Opinion
No. 05-02-00618-CR.
Opinion Issued February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-59491-NR. AFFIRMED.
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
Christopher Shane Rejino appeals his conviction for aggravated robbery with a deadly weapon. See Tex. Pen. Code Ann. § 29.03 (Vernon 1994). Appellant waived a jury trial and entered a non-negotiated guilty plea. The trial court sentenced appellant to eleven years' confinement, and made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In a single point of error, appellant contends there is a fatal variance between the indictment and the judicial confession. We will affirm. Appellant argues there is a material and fatal variance between the indictment and the judicial confession because the offense date in the indictment is November 19, 2001 and the offense date in the judicial confession is November 19, 2002. Thus, appellant argues, the State failed to provide sufficient evidence to support the conviction as required by article 1.15 of the Texas Code of Criminal Procedure. The State responds the evidence is sufficient because the indictment and judicial confession included all of the requisite elements required to prove appellant committed the offense, and appellant admitted he committed the offense as alleged in the indictment. When a defendant pleads guilty, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2003); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988). The evidence may be stipulated if the defendant, in writing, waives the appearance, confrontation, and cross-examination of witnesses and consents to the introduction of documentary evidence in support of the judgment. Tex. Code Crim. Proc. Ann. art. 1.15. A judicial confession admitted into evidence and contained in the transcript is sufficient to prove appellant's guilt. Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. 1996); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (op. on reh'g). The fatal variance doctrine stands for the proposition that a variance between the indictment and the evidence at trial may be fatal to a conviction because due process guarantees the defendant notice of the charges against him. Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995). A variance between the indictment and the evidence presented at trial is fatal only if it is material and prejudices a defendant's substantial rights. Golihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001). A defendant's substantial rights are threatened if the variance either failed to sufficiently inform him of the charges to allow him an opportunity to prepare a defense, or would allow a second prosecution of the same crime. Id. At the March 25, 2002 plea hearing, the State offered into evidence appellant's signed judicial confession without objection. The judicial confession tracked the language of the indictment, but a handwritten entry identified the offense date as November 19, 2002, rather than November 19, 2001 as stated in the indictment. Appellant testified he was pleading guilty because he committed the offense exactly as alleged in the indictment. At the April 4, 2002 sentencing hearing, appellant testified he pointed a gun at the complainant, then took the complainant's truck. We conclude the incorrect handwritten date of the offense in the judicial confession did not operate to surprise appellant or prejudice his rights. Thus, the variance was not fatal. See Golihar, 46 S.W.3d at 257. We conclude the evidence is sufficient to support the conviction. See Pitts, 916 S.W.2d at 510. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.