                                                                          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




                                   5
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.




                                     19
                                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




                                     20
                    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
