Rеlator and his brother, James Whittaker Lyles, were separately indicted for burglarizing a house belonging to Joe D. *146 Thompson and were separately indicted for theft of a safe and $412.50 from Joe D. Thompson.
James Whittaker Lyles pleaded guilty béfore the court on April 25, 1956, and was sentenced.
Relator’s cases were called on June 19, 1956, and he pleaded guilty and waived a jury trial. Being informed by the trial judge that it was necessary that he hear proоf or evidence, relator and his counsel agreed that the state re-introduce into evidence the testimony heard by the court in the causes against James Whittaker Lyles. The reproduced evidence consisted of statements read to the court in the Aрril 25th trial-after "it was stipulated and agreed by the defendant James Whittaker Lyles and his attornеy that the grand jury testimony' of witnesses and offense reports of the Houston Police Officеr could be used in evidence, and “that if Mr. Joe D. Thompson, the complainant were here, he would testify * * *” followed by a full statement of his ownership of the building and the safe and money, and the breaking and entry, and appropriation of the safe and money without his cоnsent.
The state also offered in evidence relator’s confession.
We held in Franklin v. State,
The contention advanced is that the stipulated evidence of Joe D. Thompson is hearsay and is without probative value, hence the trial judge was without jurisdiction to enter judgment and sentence relator, upon his plea of guilty supported alone by his confession.
The contention that thе statement of the complaining witness introduced without objection and upon agreement of relator and his counsel is without probative value is contrary to the majority hоlding in Ex Parte Clark,
We have concluded, however, that the question presented constitutes an ■ attack upon the judgment ■ based upon the insufficiency of the evidence, which “can never be raised col
*147
laterally by habeas corpus, but must be raised on appeal.” Ex Parte Wingfield,
We are mot unmindful of the fact that we have considered the question of the admissibility of statements of absent witnesses -introduced by agreement of the defendаnt - without objection, and the probative value of such statements, in Ex Parte cases suсh as Ex Parte Bruinsma,
The distinction between a collateral attack upon the cоnviction on a plea of guilty before the court because no evidence wаs introduced, and a similar attack upon the judgment upon the contention that the evidеnce introduced and upon which the trial judge based his judgment was insufficient to show the guilt of the dеfendant,, was pointed out by Judge Davidson in his dissent in Ex Parte Keener,
The sufficiency of the evidence is inquired into upon аppeal in every case. If not sufficient to sustain the conviction, this court will reverse and remand the case for another trial.
Where, however, there is no appeal or where the record on appeal is not timely filed or properly certified and the conviction becomes final the defendant’s right to complain of the insuffiсiency of the evidence is lost.
This is the rule where the defendant throughout insists that he is innocеnt and has pleaded not guilty.
It would be a strange doctrine to say that one who confеsses to the crime and pleads guilty before the court, and waives a jury trial, should be affоrded a remedy denied to one who asserts his innocence throughout.
In this connection we direct attention to Broyles v. State,
We re-affirm our holding in Spivey v. State,
*148 “* * * that in every case where thе defendant enters a plea of guilty to the court that the State is required to introduce evidence showing the guilt of the defendant, and if the State fails in this respect the defendant is entitled to a new trial. Therefore, upon an appeal from such conviction the accused is entitled to a statement of facts in order to demonstrate to this сourt the State’s failure in having complied with the law.”
We hold that the judgment may not be collaterally attacked upon the ground that the evidence introduced and which formed the basis of the judgment was insufficient.
The application for writ of habeas corpus is dismissed.