Eurine v. State , 461 S.W.2d 416 ( 1970 )

OPINION

MORRISON, Judge.

The offense is burglary of a private residence at night with the intent to commit rape; the punishment, ten (10) years.

Appellant and his attorney waived in writing the right to a jury trial and appellant pled guilty to the indictment. Appellant and his attorney also signed an “Agreement to Stipulate Testimony” which provided that:

“* * * the Defendant waives the appearance, confrontation, and cross-examination of witnesses in this cause and agrees that the testimony of said witnesses may be stipulated into the record by the State’s Attorney; such testimony being the same as the witnesses would give if they were present in Court and were testifying under oath, and the Defendant further consents to the introduction of testimony by affidavit, written statements of witnesses, and all other documentary evidence that may be introduced by the State.”

Appellant’s sole point of error is that the stipulated evidence in this case is insufficient to sustain the conviction, as it does not reflect that the offense occurred at night. His contention is correct to the extent that the document which the transcript refers to as a “stipulation” does not show that the offense occurred at night. However, in the Agreed Statement of Facts, which appellant personally acknowledged to be an accurate representation of the proceedings at his trial, the State’s Attorney testified under oath that the complaining witness would testify that the offense occurred at night. Appellant’s confession was also introduced at the trial and appellant and his counsel indicated that they had no objections regarding the voluntariness of the confession. In his confession, appellant stated, “It was dark * * * ” and “I got up and went out of the house. I was wearing white clothes that Night.”

Finding the evidence sufficient to sustain the guilty plea, the judgment is affirmed.