Walter Lee Scott, Jr. v. State ( 2015 )

ACCEPTED
03-15-00096-CR
4820905
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 10:13:10 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00096-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 4/9/2015 10:13:10 AM
JEFFREY D. KYLE
******** Clerk
WALTER LEE SCOTT, JR.
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 73,759
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities …………………………………………………………….. 4
Statement Regarding Oral Argument …………………………………… 6
Statement of the Case ………………………………………………………….. 6
Statement of Facts ………………………………………………………………. 7
Evidence Supporting Plea of Guilty …………………………….. 7
Evidence Supporting Restitution ……………………………….. 9
Trial Court’s Judgment ……………………………………………… 9
Summary of State’s Argument ……………………………………………. 10
Argument and Authorities …………………………………………………. 11
First Issue on Appeal ………………………………………………… 11
EVIDENCE SUFFICIENT TO SUPPORT PLEA
OF GUILITY UNDER ART. 1.15?
Standard of Review ………………………………………….. 11
Application and Analysis ………………………………….. 12
Second Issue on Appeal …………………………………………….. 15
EVIDENCE SUFFICIENT AT PUNISHMENT
PHASE TO SUPPORT PLEA OF GUILTY
UNDER ART. 1.15?
Application and Analysis …………………………………. 15
2
Third Issue on Appeal ………………………………………………. 16
EVIDENCE SUFFICIENT TO SUPPORT
COURT’S ORDER FOR PAYMENT OF
RESTITUTION?
Standard of Review …………………………………………. 17
Application and Analysis …………………………………. 17
Fourth Issue on Appeal …………………………………………….. 18
MUST JUDGMENT BE MODIFIED TO SHOW
NO PLEA BARGAIN?
Application and Analysis …………………………………. 18
Prayer ………………………………………………………………………………. 20
Certificate of Compliance with Rule 9 ………………………………… 20
Certificate of Service …………………………………………………………. 21
3
INDEX OF AUTHORITIES
CASES PAGE
Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. ………………. 13-14
LEXIS 6588 (Tx. App. Austin 3rd Dist. 2014 no pet.),
not designated for publication.
Campbell v. State, 5 S.W.3d 693 (Tx. Cr. App. 1999) ………………… 17
Cartwright v. State, 605 S.W.2d 287 (Tx. Cr. App. 1980) ………….. 17
Chindaphone v. State, 241 S.W.3d 217 ……………………………………. 12-14
(Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.)
Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………. 11
Jones v. State, 373 S.W.3d 790 ………………………………………………. 14
(Tx. App. Houston 14th Dist. 2012 no pet.)
Jones v. State, 857 S.W.2d 108 ……………………………………………… 14
(Tx. App. Corpus Christi 13th Dist. 1993 no pet.)
Jones v. State, 713 S.W.2d 796 ……………………………………………… 17
(Tx. App. Tyler 12th Dist. 1986 no pet.)
Ex Parte Martin, 747 S.W.2d 789 (Tx. Cr. App. 1988) ……………... 11
Montgomery v. State, 810 S.W.2d 372 (Tx. Cr. App. 1991) ……… 17
Taylor v. State, No. 03-14-0300-CR, 2014 Tex. App. ………………… 16
LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not
designated for publication.
Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. …………….. 14
LEXIS 5935 (Tx. App. Austin 3rd Dist. 2003 no pet.),
not designated for publication.
4
OTHER
Texas Penal Code
Section 22.01 ………………………………………………………………. 12-13
Section 22.01(a) ………………………………………………………….. 12
Section 22.01(b) …………………………………………………………. 12
Texas Code of Criminal Procedure
Article 1.15 ……………………………………………………7-8, 10-13, 15-16
Texas Family Code
Section 71.002(b) ……………………………………………………….. 12
Section 71.003 ……………………………………………...................... 12-13
Section 71.005 ……………………………………………………………. 12-13
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STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Walter Lee Scott, Jr., was charged by information
with the third degree felony offense of assault on a family member by
strangulation. The information alleged that he intentionally, knowingly
and recklessly caused bodily injury to Kassandra Holt, a member of his
family or of his household, by intentionally, knowingly, and recklessly
impeding the normal breathing or circulation of blood of Kassandra Holt
by applying pressure to the throat or neck of Kassandra Holt. (CR-4).
The Appellant entered a plea of guilty to the offense charged (RR-
2-2) and the trial court, without objection, took judicial notice of the
“plea papers” in the court’s file (CR-12, 17), expressly including the
judicial confession. (RR2-7). The trial court then found the evidence
sufficient to support a finding of guilty and ordered a presentence
investigation. (RR-7). There was no plea bargain with the State (CR-12;
RR2-6, 7).
At the subsequent punishment hearing the court received and
examined the presentence report (RR3-4) and assessed punishment at 5
6
years in the Texas Department of Criminal Justice, Institutional Division,
and a fine of $750.00. The court also ordered the payment of $50.00 in
restitution to Kassandra Holt. (CR-26; RR3-9).
The Appellant gave timely notice of appeal (CR-29) and the trial
court certified his right to do so. (CR-24).
STATEMENT OF FACTS
The Appellant raises two issues concerning the sufficiency of the
evidence to support his plea of guilty under Article 1.15, Texas Code of
Criminal Procedure, as well as the sufficiency of the evidence to support
the order for the payment of restitution and the recitation in the trial
court’s written judgment allegedly implying that there was a plea
bargain with the State.
Evidence Supporting the Plea of Guilty
The Appellant executed a packet of “plea papers” in the case. (CR-
12-21). Those papers included the following judicial confession:
“Upon my oath, I swear my true name is Walter Lee
Scott, Jr. and I am 24 years of age; I have read the
indictment or information filed in this case and I committed
each and every act alleged therein, except those waived by
the State. All facts alleged in the indictment or information
are true and correct. I am guilty of the instant offense as
well as all lesser included offenses. All enhancement and
habitual allegations set forth in the indictment or
7
information are true and correct except those waived by the
State. All deadly weapon allegations are true and correct.
All other affirmative findings to be made by the Court
pursuant to this Written Plea Agreement are true and
correct. I swear to the truth of all of the foregoing and
further, that all the testimony I give in this case will be the
truth, the whole truth and nothing but the truth so help me
God.” (CR-17).
That judicial confession was signed by the Appellant. (CR-17).
Furthermore, thereafter, the Appellant executed a declaration stating
under penalty of perjury that all of the matters contained in the plea
papers are true and correct. (CR-18).
The Appellant’s trial counsel also signed an acknowledgment that
expressly stated that he had explained everything, including the judicial
confession, to him and that he had waived his rights and executed the
documents intelligently, knowingly, and voluntarily. Counsel
specifically joined in the stipulations of evidence pursuant to Article
1.15 and consented to the trial court taking judicial notice of the
contents of the Written Plea Agreement (CR-18). The State also
approved all of the contents. (CR-19).
The trial court approved the plea papers in writing and stated that
it was taking judicial notice of the matters contained therein. (CR-19).
8
During the hearing and after the Appellant entered his plea of
guilty to the information, the State asked the court to “…take judicial
notice of the court’s file that includes the plea paperwork and the
defendant’s signed judicial confession”. The Appellant had no objection
and the court did so. (RR2-7). Thereafter the court immediately found
the evidence sufficient to support a finding of guilty. (RR2-7).
Evidence Supporting Restitution
At the punishment hearing the State referred the trial court to the
presentence report that included a victim impact statement. In that
statement the victim, Kassandra Holt, stated that during the Appellant’s
attack upon her he threw her cell phone at her. She stated that the
phone was damaged and that her loss was $50.00. (CR-Supplimental-8).
The trial court, in its oral pronouncement of sentence (RR3-9) and its
written judgment (CR-26) ordered the Appellant to pay $50.00 in
restitution to Ms. Holt.
Trial Court’s Judgment
There was no plea bargain with the State in the case. (CR-12; RR2-
6, 7). In the trial court’s written judgment on the line denoted as “Terms
of Plea Bargain” is found the phrase “SEE ATTACHED DISCLOSURE OF
PLEA RECOMMENDATIONS”. (CR-26). There is no such disclosure
9
attached to the judgment and the “plea papers” also contained in the
court’s file state that plea was “open” and thus recite no plea
recommendations. (CR-12).
SUMMARY OF STATE’S ARGUMENT
The trial court took judicial notice of judicial confession, signed by
the Appellant and approved by the State, his counsel, and the court, as
well as all of the “plea papers” in the case, without objection by the
Appellant. That judicial confession stated that all of the allegations in
the information were true and correct. The information contained all of
the statutory elements of the offense charged. The evidence was
sufficient to support the Appellant’s plea of guilty and for the court to
enter such a finding under Article 1.15.
Although unnecessary, the evidence at the punishment hearing
wherein the Appellant admitted his violent attack upon the victim as
charged in the information may be properly considered and sufficiently
supports the Appellant’s plea of guilty as well.
The evidence contained in the presentence report, which included
the victim impact statement, which was considered by the trial court
10
without objection sufficiently supported the court’s order for the
payment of restitution.
Although the written judgment of the trial court does not
specifically state that there was a plea bargain with the State when, in
fact, there was not, if it could be so construed then the judgment should
be modified to reflect that there was no plea bargain.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Was the evidence sufficient to support the finding of guilty
pursuant to the Appellant’s plea of guilty as required by Article 1.15 of
the Texas Code of Criminal Procedure?
Standard of Review
When the accused enters a plea of guilty the standards of review set out
in Jackson v. Virginia, 443 U.S. 307 (1979), as to sufficiency of the
evidence are inapplicable. Ex Parte Martin, 747 S.W.2d 789, 792-93
(Tex. Crim. App. 1988). Instead the sufficiency of the evidence is
governed by Article 1.15 of the Code of Criminal Procedure.
Article 1.15 provides that in a non-capital felony case, where the
defendant waives trial by jury and enters a plea of guilty or nolo
11
contendere, it is necessary for the State to “introduce evidence into the
record” that shows the guilt of the defendant and that such evidence be
accepted by the trial court as the basis for its judgment. See Martin at
793. The appellate court will affirm the trial court’s judgment under
Article 1.15 if the State introduced evidence that embraces every
essential element of the offense charged that is sufficient to establish
the defendant’s guilt. A judicial confession stating that the defendant
has read the charging instrument and that he committed each and every
act alleged therein, standing alone, is sufficient to sustain a conviction
upon a guilty plea under Article 1.15. Chindaphone v. State, 241 S.W.3d
217, 219 (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.).
Application and Analysis
The Appellant was charged with the offense of assault on a family
or household member by strangulation as set out in Section 22.01 of the
Texas Penal Code. Section 22.01(a) states that a person commits an
offense if he or she intentionally, knowingly, or recklessly causes bodily
injury to another. Section 22.01(b) makes such an offense a felony of
the third degree if the offense is committed against a person whose
relationship to or association with the defendant is defined by Sections
71.002(b), 71.003, or 71.005 of the Texas Family Code and if the offense
12
is committed by intentionally, knowingly, or recklessly impeding the
normal breathing or circulation of the blood of the victim by applying
pressure to the person’s throat or neck or by blocking the person’s nose
or mouth. Section 71.003 of the Family Code defines family members
and Section 71.005 defines those who make up a household.
The information in this case set out all of the elements of the
offense under Section 22.01, alleging that the Appellant intentionally,
knowingly, and recklessly caused bodily injury to Kassandra Holt, that
she was a member of his family or of his household, and that he did so
by intentionally, knowingly and recklessly impeding her normal
breathing or circulation of blood by applying pressure to her throat or
neck. (CR-4).
The Appellant’s judicial confession stated that he had read the
information and that everything alleged in it was true and correct and
that he committed the offense as alleged. (CR-17).
A judicial confession stating that the defendant has read the
charging instrument and that it is true and correct, where that charging
instrument contains each and every element of the offense is sufficient
to support a plea of guilty as required by Article 1.15. Chindaphone at
219. See also Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. LEXIS
13
6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for
publication, following Chindaphone.1
The Appellant would ignore his judicial confession because it was
not formally offered into evidence nor sworn to before a notary or
district clerk. That Appellant’s protestations to the contrary, however,
the judicial confession may be judicially noticed by the trial court and, in
that case, it need not be introduced formally into evidence. Chindaphone
at 219; Jones v. State, 373 S.W.3d 790 (Tx. App. Houston 14th Dist. 2012
no pet.); Brooks op. at pg. 6.
Likewise, a judicial confession that was signed by the accused,
approved by his counsel, the State and the trial court and of which the
court takes judicial knowledge need not be sworn. Jones v. State, 857
S.W.2d 108, 110 (Tx. App. Corpus Christi 13th Dist. 1993 no pet.);
Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. LEXIS 5935 (Tx.
App. Austin 3rd Dist. 2003 no pet.) (“There is no requirement that the
defendant swear to the waiver and stipulation before the clerk or
anyone else” Op. at pg. 4).
1
Brooks also arose from the 264th District Court and involved essentially the same “plea
papers” and judicial confession as the present case.
14
Here the Appellant signed the judicial confession and declared
under penalty of perjury that it was true and correct. That judicial
confession confirmed the truth of all of the allegations in the
information. The information contained all of the statutory elements of
the offense charged. The judicial confession was approved by defense
counsel, the State and the trial court. The judicial confession and other
“plea papers” were filed of record. The trial court expressly took
judicial notice of the papers, including the judicial confession, and based
its judgment upon that instrument. The evidence was certainly
sufficient to support the Appellant’s plea under Article 1.15.
Second Issue on Appeal
Was the evidence at the sentencing phase of the plea proceeding
sufficient to support the Appellant’s plea of guilty under Article 1.15?
Application and Analysis
It must first be observed that the evidence during the first phase
of the plea proceeding was sufficient to support the plea and, therefore,
it is not necessary to rely upon the events during the punishment
hearing.
Presumably the Appellant has reference to his very brief
testimony at the sentencing hearing. He told the court that he accepted
15
full responsibility for his actions and that he apologized to the victim
and the court. (RR3-5, 6). Then, during cross examination by the State,
the Appellant admitted the violent nature of his assault in wrapping a
belt around her neck and stated that he had no good reason for it. (RR3-
6). This testimony was at least corroborative of his judicial confession
of which the trial court took judicial notice at the first phase of the trial.
A guilty plea is a unitary proceeding and Article 1.15 does not
distinguish between evidence offered at guilt/innocence or the
punishment phase. The courts may consider evidence at the
punishment phase in order to determine if the requirement of Article
1.15 has been fulfilled. See Taylor v. State, No. 03-14-0300-CR, 2014 Tex.
App. LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not
designated for publication2, and cases cited therein.
Third Issue on Appeal
Was there sufficient factual basis in the record to support the trial
court’s order for payment of restitution to the victim?
2
Taylor also arose in the same district court concerning a virtually identical fact situation
as in this case and raising the same issues. Counsel for both the defendant and the State
were also the same.
16
Standard of Review
Restitution orders are reviewed under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A
trial court abuses its discretion only when its decision is arbitrary,
unreasonable, or is outside the zone of reasonable disagreement.
Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991). The
amount of restitution ordered must be just, must have a factual basis
within the loss of the victim, and must be for a crime for which the
defendant is criminally responsible. Campbell v. State, 5 S.W.3d 693,
696, 697 (Tx. Cr. App. 1999).
Application and Analysis
Sufficient evidence to support a trial court’s order imposing
restitution may be provided by statements contained in the presentence
report where, as here, there is no objection to the court taking it under
consideration. Jones v. State, 713 S.W.2d 796, 797, 798 (Tx. App. Tyler
12th Dist. 1986 no pet.).
In this case the presentence report included a victim impact
statement. In that statement the victim, Kassandra Holt, described how
the Appellant threw a phone at her during the assault. She also stated
17
that her cell phone had been damaged and her loss was $50.00. (CR.
Supplemental-8).
During the punishment phase of the proceeding the State pointed
out that a presentence report had been prepared that included a victim
impact statement as ordered by the court. When asked if there were
any corrections or additions to the report that he wished to present
counsel for the Appellant said no. There were no objections to the trial
court considering the report. (RR3-4). At the conclusion of the hearing
the trial court included the $50.00 in restitution to the victim as claimed
in the presentence report. There was no objection by the Appellant.
(RR3-9). It was so ordered in the trial court’s written judgment. (CR-
26).
The evidence was sufficient to support the order for payment of
restitution.
Fourth Issue on Appeal
Must the judgment of conviction be modified to reflect that the
Appellant entered his plea of guilty without a plea bargain?
Application and Analysis
The Appellant entered his plea of guilty to the trial court without a
plea bargain with the State. (RR2-6, 7). The plea papers reflect that the
18
plea was “open”. (CR-12). The judgment of conviction recites: “Plea
Bargain: SEE ATTACHED-DISCLOSURE OF PLEA RECOMMENDATIONS
ATTACHED HERETO AND MADE A PART HEREOF”. (CR-26). There is
no apparent attachment to the judgment in the record. The only
disclosure of plea bargain shows an open plea and therefore contains no
plea recommendations.
While it might well be argued that the judgment does not actually
state that there was a plea bargain in this case, nevertheless, if the Court
so interprets it, the State agrees that it be modified in order to speak the
truth.
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PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,493 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, John A. Kuchera, Counsel for Appellant, by electronic
transfer via Email, addressed to him at johnkuchera@210law.com on
this 9th day of April, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
21