Michael Fitzgerald Reese v. State

NUMBERS 13-13-00616-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL FITZGERALD REESE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 27th District Court
of Bell County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez, and Justices Benavides and Perkes
Memorandum Opinion by Justice Perkes1
Appellant Michael Fitzgerald Reese appeals his conviction for the offense of
murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. §
73.001 (West, Westlaw through Ch. 46 2015 R.S.).
through Ch. 46 2015 R.S.). Appellant pled guilty and the trial court assessed punishment
at life imprisonment. By two issues, appellant argues: (1) the trial court erred in
accepting appellant’s guilty plea because the evidence offered by the State in support of
his plea was insufficient to comply with article 1.15 of the Code of Criminal Procedure;
and (2) assuming arguendo that appellant’s punishment evidence could be used to satisfy
article 1.15, the evidence established only that he was guilty of the lesser-included
offense of manslaughter. See TEX. PENAL CODE ANN. § 19.04. We affirm.
I. BACKGROUND
Appellant was charged by indictment with “intentionally and knowingly caus[ing]
the death of an individual, namely, Justin Richardson, by shooting the said Justin
Richardson with a firearm.” At trial, five witnesses testified before appellant entered a
plea of guilty and signed a judicial confession.
The following evidence was presented prior to appellant’s guilty plea. On April 1,
2011, around 1 a.m., appellant’s former girlfriend and her friends went to Club Rosse.
While there, appellant approached her and asked what she was doing at the club and
“what’s going on?” She asked him to leave her alone and to stop calling her. She then
left the club with her friends and went to a Denny’s restaurant. Justin Richardson was
among those present. Appellant arrived at Denny’s about ten minutes later, wearing a
pink shirt and khakis. He demanded she go outside with him and talk. When the others
at the table said that this was not the time and place for this conversation, appellant
responded by using combative and vulgar language.
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The manager and security guard then asked appellant and the three men standing
near him to leave the restaurant and escorted them out. Richardson and appellant,
along with the two other men, went outside. The manager, who knew appellant because
he was a regular customer, pushed him outside and told him to leave. The manager
testified to the following:
[PROSECUTOR:] Okay. What happened when you walked outside with
Mike?
[MANAGER:] When I walked outside, I was trying to calm Mike down.
I was like, "Mike, just leave, just leave it alone." The
next thing I know, when I turned my head, I seen him
pull out a gun. And after that I heard people shouting,
"Mike, no. Mike, no. Stop, Mike." And I looked. The
security guard was trying to push me back in. About
that time I heard two gunshots.
[PROSECUTOR:] And did you see Mike shoot either one of the shots?
[MANAGER:] No, I just went blank. I don't remember anything after
that.
[PROSECUTOR:] How close were you to him when he pulled out his gun?
[MANAGER:] It wasn't-- I wasn't that close, but I was close enough to
notice that he had pulled out a gun.
[PROSECUTOR:] Do you see where he pulled his gun from?
[MANAGER:] I just-- his shorts.
Another customer at Denny’s testified that he thereafter witnessed “the guy with
the pink shirt” running away with a gun.
Before the trial concluded, appellant entered a six-page written plea agreement,
supported by a signed “Judicial Confession.” The Judicial Confession reads as follows:
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Upon my oath I swear my true name is Michael Fitzgerald Reese and I am
30 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. All enhancements and habitual allegations set forth in
the indictment or information are true and correct, except those waived by
the State. All deadly weapon allegations are true and correct. All other
affirmative findings to be made by the Court pursuant to this Written Plea
Agreement are true and correct. I swear to the truth of all the foregoing and
further, that all testimony I give in the case will be the truth, the whole truth
and nothing but the truth, so help me God.
Appellant also signed a declaration within the same document that reads as follows:
My name is MICHAEL FITZGERALD REESE . . . I am presently
incarcerated in the Bell County Jail in Belton, Bell County, Texas 76513. I
declare under penalty of perjury that all of the foregoing is true and correct.
The trial court admonished appellant and discussed the indictment with appellant:
THE COURT: Sir, at this point in time you are charged with the first-
degree felony offense that on or about the 2nd day of
April in 2011, here in Bell County, Texas, and before
this indictment was presented, that you did then and
there intentionally and knowingly cause the death of
an individual, namely, Justin Richardson, by shooting
the said Justin Richardson with a firearm. Did you
understand that charge?
[APPELLANT]: Yes.
THE COURT: To that charge, sir, what is your plea, guilty or not
guilty?
[APPELLANT]: Guilty.
...
THE COURT: Then is it true that you are pleading “guilty” solely
because you are guilty and for no other reason?
[APPELLANT]: Yes.
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THE COURT: All right. I will accept your plea.
[PROSECTOR]: I would ask the Court to take judicial notice of
[appellant’s] confession contained in the plea
paperwork on page six, your Honor.
[APPT. ATTY]: No objection.
THE COURT: For the record, I am going to mark page six of the
written plea agreement entitled “Judicial Confession”
as State’s Exhibit No. 1 [sic] and admit it into evidence.
The trial court admitted the Judicial Confession into evidence. The Court further
admitted the following into evidence, without objection: (1) the medical examiner’s
report; (2) the ballistics report; and (3) voluminous photographs from the crime scene, the
victim, and appellant’s apartment and truck. After a short recess, the State re-offered all
of the evidence from the guilt-innocence phase for the sentencing portion of the trial,
which the trial court admitted without objection.
Appellant subsequently testified to the following during the sentencing hearing:
[PROSECUTOR:] There are pictures and everything that has come into
evidence. There is really not any issue. He was shot
twice. If you didn't shoot him, who shot him the second
time?
[APPELLANT:] If it serves me correctly, I only fired my weapon once.
[PROSECUTOR:] Okay. And when you shot him, you shot him in the
back.
[APPELLANT:] Correct.
[PROSECUTOR:] Right? And you heard all the witnesses that testified.
You're the only person they saw with a gun, right?
[APPELLANT:] Yes.
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[PROSECUTOR:] And Justin Richardson was walking away from you
when you shot him. He had to be. You shot him in the
back, right?
[APPELLANT:] Yes.
...
[PROSECUTOR:] Right? You had that gun where on your body? In your
waist? In your pocket? Where did you have it?
[APPELLANT:] On my waist, sir.
[PROSECUTOR:] On your waist. And your shirt was covering it, right?
[APPELLANT:] Yes, sir.
[PROSECUTOR:] So when you pulled up your shirt-- You had to do that
to get the gun, right?
[APPELLANT:] Yes, sir.
The trial court sentenced appellant to life in prison. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE – ARTICLE 1.15
In his first issue, appellant contends the trial court erred in accepting his guilty plea
because the evidence offered by the State in support of the plea was insufficient to comply
with article 1.15 of the Code of Criminal Procedure.2 See TEX. CODE CRIM. PROC. ANN.
art. 1.15 (West, Westlaw through Ch. 46 2015 R.S.). Additionally, appellant contends
that, because his written confession was not sworn before a district clerk and his oral
2 Although appellant did not object at trial, we note this issue is preserved for appellate review.
Article 1.15 contains an absolute or systematic requirement that “in no event” shall a person be convicted
without evidentiary support. Baggett v. State, 342 S.W.3d 172, 175 (Tex. App.—Texarkana 2011, no pet.).
Therefore, failure to object does not forfeit or waive a claim of error. Id.; see also McClain v. State, 730
S.W.2d 739, 742 (Tex. Crim. App. 1987).
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guilty plea was not taken under oath, the requirements for a judicial confession were not
met. Appellant further argues he did not plead true to the facts alleged in the indictment.
A. Standard of Review and Applicable Law
When a defendant chooses to plead guilty, the standard of review set out in
Jackson v. Virginia for sufficiency of the evidence is inapplicable. Ex Parte Martin, 747
S.W.2d 789, 792–93 (Tex. Crim. App. 1988). Texas Code of Criminal Procedure article
1.15 governs sufficiency of the evidence when pleading guilty in a noncapital felony case.
TEX. CODE CRIM. PROC. ANN. art. 1.15. The evidence is considered sufficient under
article 1.15 when it embraces every element of the offense. See 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). “A conviction rendered without sufficient
evidence to support a guilty plea constitutes a trial error.” Menefee v. State, 287 S.W.3d
9, 14 (Tex. Crim. App. 2009).
Article 1.15 states:
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.
TEX. CODE CRIM. PRO. ANN. art. 1.15. Article 1.15 is “an additional procedural safeguard
required by the State of Texas but not by federal constitutional law.” Ex parte Williams,
703 S.W.2d 674, 682 (Tex. Crim. App. 1986).
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Evidence in support of a guilty plea can take one of four forms: (1) defendant’s
consent to proffer the evidence in testimonial or documentary form; (2) defendant’s
consent to an oral or written stipulation of what the evidence against him would be, without
necessarily admitting to its veracity of accuracy; (3) defendant entering a sworn written
statement; or (4) defendant testifying 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. Menefee, 287 S.W.3d at 13. “A deficiency in one form of proof . . .
may be compensated for by other competent evidence in the record.” Id. “Evidence
adduced at a sentencing hearing may also suffice to substantiate a guilty plea.” Jones
v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing
Menefee, 287 S.W.3d at 18–19).
B. Discussion
The State argues that appellant’s written judicial confession taken along with the
evidence admitted during the trial was sufficient to support the trial court’s judgment. We
agree with the State that the evidence was sufficient to support appellant’s plea of guilty
to murder.
A judicial confession standing alone is sufficient to sustain a conviction on 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); Breaux v. State, 16 S.W.3d 854, 857 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). A judicial confession that simply admits the
acts as alleged in the indictment without detailing them is sufficient evidence of guilt.
Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim. App. 1973). However, a deficiency of
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one form of proof, such as a judicial confession, can be compensated for by other
competent evidence in the record. Menefee, 287 S.W.3d at 14. For example, a judicial
confession that appellant committed an offense as charged and an in-court affirmation of
that judicial confession together constitute compliance with the requirements of article
1.15. Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. [Panel Op.] 1978). While a
sworn confession is one form of evidence that may support a guilty plea, we note that
article 1.15 contains no requirement that a judicial confession be sworn. See TEX. CODE
CRIM. PROC. ANN. art. 1.15; Jones v. State, 857 S.W.2d 108, 110 (Tex. App.—Corpus
Christi 1993, no pet.); see also Walker v. State, No. 03-03-00018-CR, 2003 WL
21554285, at *1 (Tex. App.—Austin July 11, 2003, no pet.) (mem. op., not designated for
publication).
When the judicial confession states, “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. Chindaphone, 241 S.W.3d at 220.
In Cindaphone, the defendant pleaded guilty to the offense of sexual assault. Id. at 218.
The Second Court of Appeals affirmed the judgment of the trial court because his judicial
confession indicated he read the indictment and had committed each and every act
alleged therein. Id. at 220. The operative language of the judicial confession in
Chindaphone is nearly identical to the language used in appellant’s judicial confession.
See id. Therefore, we conclude that appellant’s judicial confession is sufficient evidence
to satisfy article 1.15 because he states that he read the indictment filed in the case and
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“committed each and every act alleged therein” and that “all facts alleged in the indictment
or information are true and correct.” See Potts, 571 S.W.2d at 181.
Even if we were to conclude that appellant’s judicial confession was deficient, there
is other competent evidence in the record to compensate for the deficiency, including the
guilt/innocence phase evidence (which was re-offered and admitted at the sentencing
hearing) and the sentencing phase evidence. See Menefee, 287 S.W.3d at 14.
Appellant was seen pulling a gun from his shorts, while bystanders yelled, "Mike, no.
Mike, no. Stop, Mike." After witnesses heard shots fired, appellant was seen running
from the scene with a gun. Further, during the sentencing hearing, appellant admitted
to pulling his gun out from his waistband, pointing it at Justin Richardson, pulling the
trigger, and shooting him in the back. See Jones, 373 S.W.3d at 793 (“Evidence
adduced at a sentencing hearing may also suffice to substantiate a guilty plea.”). We
conclude that the evidence, when viewed together with the judicial confession, sufficiently
embraces every element of the offense.
We next address appellant’s contention that he was not placed under oath before
entering his guilty plea. Article 27.13 of the Texas Code of Criminal Procedure provides
that “[a] plea of ‘guilty’ or a plea of ‘nolo contendere’ in a felony case must be made in
open court by the defendant in person.” TEX. CODE CRIM. PRO. ANN. art. 27.13. But
article 27.13 does not require the plea be made under oath, or even an oral plea. See
Costilla v. State, 146 S.W.3d 213, 216 (Tex. Crim. App. 2004) (concluding that plea made
on behalf of defendant by his attorney satisfied article 27.13); Neal v. State, 400 S.W.2d
550, 551 (Tex. Crim. App. 1966) (“There is no statutory requirement that the plea be in
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writing and under oath.”); see also Smith v. State, No. 03-99-00821-CR, 2000 WL
329362, at *1 (Tex. App.—Austin Mar. 30, 2000, pet ref’d) (mem. op., not designated for
publication) (“It is not necessary that a defendant be sworn before entering his plea.”);
Maldonado v. State, No. B14-93-00176-CR, 1994 WL 286391, at *3 (Tex. App.—Houston
[14th Dist.] June 30, 1994, no pet.) (mem. op., not designated for publication) (“[W]e find
no merit in appellant's contention that the trial court erred in accepting his plea of guilty
from an unsworn interpreter.”) Where, as here, the record demonstrates a defendant’s
voluntary desire to plead guilty, the defendant is present, and the plea is entered in open
court by the defendant, article 27.13 is satisfied. See Costilla, 146 S.W.3d at 216. We
overrule appellant’s first point of error.
Because we conclude there is sufficient evidence to support appellant’s plea of
guilty for murder, we need not address the claim that the evidence was sufficient only for
a conviction of manslaughter.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of July, 2015.
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