Datrick Washington v. State ( 2009 )

Affirmed and Memorandum Opinion filed July 9, 2009

Affirmed and Memorandum Opinion filed July 9, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00574-CR

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DATRICK WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 55,136

M E M O R A N D U M   O P I N I O N

Appellant Datrick Washington pleaded Aguilty@ to three counts of robbery and one count of theft.  On appeal he challenges the legal and factual sufficiency of the evidence to support the judgment and claims the trial court committed reversible error in not permitting him to introduce evidence in the punishment phase of trial.  We affirm.

I.  Factual and Procedural Background

Appellant was charged by indictment with three counts of robbery and one count of theft stemming from an incident in which appellant and another person robbed a bank.  Appellant executed two sworn documents, one pertaining to the three counts of robbery and a second pertaining to the theft charge, each entitled ADefendant=s Affidavit of Admonitions, Waivers, Judicial Confession, Statements, Plea, Probation and AppealBFelony Less Than Capital.@  In these documents, appellant judicially confessed Ato the allegations and facts contained in the indictment herein which has been read and explained to me and agree and stipulate that the allegations and facts are true and correct and constitute evidence in this case.@ 

At a plea hearing, appellant pleaded Aguilty@ to the allegations contained within the indictment without an agreed recommendation as to punishment.  Appellant responded affirmatively when the trial judge asked him, ADo you admit and judicially confess to the allegations and facts contained in the indictment, which has been read and explained to you by [appellant=s trial counsel]; and do you agree and stipulate that the allegations and facts are true and correct and constitute evidence in this case?@  At the hearing, the State tendered three exhibits: (1) State=s Exhibit 1, the indictment outlining each of the charged offenses; (2) State=s Exhibits 2A and 2B, two documents entitled ADefendant=s Affidavit of Admonitions, Waivers, Judicial Confession, Statements, Plea, Probation and AppealBFelony Less Than Capital@; and (3) State=s Exhibit 3, an offense report, with an offer to stipulate that if the witnesses were called they would testify substantially in accordance with the contents of the documents within the offense report.  Appellant did not object to the proffered evidence and agreed to the stipulation.  The trial judge found appellant guilty and then reset the case for a pre-sentence investigation report. 

At appellant=s sentencing hearing, after reviewing the pre-sentence investigation report and having previously found appellant guilty, the trial judge inquired, ASo, does anyone have a good cause why I should not sentence at this time?@  Neither party objected or requested to offer evidence.  The trial judge assessed punishment at eighteen years= confinement for each of the charged offenses and ordered the sentences to run concurrently.

II.  Issues and Analysis

A.      Is the evidence sufficient to support appellant=s convictions?

In his first two issues, which we will address together, appellant challenges the legal and factual sufficiency of the evidence to support the trial court=s finding of guilt on the robbery and theft charges.

In a non-capital felony case, in which an appellant enters a Aguilty@ plea before the trial court,^[1] the State, under article 1.15 of the Texas Code of Criminal Procedure, is required to Aintroduce 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.@  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Keller v. State, 125 S.W.3d 600, 604 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d).

Although appellant asks this court to review the sufficiency of the evidence under the well-known standards of review for legal and factual sufficiency, a sufficiency review of the evidence supporting a judgment under article 1.15, upon a plea of Aguilty@ or Anolo contendere,@ requires application of a different standard of review.  See Keller, 125 S.W.3d at 604B05 (citing Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) for legal sufficiency standard of review); see also Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (reviewing factual sufficiency standard of review).  A legal-sufficiency analysis under Jackson is appropriate only when the federal constitution requires the State to prove guilt beyond a reasonable doubt.  Keller, 125 S.W.3d at 605.  When, as in this case, a defendant knowingly, intelligently, and voluntarily enters a Aguilty@ plea, the legal-sufficiency standard as set forth in Jackson does not apply because there is no constitutional requirement that a Aguilty@ plea in a state criminal prosecution be corroborated by evidence of guilt.  Id. 

Likewise, when, as in this case, a defendant enters a knowing and voluntary Aguilty@ plea without the benefit of an agreed recommendation as to punishment, the defendant waives all nonjurisdictional defects that occurred prior to entry of the Aguilty@ plea.  Id.; Palacios v. State, 942 S.W.2d 748, 750 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d).  The sufficiency of the evidence to support a conviction is a nonjurisdictional issue.  Palacios, 942 S.W.2d at 750.  Therefore, appellant has waived the right to challenge the legal and factual sufficiency of the evidence.  See Keller, 125 S.W.3d at 605.  Consequently, a Asufficiency@ review of appellant=s felony Aguilty@ plea to the court is confined to a determination of whether sufficient evidence supports the judgment of guilt under article 1.15.  See Tex. Code Crim. Proc. Ann. art. 1.15; Keller, 125 S.W.3d at 605.  Under article 1.15, evidence is sufficient if it embraces every essential element of the offense charged and establishes the defendant=s guilt.  See Breaux v. State, 16 S.W.3d 854, 857 & n.2 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (providing that a judicial confession containing a Acatch-all@ phrase that the defendant is guilty Aas charged in the indictment@ is sufficient to support a conviction even if an element of the offense was omitted). 

Appellant complains that the State presented no witnesses at the plea hearing and that State=s Exhibit 3, the offense report, consisted of Aunsubstantiated claims and rank hearsay, not supported by the evidence.@  However, a defendant=s judicial confession, standing alone, is sufficient to sustain a conviction based upon a plea of Aguilty@ and satisfies the requirements of article 1.15.  See Tex. Code Crim. Proc. Ann. art. 1.15; Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996); Keller, 125 S.W.3d at 605.  As reflected in the record, in open court, appellant judicially confessed to the allegations and facts contained in the indictment by responding affirmatively to the trial judge=s question in the matters. He stipulated to and agreed that the allegations and facts within the indictment were true and correct and constitute evidence.  This stipulation alone was sufficient to support a determination of appellant=s guilt.  See Scott v. State, 945 S.W.2d 347, 348 (Tex. App.CHouston [1st Dist.] 1997, no pet.).  The record reflects that appellant freely, intentionally, knowingly, and voluntarily confessed to the charged offenses; appellant has not raised any issues as to the voluntariness of his pleas.  See Keller, 125 S.W.3d at 605.  Furthermore, as evidence, the State tendered the two sworn documents in which appellant Ajudicially confess[ed] to the allegations and facts contained in the indictment@ and stipulated that Athe allegations and facts are true and correct and constitute evidence in this case.@  See Keller, 125 S.W.3d at 605 (providing that a judicial confession is sufficient to support a conviction under article 1.15).

Appellant did not object to any of the proffered evidence and agreed to the State=s stipulation pertaining to the offense report.  See Tex. R. App. P. 33.1(a) (requiring a party to make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint).  We conclude that, under article 1.15 of the Texas Code of Criminal Procedure, appellant=s stipulation of guilt and oral and written judicial confessions are sufficient evidence to support the judgment.  See Keller, 125 S.W.3d at 605; Scott, 945 S.W.2d at 348; see also Tex. Code Crim. Proc. Ann. art. 1.15. Therefore, we overrule appellant=s first and second issues.

B.      Did the trial court commit reversible error when it allegedly failed to permit appellant an opportunity to present evidence at the punishment phase of trial?

In his third issue, appellant asserts that the trial court did not permit him to present evidence at the punishment phase of trial. Appellant contends that, as a result, article 37.07, section 3(a) of the Texas Code of Criminal Procedure applied to him and unconstitutionally violated his Fifth Amendment rights to due process.  The record reflects that the trial judge posed the following question to the parties:  ASo, does anyone have a good cause why I should not sentence at this time?@  Neither party objected and neither party elected to present evidence before the trial court assessed appellant=s sentences.

To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.  Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002).  Appellant has not cited and we have not found any place in the appellate record showing that appellant voiced any objection or otherwise raised this issue in the trial court.  With few exceptions, not applicable in this case, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court.  See Rogers v. State, 640 S.W.2d 248, 264B65 (Tex. Crim. App. 1982) (op. on second motion for reh=g).  Having failed to object to the trial court=s procedures and its assessments of punishment, appellant may not now complain that the punishment procedure violated his constitutional rights.  See id. (holding that failure to make a due-process objection to punishment procedure waived complaint when appellant=s trial counsel failed to object or offer evidence when trial judge asked, AIs there any reason why sentence should not be pronounced at this time?@).  Therefore, we overrule appellant=s third issue.

Having overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Chief Justice Hedges, and Justices Yates and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  AGuilty@ pleas before a jury are treated differently.  See Keller v. State, 125 S.W.3d 600, 604 n.1 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d).