*1 appeals’ opinion which intimates that Gu a continuance
tierrez should taken offered court.
when was party timely it is that a did
Once shown necessary supplements in
make its answers interrogatories, against the sanction use Morrow,
of that witness is automatic.
supra at 297. It then the burden becomes party seeking call the witness to good why
show cause the answers Morrow, supra supplemented.
were not longer It
298. the burden
questioning parties surprise, show
accept a them. Yel forced on continuance
dell, supra
Therefore, of the court of reversed,
appeals is and the cause is re-
manded to the trial court for a trial. MESSER, Appellant,
Charles Andrew Texas, Appellee.
The STATE of
No. 570-84. Texas, of Criminal
En Banc.
Sept. Rehearing April Ervin, Houston,
Don appellant. Holmes, Jr., B. Atty. John Dist. & Calvin Anderson, A. Hartmann & Wilford William Delmore, III, Attys., J. Asst. Dist. Hous- ton, Huttash, Atty. Robert Cath- State’s & Austin, Riedel, Atty., leen R. Asst. State’s State. *2 pistol he a suspect stated that and PETITION APPELLANT’S ON OPINION bag.” in the REVIEW some cocaine FOR DISCRETIONARY V.A.C.C.P., MILLER, Judge. that in provides valid, de stipulation the a to be order for by Appellant was convicted the rights of fendant’s consent waiver possession of cocaine. Punish writing. approved by the court in must be years imprison at three ment was assessed interpreted to re provision has been This to the First Court ment. judge’s signature appear on quire the that appellant’s af Appeals, conviction was State, stipulation. Lopez v. unpublished opinion. firmed Messer State, (Tex.Cr.App.1986); Clark State, 01-83-0312-CR, (Tex.App.— No. (Tex.Cr.App.1983); Ellard v. S.W.2d 1986). [1st], delivered March Houston granted appellant’s petition for discre We (Tex.Cr.App. Young tionary review determine whether 1983). that appeals was correct support was sufficient evidence there Clark, example, supra, defend- For guilty We will reverse. verdict. possession charged with of more ant was May 4,1982, The record indicates offi- marijuana. than ounces of One four entering as was appellant was arrested he cer testified court that substance building by the his office and was taken stipu- parties marijuana. was indeed The arresting to his residence. A black officers testify officer would lated that second appellant at camera case was taken from four ounces. the amount exceeded Appellant the time of the arrest. told by stipulation signed the trial The was pistol contained a officers that case court, this Court held there was no searched the some cocaine. officers marijuana. evidence of the amount of and, warrant, pursuant case search case, de- a similar Lopez, appellant's apartment. searched charged possession of with fendant was Appellant jury waived his to a stipulated of- parties heroin. The stipulation and entered into a was ficer that the substance would agreed both if the State wherein sides sign The trial court did not indeed heroin. witnesses, they were to call its State offered no stipulation testify to in the the facts contained offense was prove the substance other evidence stipulation signed report. was there was heroin. This Court held that pellant, attorney, dis- and the assistant the de- insufficient evidence show that not, attorney. stipulation trict was guilty. fendant was however, signed approved by the trial presents pattern The instant case fact court. Clark, supra, nearly those in identical to Appellant argues stipula- that since supra. Appellant and the State Lopez, court, signed by tion was not testimony stipulated that the officer's Thus, may not considered as evidence. as the the same information would contain prove there is no evidence to the substance report was report. offense The offense response relies was cocaine. the State part- incorporated virtually into and made by appellant at the on a statement made The offense of evidence. bag he arrested to show that his time was appellant’s statement that report contained place in the only contained cocaine. The The trial cocaine in his case. there was any appel- record where statement made so the sign court did report, is in lant is found the offense report may not be considered offense states: case, authority under the evidence in this arrest, suspect time of the “At the preceding cases. case carrying vinyl was camera black no other evidence State offered possession this which was taken co- appellant guilty possession leaving parking Det. we When were Therefore, location, insufficient there was caine. lot the aforementioned heroin, evidence to show that Coulson that the substance was charged. with which offense he was Coulson’s would have been direct evidence of the nature the substance. The State makes three contentions First, position. regardless of its In the case at bar issue of whether stipulation, defective trial court statement direct evidence could consider the contents of the offense bag substance in his cocaine *3 report, appellant’s statement, to wit: because, Pesina, never reached unlike su- inspection visual and field of test the co- pra, and Bright, supra, appellant’s state- performed caine the officers at properly ment was never admitted into evi- scene, array and the of found contraband dence. appellant’s apartment. argument This is conclusion, (1) following: we find the stated, unpersuasive. As previously everything of evidence and though report, separate offense exhibit contains, specifically report, offense agreement from the stipulate, written may evidence; (2) not be considered as was in stipu- fact the evidence that was appellant did not waive the error in the lated. To contend that it was admitted into trial; stipulation by failing object to it at (cid:127) own, separate apart evidence on its (3) and we never reach issue of whether agreement stipulate, from the flies in appellant’s statement direct evidence the face of record before us. bag his contained cocaine because The State’s second contention is that never properly admitted into evidence. pellant object failed to judgments The appeals of the court of when it was offered. This Court has held are trial court reversed. This that a stipulation of evidence without the cause is remanded to trial court signature court’s constitutes funda- entry judgment acquittal. of of mental error and raised Before the banc. court en first appeal. Lopez, supra. time on The appel- State’s third contention is that OPINION ON MOTION STATE’S lant’s statement direct evidence that the FOR REHEARING bag substance in his was cocaine. The State is correct in assertion a state- ONION, Presiding Judge. concerning ment the nature of a substance Appellant was convicted a bench trial personal knowledge made with someone upon possession his of cocaine is direct the nature of the sub- punish- court. His stance, as was held Pesina v. the court ment assessed at three Bright S.W.2d 97 years’ imprisonment. (Tex.Cr.App.1977). following record shows that a hear- Pesina, took defendant ing appellant’s suppress motion evi- stand and admitted that the substance appellant by jury dence waived found in possession his was heroin. This guilty. and entered his of not testimony pro- held the defendant’s “stipulated” appel- evidence was and the support vided sufficient evidence to lant was found guilty. guilty verdict, require- there was no conviction was entered. ment that a chemist or that lab (nee ground) of point On the sole report be into admitted evidence. error that the “evidence is insufficient In Bright, supra, was in defendant beyond to establish a reasonable doubt that the Coulson home when he was arrested. from the substance recovered Coulson that the had testified defendant cocaine, alleged was in fact in the indict- as heroin with while he him was there. This ment.” Court held that Coulson’s statement argument appel- the defendant heroin had was admissible knowledge a statement of fact within the lant’s contention that the State had of the witness. If the defendant told failed to offer a chemist’s proof proper “until the trial even a labo- method was cocaine or the substance it.” places signature reflecting ratory report that the substance the chemist cocaine. submitted to tested appellant’s granted petition to deter- We Ap- of the Court in its mine the correctness The Court observed light ar- stipulated peals’ judgment unpublished opinion evi gument. in the the trial court form dence before appellant, at report offense showed that an this Court re- original submission arrest, arresting of his told the time Ap- versed he had bag camera case or officers stipulated evidence peals, finding that the pistol and cocaine. with him contained a requirements of Article did not meet powder
Approximately
grams
of white
acquittal.
1.15, supra,
and ordered
bag.
The tests
was recovered
States,
437 U.S.
Burks
United
suspected
on the
narcotics
performed
(1978),
L.Ed.2d
and Greene
These tests included
positive
results.
*4
Massey, 437 U.S.
v.
of
bag.
in the
the cocaine found
(1978).
L.Ed.2d
Appeals
that the field tests were not
found
granted the
motion for leave
We
State’s
sufficient in themselves to establish
rehearing in
for
to file a motion
which
substance,
positive
nature of the
original
urged
opinion on
that our
confirm the
of such tests tended to
results
irreconcilable conflict
submission was in
in
direct evidence
the form of
with Ex
that the substance was cocaine.
admission
failure
(Tex.Cr.App.1979),
State,
Citing
Girard
1.15,supra,
comply
Article
was trial
to
(Tex.Cr.App.1982),
Appeals,
of
produce suffi-
rather than failure to
error
light
in
viewing the evidence
most fa
to sustain the conviction so
cient evidence
judgment,
to
concluded
a
vorable
of the Double
as
bar a retrial because
to
of fact
all
rational trier
could have found
supra;
Jeopardy
Clause.
beyond
proven
essentials of the offense
a Greene,
urged that
supra. The State also
doubt because the
of
reasonable
original
errone-
opinion
on
submission
sufficiency
is determined
the combined
signa-
judge’s
trial
ously indicated that the
incriminating
weight of all
evidence. Mes
appear
stipulation
itself
ture must
(Tex.App.-Houston
ser v. State
[1st Dist.]
1.15,
thereof,
Article
su-
approval
unpublished).
March
1984—
requires
sign
to
and
pra,
appellant’s petition
discretionary
consent
approve
rights
“waiver of
and
ground
form,
sign
the sole
of
stipulation
review
review was
stipulate”
not
erred because there
in
under
could
fact
of evidence itself which
probative
was “insufficient
val-
evidence
oral.
the statute be
beyond
ue in
a rea-
the record
establish
1.15, supra, provides:
Article
recovered
sonable doubt
the substance
person
of a felo-
“No
can be convicted
cocaine,
in fact
from the
jury duly
except upon the verdict of
ny
in
alleged
the indictment.”
recorded,
felony
in
and
unless
rendered
review, appellant
defendant,
reasons for
Under his
capital, the
than
cases less
analy
urges that in absence of a chemical
entering
open
in
plea,
has in
upon
laboratory report
sis
the evidence was
person
by jury
or
waived his
conviction, citing
1.13
writing
insufficient to sustain
Articles
in accordance with
State,
(Tex.Cr.
however,
1.14;
Wagoner
557 S.W.2d
that it shall
provided,
and
addition,
App.1977).
the first time
to introduce
necessary
for the state
be
presented
showing the
appellant urges a
record
matter not
into the
evidence
Appeals.
guilt
contends the
and said evidence
He
the defendant
as the
compliance
accepted by
be
the court
stipulated
shall
evidence was
in no event
requirements
Arti
for its
mandatory
basis
with the
upon
person charged
be convicted
1.15, V.A.C.C.P.,
requires that
shall
cle
which
plea
sufficient evidence
is not a
without
stipulation
before the court
support the same.
stipulation
evidence
be
itself. A
may be oral under
stipulated if the defendant in
such case
supra.
stipulation
An oral
court,
consents
writing,
open
signed
cannot
approved by
be
confrontation,
waive the appearance,
trial court. The trial court is not re-
witnesses,
cross-examination of
fur-
quired
piece
stipu-
examine each
ther consents either
to an oral
evidence,
written, sign
lated
oral or
testimony
evidence and
approve it before
introduction.
stat-
affidavits,
testimony
introduction of
only requires
ute
the defendant’s
witnesses,
written statements of
any
waiver
stipulate
and consent to
evidence
other documentary
signed and approved by
be
of the court. Such
court.”1
waiver and consent
approved
must be
The scenario in the instant case is all too
by the
in writing,
and be
filed
courts,
appellate
particularly
familiar to
papers
the cause.”
file of
appeals
County.
There
Harris
is
(Emphasis supplied.)
hearing
suppress
brief
the motion to
foregoing
mandatory
statute is
evidence,
subsequently
motion
and must
be followed for
overruled. The defendant then immediate-
considered
as evidence
where
ly
by jury
waives trial
and enters a
See Young
court.
before the court and the evi-
S.W.2d 6 (Tex.Cr.App.1983); Valdez v.
stipulated
dence is
forms
an exhibit or
State, 555
S.W.2d 463
exhibits. No “live”
is offered.
(Tex.
Duran v.
*5
The
is promptly
guilty.
defendant
found
Cr.App.1977), and cases there cited. See
appeal
urged
it is
there was a
State,
(Tex.
also Green v.
What the
Court resolved “the
422, 423,
States,
373, 374,
of whether an accused
be
U.S.
S.Ct.
error, upon
appeal, including
"We
denial of
think that this basic
number
errors
‘_
rested,
acquittal.
our earlier reversal
was therefore trial
his motion for
[Wjhere
construed,
holding
successfully
Properly
error.
was not
the accused
seeks review
case,
conviction,
prove
jeopardy
there is
double
failed
its
trial,
permitted erroneously
prove
upon
Bryan
it had
a new
[citations omitted].”
been
552,
States,
through
receipt
case
U.S.
incorrect
evidence.
United
S.Ct.
(1950).
quoted
L.Ed.
Cf.
437 U.S. at
A
above.
reversal for such trial error as was
elementary
person
in our
that a
can
“It is
law
this
committed in
case is not tantamount
to a
time
offense
his
be tried
second
for an
holding by
this Court that a directed
prior
conviction for that same offense has
should have been
It was a
entered.
appeal,
[citing
set
United States v.
aside
applicant
should
a fair
Ball, supra].
though petitioner may
Even
readjudication
guilt
of his
free from error. For
request
in his claim that he did not
reason,
this
our earlier reversal
one
portion
respect
applica-
that would
because
bar
re-trial
limitations,
dealing
charge
with the statute
jeopardy
Burks
tion
the double
clause in
jeopardy must
Un-
still his
of double
fail.
Id., at 686.
Greene."
has
§
der 28 U.S.C.
beyond
particular
power
go
relief
full
require
States,
6. "Petitioner’s contention that to
him to
sought."
425,
Forman v. United
again
place
481, 486,
(1960).
stand trial
would be to
him twice in
703 moving acquittal by judgment at (1955). Burks, 437 426 99 L.Ed. * * * * today hold Since we 10-11, new trial. pre- Jeopardy Clause Double that the Bryan- examination of the Upon close reviewing trial once the a second cludes holdings the Su- precedents and Formcm legally court has “they found persuaded that preme Court was remedy ‘just’ available insufficient, properly construed [Double judg- direction of a court is the for that Clause, accordingly should Jeopardy] To extent that acquittal. ment of Burks, at supra, longer no be followed.” suggest by that mov- prior decisions S.Ct., further found that 2147. It at trial, waives a new a defendant ing for 662, 16 Ball, 163 U.S. United States acquittal on right judgment his (1896) “provides 1192, 41 L.Ed. S.Ct. insufficiency, evidentiary the basis unraveling point logical starting overruled.” cases are those Bryan arising from conceptual confusion” 17-18, 2150- S.Ct. at States, progeny, Id., at supra, and 437 U.S. v. United States. including Forman v. United 2151. to the application and its Had Burks accused obtained reversal In Ball recognized as by States Greene indict- a defective
his first convictiondue to
extant,
Court should have
that the
in-
then
law
therefore “based not
ment.
It was
in
directed a
on trial
sufficiency of evidence but rather
gainsaid. Since it was
cannot
error,
faulty
i.e.,
dismiss a
indict-
failure to
always
not,
had
Court did that
ment,”
it cited.
as were the cases
appeal in
prevailed on
S.Ct.,
problem
at 2148. The
at
court.
to the trial
by
Supreme
perceived
Court was
such cases—remand
however,
Green,
not distin-
decided since Ball “do
Faced with Burks
cases
justify
remand
guish
sought
to trial error
between reversals due
Court
evidentiary
retrospect
insuf-
resulting from
equating
and those
what
said
Court, seeing
Supreme
ficiency” and the
“dictum”
holding in Duran with
substantially
Greene,
remanding
su-
“contribut[ing]
that failure
Court in
Supreme
existing
present
state of confusion
686.
at
pra. Ex
law,” thought
impor-
“it is
this area of the
applied
Greene,
Supreme Court
respective
carefully the
tant
to consider
to the States.
of Burks
the “standard”
type
of these two
of reversals
roles
2154. How-
Id.,
S.Ct. at
U.S. at
analysis.”
at
double
ever,
to reverse the
unable
it was
at
grant appropriate
of the courts below and
Supreme
ab-
Accordingly,
Court
“the situation confused”
because
relief
respective roles:
stractly compared the
opinion in Sosa
per
that while the
curiam
first,
quoted
(Fla.
passage
error” in the
“trial
215 So.2d
[and Greene]
Duran, supra,
interpretation
1968),
no room for
“leaves
evidentiary insufficiency.
then
Florida
by us” other than the
ante,
decided,
p.
being
see
issue
insufficient
had found evidence
supra,
trial, Greene,
concluded:
first
convict
(and
re-
24-25,
S.Ct. at
U.S. at
“In
it makes
difference
our view
for a
“remanded
judgments
new trial
has
versed
that a defendant
737),
also a
trial,” Sosa,
remedies,
there
his
or even as
as one of
in-
subject to different
concurring opinion
meaningfully
cannot be
remedy.
It
sole
Supreme terpretations.8
to a
a person
‘waives’
said
witness,
Turner,
Sosa,
him.
Mae
told
another
of that concurrence
An examination
Supreme Comí: Sosa
In the Florida
hearsay
at is-
at 742-743.
reveals
Kane,
court erred
"that the trial
contended
given by Mary
witness
and Greene
a rebuttal
sue was
”
extrajudicial
admitting
objection
statements
these
She
allowed “over
for the
Ibid. After an
into evidence."
the witnesses
testify
her to an FBI
statements made
applicable
con-
law the
turn,
agent
permitted
extensive discussion
agent.
the FBI
and,
objection,"
currence concluded:
what
what Kane
"over
*10
704
thought
wrong
the concurrence could
viewed
interpretations
at
several
situ-
the
ways:
involving only
least
two
one
ation.10 The
prompted
“confusion”
that
error;9
other,
judges
the
that
those three
those dicta
dissolved
remand and certifi-
opinion
that
were
“once the inadmis-
underpinnings
cation. With its
thus
re-
hearsay
discounted,
sible
there was
parte
moved Ex
Duran must
fall. See
permit
insufficient evidence
jury
to
the
to
Massey,
v.
Greene
F.2d,
706
at 552-553.
Greene,
24-26,
convict.”
tion
considered
a reversal as
Louisiana,
Hudson
40,
450 U.S.
101
v..
error,”
Supreme
the
“trial
Court cautioned
970,
viz:
(1981),
S.Ct.
thereof.” S.Ct.,
Id., at
Finally, Supreme agreed with
Louisiana Court that the fact evidentiary insuffi-
a trial had found principle an-
ciency is no different legal stipulation is in accord with the said "the State did not Duran 1.15;" requirements is insuffi- requirements in Ex 1.15then there art. follow the Article support the conviction." said the trial cient evidence to Duran the Court Finding original). (emphasis was im "should have ruled that at 385 ruling comply "had thus the the State Article proper," and without such failure to inadmissible, erroneously prove its case permitted since there was at issue receipt point through Court held the incorrect of evidence.” no other evidence ante, pp. prove essential element of 695-696. failed to State had therefore, and, charged reversed the offense 1.15 after the to construe Article first case cause. Ibid. and remanded the legislative in 1965 and amendment revision (Tex. Rodriguez v. 1967 is suggests that the State Duran never 12. Ex theft, Cr.App.1969). The offense is given opportunity “one fair had not been sufficiency of evidence issue is and the assemble," proof it Hudson whatever could original offer On prove of consent owner. want Louisiana, supra; 98 S.Ct. at judges opined is not 1.15 two submission mandatory Indeed, straight not with the Court could guilty; 2150. face, two is not where the State had for in the Court found majority rehearing held judges dissented. proved in another was heroin substance posited: then otherwise and August, prove that element but failed to case there is suffi- "If sufficient conviction, in October. the case under consideration if the cient evidence to