Timothy James Anglin v. State ( 2010 )

Opinion issued July 15, 2010.

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00044-CR

____________

TIMOTHY JAMES ANGLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 47370

MEMORANDUM OPINION

Appellant, Timothy James Anglin, appeals from a judgment convicting him of possession a prohibited substance in a correctional facility.  See Tex. Penal Code Ann. § 38.11 (Vernon Supp. 2009).  Appellant pleaded guilty to the court without a plea bargain agreement.  The court found him guilty and assessed punishment at confinement for 25 years.  In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction.  Determining the evidence is legally and factually sufficient to sustain appellant’s conviction for possession a prohibited substance in a correctional facility, we affirm.

Background

          Prior to the commission of this offense, appellant had been indicted for possession of a controlled substance and was awaiting trial.  During this time his counsel informed him that he had been indicted for an additional charge of sexual assault to a child.  Appellant’s counsel told him that he would be arrested when he went to the courthouse for a court setting related to the drug charge.  Appellant knew he would be taken into custody and testified that, before turning himself in, he modified his shoes by cutting out the inside of the insole to hide items within.  He stated that he chose to bring the items to jail with him because he read in the inmate handbook that the consequence for contraband was a thirty-day lockup, commissary restriction, and restriction on visitation.  He said that his family could not afford to use the telephones provided by the jail so, in light of the expense and his belief in the thirty-day punishment, he felt it would be worth it to hide the contraband.

          When appellant came to court for his drug charge, he had a pre-paid cell phone, an additional cell phone battery, and two types of medication, Oxycodone and Xanax, concealed in the sole of his tennis shoes.  Upon being taken into custody, appellant was patted down and his clothing and shoes were searched.  Officers did not find the items in appellant’s shoes.  Appellant kept these items in jail until they were discovered approximately three months later during a routine search.

Sufficiency of Evidence for Prohibited Substance in Correctional Facility

          In two points of error, appellant contends the evidence is legally and factually insufficient to prove appellant’s guilt for the offense of prohibited substance in a correctional facility.

A.        Elements of Prohibited Substance in a Correctional Facility

          Appellant challenges the sufficiency of the evidence to sustain his conviction of prohibited substance in a correctional facility.  Under Texas Penal Code sections 38.11(c) and 38.11(d)(1), a person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by a correctional facility or if a person possesses a controlled substance or dangerous drug while in a correctional facility or on property owned, used, or controlled by a correctional facility.  See Tex. Penal Code Ann. §§ 38.11(c), 38.11(d)(1) (Vernon Supp. 2009).  A person also commits an offense if the person provides or possesses with the intent to provide a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility.  See Tex. Penal Code Ann. § 38.11(a)(3) (Vernon Supp. 2009).  A “component” is defined as any item necessary for the current, ongoing, or future operation of a cellular telephone or other wireless communications device, including a subscriber identity module card or functionally equivalent portable memory chip, a battery or battery charger, and any number of minutes that have been purchased or for which a contract has been entered into and during which a cellular telephone or other wireless communications device is capable of transmitting or receiving communications. Tex. Penal Code Ann. § 38.11(f)(5) (Vernon Supp. 2009).

B.      Applicable Law for Sufficiency of Evidence Challenge to Plea of          Guilty

          In situations in which a defendant has pleaded guilty, this Court has found that the plea of guilty waives all non-jurisdictional defenses, including challenges to the legal and factual sufficiency of the evidence.  See Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d, improvidently granted, 146 S.W.3d 677 (Tex. (Tex. Crim. App. 2004) (per curiam).  Appellant urges this Court to reject the prior findings of Keller, but we decline the invitation.  See Ballesteros v. State, No. 01-08-00788-CR, 2009 WL 1958314 at *2 (Tex. App.—Houston [1st Dist.] July 9, 2009, no pet.) (mem. op., not designated for publication) (rejecting appellant’s invitation to abandon Keller standard of review in favor of Jackson standard of review in cases where defendant pleaded guilty and executed judicial confession). 

          Our “sufficiency” review on appeal of felony pleas of guilty to the court is confined to determining whether sufficient evidence supports the judgment of guilt under article 1.15 of the Code of Criminal Procedure.  Keller, 125 S.W.3d at 605.  (citing Tex. Crim. Proc. Code Ann. art 1.15). Pursuant to article 1.15 of the Code of Criminal Procedure, the State must offer sufficient proof to support any judgment based on a guilty plea in a felony case tried to the court.  Id. at 604 (citing Tex. Crim. Proc. Code Ann. art 1.15 (Vernon 2001)).  The State must “introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.”  Id.

C.        Analysis

          Appellant pleaded guilty to the first paragraph of the indictment, thus confessing that he possessed prohibited substances in a correctional facility, namely a cellular telephone and a component of a wireless communication device.  Appellant read and signed a “Waiver of Statutory and Constitutional Rights, Written Stipulation, and Judicial Confession” that contained the following statement: “I understand the charge or charges alleged against me; I understand all the admonitions given to me by the Court and the consequences of my plea.”  The record establishes that appellant freely, intentionally, knowingly, and voluntarily confessed to possessing prohibited substances in a correctional facility.  See Keller, 125 S.W.3d at 605.  A presumption of truthfulness and regularity applies to documents filed in the trial court.  Id. (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984)).  Appellant’s judicial confession is sufficient evidence to satisfy the requirements of article 1.15 to show that he possessed a prohibited substance in a correctional facility, and the record need not otherwise provide proof.  See id.; see also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979)).

We overrule appellant’s first and second issues.

Conclusion

          We affirm the judgment of the trial court.                                                 

PER CURIAM

Panel consists of Justices Alcala, Massengale, and Wilson.[1]

Do not publish. Tex. R. App. P. 47.2(b).

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[1]           The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating by assignment.