No. 12-07-00001-CR
Opinion delivered March 26, 2008.
Appeal from the Seventh Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
PER CURIAM.
Robert Lee Menefee appeals his conviction for possession with intent to deliver a controlled substance, namely cocaine. 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). Appellant filed a pro se brief. After conducting our own review, we abate this case and remand for the appointment of new counsel.
BACKGROUND
Appellant was charged by indictment for possession with intent to deliver a controlled substance, namely cocaine, in an amount of one gram or more but less than four grams, including any adulterants and dilutants. The indictment also alleged that Appellant committed the offense within 1,000 feet of a premises owned, rented, or leased by an institution of higher learning, or within a drug free zone. Further, the indictment alleged that prior to the commission of the offense, Appellant was convicted of the felony offense of possession of a controlled substance. On October 2, 2006, Appellant entered an "open" plea of guilty to the offense charged in the indictment. Appellant and his counsel signed an acknowledgment of admonishments, a waiver of jury trial, an agreement to stipulate testimony, and a stipulation of evidence in which Appellant swore that such stipulation constituted the evidence in the case. Appellant also pleaded "true" to the prior felony conviction enhancement paragraph. The trial court adjudged Appellant guilty of possession with intent to deliver a controlled substance. After a sentencing hearing on December 1, the trial court found that Appellant committed the offense within a drug free zone as alleged in the indictment, and found Appellant's prior felony conviction "true" as alleged in the indictment. The trial court assessed Appellant's punishment at fifty-six years of imprisonment and a $10,000 fine. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's counsel filed a brief in compliance with Anders and Gainous , stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. From our review of counsel's brief, it is apparent that he is well acquainted with the facts in this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807, 812 (Tex.Crim.App. 1978), counsel's brief presents a chronological summation of the procedural history of the case and further states that counsel is unable to raise any meritorious issues for appeal. As required by Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991), Appellant's counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Appellant filed a pro se brief in which he raises two issues. He argues that his counsel rendered ineffective assistance for failing to interview a material witness and by intentionally and willfully withholding evidence. Further, he contends that the judge who issued the search warrant in this case had a conflict of interest and should have been disqualified, rendering the search warrant invalid. After reviewing the record, we conclude that it contains at least one arguable issue for appeal. Section 481.112 of the Texas Health and Safety Code states that a person commits an offense if he knowingly possesses with intent to deliver a controlled substance. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a). However, the stipulation of evidence signed by Appellant and his counsel stated that, on January 26, 2006, he "did then and there with intent to deliver, a controlled substance, namely, cocaine, in an amount of one (1) gram or more but less than four (4) grams, including any adulterants and dilutants." Specifically, the word "possess" was not included in Appellant's stipulation of evidence. According to article 1.15 of the Texas Code of Criminal Procedure, no person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless he, upon entering a plea, has in open court in person waived his right of trial by jury in writing. TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005). However, article 1.15 also states that it is necessary for the State to introduce evidence into the record showing the guilt of the defendant and "in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same." Id. This evidence may be stipulated if the defendant consents in writing. Id. When the State introduces evidence, an appellate court affirms the trial court's judgment under article 1.15 if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish the defendant's guilt. Breaux v. State , 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Stone v. State , 919 S.W.2d 424, 427 (Tex.Crim.App. 1996)); Wright v. State , 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). But see Williams v. State , 950 S.W.2d 383, 384 n. 1 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (acknowledging a lack of consensus on the standard for reviewing evidence to support a judgment pursuant to article 1.15 of the Texas Code of Criminal Procedure); Burger v. State , 920 S.W.2d 433, 435 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (using the Jackson v. Virginia legal sufficiency standard to review the sufficiency of the stipulated evidence). Although a plea of guilty is an admission of guilt of the offense charged, it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support the plea and the judgment to be entered. Dinnery v. State , 592 S.W.2d 343, 351 (Tex.Crim.App. 1979). A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea and to satisfy the requirements of article 1.15. Id. at 353. However, if a stipulation does not support a defendant's guilty plea, a court must determine if there is other evidence to support the guilty plea. Id. at 352. If a defendant testifies that he has read the indictment and that it is "true and correct" or that the allegations in the indictment are "true and correct," this testimony constitutes a judicial admission of the offense charged and is sufficient to support a guilty plea. Id. at 352-54. At the hearing on his guilty plea, Appellant simply pleaded guilty to the "charge in the indictment." Appellant did not testify, did not state that he had read the indictment, and was not asked if the allegations in the indictment were true and correct. See Dinnery , 592 S.W.2d at 352-54. In fact, nowhere did Appellant stipulate or testify that the allegations in the indictment were true and correct. Appellant's stipulation, the only evidence contained in the record to support his conviction, omitted an essential element of the offense-possession. Thus, we conclude that the lack of evidence to support Appellant's plea and the judgment to be entered presents an arguable issue for appeal. See Bledsoe v. State , 178 S.W.3d 824, 827 (Tex.Crim.App. 2005). CONCLUSION
As required by Stafford , Appellant's counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Having done so, Appellant's counsel's motion for leave to withdraw is hereby granted . We abate the appeal and remand the case to the trial court. We order the trial court to appoint new counsel to represent Appellant, review the record, and file a brief on the merits for Appellant. See Guerrero v. State , 64 S.W.3d 436, 441 (Tex.App.-Waco 2001, no pet.) (citing Penson v. Ohio , 488 U.S. 75, 83-84, 109 S. Ct. 346, 351-52, 102 L. Ed. 2d 300, 310-11 (1988)). We further order the trial court to inform this court in writing of the identity of Appellant's new counsel and the date counsel is appointed. Appellant's brief will be due thirty days after the trial court makes the appointment. The State's brief will be due thirty days after the Appellant's brief is filed.