Menefee v. State, 287 S.W.3d 9

Lead Opinion

OPINION

PRICE, J.,

delivered the opinion of the Court

in which MEYERS, WOMACK, JOHNSON, HOLCOMB and COCHRAN, JJ., joined.

The appellant pled guilty in an open plea proceeding to the offense of possession of cocaine with intent to deliver in an amount greater than one, but less than four grams, a second-degree felony.¹ He also pled true to an allegation that the offense occurred within a thousand feet of an institution of higher learning as well as to an allegation that he had been previously convicted of another felony offense for possession of a controlled substance, thus subjecting him to punishment as an enhanced first-degree felon.² The trial court assessed his punishment at confinement in the penitentiary for a period of fifty-six years.

On appeal, the appellant contended that the evidence was insufficient to support his guilty plea, in contravention of Article 1.15 of the Code of Criminal Procedure.³ In an unpublished opinion, the Tyler Court of Appeals disagreed, holding that, notwithstanding a defect in the written stipulation of evidence that the appellant entered in support of the plea, his sworn responses during the plea colloquy provided sufficient support for his guilty plea in satisfaction of the statute.⁴ One justice dissented, believing that the appellant’s sworn response constituted only an entry of the guilty plea itself and could not be taken to constitute evidence in support of the plea.⁵ We granted the appellant’s petition for discretionary review to examine the court of appeals’s holding.⁶ We now reverse that holding and remand the cause to the court of appeals for сonsideration of extant, unresolved issues in the appeal.

PROCEDURAL POSTURE

The indictment alleged, inter' alia, that the appellant “did then and there possess 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 or dilu-tants[.]” The written stipulation of evidence in support of the appellant’s open guilty plea, however, acknowledged as “true and correct” that the appellant “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 aduler-ants and dilutants[.]” It is undisputed that the written stipulation thus failed to include the element of possession with intent to deliver the requisite amount of cocaine. For this reason, the court of appeals proceeded to inquire, consistent with Dinnery v. State,⁷ whether the record might otherwise contain evidence sufficient to sustain the appellant’s guilty plea.

The court of appeals found independent support for the appellant’s guilty plea in the following sworn colloquy between the trial court and the appellant occurring during the guilty plea proceeding:

THE COURT: Mr. Menefee, in your case the grand jury returned an enhanced first degree felony charge of possession of a controlled substance with intent to deliver. The range of punishment on that particular charge is no less than 15 years and up to 99 years or life in the penitentiary and up to a hundred thousand dollar fine. You understand that’s the range of punishment?⁸

THE DEFENDANT: Yes, sir.

THE COURT: Knowing that that’s the range of punishment, the paperwork that’s been provided to me that indicates that you’ve decided to enter an open plea of guilty in relation to that particular charge and leave it to the Court to decide what type of punishment should be assessed. Is that correct?

THE DEFENDANT: That’s correct, Your Honor.

THE COURT: And to that charge in the indictment as we’ve just covered, how do you plead, guilty or not guilty?

THE DEFENDANT: Guilty, Your Honor.

From this point, the trial court turned to inquire into the appellant’s plea to the enhancement provisions in the indictment.

The court of appeals held that the above colloquy sufficed to make up for the deficiency of the written stipulation. It reasoned that “[bjecause [the appellant] pleaded guilty ‘[a]s to that charge in the indictment’ — possession of a controlled substance with intent to deliver — he supplied the element of possession, which was included in the indictment but omitted from his stipulation of evidence.” ⁹ For support of this proposition, the court of appeals relied principally upon this Court’s opinion in Cooper v. State.¹⁰ Justice Hoyle disagreed with the majority, observing that “the fact that the trial court specifically referenced the ‘charge in the indictment’ before [the appellant] pleaded guilty is not evidence supporting the conviction.”¹¹ We granted the appellant’s petition for discretionary review to determine which view better accords with our case law construing Article 1.15.¹²

THE LAW

The United States Constitution does not require that the State present evidence in support of a guilty plea in Texas courts.¹³ Article 1.15 constitutes “an additional procedural safeguard required by the State of Texas but not by federal сonstitutional law.”¹⁴ No trial court is authorized to render a conviction in a felony case, consistent with Article 1.15, based upon a plea of guilty “without sufficient evidence to support the same.” ¹⁵ Evidence offered in support of a guilty plea may take many forms. The statute expressly provides that the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to its veracity or accuracy; and such a proffer or stipulation of evidence will suffice to support the guilty plea so long as it embraces every constituent element of the charged offense.¹⁶ Alternatively, our case law has recognized that the defendant may enter a sworn written statement, or may testify under oath in open court, specifically admitting his culpability or at least acknowledging generally that the allegations against him are in fact true and correct; and again, so long as such a judicial confession covers all of the elements of the charged offense, it will suffice to support the guilty plea.¹⁷ However, a stipulation of evidence or judicial confession that fails to establish every element of the offense charged, will not authorize the trial court to convict.¹⁸ A conviction rendered without sufficient evidence to support a guilty plea constitutes trial error.¹⁹

A deficiency of one form of proof— say, a defective written stipulation of evidence (as we have in this casе) or written judicial confession — may be compensated for by other competent evidence in the record.²⁰ In the instant case, the court of appeals held that the defective written stipulation was saved by the sworn colloquy between the trial court and the appellant in which the appellant acknowledged that he was pleading guilty to the offense as alleged in the indictment, including the element of possession that was missing from the stipulation. The question presented in this case is whether a sworn acknowledgment that one is opting to plead “guilty” to the charged offense (without expressly admitting that the charges are “true and correct”) is tantamount to a judicial confession, sufficient to satisfy Article 1.15. We hold that it is not.

ANALYSIS

Article 1.15 requires substantiation of a guilty plea. By its plain terms it requires evidence in addition to, and independent of, the plea itself to establish the defendant’s guilt.²¹ In their comprehensive treatise on Texas criminal practice and procedure, Professors Dix and Dawson have observed that, when it comes to examining the record of a guilty plea proceeding for evidence sufficient to support the plea,

[tjhere is sometimes difficulty determining whether a statement made by the defendant is part of the plea entry process or is independent of it. Clearly, the uttering of the words “guilty” or “no contest” in response to the question, “How do you wish to plead?” is not substantiation, but the plea itself. Some additional statement must be found to support a claim of substantiation by oral judicial confession.²²

If they аre right, then the court of appeals plainly erred in this case. When the appellant answered the ‍​​‌​​​‌​‌​‌‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​​‌‌​‍trial court’s question, “As to that charge in the indictment as we’ve just covered, how do you plead, guilty or not guilty?” by responding, “Guilty, Your Honor[,]” he was merely entering his plea, not confessing to the truth and correctness of the indictment or otherwise providing substance to the plea. It should make no difference that the appellant entered his plea while under oath. Otherwise, any plea proceeding will serve to satisfy Article 1.15 so long as the defendant is sworn in before he enters his plea of guilty or nolo contendere, and he will be “convicted on what is essentially no more than his plea — the very vice the statute was designed to combat!”²³

Unfortunately, Professors Dix and Dawson cite no cases for their assertiоn that the plea itself cannot provide substantiation. Perhaps the reason for this omission is that our case law is impossibly ambiguous on the subject. We turn to an examination of the relevant case law.

Brain

In Drain v. State,²⁴ an oral stipulation was dictated into the record in support of the guilty plea. At that time, Article 1.15 did not authorize convictions based upon oral stipulations,²⁵ so the Court proceeded to examine the balance of the record, including Drain’s sworn testimony at the plea hearing, for any other evidence sufficient to support the plea. We found the following colloquy between Drain and his own attorney:

Q Your name is Dyon Weslie Drain?

A Yes, sir.

Q And you heard me make several waivers for you, and did I have the right to make those waivers for you? A Yes, sir.

Q And are you guilty of this charge and are you pleading guilty because you are guilty and for no other reason?

A Yes, sir.²⁶

We held this sworn colloquy to constitute, not an oral judicial confession, but “merely an additional admonishment by counsel.”²⁷ This was so even though Drain seemed to be expressly admitting he was “guilty of this charge.” If Drain is controlling, then the court of appeals plainly erred in the instant case, because the only thing that the appellant acknowledged under oath during his plea proceeding was that he was pleading guilty to the charged offense, not that he was in fact guilty of that offense. This was but an entry of his plea, and not an independent substantiation of it.

Cooper and Craven

Two subsequent cases tend to cast the holding of Drain in doubt. In Cooper v. State,²⁸ the case upon which the court of appeals here principally relied, we upheld the sufficiency of the evidence to support a guilty plea with little more discussion than this:

It is true that [the] written judicial confession cannot support the guilty plea. When appellant took the stand and testified, however, he stated that he was pleading guilty just as he was charged in the indictment, and that he was saying he was guilty regardless of what punishment the court would assess. We consider this was a sufficient judicial confession to support the plea under Art. 1.15, supra. Cf. Potts v. State, Tex.Cr.App. 571 S.W.2d 180, and authorities cited there.²⁹

Neither Potts, however, nor the “authorities cited there” directly support the proposition that a defendant’s mere acknowledgment that he was “pleading guilty,” or even that he was “saying he was guilty[,]” constitutes an oral judicial confession, independent of the entry of the plea itself and sufficient to substantiate it.³⁰ We made no mention of Drain in Cooper, much less did we try to distinguish it.

In Craven v. State,³¹ the appellant attempted to collaterally attack his guilty plea in an appeal of the revocation of his probation. He argued that the evidence did not support the original plea because, whereas the indictment had alleged burglary by entry and commission of theft, he judicially confessed to burglary by entry with the intent to commit theft. A three-judge panel of the Court noted that an allegation of insufficient evidence may not be entertained in a collateral attack; only claims of no evidence will give rise to relief in a collateral attack.³² We apparently regarded Craven’s flawed judicial confession, together with the fact that he “took the stand and pled guilty to the indictment[,]” to provide at least some evidence (even if not necessarily sufficient evidence in contemplation of Article 1.15) to support the plea, and we therefore concluded that he could not attack the plea proceeding collaterally.³³

Judge Clinton dissented to the Court’s denial of Craven’s motion for en banc rehearing. He construed the panel opinion to stand for the proposition that the following colloquy between Craven and the trial court constituted a judicial confession:

Q: You are the same Lemuil Craven as charged in the Indictment in this cause, is that right?

A: Yes, sir.

Q: Is that a cause that lists an offense on January the 15th, 1975, is that right?

A: Yes, sir.

Q: And are you pleading guilty to that Indictment?

A: Yes, sir. ³⁴

We reject Judge Clinton’s view, however, that the panel opinion in Craven held that this colloquy (quite similar to the colloquy in this case that the court of appeals relied upon) could, by itself, constitute sufficient evidence to support a guilty plea. At best, Craven can be read only for the proposition that a judicial confession that is slightly at variance with the indictment, together with the plea colloquy itself, constitutes at least some evidence — more than no evidence — to support a guilty plea, and that a collateral attack is prohibited under thеse circumstances. Of course, the appellant in this case is challenging the sufficiency of the evidence in a direct appeal, not by collateral attack.

Morris

In 1986, we granted a petition for discretionary review to resolve this latent confusion in the case law. In Morris v. State,³⁵ the appellant had modified a written judicial confession that would have acknowledged that the indictment allegations were “true and correct,” so that it only acknowledged that he was in fact pleading “no contest” to those allegations.³⁶ The court of appeals had held this, nevertheless, to constitute a judicial confession, sufficient in itself to support the plea under Article 1.15.³⁷ We expressly granted the appellant’s petition for discretionary review in order to review “the correctness” of that holding.³⁸ We expressly refused the State’s petition for discretionary review, which had сhallenged the jurisdiction ‍​​‌​​​‌​‌​‌‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​​‌‌​‍of the court of appeals to resolve the sufficiency issue in the first place.³⁹

In his opinion for the Court, Presiding Judge Onion nevertheless disposed of the case by holding that the court of appeals had lacked jurisdiction to reach the merits of the sufficiency claim; accordingly, he declined to address the issue upon which review had been granted.⁴⁰ In a dissenting opinion, Judge Clinton disagreed that the court of appeals had lacked jurisdiction over the issue, and he therefore addressed the merits.⁴¹ In the latter context, he argued:

Simply to invest the plea itself with the trappings of an oath does not elevate it to the status of evidence. Appellant merely swore to the fact that he understood the indictment and was pleading no contest to it. This does not amоunt to confirmation that such allegations are true and correct or that appellant committed the offense so alleged. Patently, as modified, the stipulation constitutes neither a “judicial confession” nor any other manner of evidence contemplated under Article 1.15 as necessary to support the trial court’s judgment.⁴²

Moreover, Judge Clinton advocated overruling both Cooper and Craven, at least to the extent that they can be construed to conflict with the earlier decision in Drain.⁴³ Since Morris, this Court has not revisited the issue of whether a defendant’s sworn affirmation that he is indeed pleading guilty should be regarded as evidence sufficient to substantiate his plea for purposes of Article 1.15.

We take the opportunity to do so now. For the reasons expressed in Judge Clinton’s dissenting opinion in Morris, we hold that the appellant’s sworn affirmation, in rеsponse to the trial court’s questioning, that he was in fact pleading guilty to the charges in the indictment does not constitute a judicial confession and does not otherwise supply evidence, in whole or in part, sufficient to support the plea under Article 1.15. A guilty plea entered under oath is still just a guilty plea. It does not provide independent evidence to substantiate the defendant’s guilt. We disapprove Cooper and Craven to the extent that they may be read to conflict.

DISPOSITION

The court of appeals erred to hold that the deficiency in the written stipulation was remedied by the appellant’s plea colloquy with the trial court in this cause. On appeal, the State also argued that evidence adduced at the subsequent sentencing hearing also independently served to provide evidentiary support for the appellant’s guilty plea.⁴⁴ The court of appeals was not compelled to address this argument given its acceptance of the State’s other argument. However, in light of our holding today, we think it necessary to the final disposition of the appeal that the court of appeals address it now.’⁴⁵ Moreover, the State also argues, albeit for the first time in its reply brief to the appellant’s petition for discretionary review, that the appellant procedurally defaulted his Article 1.15 sufficiency claim because he made no complaint about the deficiency in the written stipulation at trial.⁴⁶ Because issues of error preservation are systemic in first-tier review courts,⁴⁷ we think it appropriate that the court of appeals address this issue as well (оr in the alternative, as the case may be), subject to our discretionary review at a later date. Finally, because the court of appeals concluded that there was no trial error, it did not confront the question of whether it would be appropriate to conduct a harm analysis, and, if so, whether the trial error was harmless under Rule 44.2(b) of the Rules of Appellate Procedure.⁴⁸ It may become necessary for the court of appeals to confront these issues on remand. Accordingly, we vacate the judgment of the court of appeals and remand the cause to that court for further consideration of the appeal consistent with this opinion.

WOMACK, J., filed a concurring opinion in which COCHRAN, J., joined.

COCHRAN, J., filed a concurring opinion.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

1 . Tex. Health & Safety Code § 481.112(a) & (c).

2 . Id., § 481.134(b)(1) and Tex. Penal Code § 12.42(c)(1), respectively.

3 . Tex.Code Crim. Proc. art. 1.15.

4 . Menefee v. State, No. 12-07-00001-CR, 2008 WL 4335170 (Tex.Aрp.-Tyler, delivered September 24, 2008) (not designated for publication) (hereinafter, Menefee II). The appellant's first attorney on appeal filed an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court of appeals recognized, however, that the defective stipulation presented a non-frivolous issue for appeal, abated the appeal, and remanded the cause to the trial court for appointment of new appellate counsel and briefs. Menefee v. State, No. 12-07-00001-CR, 2008 WL 787851 (Tex.App.-Tyler, delivered March 26, 2008) (not designated for publication) (Menefee I).

5 . Menefee II, supra (Hoyle, J., dissenting).

6 . TexR.App. P. 66.3(c) & (e).

7 . 592 S.W.2d 343, 352 (Tex.Crim.App.1980) (opinion on reh'g) (where defendant entered written judicial confession to the wrong offense, reviewing court would look to other evidence in the record for substantiation of guilty plea).

8 . At a later point in the proceedings, the trial court realized that the applicable fine was not $100,000, but only $10,000, and the appellant was admonished accordingly. This discrepancy is not material to the issue before us in this case.

9 . Menefee II, supra (slip op. at *4).

10 . 573 S.W.2d 533 (Tex.Cnm.App.1978).

11 . Menefee II, supra (slip op. at *7)(Hoyle, J., dissenting).

12 . In her brief dissenting opinion, Presiding Judge Keller advocates that we dismiss the appellant’s petition as improvidenlly granted. She claims that the court of appeals might have lacked "jurisdiction” because the certification of appeal was defective. But the very case she cites, Dears v. State, 154 S.W.3d 610, at 612 (Tex.Crim.App.2005), holds that "[a]p-pellate jurisdiction is invoked by giving timely and proper notice of appeal." That was done in this case, so the court of appeals acquired jurisdiction over the appeal. It is true that, once an appellate court has acquired jurisdiction, it must nevertheless dismiss the appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.” Tex. R.App P. 25.2(d). But there is such a certification in this record. Presiding Judge Keller argues that the certification is defective because it is belied by the balance of the record, which contains a waiver of appeal that was signed by the appellant on the same day that the trial court signed the certificate of appeal. There is no explanation in the record for this apparent discrepancy. Consistent with Dears, the court of appeals could have examined the certification of appeal for defectiveness and, if appropriate, used Rules 37.1 and 34.5(c) of the Rules of Appellate Procedure to obtain a new certificate of appeal. 154 S.W.3d at 614-15; see also Greenwell v. Court of Appeals for the Thirteenth Judicial District, 159 S.W.3d 645, 650 n. 24 (Tex.Crim.App.2005) (although appellate court may require lower court to address apparent defect in certification of appeal, it "may not dictate the content of the certification”). If a new certificate of appeal obtained by this process were to certify that the appellant waived his right to appeal, then, of course, the court of appeals could only exercise its appellate jurisdiction to dismiss the appeal under Rule 25.2(d). As Professors Dix and Dawson have observed, "[u]nder Dears, a court of appeals clearly may, once the record is filed, compare a certification to the rеcord to determine whether the certification is supported by the record. It would seem that the appellate tribunal is required to do so upon a suggestion by the State that a facially valid certification lacks support in the record.” George E. Dix & Robert O. Dawson, 43A Texas Practice. Criminal Practice and procedure § 43.287 (2d ed. 2008-2009 Sup.), at 253. But the court of appeals in this case did not determine whether the record supports the certification of appeal, and the State never suggested to it that it should. At the conclusion of the sentencing proceeding, the trial court instructed the appellant, "You have certain appellate rights that I'll let your lawyers discuss with you. You cannot sit on those rights. If you choose to pursue an appeaf, you have to do it timely; otherwise, you lose that right.” The State raised no complaint in the trial court or on appeal that this admonishmеnt was inconsistent with any waiver of appeal. Indeed, at no point in these appellate or discretionary review proceedings has the State argued that, because the certification of appeal was defective, the court of appeals should have dismissed the appeal under Rule 25.2(d), much less that it altogether lacked jurisdiction over the appeal. Obviously, the appellant has had no opportunity to brief this issue. Under these circumstances, we will proceed to the merits of the substantive issue that was decided by the court of appeals.

13 . Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App.1986).

14 . Id. at 678.

15 . See Tex.Code Crim Proc. art. 1.15 (“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering а plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case 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. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”) (emphasis added).

16 . Id. See also, e.g., Hammond v. State, 470 S.W.2d 683 (Tex.Crim.App.1971); Brewster v. State, 606 S.W.2d 325 (Tex.Crim.App.1980); Stone v. State, 919 S.W.2d 424 (Tex.Crim.App.1996).

17 . E.g., Sprinkle v. State, 456 S.W.2d 387 (Tex.Crim.App.1970); Waage v. State, 456 S.W.2d 388 (Tex.Crim.App.1970); Soto v. State, 456 S.W.2d 389 (Tex.Crim.App.1970); Sexton v. State, 476 S.W.2d 320 (Tex.Crim.App.1972); Knight v. State, 481 S.W.2d 143 (Tex.Crim.App.1972); Potts v. State, 571 S.W.2d 180 (Tex.Crim.App.1978).

18 . See Dinnery v. State, supra at 351 ("A plea of guilty is an admission of guilt of the offense charged, but it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support such plea and the judgment to be entered.”).

19 . Bender v. State, 758 S.W.2d 278, 280-81 (Tex.Crim.App.1988); Ex parte Martin, 747 S.W.2d 789, 793 (Tex.Crim.App.1988); Ex parte Williams, supra.

20 . Dinnery v. State, supra at 352 (where written judicial confession was deficient, Court would "turn to see if there is other evidence independent thereof which will support die plea of guilty”). See also George E. Dix & Robert 0. Dawson, 43 Texas Practice: Criminal Practice and Procedure §§ 34.74-34.76 (2d ed.2001), at 379-380 ("omission of an element of the offense [in stipulated evidencе] can be cured by a ‘catch-all’ admission that the indictment is true and correct. ⅜ * * Oral judicial confessions can be used to substantiate a plea when the stipulation agreement is invalid and when a written judicial statement is insufficient. ⅜ ⅛ ⅜ The entire plea proceeding is examined to determine whether there is substantiation.”).

21 . See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (when statutory language is clear and unambiguous, we give effect to plain language unless to do so would lead to absurd consequences). Under Article 1.15, "in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.”

22 . Dix & Dawson, supra § 34.75, at 379 (footnote omitted).

23 . Dinnery v. State, supra at 359 n. 14 (Clinton, J., dissenting).

24 . 465 S.W.2d 939 (Tex.Crim.App. 1971).

25 . The statute was subsequently amended to permit oral stipulations. Acts 1971, 62nd Leg., ch. 996, p. 3028, § 1, eff. June 15, 1971.

26 . Drain v. State, supra at 940 (emphasis added).

27 . Id.

28 . 573 S.W.2d 533 (Tex.Crim.App.1978).

29 . Id. at 535.

30 . Relying on Adam v. State, 490 S.W.2d 189 (Tex.Crim.App.1973), and Miles v. State, 486 S.W.2d 326 (Tex.Crim.App.1972), we reiterated in Potts that “an affirmation of the indictment as true and correct will constitute a judiciаl confession sufficient to support a judgment of conviction." 571 S.W.2d at 182. Cooper made no such "affirmation," unless "saying he was guilty regardless of what punishment the court would assess” should somehow count as expressly "affirming” that all the elements of the offense as alleged in the indictment are true and correct.

31 . 607 S.W.2d 527 (Tex.Crim.App.1980).

32 . Id. at 528.

33 . "This is not a 'no evidence' case, however. The appellant judicially confessed to burglary with intent to commit theft, and he also took the stand arid pled guilty to the indictment.” Id.

34 . Id. at 528 (Clinton, J., dissenting to denial of motion for rehearing) (emphasis added).

35 . 749 S.W.2d 772 (Tex.Crim.App.1986).

36 . Id. at 776 (Clinton, J., dissenting on original submission).

37 . Id. at 773.

38 . Id.

39 . Id. at 775 (Clinton, J., dissenting on original submission).

40 . Id. at 774-75.

41 . Id. at 775-80.

42 . Id. at 777 (Clinton, J., dissenting on original submission).

43 . Id. at 778 n. 11 (Clinton, J., dissenting on original submission).

44 . The State argued on appeal that the trial court took judicial notice of the pre-sentence investigation report at the later sentencing proceeding. Although the PSI was not included in the аppellate record, the State argues that it is apparent from the court reporter’s record that it included evidence to substantiate the guilty plea. Having disposed of the appellant’s claim of insufficient evidence to support the plea on another basis, the court of appeals did not address this argument.

45 . Because the court of appeals did not address this argument, it rendered no "decision” for this Court to review. E.g., Stringer v. State, 241 S.W.3d 52, 59 (Tex.Crim.App.2007). The issue is nevertheless now "necessary to final disposition of the appeal.” See Tex R.App P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

46 . Whether the appellant must object at trial before he may complain on appeal would seem to be a function of whether Article 1.15’s requirement of evidence to support a plea constitutes a "systemic requirement” or "fundamental feature of the system,” not optional with the parties. See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993) (“Thus, our system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. In the present context, the most important thing to remember about the Texas law of procedural default is that it only applies to the last category.”).

47 . E.g., Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App.2005).

48 . Tex R.App P. 44.2(b). Neither the appellant nor the State briefed the issue of harm, vel non, in their briefs in the court of appeаls. Nor does the State argue now, in its reply brief to the appellant’s brief on discretionary review, that trial error, if any, was harmless. Nevertheless, "it is the responsibility of the reviewing court, once it concludes there was error, to determine whether the error affected the judgment.” Ford v. State, 73 S.W.3d 923, 925 (Tex.Crim.App.2002) (plurality opinion), citing Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App.2001). Should it conclude on remand that trial error did occur, and that the error was preserved, the court of appeals should not reverse the conviction without addressing the harm issues enumerated above. The court of appeals may invite the parties to file supplemental briefs. See Tex.R.App. P. 38.7 (“A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.”).

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Concurrence Opinion

WOMACK, J.,

filed a concurring opinion,

in which COCHRAN, J., joined.

So far as the United States Constitution is concerned, a voluntary and knowing plea of guilty is a sufficient basis for a judgment of guilt.¹

In a federal court, the only additional requirement is that “the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”²

Many states have adopted a comparable provision. Generally, these provisions leave the judge free to decide in the particular case how this determination can best be made; the factual basis is most commonly made by inquiry of the defendant (sometimes said to be the best method), inquiry of the prosecutor or defense counsel, examination of the plea agreement, presentence report or preliminary hearing transcript, testimony by police, or a combination of thesе methods. Nor do they attempt to establish a precise quantum of evidence which must be met.³

Texas has a unique requirement that, if a jury trial has been waived, a plea of guilty in a felony case must be supported by evidence.

This requirement of evidence was part of a 1931 act of the legislature that permitted a jury trial to be waived. Before 1931, Texas law required a jury in every felony case. Jury trial was required in every case in which the defendant pleaded not guilty. The first legislature of the state enacted a statute requiring juries to assess punishment in every case in which a defendant pleaded guilty.⁴ In 1879, the requirement of a jury on a plea of guilty was limited to felony cases.⁵

In 1930, the Supreme Court held in Patton v. United States that the Sixth Amendment was not violated by the waiver of trial by juiy in a criminal case in the federal courts.⁶ After that decision, the Texas legislature quickly enacted a statute to permit the waiver of jury trial.⁷ The emergency clause of the act said it was justified “in order to reduce the expense of law enforcement and to hasten the disposition of felony cases wherein pleas of guilty are entered.”

The 1931 statute also required that, when a jury is waived in a felony case, the State must introduce evidence showing the defendant’s guilt.⁸ This requirement now appears in Article 1.15 of the Code of Criminal Procedure, which reads:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, thаt it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case 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. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

The basis of the requirement, according to one member of this court, was that, “Obviously the legislature ... did not want any man whom the ‍​​‌​​​‌​‌​‌‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​​‌‌​‍state could not and did not prove guilty of the crime charged sent to the penitentiary upon his plea of guilty before a trial court.”⁹

If that was what the legislature wanted in 1931, it must have changed its mind in 1965, when it revised the Code of Criminal Procedure. It added to the statute a provision that the evidence to support a guilty plea could be stipulated.¹⁰ So the statutory protection was limited to that class of defendants who: (1) could not be proved guilty by the State, (2) would waive a trial by jury and plead guilty, but (3) would refuse to stipulate to the evidence.

In 1980, the Court encountered a case in which a defendant had waived trial by jury, pleaded guilty to burglary, and entered into a stipulation of evidence, but it was a stipulation to a different kind of burglary than the one for which he was being tried. This Court held that the following testimony of the defendant was sufficient to support the conviction:

Q You have gone over that indictment with me, have you not?

A Yes, sir.

Q We have read it?

A Yes, sir.

Q And is it true and correct?

A Yes, sir.¹¹

Thus the Court of Criminal Appeals decided that, despite what the statute said, a defendant’s judicial confession would be sufficient to meet the requirement that the State produce evidence of guilty when a trial by jury had been waived.

Since then, fifteen Legislatures have convened and adjourned without changing the requirement of evidence.

What interest is being served by the statutory requirement of evidence if it can be satisfied by a judicial confession?

Of course, it is the Legislature’s prerogative tо regulate this procedure by statute. The statute, as this court had construed it, now protects only defendants who: (1) could not be proved guilty by the State, (2) but would waive a trial by jury and plead guilty, (3) but would refuse to stipulate to the evidence, and (4) would refuse to judicially confess.

I agree that in this case the State did not satisfy the statute (as this court has construed it), since the prosecutor failed to introduce real evidence or stipulated evidence, and even failed to ask the defendant to judicially confess.

1 . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Cr.App.1986).

2 . Fed.R.Crim.P. 11(0-

3 . Wayne R. LaFave et al. Criminal Procedure § 21.4(0 (3d ed.2000) (footnotes omitted).

4 . Act of April 30, 1846, 1st Leg. R.S., 1846 Tex. Gen. Laws 161, reprinted in H.P.N. Gam-mell, 2 The Laws of Texas 1467.

5 . See Tex.Code Crim. Proc. art. 519 (1879).

6 . 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854.

7 . Act of April 9, 1931, 42nd Leg., R.S., ch. 43, 1931 Tex. Gen. Laws 65.

8 . Id.

9 . Braggs v. State, 169 Tex.Crim. 405, 407, 334 S.W.2d 793, 794 (1960) (opinion of Davidson, J.).

10 . Code of Criminal Procedure Act, 59th Leg., R.S., ch. 722, § 1, art. 1.15, 1965 Tex. Gen. Laws vol. 2, p. 317, 322. See generally Rodriguez v. State, 422 S.W.2d 376, 379 (Tex.Cr.App.1969) (opinion of Onion, J.).

11 . Dinnery v. State, 592 S.W.2d 343, 352 (Tex.Cr.App.1980).

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Concurrence Opinion

OPINION

COCHRAN, J.,

filed a concurring opinion.

I join the opinion of the Court as well as Judge Womack’s concurring opiniоn. I agree with the majority that the explicit terms of Article 1.15 ¹ were not met in this case. The entry of a formal plea does not suffice as independent evidentiary support for that guilty plea. I also agree with Judge Womack that the requirement of submitting or stipulating to evidence supporting a guilty plea under Article 1.15 no longer has much purpose or importance. Historically, the requirement that a conviction, including a guilty plea, must be supported by evidence relates back to the common law corpus delicti rule.² The purpose of that rule is to ensure that a person is not convicted based solely upon his own extrajudicial false confession to a crime that never occurred.³ But, as Judge Wom-ack aptly notes, there are many ways to protect that interest in the context of a guilty plea in open court.⁴ As he concludes, it is the Legislature’s prerogative to establish the particular means to protect that interest, but Article 1.15 provides very poor protection at best. And it can make the law a laughingstock.

This case is a good example of why the “independent evidence” requirement of Article 1.15 may serve little purpose. Here, no one is suggesting that appellant is innocent of the crime to which he pled guilty, nor is anyone suggesting that independent evidence of his guilt does not exist. The problem here is a simple typographical error. The word “possessed” was left out of the stipulation of evidence. No one noticed it. No one cared at the time of the plea. There is no such crime as “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 adulterants and dilutants.” There is no such sentence in the English language. The 'problem is obviously one of form, not substance.

It is, as the majority correctly notes, trial error.⁵ It is hard to imagine how this typographical omission could “affect appellant’s substantial rights” under our current harmless error rule,⁶ but because the parties have not yet had an opportunity to present arguments on that issue, and the court of appeals has not addressed it, I agree that this case should be returned to that court.

1 . Tex Code Crim. Proc. art. 1.15.

2 . See Salazar v. State, 86 S.W.3d 640, 644 (Tex.Crim.App.2002) ("The corpus delicti rule guarded against the shocking spectacle and deleterious effect upon the criminal justice system when a murder victim suddenly reappeared, hale and hearty, after his self-сonfessed murderer had been tried and executed.”) (citing Rolun M. Perkins & Ronald N. Boyce, Criminal Law 142 (3d ed.1982)); see also Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876 (1941) (“The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone.”); East v. State, 146 Tex.Crim. 396, 175 S.W.2d 603, 605 (1942) ("The wisdom of this rule lies in the fact that no man should be convicted of a crime, the commission of which he confesses, unless the State shows, by other testimony, that the confessed crime was in fact committed by someone. The contrary would authorize a return of conditions that existed in the days of the inquisition.”); Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401, 404 (1940) (The purpose of the corpus delicti rule is to guard against "the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.”).

3 . See Salazar, 86 S.W.3d at 644.

4 . See Concurring Op. at 1-2 (Womack, J., . cоncurring) (quoting Wayne R. LaFave et al„ Criminal Procedure § 21.4(f) (3d ed.2000)).

5 . Majority Op. at 14 (citing Bender v. State, 758 S.W.2d 278, 280-81 (Tex.Crim.App.1988); Ex parte Martin, 747 S.W.2d 789, 793 (Tex.Crim.App.1988)).

6 . Tex.R.App P. 44.2(b) ("Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

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Dissenting Opinion

DISSENTING OPINION

KELLER, P.J.,

filed a dissenting-opinion

in which KEASLER and HERVEY, JJ„ joined.

The certification of appeal says that this was not a plea-agreement case and appellant had a right to appeal. This certification is refuted by the record. Appellant expressly waived his right to appeal. Under our opinion in Dears v. State, the certification of appeal is therefore defective.¹ It is not clear whether a waiver of appeal or a defective certification results in a lack of appellate jurisdiction, or whether authorizing an appeal when there is a waiver or a defective certification is a systemic error under Mann,² or whether the State has to complain at some point. We have not written on the specific issue. It does seem clear that if the discrepancy between the record and the certification had been raised early on, the court of appeals would have been, at the least, “obligated to review [the] record in ascertaining whether the certification [was] defective.” ³ It also seems that the court of appeals would have lacked authority to reverse the judgment until the matter was cleared up.⁴

We could remand this case to the court of appeals to address the issue of jurisdiction. Or we could address it ourselves. What we should not do is skip over the issue, because if the court of appeals did not have jurisdiction of the case, neither do we.

Rather than proceed under these circumstances, I would ‍​​‌​​​‌​‌​‌‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​​‌‌​‍dismiss the petition as improvidently granted.

1 . 154 S.W.3d 610, 614 (Tex.Crim.App.2005).

2 . Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993).

3 . Id. at 615.

4 . See Tex.R.App. P. 44.4.

Case Details

Case Name: Menefee v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 1, 2009

Citations: 287 S.W.3d 9; 2009 WL 1873495; 2009 Tex. Crim. App. LEXIS 881; PD-1530-08

Docket Number: PD-1530-08

Court Abbreviation: Tex. Crim. App.