Willie James Green v. State ( 2020 )

NOS. 12-19-00400-CR
12-19-00401-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIE JAMES GREEN, § APPEALS FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Willie James Green appeals his convictions for obstruction or retaliation and possession
of a controlled substance. In the obstruction or retaliation case, Appellant’s counsel filed a brief
in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). In the possession case,
Appellant argues that the stipulation of evidence is insufficient to support his “guilty” plea. We
affirm the obstruction or retaliation conviction and we reverse and remand the possession of a
controlled substance case.
BACKGROUND
Appellant was charged by indictment with the felony offenses of obstruction or
retaliation and possession of a controlled substance listed in penalty group one, namely
methamphetamine, in an amount of four grams or more but less than 200 grams. 1 In each case,
1
As alleged in the indictment against Appellant, obstruction or retaliation is a third-degree felony. See
TEX. PENAL CODE ANN. § 36.06 (a)(1)(A), (c) (West 2016). Possession of more than four but less than two hundred
grams of a controlled substance in penalty group one is a second-degree felony. See TEX. HEALTH & SAFETY CODE
ANN. § 481.115 (a), (d) (West 2017).
the State alleged that Appellant had two previous, sequential felony convictions, elevating his
punishment range to twenty-five years to ninety-nine years or life imprisonment. 2
Appellant elected to waive his right to a jury trial and entered pleas of “guilty” to both
charges and “true” to the enhancement allegations in each case. Appellant rejected the State’s
plea bargain offers and elected to have the trial court assess punishment. The trial court ordered
a presentence investigation report and scheduled a sentencing hearing. After reviewing the
presentence report and hearing argument of counsel at the punishment hearing, the trial court
sentenced Appellant to imprisonment for thirty-five years in each case. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In one issue in the possession of a controlled substance case, Appellant argues that the
stipulation of evidence the State offered to support Appellant’s plea of “guilty” is insufficient
because the stipulation does not embrace all the elements of the offense, and in fact, alleged a
completely different offense. The State concedes that the stipulation of evidence is insufficient
and cannot be overcome by any other source of evidence in the record that could arguably
support Appellant’s plea of “guilty” to the possession charge. Appellant and the State agree that
the appropriate remedy is a remand of the possession of a controlled substance case for a new
trial.
The United States Constitution does not require that the State present evidence in support
of a “guilty” plea in Texas courts. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).
Article 1.15 of the code of criminal procedure constitutes “an additional procedural safeguard
required by the State of Texas but not by federal constitutional law.” Id. (quoting Ex parte
Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986)); see also TEX. CODE CRIM. PROC. ANN.
Art. 1.15 (West 2005). A trial court is not authorized to render a conviction in a felony case
based upon a plea of “guilty” without sufficient evidence to support same. See TEX. CODE CRIM.
PROC. ANN. Art. 1.15. Evidence offered in support of a plea of “guilty” may take many forms.
Menefee, 287 S.W.3d at 13. Article 1.15 expressly provides that a defendant may consent to the
proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of
what the evidence against him would be, without necessarily admitting to its veracity or
accuracy; and such a proffer or stipulation of evidence will suffice to support the guilty plea so
2
See TEX. PENAL CODE ANN. § 12.42 (d) (West 2019).
2
long as it embraces every constituent element of the charged offense. TEX. CODE CRIM. PROC.
ANN. Art. 1.15. Alternatively, Texas case law recognizes that a defendant may enter a sworn
written statement, or may testify under oath in open court, specifically admitting his culpability
or at least acknowledging generally that the allegations against him are in fact true and correct;
and again, so long as such a judicial confession covers all of the elements of the charged offense,
it will suffice to support the guilty plea. Menefee, 287 S.W.3d at 13. However, a stipulation of
evidence or judicial confession that fails to establish every element of the offense charged will
not authorize the trial court to convict. Id. at 14. A conviction rendered without sufficient
evidence to support a guilty plea constitutes trial error. Id.
A review of the record reveals that the stipulation of evidence the State offered to
substantiate Appellant’s “guilty” plea in the possession of a controlled substance case does not
embrace the elements of the offense of possession of a controlled substance. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115 (a), (d) (West 2017). The stipulation offered in the possession
case is the same stipulation offered by the State in the obstruction or retaliation case and tracks
the language of the indictment returned against Appellant for the offense of obstruction or
retaliation. See TEX. PENAL CODE ANN. § 36.06 (a) (1) (A) (West 2016). As the State concedes,
there is no other evidence in the record to support Appellant’s “guilty” plea to the possession
charge. Thus, we sustain Appellant’s sole issue and hold the evidence insufficient to support
Appellant’s “guilty” plea to the possession charge. McClain v. State, 730 S.W.2d 739, 743 (Tex.
Crim. App. 1987).
Evidentiary sufficiency to support a guilty plea is trial error and does not result in an
acquittal. Bender v. State, 758 S.W.2d 278, 280–81 (Tex. Crim. App. 1988); Baggett v. State,
342 S.W.3d 172, 175 (Tex. App.—Texarkana 2011, no pet.). Accordingly, the appropriate
remedy in this case is to remand for a new trial. See McClain, 730 S.W.2d at 743; see also
Bender, 758 S.W.3d at 281; Baggett, 342 S.W.3d at 175.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
In the obstruction or retaliation case, Appellant’s counsel filed a brief in compliance with
Anders v. California and Gainous v. State. Appellant’s counsel relates that he has diligently
reviewed and evaluated the appellate record and found no error for our review. In compliance
with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), counsel’s brief
3
contains a thorough professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced. 3
We have considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We have found no reversible error.
CONCLUSION
With respect to appellate cause number 12-19-00401-CR, the possession of a controlled
substance case, we reverse the trial court’s judgment and remand the case to the trial court for a
new trial.
And with respect to appellate cause number 12-19-00400-CR, the obstruction or
retaliation case, Appellant’s counsel has moved for leave to withdraw as required by Anders and
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). See also In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for
consideration with the merits. Having done so, we agree with Appellant’s counsel that the
appeal in the obstruction or retaliation case is wholly frivolous. Accordingly, we grant counsel’s
motion for leave to withdraw. We affirm the trial court’s judgment in the obstruction or
retaliation case.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35.
Should Appellant wish to seek review by the Texas Court of Criminal Appeals, he must either
retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within
thirty days from the date of either this opinion or the date that the last timely motion for
rehearing was overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for
discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP.
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex.
Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and
no pro se brief has been filed.
4
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered October 21, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2020
NO. 12-19-00400-CR
WILLIE JAMES GREEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0931-19)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2020
NO. 12-19-00401-CR
WILLIE JAMES GREEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0932-19)
THIS CAUSE came to be heard on the appellate record and brief filed herein, and
the same being considered, it is the opinion of this court that there was error in the judgment as
entered by the trial court and that the same should be reversed and the cause remanded to the
court below for a new trial.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be reversed and the cause remanded for a new trial in accordance with the
opinion of this Court; and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.