Ella Dora Sprinkle v. State of Texas
No. 42,991
Court of Criminal Appeals of Texas
July 15, 1970
456 S.W.2d 387
Henry Wade, Dist. Atty., Harry J. Schulz, Jr., W. T. Westmoreland, Jr., Edgar A. Mason and John B. Tolle, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for shoplifting, as a felony subsequent offender, under Article 1436e, Sec. 4(c), Vernon‘s Ann.P.C. The punishment was assessed by the court at two years.
This is a companion case to Ella Dora Sprinkle v. State of Texas, Tex.Cr.App., 456 S.W.2d 387 (No. 42,991, this day decided). The record shows that this appellant was Ella Dora Sprinkle.
The jury was waived. Appellant was duly admonished and a plea of guilty was entered; the testimony was stipulated; the procedure was the same as that used in Cause No. 42,991. 456 S.W.2d 387.
The record shows the stipulated testimony of Phil Cook was that he was employed by Skillern‘s Drug Store on McKinney Avenue; that he saw appellant take eleven bottles of tanning lotion which were exhibited for sale of the value of $37.95; that she left the store without paying for them, and that these items were taken from his possession and without his consent.
Appellant testified that she heard the stipulated testimony, and it was substantially true and correct and that she had been previously convicted in the two prior misdemeanor shoplifting cases under the name of Ella Dora Waage as alleged in the indictment.
The sole contention is that the evidence is insufficient to support the conviction.
The judicial admission by the appellant is sufficient to support the conviction under
The judgment is affirmed.
Amado SOTO, Appellant, v. The STATE of Texas, Appellee.
No. 43019.
Court of Criminal Appeals of Texas.
July 15, 1970.
Carol S. Vance, Dist. Atty., Phyllis Bell and Robert G. Scott, Asst. Dist. Attys., Houston, and Jim D. Vollers, State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for possession of heroin; the punishment, eight years.
The appellant waived the right to trial by jury and after being duly admonished, entered a plea of guilty before the court and waived in writing the right to be confronted by the witnesses against him. He made the following judicial admission in writing: “[O]n February 16, 1968 in Harris County, Texas I did unlawfully possess a narcotic drug, to-wit, heroin.”
It was stipulated that if one of the arresting officers were present he would testify that an informant, from whom he had received reliable information on numerous occasions, told him that appellant would be walking in the 2300 block of McCardy Street in a few minutes with heroin in his possession, and that the officer did not have time to obtain a warrant for the arrest of appellant. As the two officers approached, appellant took two small packages wrapped in cellophane from his pocket, one of which he threw to the ground and the other he tried to swallow. Appellant was placed under arrest and the cellophane packages taken.
It was also stipulated that if the chemist were present he would testify that the chemical analysis of the substance in the cellophane packages proved it to be heroin.
The judicial confession is sufficient to support the conviction under
Appellant contends that the heroin was unlawfully obtained. We need not pass upon this contention, because, if a plea of guilty is voluntarily and understandingly made, it is conclusive as to the defendant‘s guilt and waives all non-jurisdictional defects including claimed deprivation of federal constitutional due process. Fierro v. State, supra, and cases cited therein.
The judgment is affirmed.
ONION, Judge (concurring).
I concur in the result reached. I would, however, make absolutely clear to the bench and bar that this conviction is being sustained alone upon the basis of the “judicial confession” reduced to writing, sworn to and introduced into evidence.
The majority describes the stipulations without making absolutely plain that such stipulations were not in accordance with