*1 Mississippi, 379 U.S. v. State of precedent,
S.Ct. 13 L.Ed.2d set longer bound appellate are courts
in all cases to confine themselves to up from the trial sent
court. rehearing motion for second
is overruled.
MORRISON, ONION, JJ., dissent overruling motion rehearing.
lant. Atty., M. Richard Applewhite, Asst. DeGuerin and Gerald Attys., Houston, Doug- and Leon Vincent Alfonso ZULPO, Appellant, las, Austin, of Texas, Appellee. Appeals of Texas. indecent offense is Ann.P.C.); (Art. 535c Vernon’s Trial was before guilty. waived. The The defendant’s brief forth of error. court sets three is insuffi- that the evidence The first is in the cause. cient to a conviction Appellant entered into express- open court writing in evidence in confrontation ly waiving appearance, cross-examination of the introduction consenting statements testimony by documentary evi- of witnesses In said Federal and State Constitutional waived his and, after Right against self incrimination sworn, judiqially upon oath having been following confessed “to the *2 651 authority is in cited are true and No stipulate that and these of none. ground in of error and we know and the evidence correct constitute day (12) That or about the on twelih case: is affirmed. judgment The Texas, County, October, in Harris intent, knowingly and I did with lascivious ONION, (concurring part Judge in and parts intentionally expose my private and _ dissenting part). in genital organs (the to Sharon Sharon indictment), the said named _ per- then and there female writer con- and this MORRISON Judge years.” age son under the sixteen majority by the reached cur in the results appellant, of the confessions judicial transcript of court The the in from the witness stand one included in filed in the court and notes by majority the writing, described re- approved by the trial court the record the conviction. sustain are sufficient that, the defendant’s flects in addition to corrobo- need no judicial confessions his written jury waiver of trial and Alvarez v. ration. guilt he filed with which had court, Exhibit the state offered the year the affidavit from the taken the oral that agree, We testimony complainant, girl the open as to testi- court companion complainant’s would com- complaining witness’s mony of have present had and she that of a question, and in on stipulated. sworn was can be police Houston officer considered evi- upon the in stipulated testimony The two were re- These girls, school as well young notes of only in the untranscribed flected appellant writing open in in at the time of reporter court, of the left no doubt toas subsequently They were appellant charged. of the offense the trial court as and in appeal six month later. part on transcript of the *3 (former expressly Article 12), icle 1.15 state documentary other evidence of stipulated waiver be if the de- the court. Such evidence could of fendant consented in to do so. Un- approved and consent must be filed, the consent only all der this recommendation court in with be writing. papers had to be in such file of the the cause.” Senate, during Legis- the 59th The Texas permits a de- quoted article The above an amendment to the lative Session added a enter by jury revision, fendant to waive trial proposed stipu- “Such as follows: than felony less before Court in approved writing lation must introduces capital, provided the State Presiding Judge who shall determine stipulation in the are true the facts stated accepted by then the Court is and correct.” provision A judgment. for its similar legislative process, At some time fore- 12, is a found in Article is changes now reflected in Article Nothing was present article. runner of the upon. supra, said in old 12 about Article Court, This of such evidence. Legis- question that the There can be no Article decisions under old a number of pro- change in the lature intended make a stipulated permitted to be such evidence effective prior cedure that existed requirements were met. if certain stipulation as to date of the new A Code. only if the re- acceptable evidence is to be Nevertheless, stipulated evidence con- quirements supra, are met. Article degree of regarded tinued to be with The statute sets the limits of con- there is no suspicion possibly because nor the Defendant neither no cross-exam- frontation of statutory there- extend or broaden the limits witnesses, despite the ac- ination of such evidence as the Court is to use such waiver thereof. cused’s the basis of its Evidence, offered stipulated or the de requirements not have by the State to show These new do not have to plication any Article 12 did offered fendant under old evidence Further, Broyles 143Tex.Cr. preserved. except stipulated now, Then, 881. not to construe to re- R. is trial, re only have, in the court stipulations preserved prior to quire that the State full destroyed after a porter’s wit- notes can affidavit from a statement or year. Article V.A.C.S. sought to be ness whose may take stipulated lated. evidence upon their individuals Often from the form of transcribed their con- guilty sought to set aside pleas of trial, a examining former or corpus alleging of habeas victions writ or mental report a medical chemist’s counsel, counsel, or ineffective they had no stipulation en- examination, any written or introduced, no was that no evidence trial, tered at the time of such entered, appeared, no waiver witnesses at the case given to and no consent was documentary evidence. bar, or etc. though that once the clear seems Appellant, ZULPO, Alfonso Vincent accepted the evidence judge has basis, part, or in as the whole affidavits, written state- j'udgment, then the Texas, Appellee. ments, evidence papers among must be filed
n cause “in Appeals of Texas. n Court.” Oral open court and only court re- in untranscribed reflected the statu- porter’s notes will no meet tory though even This test. n *4 entry
some time after appeal is notice of
and sentence because appellant. for request inclusion in for their made, the record is or because of some other Richard M. subsequent event. To hold Applewhite, DeGuerin and Asst. Gerald give approval the use of oral Houston, Attys., Douglas, Leon contrary lations statute when an Atty., Austin, for peal question calls into their use and available, reporter’s notes are still and to denounce their use when lost, misplaced, notes have been
destroyed, or otherwise unavailable. It was very dependency upon this avoid exposure The offense is indecent availability of the court notes as child; evidence that Article Except fact that supra, was enacted. years age, girls
to different under 16 is not the function of error are not ma- of this Court to terially Legislature set aside clear intent of different from those before us opinions Zulpo our of the same re-draft this statute to ourselves, State, suit this to determine what is de- necessary, sirable and and what is decided. in the said com- not. disposition of this controls maj'ority opinion high Under the appeal. Legislature standards set has been The judgment is affirmed. By opinion, cast aside. virtue of such which does not even mention ONION, Judge. State, possession statements, (Concurring in Part Dissenting evidence, required will to use Part). stipulating the same when opin- For same reasons stated in our their somehow find Zulpo ion in 415 way into the record after the day decided, Judge MORRISON very judgment will suffice. One reached, writer concur in the result but we purposes of the revision of the old Article that oral not in destroyed. has now C.C.P., accordance in Article majority opinion portion so considered To the holding, respectfully we dissent. The requirements of They do meet the not stipula- following the further reflects that 1.15, C.C.P., provided fol- girls, tion as to the : lows open court, lant in and in his that set forth the factual matters person fel- “No convicted stated; true were and correct as except upon ony the verdict of that the matters set forth in affidavit of recorded, duly and unless rendered correct, the child and that the and capital the defend- felony less than cases stipulated that her matters which it was ant, upon entering plea, open has companion testify, present, would right his of a person waived be true and correct. provided, how- jury writing; ever, necessary for that it shall be error, ground of the rec- into introduce evidence excessive, punishment assessed defendant ord is without merit. accepted said he and evidence shall its court as the charged ground person error The third is that in no event shall a con sufficient under which without statute attempts that it the same. victed unconstitutional in evidence to something stipulated if to make a out of crime is an in such consents should illness. type appearance, con- of claims so fre- to waive the To overcome frontation, seeking post-convic- quently made those and cross-examination witnesses, tion relief the Bar Committee consents affidavits, Revision of the Code of Procedure introduction of witnesses, Legislature that Art- written statements recommended to the