NUMBER 13-11-00603-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GUADALUPE CALDERON III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Garza
Appellant, Guadalupe Calderon, entered an open plea of nolo contendere to the
offense of aggravated assault with a deadly weapon, a second-degree felony. See TEX.
PENAL CODE ANN. § 22.02(a)(2) (West 2011). The offense was enhanced to a first-
degree felony due to a prior felony conviction. See id. § 12.42(b) (West Supp. 2011).
Calderon was convicted and sentenced to twenty years’ imprisonment. He contends on
appeal that the evidence was legally insufficient to support a finding of guilt. We affirm.
I. BACKGROUND
Calderon was charged by indictment with assaulting Jorge Gomez on or about
April 23, 2011. The indictment alleged that Calderon intentionally, knowingly, or
recklessly caused bodily injury to Gomez by stabbing Gomez with a knife, “and said
knife was a deadly weapon that in the manner of its use or intended use was capable of
causing death or serious bodily injury.” See id. § 1.07(a)(17)(B) (West Supp. 2011)
(defining “deadly weapon” as, inter alia, “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”). The indictment also
alleged that Calderon had previously been convicted of felony escape in 2004. See id.
§ 38.06 (West Supp. 2011).
Calderon entered an open plea of no contest and signed a “Judicial Confession
and Stipulation,” which stated, in pertinent part, as follows:
My attorney has investigated the facts and circumstances surrounding my
case, discussed those with me, and advised me of possible defenses. I
am satisfied with my attorney’s representation. I am pleading guilty to the
offense of AGGRAVATED ASSAULT because I am guilty. My plea is free,
voluntarily, knowingly, and intelligently given.
On this day in open Court, I, GUADALUPE CALDERON, waive my right
against self-incrimination and hereby judicially confess that on or about
APRIL 23, 2011, in Nueces County, Texas, I, did then and there
intentionally, knowingly, or recklessly cause bodily injury to JORGE
GOMEZ by STABBING JORGE GOMEZ WITH A KNIFE.
....
I hereby agree and stipulate that the facts contained in this instrument and
its attached exhibits, if any, are true and correct.
The “Judicial Confession and Stipulation” was entered into evidence. The State also
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introduced into evidence several photographs of the crime scene, the corresponding
police report, and a certified copy of Calderon’s prior felony conviction.
The trial court found Calderon guilty and this appeal followed.
II. DISCUSSION
By his sole issue, Calderon contends that the evidence was legally insufficient to
support a finding that a knife is a deadly weapon, which was the aggravating element of
the offense as alleged in the indictment. See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B),
22.02(a)(2).
Ordinarily, in conducting a sufficiency review, we consider the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)). However, when a defendant knowingly, intelligently, and voluntarily
enters a plea of nolo contendere, the traditional sufficiency standard is inapplicable.
O’Brien v. State, 154 S.W.3d 908, 910 (Tex. App.—Dallas 2005, no pet.). Instead, in
such circumstances, the State need only “introduce evidence into the record showing
the guilt of the defendant . . . .” TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005).
When the State introduces evidence, we will affirm the judgment under article 1.15 if the
evidence introduced “embrace[s] every essential element of the offense charged.”
Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Chindaphone v. State,
241 S.W.3d 217, 219 (Tex. App.—Fort Worth 2007, pet. ref’d); Breaux v. State, 16
S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We do not apply
the “rationality” test of a traditional sufficiency analysis where a defendant voluntarily
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enters a nolo contendere plea. Wright v. State, 930 S.W.2d 131, 132–33 (Tex. App.—
Dallas 1995, no pet.). Rather, our review is limited to a determination of whether the
State introduced evidence of guilt “embrac[ing] every essential element of the offense
charged.” Stone, 919 S.W.2d at 427; see TEX. CODE CRIM. PROC. ANN. art. 1.15.
Calderon specifically argues that the evidence supporting a deadly weapon was
insufficient because “[t]he judicial confession does not mention a deadly weapon was
exhibited in the commission of this crime.” He is correct that, although the judicial
confession stated that Calderon used a knife in committing the crime, it did not state
that a knife is a deadly weapon as alleged in the indictment. However, the judicial
confession was not the only piece of evidence before the trial court. During the plea
hearing, the trial court asked Calderon: “Are you pleading no contest simply and only,
because you do not desire to contest the facts alleged in the indictment and you know
they are true?” Calderon answered: “Yes, sir.” An affirmation of the indictment as true
and correct will constitute a judicial confession sufficient to support a judgment of
conviction. Menefee v. State, 287 S.W.3d 9, 16 n.30 (Tex. Crim. App. 2009) (citing
Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. 1978)); see Dinnery v. State, 592
S.W.2d 343, 353 n.7 (Tex. Crim. App. 1980) (“[W]here the record shows the indictment
was read to the defendant or that he knows or understands the contents and he admits
the allegations are true and correct, such is a judicial confession.”).
Because Calderon confessed in open court that the “facts alleged in the
indictment” are true—and because there is no indication in the record that Calderon did
not know or understand the allegations in the indictment or that his plea was
involuntary—the State met its burden to introduce evidence “embrac[ing] every
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essential element of the offense charged.” Stone, 919 S.W.2d at 427; see TEX. CODE
CRIM. PROC. ANN. art. 1.15. Therefore, the evidence was sufficient to support the
conviction. We overrule Calderon’s sole issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
16th day of August, 2012.
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