Bobby Blanton v. State of Texas ( 2011 )

Opinion filed July 21, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00095-CR
__________
BOBBY BLANTON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 7th District Court
Smith County, Texas
Trial Court Cause No. 007-1464-09
MEMORANDUM OPINION
Bobby Blanton entered an open plea of guilty to the offense of aggravated sexual assault
of a child, a first degree felony. The trial court assessed punishment at confinement for life. In
his sole issue, appellant argues that the stipulation of evidence that the State offered to support
his plea of guilty was insufficient due to a variance between the date alleged in the indictment
and the date on which he stipulated that the offense occurred. We affirm.
Article 1.15 of the Texas Code of Criminal Procedure requires the State to introduce
evidence showing a defendant’s guilt after the defendant enters a plea of guilty before the court
in a felony case. TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005). The defendant may
stipulate to such evidence. Id. Evidence is sufficient to support a plea of guilty if it embraces
every element of the offense charged. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App.
2009). A stipulation of evidence that fails to establish every element of the offense charged will
not authorize the trial court to convict, and a conviction rendered without sufficient evidence to
support a plea of guilty constitutes trial error. Id. at 14. Article 1.15 is a mandatory statute. See
Article 1.15 (“[I]n no event shall a person charged be convicted upon his plea without sufficient
evidence to support the same.”); McClain v. State, 730 S.W.2d 739, 742 (Tex. Crim. App. 1987).
An issue challenging the trial court’s compliance with this statute may be raised for the first time
on appeal. See McClain, 730 S.W.2d at 743; Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—
Houston [1st Dist.] 2000, no pet.) (citing McClain); see also Menefee v. State, No. 12-07-00001-
CR, 2010 WL 3247816 at *5 (Tex. App.—Tyler August 18, 2010, pet. ref’d) (mem. op., not
designated for publication).
The precise date when a charged offense occurred is not usually a material element of an
offense. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998). When an indictment
alleges that an offense occurred “on or about” a particular date, the State is not bound by the date
alleged so long as the evidence establishes that the offense was committed before the
presentment of the indictment but within the statutory limitations period. Sledge v. State, 953
S.W.2d 253, 255-56 (Tex. Crim. App. 1997).
In this case, the indictment was filed on August 20, 2009. The indictment alleged that the
offense occurred “on or about the 1st day of January, 2002.” The stipulation of evidence stated
that the offense occurred “on or about the 1st day of January, 2001.” Other than the date, the
description of the offense in the stipulation of evidence was the same as that in the indictment.
Appellant was charged with aggravated sexual assault of a child under the age of
fourteen. Currently, there is no limitations period for this offense. See TEX. CODE CRIM. PROC.
ANN. art. 12.01(1)(B) (Vernon Supp. 2010); TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (Vernon
2011). This provision became effective on September 1, 2007, and applies to all offenses whose
limitations period had not run by the effective date. Act of May 18, 2007, 80th Leg., R.S., ch.
593, §§ 1.03, 4.01(c), 2007 Tex. Gen. Laws 1120, 1120-21, 1148. On the date stipulated, the
limitations period for aggravated sexual assault of a child under the age of fourteen was ten years
after the victim reached the age of eighteen. See Chafin v. State, 95 S.W.3d 549, 554 (Tex.
App.—Austin 2002, no pet.); Walker v. State, 4 S.W.3d 98, 104 (Tex. App.—Waco 1999, pet.
2
ref’d). Even assuming that the victim was fourteen years old at the time the offense occurred,
the former limitations period would not have run until 2014. Therefore, this offense is subject to
the current limitations provision.
Because the date of the offense established by the stipulation of evidence was prior to the
presentment of the indictment and because there is no limitations period for this offense, the date
in the stipulation of evidence was sufficient to support the offense charged by the indictment.
Sledge, 953 S.W.2d at 255. Appellant’s issue is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
July 21, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1
1
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
3