of counsel. We affirm.
1
See Tex. R. App. P. 47.4.
In connection with his guilty plea, Appellant executed a judicial confession
that stated,
Upon my oath I swear my true name is Matthew Hansberger and I
am 39 years of age; I have read the indictment or information filed in
this case and I committed each and every act alleged therein, except
those acts waived by the State. All facts alleged in the indictment or
information are true and correct. I am guilty of the instant offense as
well as all lesser included offenses . . . . I swear to the truth of all of
the foregoing . . . .
On the page immediately following the judicial confession, Appellant’s
attorney, the prosecutor, and the trial court signed Appellant’s waivers, which
included the following:
In open court we join and approve the waiver of jury trial . . . and the
stipulations of evidence pursuant to Art. 1.15, Code of Criminal
Procedure . . . . It is agreed that the Court may take judicial notice of
this document and the Court takes judicial notice of same.
Texas Code of Criminal Procedure article 1.15 provides,
No person can be convicted of a felony except upon the verdict of a
jury duly rendered and recorded, unless the defendant, upon
entering a plea, has in open court in person waived his right of trial
by jury in writing in accordance with Articles 1.13 and 1.14; provided,
however, that it shall be necessary for 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 the evidence and testimony or to the introduction of
testimony by affidavits, written statements of 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.
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Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005).
The appellate standard of review announced in Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781 (1979) is not applicable where the defendant enters a
plea of nolo contendere or guilty. Chindaphone v. State, 241 S.W.3d 217, 219
(Tex. App.––Fort Worth 2007, pet. ref’d). An appellate court will affirm the trial
court’s judgment under article 1.15 if the State introduced evidence that
embraces every essential element of the offense charged and that is sufficient to
establish the defendant’s guilt. Id.; Wright v. State, 930 S.W.2d 131, 132 (Tex.
App.––Dallas 1996, no pet.). A judicial confession, standing alone, is sufficient to
sustain a conviction upon a guilty plea and to satisfy the requirements of article
1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op. on
reh’g).
Here, Appellant executed a judicial confession stating that he had read the
indictment and had committed each and every act alleged therein. When the trial
court asked Appellant in open court, “To the charge of aggravated sexual assault
of a child under 14 years of age you may plead guilty or not guilty. What is your
plea?” he responded, “Guilty, Your Honor.” Appellant then responded
affirmatively to each of the following questions from the trial court: “Are you
pleading guilty freely and voluntarily?” and “[A]re you agreeing that the
allegations that are stated here in the indictment are true and correct?” Appellant
also executed a waiver that provided, “It is agreed that the Court may take
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judicial notice of this document and the Court takes judicial notice of same.”
Appellant’s attorney’s and the trial court’s signatures appear under this provision.
When a trial court takes judicial notice of adjudicative facts, it authorizes
the factfinder to accept the facts as true without requiring formal proof. Watts v.
State, 99 S.W.3d 604, 609–10 (Tex. Crim. App. 2003). Thus, as here, when the
trial court takes judicial notice of a judicial confession, the State is not required to
introduce the judicial confession in evidence. Chindaphone, 241 S.W.3d at 219;
accord McDougal v. State, 105 S.W.3d 119, 120–21 (Tex. App.––Fort Worth
2003, pet. ref’d) (recognizing that “[t]he contents of the clerk’s record are not
evidence unless the trial court takes judicial notice of them or they are offered
into evidence”) (emphasis added). And when the accused specifically states in
the judicial confession, “I have read the indictment or information filed in this case
and I committed each and every act alleged therein,” the judicial confession
standing alone is sufficient to support a guilty plea under article 1.15 of the code
of criminal procedure. See, e.g., Dinnery, 592 S.W.2d at 353; Tabora v. State,
14 S.W.3d 332, 337–38 (Tex. App.––Houston [14th Dist.] 2000, no pet.) (holding
that form “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” signed by appellant sufficiently supported plea of no contest under
article 1.15); Scott v. State, 945 S.W.2d 347, 348 (Tex. App.––Houston [1st Dist.]
1997, no pet.) (holding that appellant’s stipulation that he “agree[d] that the
elements of the offense alleged [in the indictment] constitute the evidence in this
case” sufficiently supported a plea of no contest under article 1.15).
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Appellant speculates that in Chindaphone, a case in which this court held
that a written judicial confession and judicial notice language identical to that
used in this case was sufficient to satisfy article 1.15, the trial court either
formally admitted in evidence or formally took judicial notice of the judicial
confession. Without citing any authority, he contends that a trial court must take
one of these additional steps during the plea hearing before the “self-executing”
judicial notice of the confession language becomes effective. We are not
persuaded by Appellant’s speculation unaccompanied by cited authority.
Here, Appellant executed a judicial confession that embraced every
constituent element of the charged offense, and he confessed to the truth and
correctness of the allegations in the indictment. See Menefee v. State, 287
S.W.3d 9, 13–15 (Tex. Crim. App. 2009). His attorney, along with the prosecutor
and the trial court signed a document stating that it was agreed that the trial court
“may take judicial notice of” and “takes judicial notice of” the plea papers
containing written admonishments, waivers, and Appellant’s signed judicial
confession. We hold that the trial court need not have taken the additional step
of formally admitting the confession in evidence or orally taking notice of it. See
Dinnery, 592 S.W.2d at 353; Chindaphone, 241 S.W.3d at 219. As shown by the
trial judge’s signature, the trial court explicitly took judicial notice of the plea
papers and approved the waiver and consent as required by article 1.15.
Accordingly, we overrule Appellant’s first issue.
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In his second issue, Appellant contends that his trial lawyer rendered
ineffective assistance of counsel for not objecting to the following remark by the
prosecutor made in response to defense counsel’s argument that Appellant had
taken responsibility for the offense:
Your Honor, that’s the one thing that this defendant has not done in
this case and that is take responsibility for his guilt. The very first
thing on the first page of the PSI, actually it’s page two under
defendant’s version, paragraph four says, he initially omitted or
minimized significant events in his life. The Defendant only admitted
partial guilt for this offense and denied penetrating the victim, which
is what he pled guilty to.
Appellant was charged in two counts with aggravated sexual assault of a child:
in the first count by contact and in the second by penetration. On the record, he
pled guilty to aggravated sexual assault of a child; there was no distinction made
as to which count or which manner and means. The plea admonishments,
however, indicate that he pled only to the first count, which alleged contact.
Appellant now argues that, by his statement above, the prosecutor meant that
Appellant was pleading guilty to the second count, which alleged penetration
rather than the first, which alleged contact. We disagree with this interpretation
of the prosecutor’s remark, which we think is ambiguous, at worst. But even if
we were to accept Appellant’s characterization that the prosecutor misspoke,
Appellant has not met his burden to show that counsel’s not objecting to the
prosecutor’s statement fell below the standard of prevailing professional norms,
nor can it be determined from the record before us how, if at all, counsel’s not
objecting in this instance affected the result of the proceeding. See Strickland v.
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Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d
770, 770 (Tex. Crim App. 1999). Even if the prosecutor’s argument was
improper, an isolated instance of a failure to object to improper argument does
not necessarily render counsel ineffective. See Robertson v. State, 187 S.W.3d
475, 483 (Tex. Crim. App. 2006). Moreover, there is nothing in the record to
indicate that the trial court was confused by the charge to which Appellant pled
guilty or that the prosecutor’s statement misled the trial court. We overrule
Appellant’s second issue.
Having overruled both of Appellant’s issues, we affirm the judgment of the
trial court.
LEE GABRIEL
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 7, 2012
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