No. 12-05-00373-CR
Opinion delivered November 1, 2006. DO NOT PUBLISH.
Appeal from the 114th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
SAM GRIFFITH, Justice.
Appellant Robert Jones appeals his conviction for aggravated robbery, for which he was sentenced to fifty years of imprisonment. In one issue, Appellant contends that the evidence is insufficient to support his conviction. We affirm.
BACKGROUND
On November 18, 1993, Appellant was charged by indictment with aggravated robbery, a first degree felony. On March 14, 1994, Appellant entered an open plea of guilty to the offense charged in the indictment. Appellant and his counsel signed an acknowledgment of admonishments and requested a prejudgment/sentence investigation and report. Appellant and his counsel signed a written stipulation of evidence in which Appellant swore that all allegations pleaded in the indictment were true and correct and constituted the evidence in the case. The trial judge signed the written stipulation, but it was not sworn to by Appellant. Appellant also signed a waiver of certain rights, giving up his rights to call, confront, and cross examine witnesses, consenting and agreeing to the introduction of evidence against him in the form of written and oral stipulations of evidence and testimony, and the introduction of testimony by affidavit, or by written statements of witnesses, and by any other documentary evidence. In the waiver of rights, Appellant also stated that he wanted to plead "guilty" to the indictment. Appellant's attorney signed a certificate and approval of his waiver of rights, and the State's attorney approved and consented to the waiver. The trial judge approved of Appellant's waiver of rights and found that he knowingly stipulated and agreed that the facts contained in his "stipulation of evidence" were true and correct. Although the documents were not file marked by the clerk of the court, the stipulation of evidence and waiver of rights were in the clerk's record on appeal. On May 4, 1994, the trial court adjudged Appellant guilty of the offense of aggravated robbery. After a sentencing hearing, the trial court assessed Appellant's punishment at fifty years of imprisonment. Appellant filed a notice of appeal on June 7, 1994 that was not received by this court until December 22, 2003. Concluding that Appellant's notice of appeal should have been filed on or before June 3, 1994, we dismissed the appeal for want of jurisdiction. Appellant filed an application for a writ of habeas corpus. On October 5, 2005, the court of criminal appeals granted Appellant an out of time appeal from his conviction and sentence. This appeal followed. EVIDENTIARY SUFFICIENCY
In his sole issue, Appellant argues that the evidence is legally insufficient to support his conviction. More specifically, he contends that he did not swear to his written and signed stipulation of evidence, though it contained a jurat. Because the stipulation was not sworn testimony, Appellant argues, there was no competent evidence upon which the trial court could base its finding of guilt. The State disagrees, arguing that article 1.15 of the Texas Code of Criminal Procedure does not require that a defendant swear to a stipulation of evidence. Applicable Law 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, in open court, to waive the appearance, confrontation, and cross examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Id. The waiver and consent must be approved by the court in writing and be filed in the papers of the cause. Id. The consent of the accused to stipulate is what must be approved in writing by the court, and not the stipulation. Stewart v. State, 12 S.W.3d 146, 148 (Tex.App.-Houston [1st Dist.] 2000, no pet.). If the defendant elects to stipulate to evidence against him, his stipulation is a kind of judicial admission, a "formal concession in the pleadings in the case or stipulation by a party or counsel that [has] the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Bryant v. State, 187 S.W.3d 397, 400 (Tex.Crim.App. 2005) (quoting John W. Strong, et al., McCORMICK ON EVIDENCE § 255 (5th ed. 1999)). 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 stipulation is a substitute for the presentation of evidence of the facts that are at issue. Bryant, 187 S.W.3d at 400 (quoting 9 WIGMORE ON EVIDENCE § 2591 (3d ed. 1940)). 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. Dinnery, 592 S.W.2d at 352. Analysis Although Appellant contends that his written stipulation of evidence did not constitute a judicial admission because it was unsworn, two other court of appeals have found no authority in article 1.15 of the Texas Code of Criminal Procedure that a defendant was required to swear to his stipulation. Ashley v. State, No. 05-03-01608-CR, 2004 WL 2282148, at *2 (Tex.App.-Dallas Oct. 11, 2004, no pet.) (not designated for publication) (concluding that article 1.15 of the Texas Code of Criminal Procedure did not require that the defendant swear to a stipulation); Boyd v. State, Nos. 14-99-01355-CR, 14-99-01356-CR, 14-99-01357-CR, 2001 WL 619587, at *3 (Tex.App.-Houston [14th Dist.] June 7, 2001, pet. ref'd) (not designated for publication) (noting that there is no requirement in article 1.15 of the Texas Code of Criminal Procedure that a stipulation be sworn). We agree with the reasoning of these courts. Here, Appellant stipulated that the facts as alleged in the indictment were true and correct and constituted the evidence in the case. Appellant also consented in writing, and in open court, to the stipulation of the evidence in this case and, in doing so, expressly "waive[d] the appearance, confrontation and cross examination of witnesses." See TEX. CODE CRIM. PROC. ANN. art. 1.15. Appellant's stipulation of evidence and waiver of rights were signed by Appellant and approved by the trial court. See id. Although the record on appeal did not include the reporter's record of the plea hearing, Appellant admitted in his brief that the State introduced this stipulation into evidence. See id. As such, Appellant's stipulation and waiver of rights satisfied the requirements of article 1.15 of the Texas Code of Criminal Procedure. Because Appellant properly stipulated to the evidence against him, the stipulation was, in effect, a judicial admission and supports his guilty plea. See Bryant, 187 S.W.3d at 400. Thus, we conclude that the evidence was legally sufficient to sustain Appellant's conviction. See TEX. CODE CRIM. PROC. ANN. art. 1.15; Bryant, 187 S.W.3d at 400. Accordingly, we overrule Appellant's sole issue. DISPOSITION
The judgment of the trial court is affirmed.