Morris v. State , 483 S.W.2d 260 ( 1972 )

OPINION

ODOM, Judge.

These appeals are taken from a joint trial in which appellant plead guilty to the charge of forgery of a credit card in Cause No. 45,607, punishment being assessed by the court at 4 years; and in which the trial court revoked appellant’s probation in Cause No. 45,606 and sentenced him to 3 years for the offense of passing a forged instrument.

The record reflects that appellant was convicted on April 23, 1971, for the offense of passing a forged instrument. Punishment was assessed at 3 years and appellant’s application for probation was granted. One of the conditions of probation was that appellant commit no offense against the laws of this state, or any other state, or of the United States. Thereafter, on June 16, 1971, the state filed a motion to revoke probation, alleging that on or about May 24, 1971, appellant had committed the offense of forgery of a credit card (the offense to which he pleaded guilty herein). Appellant was indicted for this offense on August 12, 1971.

Among the instruments executed by appellant with regard to the two causes now before us, we find the following:

(1) a waiver of appellant’s right to trial by jury in our Cause No. 45,607 (the plea of guilty) signed by appellant, his attorney, an attorney representing the state, and approved in writing by the trial judge.

(2) a stipulation of evidence in our Cause No. 45,607, in which appellant waived the appearance of witnesses, his right to confront and to cross-examine these witnesses, and his right against self-incrimination, in which appellant confessed to the facts of the offense as charged in the indictment, and which was signed by appellant and his attorney but was not signed by the trial judge.

(3) a written stipulation with regard to the revocation of probation hearing, our Cause No. 45,606, in which appellant confessed that he had forged the charge slip in question and which was signed by appellant and his attorney and approved in writing by the court.

On September 1, 1971, a hearing was held in both these causes. At such hearing, appellant entered a plea of guilty to the forgery of a credit card. He was duly admonished concerning the nature and consequences of his plea, and both he and his attorney orally agreed to the use of documetary evidence, including statements of the witnesses.

Appellant contends that the trial court committed reversible error “in that it did not approve in writing the stipulation of evidence ... by failing to place his signature on said stipulation as required in Article 1.15 of Vernon’s Annotated Code of Criminal Procedure.” He argues that the evidence is therefore insufficient to support the conviction.

Appellant took the stand at the hearing and acknowledged that he had voluntarily signed, with advice of counsel, the two stipulations in which he confessed that he had committed the act which forms the basis of the indictment and the state’s motion to revoke probation. Since the stipulation with regard to the revocation matter was in proper form and was before the court, the court could permissibly take judicial notice of its own records. 1 McCormick & Ray, Texas Evidence 2d, Sec. 185, and cases therein cited. Thus, even assuming the validity of appellant’s contention with regard to the stipulation of evidence on the plea of guilty, the trial court had before it an instrument which is in full compliance with statutory requirements and which contains the same stipulations as the instrument now being challenged.

The judicial confession contained in the stipulation for the revocation hearing is sufficient to support the conviction. Holder v. State, Tex.Cr.App., 469 S.W.2d 184. See also Drain v. State, Tex.Cr.App., 465 S.W.2d 939, at fn. 1. This stipulation is also sufficient to support the trial court’s decision to revoke appellant’s probation.

The judgments are affirmed.

ROBERTS, J., not participating.