Benavides v. State

OPINION

On State’s Motion for Rehearing

CADENA, Chief Justice.

The State’s motion for rehearing is granted. The opinion previously filed in this cause is withdrawn and the following opinion is substituted for the prior opinion.

Appellant, Ralph Stone Benavides, appeals from a conviction, following a plea of guilty, for unlawfully carrying a weapon on licensed premises. His punishment was assessed at ten years’ confinement.

Appellant’s sole point of error is that the evidence is insufficient to support the conviction because there is no evidence that “the premises in question was licensed or issued a permit by the State for the sale or service of alcoholic beverages on the date of the alleged offense.” The original opinion by a panel of this Court agreed with this contention and reversed the judgment of the trial court and ordered appellant discharged. An examination of the record reveals that there is no merit to appellant’s contention. We, therefore, affirm the conviction.

The proceedings in connection with the plea of guilty show:

1. All the required admonitions were given and appellant and his counsel signed an instrument waiving formal arraignment and trial by jury. This instrument recites that appellant was pleading guilty because he was guilty and for no other reason.

2. The instrument also recites that appellant’s plea of guilty was entered without any consideration of fear; that he had not been threatened or promised anything in return for pleading guilty; and that he understood that the court was not bound by any agreement between the State or the defense, and himself.

Appellant raises no question concerning the propriety of the proceedings connected with the entry of his plea of guilty. An examination of the record establishes that all required admonitions were given and the plea of guilty was entered freely and voluntarily and that appellant pleaded guilty solely because he was guilty. The waivers of formal arraignment and jury trial also comply with all the statutory and constitutional requirements.

The record contains a written stipulation signed by appellant and his counsel, sworn to by appellant and approved by the trial judge. This instrument initially waives appellant’s right to be confronted by the witnesses against him and waives the right to cross-examination of such witnesses, all of whom are named in the stipulation. Appellant, together with his attorney, agreed to the introduction of testimony on behalf of the State by affidavits, written statements of witnesses and any other documentary evidence. He also agreed that such affidavits, and written statements, all of which are attached as exhibits to the stipulation, might be considered as part of the Statement of Facts, “and that such stipulated evidence is true and correct.” One of the exhibits attached to the stipulation is the police report filed by Officer Guerra which states that the premises in question, the Godfather Club, “has [the report is dated on the same date as the date of the charged offense] mixed beverage Lie. # 122221 and late hours mixed beverage Lie. #112222_” This stipulation also recites:

I, Ralph Stone Benavides, do judicially confess and admit that in Bexar County, Texas, on the 28th day of November, 1979, I Ralph Stone Benavides did then and there knowingly and intentionally carry on and about my person a gun, on premises licensed and issued a permit by the State of Texas for sale and service of alcoholic beverages, namely: The Godfather’s Club, located at 1703 N. St. Mary’s Street, San Antonio, Bexar County, Texas,...

This judicial confession tracks the language of the indictment, and the written stipulation further recites that all the acts and allegations in the indictment “charging the offense ... are true and correct.”

In the face of the written stipulation that the facts recited in the officer’s report are true and correct, and particularly in view of the appellant’s judicial confession, there is no basis for holding that the evidence is insufficient to support the conviction. See Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978) (judicial confession sufficient to support conviction after plea of guilty; Adam v. State, 490 S.W.2d 189 (Tex.Cr.App.1973) (judicial confession alone supports conviction).

The judgment of the trial court is affirmed.

CANTU, J., not participating.