Menefee, Robert Lee ( 2009 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1530-08
ROBERT LEE MENEFEE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
SMITH COUNTY
P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK,
J OHNSON, H OLCOMB and C OCHRAN, JJ., joined. W OMACK, J., filed a concurring
opinion in which C OCHRAN, J., joined. C OCHRAN, J., filed a concurring opinion.
Keller, P.J., filed a dissenting opinion in which K EASLER and H ERVEY, JJ., joined.
OPINION
The appellant pled guilty in an open plea proceeding to the offense of possession of
cocaine with intent to deliver in an amount greater than one, but less than four grams, a
second-degree felony.1 He also pled true to an allegation that the offense occurred within a
1
TEX . HEALTH & SAFETY CODE § 481.112 (a) & (c).
Menefee — 2
thousand feet of an institution of higher learning as well as to an allegation that he had been
previously convicted of another felony offense for possession of a controlled substance, thus
subjecting him to punishment as an enhanced first-degree felon.2 The trial court assessed his
punishment at confinement in the penitentiary for a period of fifty-six years.
On appeal, the appellant contended that the evidence was insufficient to support his
guilty plea, in contravention of Article 1.15 of the Code of Criminal Procedure.3 In an
unpublished opinion, the Tyler Court of Appeals disagreed, holding that, notwithstanding a
defect in the written stipulation of evidence that the appellant entered in support of the plea,
his sworn responses during the plea colloquy provided sufficient support for his guilty plea
in satisfaction of the statute.4 One justice dissented, believing that the appellant’s sworn
response constituted only an entry of the guilty plea itself and could not be taken to constitute
evidence in support of the plea.5 We granted the appellant’s petition for discretionary review
2
Id., § 481.134(b)(1) and TEX . PENAL CODE § 12.42 (c)(1), respectively.
3
TEX . CODE CRIM . PROC. art. 1.15.
4
Menefee v. State, No. 12-07-00001-CR, 2008 WL 4335170 (Tex. App.—Tyler, delivered
September 24, 2008) (not designated for publication) (hereinafter, Menefee II). The appellant’s first
attorney on appeal filed an Anders brief. Anders v. California, 386 U.S. 738 (1967). The court of
appeals recognized, however, that the defective stipulation presented a non-frivolous issue for
appeal, abated the appeal, and remanded the cause to the trial court for appointment of new appellate
counsel and briefs. Menefee v. State, No. 12-07-00001-CR, 2008 WL 787851 (Tex. App.—Tyler,
delivered March 26, 2008) (not designated for publication) (Menefee I).
5
Menefee II, supra (Hoyle, J., dissenting).
Menefee — 3
to examine the court of appeals’s holding. 6 We now reverse that holding and remand the
cause to the court of appeals for consideration of extant, unresolved issues in the appeal.
PROCEDURAL POSTURE
The indictment alleged, inter alia, that the appellant “did then and there possess with
intent to deliver, a controlled substance, namely, cocaine, in an amount of one (1) gram or
more but less than four (4) grams, including any adulterants or dilutants[.]” The written
stipulation of evidence in support of the appellant’s open guilty plea, however, acknowledged
as “true and correct” that the appellant “did then and there with intent to deliver, a controlled
substance, namely, cocaine, in an amount of one (1) gram or more but less than four (4)
grams, including adulerants and dilutants[.]” It is undisputed that the written stipulation thus
failed to include the element of possession with intent to deliver the requisite amount of
cocaine. For this reason, the court of appeals proceeded to inquire, consistent with Dinnery
v. State,7 whether the record might otherwise contain evidence sufficient to sustain the
appellant’s guilty plea.
The court of appeals found independent support for the appellant’s guilty plea in the
following sworn colloquy between the trial court and the appellant occurring during the
guilty plea proceeding:
6
TEX . R. APP . P. 66.3(c) & (e).
7
592 S.W.2d 343, 352 (Tex. Crim. App. 1980) (opinion on reh’g) (where defendant entered
written judicial confession to the wrong offense, reviewing court would look to other evidence in
the record for substantiation of guilty plea).
Menefee — 4
THE COURT: Mr. Menefee, in your case the grand jury returned an
enhanced first degree felony charge of possession of a controlled substance
with intent to deliver. The range of punishment on that particular charge is no
less than 15 years and up to 99 years or life in the penitentiary and up to a
hundred thousand dollar fine. You understand that’s the range of
punishment? 8
THE DEFENDANT: Yes, sir.
THE COURT: Knowing that that’s the range of punishment, the
paperwork that’s been provided to me that indicates that you’ve decided to
enter an open plea of guilty in relation to that particular charge and leave it to
the Court to decide what type of punishment should be assessed. Is that
correct?
THE DEFENDANT: That’s correct, Your Honor.
THE COURT: And to that charge in the indictment as we’ve just
covered, how do you plead, guilty or not guilty?
THE DEFENDANT: Guilty, Your Honor.
From this point, the trial court turned to inquire into the appellant’s plea to the enhancement
provisions in the indictment.
The court of appeals held that the above colloquy sufficed to make up for the
deficiency of the written stipulation. It reasoned that “[b]ecause [the appellant] pleaded
guilty ‘[a]s to that charge in the indictment’–possession of a controlled substance with intent
to deliver–he supplied the element of possession, which was included in the indictment but
8
At a later point in the proceedings, the trial court realized that the applicable fine was not
$100,000, but only $10,000, and the appellant was admonished accordingly. This discrepancy is not
material to the issue before us in this case.
Menefee — 5
omitted from his stipulation of evidence.” 9 For support of this proposition, the court of
appeals relied principally upon this Court’s opinion in Cooper v. State.10 Justice Hoyle
disagreed with the majority, observing that “the fact that the trial court specifically referenced
the ‘charge in the indictment’ before [the appellant] pleaded guilty is not evidence supporting
the conviction.” 11 We granted the appellant’s petition for discretionary review to determine
which view better accords with our case law construing Article 1.15.12
9
Menefee II, supra (slip op. at *4).
10
573 S.W.2d 533 (Tex. Crim. App. 1978).
11
Menefee II, supra (Hoyle, J., dissenting) (slip op. at *7).
12
In her brief dissenting opinion, Presiding Judge Keller advocates that we dismiss the
appellant’s petition as improvidently granted. She claims that the court of appeals might have lacked
“jurisdiction” because the certification of appeal was defective. But the very case she cites, Dears
v. State, 154 S.W.3d 610, at 612 (Tex. Crim. App. 2005), holds that “[a]ppellate jurisdiction is
invoked by giving timely and proper notice of appeal.” That was done in this case, so the court of
appeals acquired jurisdiction over the appeal. It is true that, once an appellate court has acquired
jurisdiction, it must nevertheless dismiss the appeal “if a certification that shows the defendant has
the right of appeal has not been made part of the record under these rules.” TEX . R. APP . P. 25.2(d).
But there is such a certification in this record. Presiding Judge Keller argues that the certification
is defective because it is belied by the balance of the record, which contains a waiver of appeal that
was signed by the appellant on the same day that the trial court signed the certificate of appeal.
There is no explanation in the record for this apparent discrepancy. Consistent with Dears, the court
of appeals could have examined the certification of appeal for defectiveness and, if appropriate, used
Rules 37.1 and 34.5(c) of the Rules of Appellate Procedure to obtain a new certificate of appeal. 154
S.W.3d at 614-15; see also Greenwell v. Court of Appeals for the Thirteenth Judicial District, 159
S.W.3d 645, 650 n.24 (Tex. Crim. App. 2005) (although appellate court may require lower court to
address apparent defect in certification of appeal, it “may not dictate the content of the
certification”). If a new certificate of appeal obtained by this process were to certify that the
appellant waived his right to appeal, then, of course, the court of appeals could only exercise its
appellate jurisdiction to dismiss the appeal under Rule 25.2(d). As Professors Dix and Dawson have
observed, “[u]nder Dears, a court of appeals clearly may, once the record is filed, compare a
certification to the record to determine whether the certification is supported by the record. It would
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THE LAW
The United States Constitution does not require that the State present evidence in
support of a guilty plea in Texas courts.13 Article 1.15 constitutes “an additional procedural
safeguard required by the State of Texas but not by federal constitutional law.” 14 No trial
court is authorized to render a conviction in a felony case, consistent with Article 1.15, based
upon a plea of guilty “without sufficient evidence to support the same.” 15 Evidence offered
seem that the appellate tribunal is required to do so upon a suggestion by the State that a facially
valid certification lacks support in the record.” George E. Dix & Robert O. Dawson, 43A TEXAS
PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 43.287 (2d ed. 2008-2009 Sup.), at 253. But the
court of appeals in this case did not determine whether the record supports the certification of appeal,
and the State never suggested to it that it should. At the conclusion of the sentencing proceeding,
the trial court instructed the appellant, “You have certain appellate rights that I’ll let your lawyers
discuss with you. You cannot sit on those rights. If you choose to pursue an appeal, you have to do
it timely; otherwise, you lose that right.” The State raised no complaint in the trial court or on appeal
that this admonishment was inconsistent with any waiver of appeal. Indeed, at no point in these
appellate or discretionary review proceedings has the State argued that, because the certification of
appeal was defective, the court of appeals should have dismissed the appeal under Rule 25.2(d),
much less that it altogether lacked jurisdiction over the appeal. Obviously, the appellant has had no
opportunity to brief this issue. Under these circumstances, we will proceed to the merits of the
substantive issue that was decided by the court of appeals.
13
Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986).
14
Id. at 678.
15
See TEX . CODE CRIM . PROC. art. 1.15 (“No person can be convicted of a felony except upon
the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in
open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and
1.14; provided, however, that it shall be necessary for the state to 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. The evidence may be stipulated if the defendant in such case consents
in writing, in open court, to waive the appearance, confrontation, and cross-examination of
witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the
Menefee — 7
in support of a guilty plea may take many forms. The statute expressly provides that the
defendant may consent to the proffer of evidence in testimonial or documentary form, or to
an oral or written stipulation of what the evidence against him would be, without necessarily
admitting to its veracity or accuracy; and such a proffer or stipulation of evidence will suffice
to support the guilty plea so long as it embraces every constituent element of the charged
offense.16 Alternatively, our case law has recognized that the defendant may enter a sworn
written statement, or may testify under oath in open court, specifically admitting his
culpability or at least acknowledging generally that the allegations against him are in fact true
and correct; and again, so long as such a judicial confession covers all of the elements of the
charged offense, it will suffice to support the guilty plea.17 However, a stipulation of
evidence or judicial confession that fails to establish every element of the offense charged
will not authorize the trial court to convict.18 A conviction rendered without sufficient
introduction of testimony by affidavits, written statements of witnesses, and any other documentary
evidence in support of the judgment of the court. Such waiver and consent must be approved by the
court in writing, and be filed in the file of the papers of the cause.”) (emphasis added).
16
Id. See also, e.g., Hammond v. State, 470 S.W.2d 683 (Tex. Crim. App. 1971); Brewster
v. State, 606 S.W.2d 325 (Tex. Crim. App. 1980); Stone v. State, 919 S.W.2d 424 (Tex. Crim. App.
1996).
17
E.g., Sprinkle v. State, 456 S.W.2d 387 (Tex. Crim. App. 1970); Waage v. State, 456
S.W.2d 388 (Tex. Crim. App. 1970); Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970); Sexton
v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972); Knight v. State, 481 S.W.2d 143 (Tex. Crim.
App. 1972); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978).
18
See Dinnery v. State, supra at 351 (“A plea of guilty is an admission of guilt of the offense
charged, but it does not authorize a conviction in a bench trial upon such plea unless there is
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evidence to support a guilty plea constitutes trial error.19
A deficiency of one form of proof—say, a defective written stipulation of evidence
(as we have in this case) or written judicial confession—may be compensated for by other
competent evidence in the record.20 In the instant case, the court of appeals held that the
defective written stipulation was saved by the sworn colloquy between the trial court and the
appellant in which the appellant acknowledged that he was pleading guilty to the offense as
alleged in the indictment, including the element of possession that was missing from the
stipulation. The question presented in this case is whether a sworn acknowledgment that one
is opting to plead “guilty” to the charged offense (without expressly admitting that the
charges are “true and correct”) is tantamount to a judicial confession, sufficient to satisfy
Article 1.15. We hold that it is not.
ANALYSIS
Article 1.15 requires substantiation of a guilty plea. By its plain terms it requires
evidence offered to support such plea and the judgment to be entered.”).
19
Bender v. State, 758 S.W.2d 278, 280-81 (Tex. Crim. App. 1988); Ex parte Martin, 747
S.W.2d 789, 793 (Tex. Crim. App. 1988); Ex parte Williams, supra.
20
Dinnery v. State, supra at 352 (where written judicial confession was deficient, Court would
“turn to see if there is other evidence independent thereof which will support the plea of guilty”).
See also George E. Dix & Robert O. Dawson, 43 TEXAS PRACTICE : CRIMINAL PRACTICE AND
PROCEDURE §§ 34.74-34.76 (2d ed. 2001), at 379-380 (“omission of an element of the offense [in
stipulated evidence] can be cured by a ‘catch-all’ admission that the indictment is true and correct.
* * * Oral judicial confessions can be used to substantiate a plea when the stipulation agreement is
invalid and when a written judicial statement is insufficient. * * * The entire plea proceeding is
examined to determine whether there is substantiation.”).
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evidence in addition to, and independent of, the plea itself to establish the defendant’s guilt.21
In their comprehensive treatise on Texas criminal practice and procedure, Professors Dix and
Dawson have observed that, when it comes to examining the record of a guilty plea
proceeding for evidence sufficient to support the plea,
[t]here is sometimes difficulty determining whether a statement made by the
defendant is part of the plea entry process or is independent of it. Clearly, the
uttering of the words “guilty” or “no contest” in response to the question,
“How do you wish to plead?” is not substantiation, but the plea itself. Some
additional statement must be found to support a claim of substantiation by oral
judicial confession.22
If they are right, then the court of appeals plainly erred in this case. When the appellant
answered the trial court’s question, “As to that charge in the indictment as we’ve just
covered, how do you plead, guilty or not guilty?” by responding, “Guilty, Your Honor[,]” he
was merely entering his plea, not confessing to the truth and correctness of the indictment
or otherwise providing substance to the plea. It should make no difference that the appellant
entered his plea while under oath. Otherwise, any plea proceeding will serve to satisfy
Article 1.15 so long as the defendant is sworn in before he enters his plea of guilty or nolo
contendere, and he will be “convicted on what is essentially no more than his plea—the very
21
See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (when statutory language
is clear and unambiguous, we give effect to plain language unless to do so would lead to absurd
consequences). Under Article 1.15, “in no event shall a person charged be convicted upon his plea
without sufficient evidence to support the same.”
22
Dix & Dawson, supra § 34.75, at 379 (footnote omitted).
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vice the statute was designed to combat!” 23
Unfortunately, Professors Dix and Dawson cite no cases for their assertion that the
plea itself cannot provide substantiation. Perhaps the reason for this omission is that our case
law is impossibly ambiguous on the subject. We turn to an examination of the relevant case
law.
Drain
In Drain v. State,24 an oral stipulation was dictated into the record in support of the
guilty plea. At that time, Article 1.15 did not authorize convictions based upon oral
stipulations,25 so the Court proceeded to examine the balance of the record, including Drain’s
sworn testimony at the plea hearing, for any other evidence sufficient to support the plea.
We found the following colloquy between Drain and his own attorney:
Q Your name is Dyon Weslie Drain?
A Yes, sir.
Q And you heard me make several waivers for you, and did I have the
right to make those waivers for you?
A Yes, sir.
Q And are you guilty of this charge and are you pleading guilty because
23
Dinnery v. State, supra at 359 n.14 (Clinton, J., dissenting).
24
465 S.W.2d 939 (Tex. Crim. App. 1971).
25
The statute was subsequently amended to permit oral stipulations. Acts 1971, 62nd Leg., ch.
996, p. 3028, § 1, eff. June 15, 1971.
Menefee — 11
you are guilty and for no other reason?
A Yes, sir.26
We held this sworn colloquy to constitute, not an oral judicial confession, but “merely an
additional admonishment by counsel.” 27 This was so even though Drain seemed to be
expressly admitting he was “guilty of this charge.” If Drain is controlling, then the court of
appeals plainly erred in the instant case, because the only thing that the appellant
acknowledged under oath during his plea proceeding was that he was pleading guilty to the
charged offense, not that he was in fact guilty of that offense. This was but an entry of his
plea, and not an independent substantiation of it.
Cooper and Craven
Two subsequent cases tend to cast the holding of Drain in doubt. In Cooper v. State,28
the case upon which the court of appeals here principally relied, we upheld the sufficiency
of the evidence to support a guilty plea with little more discussion than this:
It is true that [the] written judicial confession cannot support the guilty plea.
When appellant took the stand and testified, however, he stated that he was
pleading guilty just as he was charged in the indictment, and that he was saying
he was guilty regardless of what punishment the court would assess. We
consider this was a sufficient judicial confession to support the plea under Art.
1.15, supra. Cf. Potts v. State, Tex.Cr.App. 571 S.W.2d 180, and authorities
26
Drain v. State, supra at 940 (emphasis added).
27
Id.
28
573 S.W.2d 533 (Tex. Crim. App. 1978).
Menefee — 12
cited there.29
Neither Potts, however, nor the “authorities cited there” directly support the proposition that
a defendant’s mere acknowledgment that he was “pleading guilty,” or even that he was
“saying he was guilty[,]” constitutes an oral judicial confession, independent of the entry of
the plea itself and sufficient to substantiate it.30 We made no mention of Drain in Cooper,
much less did we try to distinguish it.
In Craven v. State,31 the appellant attempted to collaterally attack his guilty plea in an
appeal of the revocation of his probation. He argued that the evidence did not support the
original plea because, whereas the indictment had alleged burglary by entry and commission
of theft, he judicially confessed to burglary by entry with the intent to commit theft. A three-
judge panel of the Court noted that an allegation of insufficient evidence may not be
entertained in a collateral attack; only claims of no evidence will give rise to relief in a
collateral attack.32 We apparently regarded Craven’s flawed judicial confession, together
29
Id. at 535.
30
Relying on Adams v. State, 490 S.W.2d 189 (Tex. Crim. App. 1973), and Miles v. State, 486
S.W.2d 326 (Tex. Crim. App. 1972), we reiterated in Potts that “an affirmation of the indictment as
true and correct will constitute a judicial confession sufficient to support a judgment of conviction.”
571 S.W.2d at 182. Cooper made no such “affirmation,” unless “saying he was guilty regardless of
what punishment the court would assess” should somehow count as expressly “affirming” that all
the elements of the offense as alleged in the indictment are true and correct.
31
607 S.W.2d 527 (Tex. Crim. App. 1980).
32
Id. at 528.
 Menefee — 13
with the fact that he “took the stand and pled guilty to the indictment[,]” to provide at least
some evidence (even if not necessarily sufficient evidence in contemplation of Article 1.15)
to support the plea, and we therefore concluded that he could not attack the plea proceeding
collaterally.33
Judge Clinton dissented to the Court’s denial of Craven’s motion for en banc
rehearing. He construed the panel opinion to stand for the proposition that the following
colloquy between Craven and the trial court constituted a judicial confession:
Q: You are the same Lemuil Craven as charged in the Indictment in this
cause, is that right?
A: Yes, sir.
Q: Is that a cause that lists an offense on January the 15 th , 1975, is that
right?
A: Yes, sir.
Q: And are you pleading guilty to that Indictment?
A: Yes, sir.34
We reject Judge Clinton’s view, however, that the panel opinion in Craven held that this
colloquy (quite similar to the colloquy in this case that the court of appeals relied upon)
could, by itself, constitute sufficient evidence to support a guilty plea. At best, Craven can
33
“This is not a ‘no evidence’ case, however. The appellant judicially confessed to burglary
with intent to commit theft, and he also took the stand and pled guilty to the indictment.” Id.
34
Id. at 528 (Clinton, J., dissenting to denial of motion for rehearing) (emphasis added).
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be read only for the proposition that a judicial confession that is slightly at variance with the
indictment, together with the plea colloquy itself, constitutes at least some evidence—more
than no evidence—to support a guilty plea, and that a collateral attack is prohibited under
these circumstances. Of course, the appellant in this case is challenging the sufficiency of
the evidence in a direct appeal, not by collateral attack.
Morris
In 1986, we granted a petition for discretionary review to resolve this latent confusion
in the case law. In Morris v. State,35 the appellant had modified a written judicial confession
that would have acknowledged that the indictment allegations were “true and correct,” so that
it only acknowledged that he was in fact pleading “no contest” to those allegations.36 The
court of appeals had held this, nevertheless, to constitute a judicial confession, sufficient in
itself to support the plea under Article 1.15.37 We expressly granted the appellant’s petition
for discretionary review in order to review “the correctness” of that holding.38 We expressly
refused the State’s petition for discretionary review, which had challenged the jurisdiction
35
749 S.W.2d 772 (Tex. Crim. App. 1986).
36
Id. at 776 (Clinton, J., dissenting on original submission).
37
Id. at 773.
38
Id.
Menefee — 15
of the court of appeals to resolve the sufficiency issue in the first place.39
In his opinion for the Court, Presiding Judge Onion nevertheless disposed of the case
by holding that the court of appeals had lacked jurisdiction to reach the merits of the
sufficiency claim; accordingly, he declined to address the issue upon which review had been
granted.40 In a dissenting opinion, Judge Clinton disagreed that the court of appeals had
lacked jurisdiction over the issue, and he therefore addressed the merits.41 In the latter
context, he argued:
Simply to invest the plea itself with the trappings of an oath does not elevate
it to the status of evidence. Appellant merely swore to the fact that he
understood the indictment and was pleading no contest to it. This does not
amount to confirmation that such allegations are true and correct or that
appellant committed the offense so alleged. Patently, as modified, the
stipulation constitutes neither a “judicial confession” nor any other manner of
evidence contemplated under Article 1.15 as necessary to support the trial
court’s judgment.42
Moreover, Judge Clinton advocated overruling both Cooper and Craven, at least to the extent
that they can be construed to conflict with the earlier decision in Drain.43 Since Morris, this
Court has not revisited the issue of whether a defendant’s sworn affirmation that he is indeed
39
Id. at 775 (Clinton, J., dissenting on original submission).
40
Id. at 774-75.
41
Id. at 775-80.
42
Id. at 777 (Clinton, J., dissenting on original submission).
43
Id. at 778 n.11 (Clinton, J., dissenting on original submission).
Menefee — 16
pleading guilty should be regarded as evidence sufficient to substantiate his plea for purposes
of Article 1.15.
We take the opportunity to do so now. For the reasons expressed in Judge Clinton’s
dissenting opinion in Morris, we hold that the appellant’s sworn affirmation, in response to
the trial court’s questioning, that he was in fact pleading guilty to the charges in the
indictment does not constitute a judicial confession and does not otherwise supply evidence,
in whole or in part, sufficient to support the plea under Article 1.15. A guilty plea entered
under oath is still just a guilty plea. It does not provide independent evidence to substantiate
the defendant’s guilt. We disapprove Cooper and Craven to the extent that they may be read
to conflict.
DISPOSITION
The court of appeals erred to hold that the deficiency in the written stipulation was
remedied by the appellant’s plea colloquy with the trial court in this cause. On appeal, the
State also argued that evidence adduced at the subsequent sentencing hearing also
independently served to provide evidentiary support for the appellant’s guilty plea.44 The
court of appeals was not compelled to address this argument given its acceptance of the
State’s other argument. However, in light of our holding today, we think it necessary to the
44
The State argued on appeal that the trial court took judicial notice of the pre-sentence
investigation report at the later sentencing proceeding. Although the PSI was not included in the
appellate record, the State argues that it is apparent from the court reporter’s record that it included
evidence to substantiate the guilty plea. Having disposed of the appellant’s claim of insufficient
evidence to support the plea on another basis, the court of appeals did not address this argument.
Menefee — 17
final disposition of the appeal that the court of appeals address it now.45 Moreover, the State
also argues, albeit for the first time in its reply brief to the appellant’s petition for
discretionary review, that the appellant procedurally defaulted his Article 1.15 sufficiency
claim because he made no complaint about the deficiency in the written stipulation at trial.46
Because issues of error preservation are systemic in first-tier review courts,47 we think it
appropriate that the court of appeals address this issue as well (or in the alternative, as the
case may be), subject to our discretionary review at a later date. Finally, because the court
of appeals concluded that there was no trial error, it did not confront the question of whether
it would be appropriate to conduct a harm analysis, and, if so, whether the trial error was
harmless under Rule 44.2(b) of the Rules of Appellate Procedure.48 It may become necessary
45
Because the court of appeals did not address this argument, it rendered no “decision” for this
Court to review. E.g., Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007). The issue is
nevertheless now “necessary to final disposition of the appeal.” See TEX . R. APP . P. 47.1 (“The court
of appeals must hand down a written opinion that is as brief as practicable but that addresses every
issue raised and necessary to final disposition of the appeal.”).
46
Whether the appellant must object at trial before he may complain on appeal would seem
to be a function of whether Article 1.15's requirement of evidence to support a plea constitutes a
“systemic requirement” or “fundamental feature of the system,” not optional with the parties. See
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (“Thus, our system may be thought to
contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants
which must be implemented by the system unless expressly waived; and (3) rights of litigants which
are to be implemented upon request. In the present context, the most important thing to remember
about the Texas law of procedural default is that it only applies to the last category.”).
47
E.g., Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).
48
TEX . R. APP . P. 44.2(b). Neither the appellant nor the State briefed the issue of harm, vel
non, in their briefs in the court of appeals. Nor does the State argue now, in its reply brief to the
Menefee — 18
for the court of appeals to confront these issues on remand. Accordingly, we vacate the
judgment of the court of appeals and remand the cause to that court for further consideration
of the appeal consistent with this opinion.
Delivered: July 1, 2009
Publish
appellant’s brief on discretionary review, that trial error, if any, was harmless. Nevertheless, “it is
the responsibility of the reviewing court, once it concludes there was error, to determine whether the
error affected the judgment.” Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002) (plurality
opinion), citing Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Should it conclude on
remand that trial error did occur, and that the error was preserved, the court of appeals should not
reverse the conviction without addressing the harm issues enumerated above. The court of appeals
may invite the parties to file supplemental briefs. See TEX . R. APP . P. 38.7 (“A brief may be
amended or supplemented whenever justice requires, on whatever reasonable terms the court may
prescribe.”).