OPINION
These proceedings involve a post-conviction application for writ of habeas corpus brought under the provisions of Article 11.-07, V.A.C.C.P.
Applicant seeks to set aside five (5) convictions for aggravated robbery.
On June 17, 1978, an indictment was returned against the applicant in the 178th District Court. It contained five separate counts alleging aggravated robberies committed on different dates against different victims. A prior felony conviction was alleged for enhancement of punishment in connection with the first count of the indictment only.
The basic allegations in each count were that applicant
“on or about (date) did then and there unlawfully while in the course of committing theft of money owned by (name of Complainant) hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm.”
On October 2, 1978, applicant waived trial by jury, entered a plea of guilty to all counts of the indictment, and entered an agreement to stipulate evidence on each count. Each agreement also contained a sworn stipulation by the applicant. Applicant also stipulated he had been previously convicted of a felony as alleged in connection with the first count of the indictment. The court found applicant guilty of all five counts as well as being a repeat offender as alleged and ordered a pre-sentence investigation. On November 10, 1978, the court assessed applicant’s punishment at 25 years’ imprisonment on each count. The applicant then waived time in which to file a motion for new trial or in arrest of judgment, and the court sentenced applicant to not less than 15 nor more than 25 years on the first count, and from 5 to 25 years in connection with each of the other counts. Separate judgments and sentences were entered on each count. Applicant did not appeal any of these convictions.
Subsequently applicant filed a pro se application for post-conviction writ of habeas corpus in the 178th District Court. In said *676 application it was urged that the evidence was insufficient to support his guilty pleas in trial court No. 280365 on the five counts of aggravated robbery as required by Article 12, V.A.C.C.P. (1925) (obviously meaning Article 1.15, V.A.C.C.P. [1965]) (as amended 1973). He urged the trial court was thus without jurisdiction, and he was deprived of due process under the Fourteenth Amendment. In support of his argument he calls attention to the stipulation on each count including the waiver of the appearance, confrontation and cross-examination of witnesses and the consent to stipulation which stated:
"... I waive my rights against self-in-erimination and confess the following facts:
“On (date) in Harris County, Texas, I did intentionally and knowingly threaten imminent bodily injury to (name of Complainant) with the use of a deadly weapon, namely a firearm.”
The stipulation was sworn to by the applicant.
In response the State answered applicant’s allegations were an improper collateral attack on the sufficiency of the evidence, and without a transcript of the hearing on the guilty pleas there was no adequate showing that the written stipulations introduced at said hearing contained the only evidence submitted to support the convictions citing
Wolfe v. State,
The trial court found no controverted, previously unresolved facts material to the legality of the confinement requiring an evidentiary hearing and ordered the record forwarded to this Court with judgments and sentences, stipulations, jury waivers, etc.
This Court ordered the trial court to more fully develop the facts concerning applicant’s allegations by affidavits, eviden-tiary hearing, etc., and to file findings of facts. The trial court complied with this Court’s request.
The affidavit of the court reporter showed that her notes in the case in question (Trial Court No. 280365) had been destroyed. The judgment reflected that evidence was heard. The defense counsel’s affidavit stated the only written material introduced at applicant’s trial were the five stipulations (one for each count). He did not recall anyone asking the applicant if all the allegations in the indictment were true and did not recall any oral judicial confession or confessions by the applicant.
In his findings the trial court traced the history of the case, noted the two aforementioned affidavits, and further found the five written stipulations were the only evidence introduced to support the judgments. The trial court concluded that evidence was sufficient to show that applicant was guilty only of the lesser included offense of aggravated assault and that he had been previously convicted as alleged in connection with the first count of the indictment.
It is well established that the Court of Criminal Appeals is not bound by the findings of the trial judge in post-conviction habeas corpus proceedings under Article 11.07, V.A.C.C.P. See
Ex parte Stauts,
It is equally well established that the burden of proof is upon the applicant in such proceedings, and includes the burden of proving his factual allegations. See
Alexander v. State,
It is applicant’s contention that the “sworn to” stipulation was the only evidence offered in each case, that while each stipulation might be a “judicial confession” as to an assault, each was not sufficient to *677 establish the allegations of aggravated robbery as alleged in each indictment upon his plea of guilty in each case.
It is apparently his contention that, even though no effort was made to withdraw the guilty pleas, though no motion for new trial was filed, and though no appeals were taken, he may collaterally attack his convictions by post-conviction habeas corpus proceedings based on the failure of the State to comply with Article 1.15, V.A.C.C.P., and offer sufficient evidence to support the judgments in each case where he entered a plea of guilty. He makes this contention, although he waited until the court reporter’s notes were destroyed. Thus applicant is attacking collaterally his conviction based on his guilty plea before the court by asserting the evidence was insufficient to support that conviction.
It has long been the general rule that the sufficiency of the evidence cannot be attacked collaterally.
Ex parte Rogers,
In Ex parte Banspach, supra, it was written:
“It is well settled by the decisions of the Court of Criminal Appeals that the merits of a case involving the guilt or innocence of an accused are not a proper subject of inquiry in a habeas corpus proceeding.”
It has been frequently held that the writ of habeas corpus cannot be used as substitute for or to usurp the function of an appeal.
Ex parte Overstreet,
Ex parte Burns,
A study of the cases supporting the above general rule shows that it has been applied or intended to apply across the board to all types of criminal cases, whether the offense be a felony or misdemeanor or whether the trial be before the court or jury, and whether the plea is one of not guilty, guilty, or nolo contendere.
In Ex parte Lyles, supra, the Court wrote:
“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 insufficiency of the evidence is lost.
“This is the rule where the defendant throughout insists that he is innocent and has pleaded not guilty.
“It would be a strange doctrine to say that one who confesses to the crime and pleads guilty before the court, and waives a jury trial, should be afforded a remedy denied to one who asserts his *678 innocence throughout.” (Emphasis supplied.)
When the plea is not guilty, the burden of proof is upon the State beyond a reasonable doubt. V.T.C.A., Penal Code, § 2.01; Article 38.03, V.A.C.C.P., as amended. About this there can be no question.
The necessity of evidence when the plea is guilty or nolo contendere needs to be explored.
In a misdemeanor case when a defendant enters a plea of guilty before the court he admits every element of the offense.
Ex parte Clinnard,
In felony cases a plea of guilty before the jury admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed.
Darden v. State,
As to the necessity of evidence where a plea of guilty or nolo contendere in a non-capital felony case is entered before the court, the rule is different. Texas has a procedural requirement in such cases unlike that of most jurisdictions and even unlike such pleas in misdemeanor cases in this state. Article 1.15, V.A.C.C.P. (former Article 12, V.A.C.C.P., 1925) requires that the State offer sufficient proof to support any judgment based on a guilty or nolo con-tendere plea to a felony case tried before the court. Under this statute evidence is received to support the judgment, not to accept a plea of guilty or nolo contendere.
Thornton v. State,
While the sufficiency of the evidence to support a judgment of conviction under Article 1.15, supra, and its requirements may be challenged on appeal, such conviction may not be subject to challenge on collateral attack by habeas corpus.
In Thornton it was stated that Texas is not bound by any federal common law doc *679 trine of conviction by plea; that doctrine has not been imposed on the criminal law of Texas by the Constitution of the United States or by the Supreme Court of the United States directly or through the Fourteenth Amendment “incorporation” or any other fashion and Article 1.15, supra, passes federal constitutional muster.
Turning from the discussion of pleas of guilty, etc., we note that there is a “no evidence” exception to the general rule that the sufficiency of the evidence to support the conviction may not be collaterally attacked. In
Ex parte Dantzler,
Moffett was an unusual case. Two indictments for robbery were returned against the defendant. Subsequently he pleaded guilty to one indictment before a jury which recommended probation. One of the probationary conditions imposed by the court was to “neither commit nor be convicted of any offense against the laws of the State of TexasThe next day he pleaded guilty to the second robbery indictment before the court and was convicted. The defendant’s probation was then revoked on the basis of evidence he had been “convicted” since the time probation was granted. On his post-conviction habeas corpus attack upon the revocation order, this Court held the probationary condition as to conviction was not consonant with the statutory conditions insofar as it was not dependent upon the defendant’s conduct following the granting of probation, and the trial court’s interpretation of the non-statutory condition was unreasonable. It was concluded that since there was no evidence of conduct after probation was granted there was a violation of due process and the revocation order was subject to collateral attack. There, of course, was evidence offered of a conviction after probation, but this Court interpreted the probationary condition as legally pertaining only to conduct after probation and concluded there was no evidence of such conduct. Moffett in retrospect appears to be more of a fundamental fairness case than a true no evidence case.
In
Ex parte Murchison,
The jury in Murchison convicted him of the primary offense and found the allegations of the two prior felony convictions to be “true.” There was evidence to support all allegations and the jury’s verdict except as to the single allegation of the finality of one prior conviction. This then was an *680 insufficient evidence. case, not a no evidence case. The allegations were not totally devoid of evidentiary support. See Thompson v. City of Louisville, supra.
Wolfe v. State,
“Without that transcription, we are unable to ascertain whether other evidence was introduced to support the appellant’s conviction. We therefore hold that that the appellant’s contention does not fall within the purview of Ex parte Moffett, supra, but is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. Appellant’s contention is overruled....”
No effort was made to apply the general rule prohibiting collateral attack even if the court reporter’s notes had been transcribed and in the record.
In
Ex parte Dantzler,
In
Ex parte Barfield,
Ex parte Benavidez,
In the earlier case of
Ex parte Ash,
French v. Estelle,
It is here important to observe that in deciding these “no evidence” cases little attention was given to the plea of the de *681 fendants. From the opinions and an examination of the original records it appears that in Ash, Barfield, Benavidez, Murchison and French 2 all involved pleas of not guilty and pleas of “not true” before a jury to the enhancement of punishment allegations. Moffett, Wolfe and Dantzler involved pleas of guilty before the court.
French applied the rationality test of Jackson to the plea of not guilty and plea of “not true” to the enhancement allegations. It reached the same result as Barfield and Benavidez but on a different basis.
We now turn to the impact, if any, of the opinion of the United States Supreme Court in
Jackson v. Virginia,
For many years federal courts long declined to review the sufficiency of the evidence supporting state criminal convictions on the basis that such questions did not raise a federal constitutional question. See, e.g.,
Whitney v. California,
In
Thompson v. City of Louisville,
However, in
Jackson v. Virginia,
supra, the United States Supreme Court broke sharply with this established precedent. Relying upon its earlier decision in
In re Winship,
The Court thus established the standard to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence. That standard is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 3
*682 It is to be observed that Jackson was convicted in a bench trial in a Virginia state court upon his plea of not guilty, thus placing upon the state prosecution the burden of proof as required by In re Winship, supra.
Jackson
and
Winship
are only applicable where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. Neither case is applicable where a defendant knowingly, intelligently and voluntarily enters a plea of guilty or nolo contendere.
Boykin v. Alabama,
In
Kercheval v. United States,
“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” See also North Carolina v. Alford,400 U.S. 25 ,91 S.Ct. 160 ,27 L.Ed.2d 162 (1970).
The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge.
United States v. Bendicks,
If the court is satisfied a factual basis exists for the guilty plea, a federal court may enter judgment upon that plea. Fed. Rules Cr.Pro., Rule 11(f);
United States v. Oberski,
It is clear then there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the “rationality” test of Jackson has no application thereto.
After the decision in
Jackson,
in
Baker v. Estelle,
“... Whatever the post-conviction consequences under Texas state law of a contention that the state failed (despite a minute entry to this effect) to produce evidence to support a plea of guilty, we do not read these decisions as holding that the state court’s acceptance of the plea, although erroneous, raised an issue *683 of such total want of jurisdiction as to make the conviction void rather than voidable.
“No federal constitutional issue is raised by the failure of the Texas state court to require evidence of guilt corroborating a voluntary plea. In this circuit, we have specifically held that the petitioner in a habeas corpus proceeding is not deprived of any federally protected right by a conviction upon a plea of guilty obtained without compliance with the Texas statute. Hendrick v. Beto,360 F.2d 618 (5th Cir.1966), aff'd253 F.Supp. 994 (S.D.Tex.1965). Because the right to corroboration of a plea of guilty is not essential to a fair trial in a federal due-process sense, the failure to comply with the state criminal procedure in this regard does not raise a federal constitutional claim that justifies habeas corpus relief under 28 U.S.C. § 2254. Hendrick, supra,253 F.Supp. at 995 .
“Therefore, we find no merit to Baker’s claim that his 1965 burglary conviction was void because the state court was without jurisdiction to entertain the 1965 plea of guilty.”
See also
Williams v. Estelle,
For all the foregoing reasons we do not conclude that Jackson and Winship have any impact upon the guilty pleas entered by the applicant before the court in the instant case, nor does Jackson affect our longstanding state rule that an applicant may not collaterally attack the sufficiency of the evidence to support a felony conviction based upon a plea of guilty before the court such as the instant case. The general rule is still alive and well as to such guilty and nolo contendere pleas.
We do not reach the question of the impact of
Jackson
upon collateral attacks upon the sufficiency of the evidence to support the conviction where the plea was “not guilty” and the burden of proof is upon the prosecution beyond a reasonable doubt. Nevertheless, see
French v. Estelle,
supra;
Parker v. Procunier,
In the instant case applicant Williams does not claim his pleas of guilty to the five counts of aggravated robbery were not intelligently and voluntarily made, nor does he assert his innocence of any of the charges or that he was misled by counsel or the court. He only belatedly asserts the record now after the court reporter’s notes have been destroyed that there was insufficient evidence to satisfy Article 1.15, V.A. C.C.P. There was no attempt to withdraw the pleas of guilty, no motion for new trial and no appeal. In view of his guilty pleas the general rule still prevails. He cannot collaterally attack the sufficiency of the evidence.
The relief prayed for is denied.
Notes
. In
Thompson
v.
City of Louisville,
“The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of evidence, but whether this conviction rests on any evidence at all.”
The Thompson holding came to be known as the source of the "no evidence" rule some years before the Moffett decision.
.
French v. State,
. The implications of
Jackson
are not limited to the habeas corpus context. After
Jackson,
federal and state courts assessing the evidence either at the trial level or on direct review will presumably be obligated to apply the "rationality” test. This Court has applied the test on direct appeals in both direct and circumstantial evidence cases. See
Carlsen
v.
State,