Opinion
Nos. 05-04-01088-CR, 05-04-01089-CR, 05-04-01090-CR
Opinion Filed February 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-34424-HN, F04-34425-HN, F04-49298-JN. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
OPINION
Dedrick Denard Johnson waived a jury trial and entered non-negotiated guilty pleas to the offenses of evading arrest or detention in a vehicle, unlawful possession of a firearm by a felon, and aggravated robbery. See Tex. Pen. Code Ann. §§ 29.03, 38.04, 46.04 (Vernon 2003 Supp. 2004-05). The trial court found appellant guilty and assessed punishment at ten years' confinement and a $5000 fine for the evading arrest and possession of a firearm convictions, and forty years' confinement and a $5000 fine for the aggravated robbery conviction. In a single point of error, appellant contends the trial court failed to comply with article 1.15 of the Texas Code of Criminal Procedure. We affirm the trial court's judgment. At a joint hearing on these cases, the State offered appellant's agreement to stipulate evidence and a stipulation of evidence in which appellant admitted he was the person convicted in the penitentiary packets shown in exhibits three through eight, and that his written statement made to the police as reflected in exhibit nine was made voluntarily. Appellant, his counsel, and the prosecutor signed the agreement to stipulate, but the judge did not. The record also contains plea agreement forms signed by appellant, his counsel, the prosecutor, and the trial judge, which includes a general stipulation of evidence. Appellant argues that his stipulation of evidence was inadmissible because it was not signed by the trial judge, in violation of article 1.15. Appellant contends the judge assessed an increased sentence due to its consideration of the improperly admitted stipulation of evidence and the accompanying exhibits three through nine, which included penitentiary packets of prior convictions and a written confession to the aggravated robbery. The State responds the trial court's failure to sign the agreement to stipulate was harmless error because there was sufficient evidence of appellant's prior criminal history. We agree with the State. Article 1.15 provides in part that the trial court must approve, in writing, a defendant's waiver of the appearance, confrontation, and cross-examination of witnesses and a defendant's consent to oral stipulations of testimony or the introduction of testimony in written form. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004-05). Because this requirement of article 1.15 is mandatory, it is error for the trial court to admit an unsigned stipulation. See Messer v. State, 729 S.W.2d 694, 700 (Tex.Crim.App. 1987) (op. on reh'g). We must disregard a non-constitutional error, such as a trial court admitting an unsigned stipulation, that does not affect a substantial right. Tex.R.App.P. 44.2(b). A substantial right is not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the fact finder or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). Overwhelming evidence of guilt is a factor to be considered when performing a rule 44.2(b) harm analysis. Id. at 357. Additionally, the character of the alleged error and how it might be considered in connection with other evidence in the case is another relevant factor. Nonn v. State, 117 S.W.3d 874, 883 (Tex.Crim.App. 2003). Appellant testified he voluntarily agreed to stipulate that he had prior misdemeanor and felony convictions as evidenced by the penitentiary packets in exhibits three through eight. Appellant further testified he always carried a gun, but he did not mean to threaten the complainant's life when he took the complainant's car at gunpoint and fled from the police. Appellant apologized to the complainant and said he was sorry. The record contains evidence of appellant's guilt and prior convictions, which is sufficient to support the trial court's decision. Any error in the court's failure to comply with article 1.15 is harmless. Ybarra v. State, 93 S.W.3d 922, 927 (Tex.App.-Corpus Christi 2000, no pet.); Whitmire v. State, 33 S.W.3d 330, 336 (Tex.App.-Eastland 2000, no pet.); Stewart v. State, 12 S.W.3d 146, 148 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Leal v. State, 736 S.W.2d 907, 911-12 (Tex.App.-Corpus Christi 1987), pet. dism'd, improvidently granted, 773 S.W.2d 296 (Tex.Crim.App. 1989) (per curiam); see also Motilla, 78 S.W.3d at 357. We decide appellant's point of error against him. We affirm the trial court's judgment.