                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-14-00011-CR
                                  ________________________

                      MICHAEL ALLEN CHAMBERLAIN, APPELLANT

                                                   V.

                                 STATE OF TEXAS, APPELLEE



                             On Appeal from the 100th District Court
                                      Carson County, Texas
                     Trial Court No. 5332; Honorable Stuart Messer, Presiding


                                            April 16, 2015

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        In this case we are once again faced with an issue concerning the imposition of

an arguably illegal sentence based on deficiencies that went unnoticed by the trial

judge, prosecutor, and defense counsel.1 Appellant, Michael Allen Chamberlain,


        1
         See Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989 (Tex. App.—Amarillo
2013) (mem. op., not designated for publication), (affirmed by Grado v. State, 445 S.W.3d 736 (Tex. Crim.
App. 2014); Melton v. State, No. 07-13-00032-CR, 2015 Tex. App. LEXIS 266 (Tex. App.—Amarillo Jan.
13, 2015, no pet.) (mem. op., not designated for publication).
contends the judgment of the trial court should be set aside and the case remanded

because there is no evidence supporting the order originally placing him on deferred

adjudication community supervision for the second degree felony offense of indecency

with a child by sexual contact. We affirm the judgment of the trial court.


                                    PROCEDURAL BACKGROUND


       Because the disposition of this case does not require a detailed review of the

facts underlying the offense, we limit our discussion to the procedural facts pertinent to

the appeal. In that regard, on May 9, 2013, Appellant was charged by indictment with

two counts of aggravated sexual assault, a first degree felony. See TEX. PENAL CODE

ANN. § 22.021(a)(1)(B) (West Supp. 2014). On September 27, 2013, pursuant to a plea

bargain, Appellant entered a plea of guilty to the lesser-included offense of ―indecency

with a child‖—and this is where the issue in this case begins. That is so because there

are two types of indecency with a child: (1) indecency with a child by exposure,2 a third

degree felony, and (2) indecency with a child by sexual contact,3 a second degree

felony—and the plea bargain agreement did not specify which offense applied.

Appellant contends he pleaded guilty to indecency with a child by exposure, whereas

the State takes the position that he pleaded guilty to indecency with a child by sexual

contact.      As discussed below, both positions have some merit; however, after

considering the entire appellate record, we ultimately conclude the trial court was

dealing with a plea agreement pertaining to the lesser-included offense of indecency


       2
           See TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011).
       3
           See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).


                                                   2
with a child by sexual contact, and we will address the sufficiency issue pertinent to this

appeal from that perspective.4


        At the September 27th hearing, pursuant to the agreed plea recommendation,

Appellant executed and filed a Stipulation of Evidence which states:


        On or about the 14th day of March, 2013, in Carson County, Texas,
        [Appellant] did then and there with intent to arouse or gratify the sexual
        desire of the defendant, intentionally or knowingly expose the defendant‘s
        genitals knowing that [the victim], a child younger than 17 years of age,
        was present. (Emphasis added).


This stipulation describes the offense of indecency with a child by exposure. See TEX.

PENAL CODE ANN. § 21.11(a)(2)(A) (West 2011). Conversely, the stipulation does not

describe the offense of indecency with a child by sexual contact.                           See id. at

§ 21.11(a)(1) (West 2011).


        In addition to the stipulation, Appellant signed another document entitled Waivers

of Parties, which included a paragraph entitled Judicial Confession, which states:


        I, the defendant, state that I have read the indictment or information filed in
        this case and that I committed each and every allegation it contains. I am
        guilty of the offense alleged as well as all lesser included offenses. I
        swear to all of the foregoing and I further swear that all testimony I give in
        this case will be the truth, the whole truth, and nothing but the truth, so
        help me God. (Emphasis added).



        4
           In Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009), the Court of Criminal Appeals held
that indecency with a child by sexual contact is a lesser-included offense of aggravated sexual assault of
a child when both offenses are predicated on the same act. Id. at 143. The court explained why this is
true despite the fact that the indecency offense contains what might appear to be an extra element of
intent to arouse or gratify sexual desire. See id. at 141-43. The court reasoned that ―intent to arouse or
gratify sexual desire‖ was not an extra element because it was already part of the definition of ―sexual
contact,‖ and sexual contact was a form of touching subsumed within the ―penetration‖ required to prove
aggravated sexual assault. Id.


                                                    3
       Although the Waiver of Parties document contained a paragraph entitled Order

on Waivers and Judicial Confession, which included a signature line for the ―Presiding

Judge,‖ the copy of that document filed September 27th does not bear the signature of

the trial judge. Interestingly, however, a copy of the same document filed October 2,

2013, does contain the judge‘s signature.


       Complicating matters further, the Punishment Recommendations signed by the

district attorney, defense counsel, and Appellant on September 27th indicates that the

State is recommending ―[p]rosecution for lesser included offense of INDECENCY WITH

A CHILD – PC 22.11(a) – A 2ND DEGREE FELONY‖ and a recommendation of ten

years deferred adjudication community supervision in exchange for Appellant‘s plea of

guilty. The problem here is that section 22.11(a) of the Texas Penal Code does not

describe the second degree felony offense of indecency with a child at all—instead, it

describes the third degree felony offense of harassment by persons in certain

correctional facilities. Because section 21.11 of the Texas Penal Code does describe

the offense of indecency with a child, we must assume the difference between 22.11

and 21.11 is but a scrivener‘s error, another lack of attention to detail.


       But wait, the confusion does not stop there. At the hearing on the original plea,

for reasons that completely escape us, the trial court conducted three pleas, of three

separate defendants, with three separate defense counsel, from two separate counties,

in one consolidated proceeding.        At the commencement of that proceeding, the

following exchange occurred:




                                              4
THE COURT:            The Court further calls Carson County Cause
                      Number 5332, the State of Texas versus
                      Michael Allen Chamberlain. State?

[Appearances made.]

DEFENSE COUNSEL:      [Defense counsel] for the Defendant, Your
                      Honor. We‘re ready under an agreed plea
                      recommendation.

                                  * * *

THE COURT:            How do you plead to the first degree felony
                      offense of aggravated sexual assault of a
                      child?

DEFENSE COUNSEL:      Judge, we‘re pleading under a lesser-included
                      indecency charge, under the recommendation.

                                  * * *

THE COURT:            Let me back up a little bit. Mr. Chamberlain, if I
                      accept you plea to a second degree felony, a
                      second degree of indecency has a maximum
                      punishment of 20 years and a minimum
                      punishment of two. And again, there can be a
                      fine not to exceed $10,000.

                      Do you understand that?

DEFENDANT:            Yes, sir.


                                  * * *


THE COURT:            How do you plead to the lesser-included second
                      degree felony offense of indecency with a child --

DEFENDANT:            True.


THE COURT:            -- guilty or not guilty?


DEFENDANT:            Guilty.




                                  5
       After several admonishments to the various defendants, the proceeding

continued with this exchange:


       THE COURT:                  And in Mr. Chamberlain‗s case?

       PROSECUTOR:                 Your Honor, in that case, Cause Number 5332
                                   out of Carson County, the plea bargain would
                                   be ten years deferred adjudication with a fine
                                   of $1,000, court costs of $665.

       When it came time to offer evidence to support Appellant‘s plea, this additional

exchange occurred:


       PROSECUTOR:                 Thank you. Your Honor, in the Chamberlain
                                   case, 5332 out of Carson County, Your Honor,
                                   we would offer the States Stipulation of
                                   Evidence which is State‘s Exhibit 1, bearing the
                                   Defendant‘s signature in the middle of the
                                   page, Your Honor.


       State‘s Exhibit 1, the Stipulation of Evidence referenced above, only admits to

the offense of indecency with a child by exposure. Without the introduction of any other

evidence relevant to Appellant‘s plea, the record continues with the following statement:


       PROSECUTOR:                 Your Honor, that‘s all the evidence the State
                                   would offer, at this time, in all three cases. The
                                   State would rest and close in all three cases,
                                   Your Honor.


       During the plea proceeding, no inquiry was made of Appellant concerning the

facts necessary to substantiate the offense of indecency with a child by sexual contact

and no testimony from any other source was offered. Although the Judicial Confession

appears of record, it is never mentioned. Towards the conclusion of the multi-plea

proceeding, the trial court continued:


                                             6
          THE COURT:                    In Cause Number 5332 out of Carson County, I
                                        find there is sufficient evidence to find the
                                        Defendant, Michael Allen Chamberlain, guilty
                                        beyond a reasonable doubt of the second
                                        degree lesser-included offense of indecency
                                        with a child.


          Pursuant to the plea agreement announced, and based on nothing other than the

plea of guilty, the stipulation of evidence and the judicial confession, the trial court

suspended the imposition of sentence and placed Appellant on deferred adjudication

community supervision for a term of ten years.5 Adding further complication to the

already confusing plea agreement, the Order of Deferred Adjudication recites the

offense as ―indecency with a child, a lesser included offense than alleged in the

indictment,‖ pursuant to Penal Code ―section 22.11(a)(2),‖ a ―second degree felony.‖

Again, as stated above, 22.11(a)(2) is harassment in a correctional facility; whereas,

21.11(a)(2) is indecency with a child by exposure. Because the record of the plea

clearly reflects both the trial court and Appellant were discussing a plea to a second

degree felony, again we assume the difference between subsection (a)(2) and

subsection (a)(1) is nothing more than another example of a long line of scrivener‘s

errors.


          Forty days after being placed on deferred adjudication community supervision,

the State filed a motion to adjudicate. A hearing was held on January 14, 2014, and



          5
           A defendant convicted of the offense of indecency with a child by sexual contact pursuant to
section 21.11(a)(1) of the Texas Penal Code is not eligible for deferred adjudication community
supervision unless the judge makes a finding in open court that placing the defendant on community
supervision is in the best interest of the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West
Supp. 2014). Even though no such finding was made in this case (another lapse of attention to detail),
the trial court‘s failure to do so is not grounds to set aside the plea, deferred adjudication, or any
subsequent conviction or sentence. Id.

                                                    7
Appellant entered a plea of ―not true‖ to the allegations contained in the State‘s motion.

During the revocation hearing the following exchange took place:


      THE COURT:                  The Court calls Carson County Cause Number
                                  5332, the State of Texas versus Michael Allen
                                  Chamberlain.

      [Appearances made.]

      THE COURT:                  And this is an aggravated sexual assault of a
                                  child case?

      DEFENSE COUNSEL:            No, Your Honor.

      PROSECUTOR:                 Your Honor, it‘s a plea to a lesser included --

      THE COURT:                  Lesser included.

      PROSECUTOR:                 -- on indecency with a child, a second degree
                                  felony with a regular punishment range of --

      THE COURT:                  Of two to 20?

      PROSECUTOR:                 Yes, Your Honor.

      THE COURT:                  [Defense Counsel], do you concur it‘s a two to
                                  20 on an indecency?

      DEFENSE COUNSEL:            Yes. Indecency with a child is a second
                                  degree felony, two to 20.


      Following the presentation of evidence pertaining to alleged violations of the

conditions of community supervision, the trial court revoked Appellant‘s deferred

adjudication and entered a finding of guilt, not as to the offense of indecency by

exposure, but rather as to the offense of indecency by sexual contact. The trial court

then assessed Appellant‘s sentence at the maximum period of confinement for that

offense, to-wit: twenty years. The written Judgment Adjudicating Guilt repeated the

same errors that appeared in the Order of Deferred Adjudication, reciting the offense as


                                            8
―indecency with a child,‖ pursuant to section ―22.11(a)(2),‖ a ―2ND degree felony.‖

Again, we construe these inconsistencies as additional scrivener‘s errors—the correct

recitation being ―indecency with a child by sexual contact,‖ pursuant to section

21.11(a)(1), a second degree felony.


        By his sole issue, Appellant contends his conviction is ―void‖ because the only

evidence supporting the conviction is State‘s Exhibit 1, the Stipulation of Evidence,

which only confesses to the lesser-included offense of indecency with a child by

exposure.6 In response, the State contends (1) Appellant agreed to enter a plea of

guilty to the offense of indecency with a child by sexual contact and (2) while the

Stipulation of Evidence is insufficient to support a conviction as to that offense, the

written judicial confession filed of record compensates for that deficiency.


        Based on the totality of the record before us, we begin our analysis with a finding

that, notwithstanding the inconsistencies and deficiencies that appear of record, both

the trial court and Appellant contemplated a plea to a lesser-included, second degree

felony offense of indecency with a child by sexual contact, and the trial court orally

pronounced guilt as to that offense (albeit, not specifying the offense to be indecency

with a child by sexual contact).7          While we see issues with both the stipulation of

evidence and the judicial confession, we find the overall record supports the trial court‘s



        6
         Appellant does not raise, and we do not address, any issues concerning the effective assistance
of counsel or the voluntariness of his plea, issues more appropriately suited to an article 11.07, habeas
corpus proceeding. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2014).
        7
         When a trial court‘s oral pronouncement of sentence conflicts with the written judgment, the oral
pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing TEX.
CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2014)). In such circumstances, this Court should
reform the judgment to reflect the sentence pronounced. Id. at 137.

                                                    9
judgment.    Because we ultimately conclude the evidence supports the judgment

entered, we will affirm.


                                         ANALYSIS


       Under the Code of Criminal Procedure, the State is obligated to ―introduce

evidence into the record‖ of a defendant's guilt, and trial courts are not permitted to

render a conviction without evidence establishing a defendant's guilt. See TEX. CODE

CRIM. PROC. ANN. art. 1.15. See also Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.

App. 2009). In that regard, an oral plea of guilty alone is insufficient because ―even if

the defendant states that he or she is pleading guilty to the charges in the indictment

under oath, [a guilty plea] does not constitute a judicial confession because the

defendant is merely entering a plea, ‗not confessing to the truth and correctness of the

indictment or otherwise providing substance to the plea.‖ Baggett v. State, 342 S.W.3d

172, 174 (Tex. App.—Texarkana 2011, pet. ref‘d) (quoting Menefee, 287 S.W.3d at 13,

15). As such, Appellant‘s guilt is not sufficiently supported by his plea of guilty alone.


       Evidence establishing a defendant's guilt sufficient to satisfy the statutory

requirements of article 1.15 ―may take many forms,‖ including a ―written stipulation of

what the evidence against him would be, without necessarily admitting to its veracity or

accuracy.‖ Menefee, 287 S.W.3d at 13. See also TEX. CODE CRIM. PROC. ANN. art. 1.15

(providing that evidence establishing guilt may be stipulated to by the defendant).

When considering the sufficiency of a written stipulation of evidence, the stipulation will

be sufficient if ―it embraces every constituent element of the charged offense.‖

Menefee, 287 S.W.3d at 13.        Conversely, a stipulation that fails to establish every


                                             10
element of the offense does not authorize a conviction. Id. at 14. Here, Appellant

contends his stipulation of evidence is deficient because it does not provide proof of

sexual contact, an element essential to a finding of guilt of indecency with a child by

sexual contact. While the State does not disagree with Appellant‘s contention that the

stipulation is deficient, it contends the deficiency is one of form which may be

compensated for by other competent evidence in the record. Dinnery v. State, 592

S.W.2d 343, 352 (Tex. Crim. App. 1980).           While we agree with Appellant that the

stipulation of evidence in this case does not support a finding of guilt as to the offense of

indecency with a child by sexual contact, we also agree with the State that other

evidence may satisfy the requirements of article 1.15.


       PLEA OF GUILTY AND ORAL TESTIMONY AT TRIAL


       As stated above, Appellant‘s oral plea of guilty alone does not satisfy the

requirement that the State introduce evidence to establish his guilt.          Furthermore,

Appellant‘s oral testimony at trial does not compensate for the lack of evidence

supporting the plea because Appellant never testified at the plea hearing and never

verbally acknowledged any act constituting sexual contact. As such, neither Appellant‘s

plea of guilty nor his statements at trial are sufficient to satisfy the requirements of

article 1.15.


       JUDICIAL CONFESSION


       A sworn written confession acknowledging guilt as to the offense charged may,

however, constitute a form of permissible evidence that will satisfy the requirements of

article 1.15.   Menefee, 287 S.W.3d at 13.         ―A written judicial confession provides

                                             11
evidentiary support for a plea of guilty to the charges alleged in the indictment or to

some lesser included offense of that which is alleged in the indictment.‖ See Puente v.

State, 320 S.W.3d 352, 358 (Tex. Crim. App. 2010) (citing Menefee, 287 S.W.3d at 13).

See also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no

pet.) (explaining that a ―judicial confession alone is sufficient to sustain a conviction‖ and

that a ―judicial confession may take the form of an affirmative acknowledgment by the

defendant that the indictment was true and correct‖).            In that regard, it is well

established that a judicial confession alone is sufficient to support a plea of guilty.

Dinnery v. State, 592 S.W.2d at 352.


       A judicial confession need not be offered into evidence to support a plea of guilty

as long as it has been approved by the court and appears in the record. See Jones v.

State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) But see

McDougal v. State, 105 S.W.3d 119, 120-21 (Tex. App.—Fort Worth 2005, pet. ref'd)

(stating that the contents of the clerk's record are not evidence unless the trial court

takes judicial notice of them or they are offered into evidence). Here, the trial court did

not sign the document containing the judicial confession and that document was not

offered into evidence, referred to, or otherwise recognized by judicial notice at any time

during the plea hearing; however, it does appear in the appellate record and as such,

we find it constitutes some evidence supporting Appellant‘s plea of guilty.


       Although the stipulation of evidence in this case is deficient with respect to the

element of sexual contact and the record is devoid of any direct testimony which might

compensate for that deficiency, we nevertheless conclude the judicial confession, when

considered in conjunction with Appellant‘s acknowledgments to the trial court made in

                                             12
open court, sufficiently support the trial court‘s finding of guilt as to the lesser-included

second degree felony offense of indecency with a child by sexual contact. Accordingly,

Appellant‘s issue is overruled.


                                        CONCLUSION


       Despite an imprecise and somewhat misleading plea agreement, a stipulation

that describes another offense, a convoluted plea hearing, the failure to offer the written

confession into evidence or conclusively establish that the trial court considered it, a

probation order that describes the wrong statutory basis of conviction and defers an

adjudication of guilt as to an offense not generally eligible for deferred adjudication, and

a judgment that repeats the wrong penal code section found in the order of deferred

adjudication, we hereby reform the judgment to reflect the offense of conviction to be

indecency with a child by sexual contact and the operable statute to be Penal Code

section 21.11(a)(1). As reformed, we affirm the judgment of conviction.




                                                         Per Curiam


Do not publish.




                                             13
