                                                                              ACCEPTED
                                                                          03-15-00237-CR
                                                                                  7135030
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                     9/28/2015 6:32:23 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                   No. 03-15-00237-CR
                         IN THE
                  COURT OF APPEALS                  FILED IN
                                             3rd COURT OF APPEALS
      OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
      ____________________________________________
                                             9/28/2015 6:32:23 PM
                                                    JEFFREY D. KYLE
           CHRISTOPHER RAY WEATHERSPOON,                 Clerk
                      Appellant,

                            v.

                     STATE OF TEXAS
       ____________________________________________

                  Appeal in Cause No. 71839
                 in the 264th District Court of
                      Bell County, Texas
      _____________________________________________

BRIEF FOR APPELLANT CHRISTOPHER RAY WEATHERSPOON
       _____________________________________________




                                 JOHN A. KUCHERA
                                 210 N. 6th St.
                                 Waco, Texas 76701
                                 (254) 754-3075
                                 (254) 756-2193 (facsimile)
                                 SBN 00792137
                                 johnkuchera@210law.com
                                 Attorney for Appellant
                    Identity of Judge, Parties, and Counsel

Honorable Martha J. Trudo, 264th District Court, P.O. Box 324, Belton, Texas
76513; Trial Judge

Fred Burns, Assistant District Attorney, Bell County, Texas, P.O. Box 540, Belton,
Texas 76513; State’s Trial Counsel

Jack Holmes, Appellant’s Trial Counsel, 1610 South 31st Street, Temple, Texas
76504

Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513,
State’s Appellate Counsel

John A. Kuchera, 210 N. 6th St., Waco, Texas, 76701, Appellant’s Appellate
Counsel

Christopher Ray Weatherspoon, Appellant, TDCJ # 01987445, Gurney Unit, 1385
FM 3328, Tennessee Colony, TX 75803




                                                                                 ii
                                  Table of Contents
                                                                                 Page
Identity of Parties and Counsel                                                  ii

Table of Contents                                                                iii-iv

Index of Authorities                                                             v-x

Issues Presented                                                                 xi

Statement of the Case                                                            1-2

Statement of Facts                                                               2-3

Summary of the Argument                                                          3

Argument and Authorities

 1. The trial court erred in accepting Weatherspoon’s guilty plea because        4-24
   the State’s supporting the plea was insufficient to satisfy article 1.15 of
   the Code of Criminal Procedure.

   (a) Theft over $1,500 but less than $20,000                                   4
   (b) Weatherspoon’s plea papers                                                4-5
   (c) Article 1.15 and standard of review                                       5-6
   (d) Article 1.15 methods of proof                                             7
   (e) Defendant’s sworn written statement admitting his culpability or          7-8
       acknowledging that allegations in the charging instrument are
       true and correct
   (f) Defendant may testify under oath in open court admitting his              8-11
       culpability or acknowledging that allegations in the charging
       instrument are true and correct
   (g) Defendant consents to proffer of evidence in documentary form             11-14
   (h) Defendant consents to an oral or written stipulation of what              14-19
       evidence against him would be
   (j) Jones v. State                                                            19-23
   (k) Only evidence from the guilty plea proceeding can cure article            23
       1.15 proof deficiencies
   (l) Summary                                                                   24


                                                                                          iii
 2. Alternatively, assuming arguendo that Weatherspoon’s sentencing       24-29
   evidence can be used to satisfy article 1.15, the evidence failed to
   establish all the elements of the charged offense
   (a) Article 1.15 and sentencing/punishment evidence                    24-25
   (b) Weatherspoon’s indictment                                          25
   (c) Sentencing testimony                                               25-27
   (d) Analysis                                                           27-29


 3. Alternatively, the written judgment should be corrected to reflect    29
   that Weatherspoon did not plead guilty pursuant to a plea bargain.

Prayer for Relief                                                         30

Certificate of Service                                                    30

Certificate of Compliance                                                 31




                                                                               iv
                                         Table of Authorities

                                                                                                      Page(s)

Cases
Alexander v. State,
   No. 03-95-00362-CR, 1997 WL 45127 (Tex.App.—Austin Feb. 6,
   1997, pet. ref’d) (unpublished) ........................................................................... 23
Augillard v. Madura,
  257 S.W.3d 494 (Tex.App.—Austin 2008, no pet.) ........................................... 13
Ayers v. Target Nat. Bank,
   No. 14-11-00574-CV, 2012 WL 3043043 (Tex. App.—Houston
   [14th Dist.] July 26, 2012, no pet.) ..................................................................... 11
Baggett v. State,
  342 S.W.3d 172 (Tex.App. – Texarkana 2011, no pet.)....................................... 5
Barnes v. State,
  824 S.W.2d 560 (Tex. Crim. App. 1991) ........................................................... 28
Beaty v. State,
  466 S.W.2d 284 (Tex. Crim. App. 1971) ............................................................. 8

Bender v. State,
  758 S.W.2d 278 (Tex. Crim. App. 1988) ............................................................. 6

Bisby v. State,
   907 S.W.2d 949 (Tex.App.—Fort Worth 1995, pet. ref’d) ................................ 22

Brewster v. State,
   606 S.W.2d 325 (Tex. Crim. App. 1980) ........................................................... 17

Byrd v. State,
   336 S.W.3d 242 (Tex. Crim. App. 2011) ....................................................... 4, 28
Chavis v. State,
  No. 08-10-00025-CR, 2011 WL 3807747 (Tex.App.—El Paso
  Aug. 26, 2011, pet. ref’d) (unpublished) .............................................................. 8



                                                                                                               v
Cole v. State,
  839 S.W.2d 798 (Tex. Crim. App. 1990) ........................................................... 12
Cupit v. State,
  122 S.W.3d 243 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) ................... 28

Degay v. State,
  455 S.W.2d 205 (Tex. Crim. App. 1970) ............................................................. 8

Dinnery v. State,
   592 S.W.2d 343 (Tex. Crim. App. 1979) ........................................................... 21

Ernst v. Child & Youth Servs.,
   108 F.3d 486 (3d Cir. 1997) ............................................................................... 12

Figueroa v. State,
   250 S.W.3d 490 (Tex.App.—Austin 2008, pet. ref’d) ....................................... 29

Garza v. State,
  996 S.W.2d 276 (Tex.App.—Dallas, pet. ref’d)................................................. 12

Griggs v. State,
   558 S.W.2d 474 (Tex. Crim. App. 1977) ........................................................... 28
Hammond v. State,
  470 S.W.2d 683 (Tex. Crim. App. 1971) ........................................................... 16
Hatton v. State,
  No. 03-06-00453-CR, 2007 WL 924741 (Tex.App.—Austin Mar.
  27, 2007, pet. ref’d, untimely filed) .................................................................... 25
Hill v. State,
   No. 07-10-00281-CR, 2010 WL 4478389 (Tex.App. – Amarillo
   Aug. 31, 2011, pet. ref’d) (mem. op., not designated for
   publication) ......................................................................................................... 25

Jackson v. State,
   139 S.W.3d 7 (Tex.App.—Fort Worth 2004, pet. ref’d) .................................... 13

Jones v. State,
   373 S.W.3d 790 (Tex.App.—Houston [14th Dist.] 2012, no pet.) .................... 24



                                                                                                                          vi
Jones v. State,
   857 S.W.2d 108 (Tex.App.—Corpus Christi 1993, no pet.) ........................19, 21
Killion v. State,
   503 S.W.2d 765 (Tex. Crim. App. 1973) ............................................................. 8

King v. State,
   No. 12-12-00020-CR, 2013 WL 2407198 (Tex.App.—Tyler May
   31, 2013, no pet.) .................................................................................................. 9
Knight v. State,
  481 S.W.2d 143 (Tex. Crim. App. 1972) ...............................................11, 18, 20

Lambert v. Lambert,
  No. 05-08-00397-CV, 2009 WL 1493009 (Tex.App.—Dallas May
  29 2009, no pet.) ................................................................................................. 13

Ex parte Martin,
   747 S.W.2d 789 (Tex. Crim. App.1988) .............................................................. 6

McClain v. State,
  687 S.W.2d 350 (Tex.Crim.App.1985) .............................................................. 28
McClain v. State,
  730 S.W.2d 739 (Tex. Crim. App. 1987) (en banc) ............................................. 5
Menefee v. State,
  287 S.W.3d 9 (Tex. Crim. App. 2009) .......................... 5, 7, 9, 10, 16, 19, 20, 23

Messer v. State,
  729 S.W.2d 694 (Tex. Crim. App. 1986) ........................................................... 14

Potts v. State,
   571 S.W.2d 180 (Tex. Crim. App. 1978) .....................................................18, 21

Pritchett v. State,
   733 S.W.2d 661 (Tex.App.—San Antonio 1987, no pet.) ................................. 15

Rodriguez v. State,
  375 S.W.2d 289 (Tex.Cr.App. 1964).................................................................. 21

Rodriguez v. State,
  442 S.W.2d 376 (Tex. Crim. App. 1968) ...............................................19, 21, 23

                                                                                                                       vii
Rosenkrans v. State,
  758 S.W.2d 388 (Tex.App.—Austin 1988, pet. ref’d) ....................................... 14
Scott v. State,
   80 S.W.3d 184 (Tex.App.—Waco 2002, pet. ref’d) .......................................... 22

Sexton v. State,
   476 S.W.2d 320 (Tex. Crim. App. 1972) .................................................9, 18, 20

Shahar v. Bowers,
   120 F.3d 211 (11th Cir. 1997) ............................................................................ 12

Smith v. State,
  422 S.W.2d 475 (Tex. Crim. App. 1968) ........................................................... 14

Soto v. State,
   456 S.W.2d 389 (Tex. Crim. App. 1970) ...........................................7, 11, 18, 20

Sowders v. State,
  693 S.W.2d 448 (Tex. Crim. App. 1985) ........................................................... 28

Sprinkle v. State,
   456 S.W.2d 387 (Tex. Crim. App. 1970) ...............................................15, 17, 20
Stewart v. State,
   12 S.W.3d 146 (Tex.App. – Houston [1st Dist.] 2000, no pet.) ......................... 24
Stone v. State,
   919 S.W.2d 424 (Tex. Crim. App. 1996) ....................................................... 6, 17
Stone v. State,
   919 S.W.2d 4245 (Tex. Crim. App. 1996) ......................................................... 14

Thornton v. State,
  601 S.W.2d 340 (Tex. Crim. App. 1980) ............................................................. 6
United States v. Escandar,
  465 F.2d 438 (5th Cir. 1972) .............................................................................. 21

United States v. Fiore,
  443 F.2d 112 (2d Cir. 1971) ............................................................................... 23



                                                                                                            viii
United States v. Garland,
  991 F.2d 328 (6th Cir. 1993) .............................................................................. 13
United States v. Hawkins,
  76 F.3d 545 (4th Cir. 1996) ..........................................................................12, 22

United States v. Neil,
  964 F.Supp. 438 (D.D.C. 1997) .......................................................................... 12

Vandyne v. State,
  No. 10-07-00328-CR, 2009 WL 1478699 (Tex.App. – Waco May
  27, 2009, no pet.) (not designated for publication) ............................................ 25

Waage v. State,
  456 S.W.2d 388 (Tex. Crim. App. 1970) .....................................................17, 20
Ex parte Williams,
   703 S.W.2d 674 (Tex. Crim. App. 1986) ............................................................. 6
Young v. State,
  8 S.W.3d 656 (Tex. Crim. App. 2000) ................................................................. 6

Statutes
Tex. Crim. Proc. Code Ann. art. 1.15 .. 4, 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 19, 21, 23,
  24
Tex. Crim. Proc. Code Ann. art. 1.17 ...................................................................... 22

Tex. Penal Code Ann. § 31.03(a)............................................................................... 4
Tex. Penal Code Ann. § 31.03(e)(4)(A) .................................................................... 4



Other Authorities
Black's Law Dictionary (6th ed. 1990) ................................................................ 7, 11

Fed. R. Evid. 603 ..................................................................................................... 22

Tex. R. Evid. 603 ..................................................................................................... 22

Tex. R. App. P. 43.2 (b) ........................................................................................... 29

                                                                                                                        ix
Tex. R. Evid. 201(a) ................................................................................................. 12

Tex. R. Evid. 603 ..................................................................................................... 22
Tex. Const. art. I, § 5................................................................................................ 22




                                                                                                                        x
                                  Issues Presented

1. Whether the trial court erred in accepting Weatherspoon’s guilty plea, given that
the State’s evidence supporting the plea was insufficient to satisfy article 1.15 of the
Code of Criminal Procedure.



2. Alternatively, assuming arguendo that Weatherspoon’s sentencing evidence can
be used to satisfy article 1.15, whether that evidence established that he committed
the charged offense.



3. Alternatively, whether the written judgment should be corrected to reflect that
Weatherspoon did not plead guilty pursuant to a plea bargain.




                                                                                      xi
                             IN THE
                        COURT OF APPEALS
             OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________

CHRISTOPHER RAY WEATHERSPOON,
    Appellant,

     v.                                                   No. 03-15-00237-CR

STATE OF TEXAS
   ____________________________________________________________
                       Appeal in Cause No. 71839
                      in the 264th District Court of
                           Bell County, Texas
    ____________________________________________________________

   BRIEF FOR APPELLANT CHRISTOPHER RAY WEATHERSPOON
    ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES CHRISTOPHER RAY WEATHERSPOON, Appellant, by

and through undersigned counsel, and submits this brief pursuant to the provisions

of the Texas Rules of Appellate Procedure.



                               Statement of the Case

      On September 8, 2013, Christopher Ray Weatherspoon (“Weatherspoon”)

was charged in a two-count indictment with the state jail felony offense of theft over

$1,500 but less than $20,000. CR 4-5.



                                                                                    1
        On January 8, 2015, Weatherspoon pled guilty to the first count1 of the

indictment, without a plea agreement. 2 RR 1, 9; CR 19.

        On March 13, 2015, the trial court sentenced Weatherspoon to two years in a

state jail and no fine. 3 RR 1; 57.

        The trial court certified Weatherspoon’s right to appeal.                        CR 39.

Weatherspoon timely filed his notice of appeal April 10, 2015. CR 36. Trial counsel

was allowed to withdraw and undersigned counsel was appointed to represent

Weatherspoon on appeal. CR 37-38, 50.




                                     Statement of Facts

        Weatherspoon’s guilty plea colloquy included the following exchanges,

during which time Weatherspoon was not placed under oath:

    Court: And to the new offense2 which paragraph are we dealing with?
    State: Your Honor, just take the first one.
    Court: You want plead to paragraph one; is that right?
    Defense Counsel: Yes.
    Court: All right. To paragraph one, how do you plead?
    Weatherspoon: Guilty.

1
  According to State, both counts alleged the same offense: “It’s just two different allegations of
how the offense was committed.” 2 RR 5.
2
  Weatherspoon’s plea colloquy also involved the disposition of a motion to adjudicate guilt,
filed by the State in a separate cause. 2 RR 4-5.
                                                                                                  2
2 RR 9.
 State: And in the new case, cause number 71839 the State would ask the Court to
  take judicial notice of the Contents of the Court’s file including the plea papers
  which will contain the defendant’s Judicial Confess to count one, theft $1500 –
 Defense Counsel: No objection on that one either, Judge.
 Court: I will.
 State: State rests.
2 RR 10-11.




                            Summary of the Argument

      First issue: Because Weatherspoon’s plea papers were unsworn, they were

not competent evidence to satisfy the State’s burden under article 1.15. The trial

court did not place Weatherspoon under oath during his purported guilty plea.

Furthermore, although he pled guilty, he never affirmed that the allegations in the

information were true. Thus, his oral statements were not competent evidence to

satisfy the State’s burden under article 1.15, and the State presented no other

evidence during the plea proceeding to cure the article 1.15 deficiencies.

      Second issue:     Assuming that Weatherspoon’s sworn testimony from the

sentencing hearing can be considered in curing article 1.15 deficiencies, his

testimony fails to satisfy the elements of the charged offense.

      Third issue: The written judgment indicates that Weatherspoon entered his

guilty plea pursuant to a plea bargain. He did not – his plea was an open plea.
                                                                                  3
                            Argument and Authorities

1. The trial court erred in accepting Weatherspoon’s guilty plea because the
State’s evidence supporting the plea was insufficient to satisfy article 1.15 of the
Code of Criminal Procedure.


      (a) Theft over $1,500 but less than $20,000

      The elements of the charged offense as alleged in count one of the indictment

are as follows: (1) Weatherspoon, individually and as a party (2) unlawfully

appropriated the property of Kevin Canfield: metal castings of the value of $1,500

or more but less than $20,000, (3) without the effective consent of Kevin Canfield,

(4) with the intent to deprive Kevin Canfield of said property. See Tex. Penal Code

Ann. §§ 31.03(a) and (e)(4)(A) (West 2011); Byrd v. State, 336 S.W.3d 242, 250

(Tex. Crim. App. 2011).




      (b) Weatherspoon’s plea papers

      The document the State relied upon to satisfy article 1.15 is generic and boiler-

plate, and is styled “Written Plea Agreement.” CR 19. The fill-in-the-blank

“Judicial Confession” includes the following language:

      Upon my oath I swear my true name is Chris Weatherspoon and I am
      __ 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
      acts 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
                                                                                     4
          allegations set forth in the indictment or information are true and
          correct, except those waived by the State. . . . All other affirmative
          findings to be made by the Court pursuant to this Written Plea
          Agreement are true and correct.3 I swear to the truth of all the foregoing
          and further, that all testimony I give in the case will be the truth, the
          whole truth and nothing but the truth, so help me God.

                                                                signature

CR 24. Notwithstanding the “I swear under oath” language in Weatherspoon’s plea

papers, no jurat is to be found anywhere therein. Furthermore, no sworn testimony

was taken during Weatherspoon’s guilty plea proceeding.




          (c) Article 1.15 and standard of review

          “A conviction rendered without sufficient evidence to support a guilty plea

constitutes trial error.” Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App. 2009).

Article 1.15 is a mandatory statute; therefore failure to object to noncompliance with

article 1.15 does not forfeit or waive error. McClain v. State, 730 S.W.2d 739, 742

(Tex. Crim. App. 1987) (en banc); see Baggett v. State, 342 S.W.3d 172, 175

(Tex.App. – Texarkana 2011, no pet.) (“We find this statutory directive falls within

the absolute or systemic requirement category[.]”). Article 1.15, in its entirety,

provides as follows:

          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

3
    Here the signatory is apparently agreeing to findings that do not exist at the time of signing.
                                                                                                      5
      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 a 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 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)

Tex. Crim. Proc. Code Ann. art. 1.15 (West 2005). Because a plea of guilty is an

admission of guilt to the offense charged, the state is required to introduce evidence

that “embraces every essential element of the offense charged.” Stone v. State, 919

S.W.2d 424, 427 (Tex. Crim. App. 1996). This requirement ensures sufficient proof

to support the judgment. Young v. State, 8 S.W.3d 656, 660–61 (Tex. Crim. App.

2000); Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); Thornton

v. State, 601 S.W.2d 340, 347 (Tex. Crim. App. 1980) (op. on reh’g). The supporting

evidence the State offers does not have to prove the defendant's guilt beyond a

reasonable doubt. See Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App.1988).

The remedy for insufficient evidence in the context of article 1.15 is reversal of the

conviction and remand for a new trial. Bender v. State, 758 S.W.2d 278, 280-81

(Tex. Crim. App. 1988).


                                                                                    6
      (d) Article 1.15 methods of proof

      In Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009), the Court of

Criminal Appeals listed the following methods by which evidence may be adduced

to support a guilty plea (so long as the method covers all of the elements of the

charged offense) in an article 1.15 proceeding:

   • Defendant’s sworn written statement admitting his culpability or
     acknowledging that allegations in the charging instrument are true and
     correct;
   • Defendant may testify under oath in open court admitting his culpability or
     acknowledging that allegations in the charging instrument are true and
     correct;
   • Defendant consents to proffer of evidence;
   • Defendant consents to an oral or written stipulation of what the evidence
     against him would be.

Id. at 13. In the instant case, the State failed to satisfy any of these methods.




      (e) Defendant’s sworn written statement admitting his culpability or
           acknowledging that allegations in the charging instrument are true and
           correct


      To “swear” means “to become bound by an oath duly administered.” Black's

Law Dictionary 1448 (6th ed. 1990). A jurat is the “[c]ertificate of officer or person

before whom writing was sworn to.” Black's Law Dictionary 852 (6th ed. 1990). A

sworn statement must therefore be sworn before a district clerk. See Soto v. State,

456 S.W.2d 389, 390 (Tex. Crim. App. 1970) (Onion, J., concurring) (A written

                                                                                    7
judicial confession must be sworn to.); Killion v. State, 503 S.W.2d 765, 766 (Tex.

Crim. App. 1973) (Written stipulations wherein defendant acknowledged his guilt

constituted proper article 1.15 evidence because they were sworn before a deputy

district clerk); Degay v. State, 455 S.W.2d 205, 206 (Tex. Crim. App. 1970) (An

admission is not a “sworn” admission unless it is “sworn to before the district clerk

by the [defendant] personally[.]”); Chavis v. State, No. 08-10-00025-CR, 2011 WL

3807747 at *6 (Tex.App.—El Paso Aug. 26, 2011, pet. ref’d) (unpublished) (“The

statement was sworn before a deputy district clerk. This statement amounts to a

judicial confession and is sufficient to support the guilty plea.”).

      Weatherspoon’s written “judicial confession” was unsworn and therefore

constitutes no evidence to support his guilty plea. See Beaty v. State, 466 S.W.2d

284, 286 (Tex. Crim. App. 1971) (“[T]he only written statement of documentary

evidence offered was the unsworn extrajudicial written confession of the appellant

which is to be distinguished from a judicial confession.”). Additionally, the actual

charging language from count one of Weatherspoon’s indictment does not appear in

any of the plea papers.

      (f) Defendant may testify under oath in open court admitting his culpability
             or acknowledging that allegations in the charging instrument are true
             and correct




                                                                                   8
       First, as noted above, the trial court did not place Weatherspoon under oath at

the time he purportedly entered his guilty plea.4 See King v. State, No. 12-12-00020-

CR, 2013 WL 2407198 at *6 (Tex.App.—Tyler May 31, 2013, no pet.) (mem. op.,

not designated for publication) (Defendant’s plea colloquy did not constitute a

judicial confession, in part because “[t]he record does not show that [he] was placed

under oath prior to the guilty plea hearing.”); Cf. Sexton v. State, 476 S.W.2d 320,

321 (Tex. Crim. App. 1972) (Defendant’s admission constituted a “judicial

admission” because he was sworn in as a witness).

       Second, the fact that Weatherspoon pled guilty to count one of the indictment

was not, in and of itself, an admission that the facts alleged in the information were

true, and was therefore insufficient evidence to satisfy article 1.15. Menefee v. State,

287 S.W.3d 9 (Tex. Crim. App. 2009) provides instruction regarding what is

required for the defendant’s sworn testimony to satisfy article 1.15. The defendant

therein purportedly pled guilty to the offense of possession of cocaine with intent to

deliver. However, the written stipulation of evidence did not include the element of

possession. Id. at 10-11. Despite this deficiency, the Tyler Court of Appeals found

that the following colloquy constituted sufficient independent evidence of the

defendant’s guilt to make up for the deficiency in the written stipulation:


4
  Weatherspoon’s plea papers include the following provision: “I give up and waive my right not
to incriminate myself, and agree to testify under oath and judicially confess my guilt if requested
by my attorney or the State’s attorney[.]” CR 22.
                                                                                                 9
      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 [ten]
       thousand dollar fine. You understand that’s the range of punishment?

      Defendant: Yes, sir.

      Court: Knowing that that’s the range of punishment, the paperwork that’s
       been provided to me 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?

      Defendant: That’s correct, Your Honor.

      Court: And to that charge in the indictment as we’ve just covered how do you
       plead, guilty or not guilty?

      Defendant: Guilty, Your Honor.

Menefee, 287 S.W.3d at 11-12. The Court of Criminal Appeals disagreed with the

Tyler Court:

      [W]e 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. (emphasis added)

Id. at 17-18.

      In contrast, the following judicial admissions from other cases were deemed

sufficient to satisfy article 1.15 because they admitted to facts in support of the

elements of the charged offense: “On November 26, 1969, in Harris Co., I Carol


                                                                                    10
Knight, did without malice aforethought kill James Edward Knight by shooting him

with a gun”. Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972); “On February

16, 1968 in Harris County, Texas I did unlawfully possess a narcotic drug, to-wit,

heroin.” Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970).

      Weatherspoon’s unsworn plea of guilty to count one of the indictment did not

constitute a judicial admission that he had committed all the acts alleged against him

therein.



      (g) Defendant consents to proffer of evidence in documentary form

      A “proffer” is “the production of a document and offer of the same in

evidence.” Black's Law Dictionary 1210 (6th ed. 1990). See Ayers v. Target Nat.

Bank, No. 14-11-00574-CV, 2012 WL 3043043 at *4 (Tex. App.—Houston [14th

Dist.] July 26, 2012, no pet.) (mem. op., not designated for publication) (Creditor

did not proffer the cardholder agreement or any other document establishing agreed

terms for the account).

      In the instant case, the State asked the district court to take judicial notice of

“of the Court’s file that includes the plea paperwork and the defendant’s signed

Judicial Confession.” 2 RR 10-11. The fact that the trial court purported to take

judicial notice of Weatherspoon’s “judicial confession” did not convert the so-called

confession into competent evidence to support a guilty plea. Rule 201 of the Texas
                                                                                     11
Rules of Evidence allows a court to take judicial notice of adjudicative facts. Tex.

R. Evid. 201(a). “A judicially noticed fact must be one not subject to reasonable

dispute in that it is either (1) generally known within the territorial jurisdiction of the

trial court or (2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” Id. “[T]he taking of judicial

notice of facts is, as a matter of evidence law, a highly limited process.” Shahar v.

Bowers, 120 F.3d 211, 214 (11th Cir. 1997). However, the facts set forth in Scott’s

“judicial confession” are not the sort of facts that come within the purview of Rule

201. See e.g. Garza v. State, 996 S.W.2d 276, 279-80 (Tex.App.—Dallas, pet. ref’d)

(“We are convinced . . . that assertions made by an individual, even under oath, are

not the type of facts that are capable of accurate and ready determination by a source

whose accuracy cannot be reasonably be questioned.”); United States v. Hawkins, 76

F.3d 545, 551 (4th Cir. 1996) (identity of defendant may not be proven by judicial

notice)5; United States v. Neil, 964 F.Supp. 438, 445-46 (D.D.C. 1997) (judicial

notice is not appropriate for reasonably available documents that were referred to at

trial but never offered into evidence); Ernst v. Child & Youth Servs., 108 F.3d 486,

498-99 (3d Cir. 1997) (court did not err by declining to take judicial notice of

contents of affidavit that had been submitted with defendant’s motion for summary


5
 The Texas Rules of Evidence are patterned after the Federal Rules of Evidence and cases
interpreting the federal rules should be consulted for guidance as to their scope of applicability.
Cole v. State, 839 S.W.2d 798, 801 (Tex. Crim. App. 1990).
                                                                                                12
judgment; court could take notice of filing of affidavit but not its contents); United

States v. Garland, 991 F.2d 328, 332 (6th Cir. 1993) (judicially noticing existence of

criminal judgment in Ghana, but not noticing “the truth of the statements contained

in the Ghana judgment because some of these facts may remain in dispute”). When

evidence is the subject of improper judicial notice, it amounts to no evidence. See

Augillard v. Madura, 257 S.W.3d 494, 503 n. 14 (Tex.App.—Austin 2008, no pet.)

(trial court’s improper taking of judicial notice equated to the record being “devoid

of any evidence”); Jackson v. State, 139 S.W.3d 7, 21 (Tex.App.—Fort Worth 2004,

pet. ref’d) (“[W]hile a court may judicially notice the existence of the affidavit in its

file, the court may not take judicial notice of the truth of the factual contents6

contained in such an affidavit because those facts are not the kinds of facts that a

court may judicially notice.”); Lambert v. Lambert, No. 05-08-00397-CV, 2009 WL

1493009, at * (Tex.App.—Dallas May 29 2009, no pet.) (mem. op., not designated

for publication) (“Even though the trial court took judicial notice of its own file, that


6
  Weatherspoon’s plea papers contain “facts” that are demonstrably untrue. For example, he did
not plead pursuant to a plea agreement. However, under “Defense Counsel’s Acknowledgement,”
the plea papers state “It is agreed that the Court may take judicial notice of this Written Plea
agreement.” CR 25. Then, under “Court’s Approval of Agreement,” the following sentence
appears: “The Court takes judicial notice of this Written Plea Agreement.” CR 26. Additionally,
the Court’s Approval states: “In the event the Defendant has not sworn to a judicial confession,
the Court has received sworn testimony and/or a stipulation of evidence sufficient to show that the
Defendant is guilty of the offenses beyond a reasonable doubt.” CR 26. But as noted herein, no
sworn testimony was adduced and no stipulations were offered. Furthermore, Weatherspoon’s
plea papers state “the trial court has admonished of [the] consequences [of my plea] as set out in
paragraphs 1 through 14 of the written plea agreement.” CR 22. But the trial court did not go over
the admonishments in paragraphs 9-13 which have to do with deferred adjudication, suspended
sentence, parole, preservation of evidence and victim impact statement. CR 20-21.
                                                                                                13
does not convert the parties’ statements contained in court filings into substantive

evidence.”). Therefore, the trial court’s taking judicial notice of Weatherspoon’s

“judicial confession” amounted to a nullity.




      (h) Defendant consents to an oral or written stipulation of what evidence
            against him would be


      Article 1.15 stipulations can relate to what a witness would testify to. Stone

v. State, 919 S.W.2d 4245, 426 (Tex. Crim. App. 1996). Rosenkrans v. State, 758

S.W.2d 388 (Tex.App.—Austin 1988, pet. ref’d) provides an example of an oral

stipulation in support of a guilty plea:

      [State:] Your Honor, we’re stipulating that Jerry Wayne Rosenkrans
      on or about the 12th day of December 1986 in Travis County, Texas,
      did then and there knowingly and intentionally possess a controlled
      substance, namely: morphine, in an amount of less than 28 grams by
      actual weight including adulterants and dilutants.
Id. at 389. Smith v. State, 422 S.W.2d 475 (Tex. Crim. App. 1968) provides an

example of a written stipulation in support of a guilty plea:

      My name is Hearne Edward Smith. On the 20th day of September;
      A.D. 1966, I had Nellie B. Allen in a pickup truck which belonged to
      her with me. Sometime around midnight on the above date, I shot and
      killed the said Nellie B. Allen with a shotgun. This happened in a
      cottonfield between Wharton and El Campo in Wharton County, Texas.
Id. at 476; See also Messer v. State, 729 S.W.2d 694, 695 (Tex. Crim. App. 1986)

(Parties stipulated that if State were to call its witnesses, they would testify to the

                                                                                    14
facts contained in offense report); Pritchett v. State, 733 S.W.2d 661 (Tex.App.—

San Antonio 1987, no pet.) (Appellant “orally stipulated to the testimony of officer

Robert Sugg adduced during the suppression hearing[.]”); Sprinkle v. State, 456

S.W.2d 387 (Tex. Crim. App. 1970) (Stipulated testimony read into the record that

if complaining witness were present, he would say “that he saw appellant take a suit

of clothing of the value of $120.00 from the display rack and leave the store without

paying for it and that the suit was taken without his consent”).

      In the instant case, despite the fact that Weatherspoon purportedly consented

“to oral and written stipulations of evidence” in his plea papers, CR 22, the State

offered no stipulations that actually included facts that would satisfy the elements of

the charged offense.

      The State may argue that because Weatherspoon’s “judicial confession”

includes the statement “I have read the . . . indictment filed in this case and I

committed each and every act alleged therein,” CR 24, this somehow functions as a

written stipulation. The State would be arguing that a document can function as a

judicial confession by making reference to facts set forth in another document, in

this case, the charging instrument.     First, this argument would be at odds with the

language of article 1.15 which provides “it shall be necessary for the state to

introduce evidence into the record showing the guilt of the defendant[.]” Tex. Crim.

Proc. Code Ann. art. 1.15 (West 2005). Weatherspoon’s “judicial confession”


                                                                                    15
contains no facts that in and of themselves show that he committed the offense of

theft on or about September 8th, 2013.

       Second, the argument would be at odds with Menefee, wherein the Court of

Criminal Appeals cited nine cases as examples where written or oral

proffers/stipulations satisfied article 1.15. Menefee, 287 S.W.3d at 13 n. 16 & n. 17.

In every one of these nine cases, the State introduced facts necessary to satisfy the

charged conduct at the guilty plea – never by reference to some other document - to-

wit:

       The record further reflects that after the waivers and consents were
       approved by the court, the state introduced the stipulated testimony of
       witnesses in each of the cases which established all elements of the
       offense charged.
Hammond v. State, 470 S.W.2d 683 (Tex. Crim. App. 1971).

       The charge is simply possession of hydromorphone unlawfully
       intentionally and knowingly on August 1, 1978 in Harris County-in
       Sutton's case only with intent to deliver. The stipulated testimony of
       Officer Dugger and Lt. Smith did not establish possession of the alleged
       substance by any appellant for, as already mentioned, exploration of
       that matter was pretermitted during examination of both witnesses. The
       stipulated opinion of the chemist that 480 tablets taken from the
       Cadillac is hydromorphone; his testimony is the only evidence that may
       be considered fruits of the stop, arrest and search. Putting aside all
       stipulated testimony of Dugger, Smith and the chemist, we are left with
       the written stipulation of evidence executed by each appellant and his
       attorney and approved by the trial court, characterizing it “the same
       thing as a judicial confession.” Again, basically each states that “the
       witnesses”-without naming or otherwise identifying them-would testify
       that on the day and in the place in question each appellant “did
       intentionally and knowingly possess ... Hydromorphone.”


                                                                                   16
Brewster v. State, 606 S.W.2d 325, 328-29 (Tex. Crim. App. 1980).

      In the instant case, the stipulated testimony of the witnesses embraced
      every essential element of the offense charged and was sufficient
      evidence to establish the guilt of Appellant. As such, it was adequate to
      support Appellant's plea and the finding of guilt under Art. 1.15.

Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).

     The stipulated testimony was that if Paul E. McManus, the alleged
     injured party, were present he would testify that he was manager of a
     business house on Gaston Avenue and that he saw the appellant take a
     suit of clothing of the value of $120.00 from a display rack and leave
     the store without paying for it and that the suit was taken without his
     consent. Further, the testimony of J. L. Chadwick was to the effect that
     he was a member of the Dallas Police Department and that he stopped
     the appellant in an automobile on the day in question and saw a man's
     suit which was identified by Paul McManus as the suit that had been
     stolen.

Sprinkle v. State, 456 S.W.2d 387, 388 (Tex. Crim. App. 1970).

      The record shows the stipulated testimony of Phil Cook was that he was
      employed by Skillern's Drug Store on McKinney Avenue; that he saw
      appellant take eleven bottles of tanning lotion which were exhibited for
      sale of the value of $37.95; that she left the store without paying for
      them, and that these items were taken from his possession and without
      his consent. Appellant testified that she heard the stipulated testimony,
      and it was substantially true and correct and that she had been
      previously convicted in the two prior misdemeanor shoplifting cases
      under the name of Ella Dora Waage as alleged in the indictment.


Waage v. State, 456 S.W.2d 388, 389 (Tex. Crim. App. 1970).

      It was stipulated that if one of the arresting officers were present he
      would testify that an informant, from whom he had received reliable
      information on numerous occasions, told him that appellant would be
      walking in the 2300 block of McCardy Street in a few minutes with
      heroin in his possession, and that the officer did not have time to obtain

                                                                                   17
      a warrant for the arrest of appellant. As the two officers approached,
      appellant took two small packages wrapped in cellophane from his
      pocket, one of which he threw to the ground and the other he tried to
      swallow. Appellant was placed under arrest and the cellophane
      packages taken. It was also stipulated that if the chemist were present
      he would testify that the chemical analysis of the substance in the
      cellophane packages proved it to be heroin.

Soto v. State, 456 S.W.2d 389, 390 (Tex. Crim. App. 1970).

      While the stipulations were oral we observe that the appellant was
      sworn and made a judicial confession. . . . It is true that appellant was
      not as thoroughly interrogated as he might have been, but he clearly
      admitted that all the allegations in both indictments were true and
      correct.
Sexton v. State, 476 S.W.2d 320, 320-21 (Tex. Crim. App. 1972).


      Appellant made the following judicial admission in writing which was
      introduced into evidence: 'On November 26, 1969, in Harris Co.,
      Texas, I, Carol Knight, did without malice aforethought kill James
      Edward Knight by shooting him with a gun.'

Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972).

      Appellant's confession in Cause No. F76-863-NJ reads:
      “I judicially confess that on the 18 day of December 1975, in Dallas
      County, Texas, with the intent to deprive the owner, Barney Topporoff,
      of property, namely, five pantsuits, I did intentionally and knowingly
      unlawfully exercise control over such property which had a value of at
      least $200.00 but less than $10,000.00, as charged in the indictment.”
      Appellant's confession in Cause No. F15-12384-MKJ reads:
      “I judicially confess that on the 1 day of November 1975, in Dallas
      County, Texas, with the intent to deprive the owner, Loretta Anderson,
      of property, namely, two pantsuits, I did intentionally and knowingly
      unlawfully exercise control over such property which had a value of at
      least $200.00 but less than $10,000.00, as charged in the indictment.”

Potts v. State, 571 S.W.2d 180, 181 n. 1 (Tex. Crim. App. 1978).

                                                                                  18
      Third, the argument would be at odds with Rodriguez v. State, 442 S.W.2d

376 (Tex. Crim. App. 1968), wherein the Court of Criminal Appeals held that

stipulated testimony is in fact “substituted testimony” for purposes of article 1.15:

      Article 1.15 is clear and precise; it was an innovation in criminal
      procedure, and the Legislature was careful to set out in simple language
      the requirements of stipulated testimony. . . . Knowing the provision of
      [Old] Art. 12 [C.C.P.], the Legislature added certain requirements the
      State must follow to use ‘substituted’ testimony, and particularly when
      the evidence is stipulated.

Rodriguez, 442 S.W.2d at 384-85 (op. on reh’g).             Weatherspoon’s “judicial

confession” contains no “substituted testimony” establishing that he committed the

offense of theft on or about September 8th, 2013.



      (j) Jones v. State

      The State may counter with Jones v. State, 857 S.W.2d 108 (Tex.App.—

Corpus Christi 1993, no pet.), wherein the Corpus Christi Court held that the

defendant’s plea papers, entitled “Defendant’s Waivers and Judicial Confession”

constituted a judicial confession even though not sworn to by the defendant. Id. at

110. Jones simply cannot be the law. First, it is inconsistent with many Court of

Criminal Appeals’ opinions. Most recently, in Menefee v. State, 287 S.W.3d 9 (Tex.

Crim. App. 2009), the Court, while noting that there are multiple ways by which the

State can satisfy the evidentiary requirements of article 1.15, made it clear that if the

State intends to use the defendant’s written statement, that statement must be sworn;
                                                                                      19
and if the State intends to use the defendant’s oral statements, he must be sworn in

as a witness:

       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 sufficient to support the guilty
       plea. (emphasis added)

Id. at 13. The footnote following this sentence in Menefee cites as authority six court

of criminal appeals cases, all but one7 involving either a sworn confession or

testimony given under oath. Id. at 13 n. 17. These five cases are Sprinkle v. State,

456 S.W.2d 387, 388 (Tex. Crim. App. 1970) (“The appellant was sworn and

testified”); Waage v. State, 456 S.W.2d 388 (Tex. Crim. App. 1970) (“Appellant

testified that she heard the stipulated testimony, and it was substantially true and

correct[.]”); Soto v. State, 456 S.W.2d 389, 390 (Tex. Crim. App. 1970) (“I concur

in the result reached. I would however, make it absolutely clear to the bench and

bar that this conviction is being sustained alone upon the basis of the ‘judicial

confession’ reduced to writing, sworn to and introduced into evidence.”) (Onion, J.

concurring); Sexton v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972) (Appellant




7
  In the sixth case, Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. (1972), the State introduced
into evidence a written stipulation: “On November 26, 1969, in Harris Co., Texas, I Carol Knight,
did without malice aforethought kill James Edward Knight by shooting him with a gun.”
                                                                                               20
was sworn and made a judicial confession); and Potts v. State, 571 S.W.2d 180, 181

(Tex. Crim. App. 1978) (“Appellant took the stand and testified.”).

      In Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1979) (op. on reh’g),

the Court concluded that, while the defendant’s written “judicial confession”

inadequate to comply with article 1.15, when the defendant took the stand, was

placed under oath, and testified that the allegations in the indictment were “true and

correct,” this constituted a judicial confession sufficient to satisfy article 1.15. Id. at

352. In support of its holding, the Court cited Rodriguez v. State:

      In Rodriguez v. State, 375 S.W.2d 289 (Tex.Cr.App. 1964), the
      defendant on appeal claimed the evidence offered to support his guilty
      plea to assault with intent to murder with malice was insufficient, and
      at most, could only sustain a conviction for assault with intent to murder
      without malice. In Rodriguez this court said:

             “By his own sworn testimony, appellant admitted that the
             allegations of the indictment of assault with intent to murder with
             malice aforethought, were true and correct. This was a judicial
             admission by him that the assault to murder was with malice.”

      While there was other evidence to support the fact that the offense was
      committed with malice, it is important to note that his statement under
      oath as to the allegations of the indictment were characterized as and
      held to constitute a judicial admission. (emphasis added)

Dinnery, 592 S.W.2d at 353.

      The second reason Jones cannot be the law is that it overlooks the fact that

when a defendant enters a guilty plea, he becomes a witness against himself. See

United States v. Escandar, 465 F.2d 438, 441 (5th Cir. 1972) (A guilty plea


                                                                                        21
constitutes a waiver of the privilege against compulsory self-incrimination.).

Because a defendant is testifying as a witness against himself, the court must accord

his testimony the safeguards of witness testimony; i.e., he must be put under oath.

Federal Rule of Evidence 603 provides: “Before testifying, a witness must give an

oath or affirmation to testify truthfully. It must be in a form designed to impress that

duty on the witness’s conscience.” Fed. R. Evid. 603. Texas Rule 603 reads

similarly: “Before testifying, every witness shall be required to declare that the

witness will testify truthfully, by oath or affirmation administered in a form

calculated to awaken the witness’ conscience and impress the witness’ mind with

the duty to do so.” Tex. R. Evid. 603. The Texas rule was modeled after the federal

rule. Bisby v. State, 907 S.W.2d 949, 954 (Tex.App.—Fort Worth 1995, pet. ref’d).

Article 1.17 of the Texas Code of Criminal Procedure provides: “[A]ll oaths and

affirmations shall be administered in the mode most binding upon the conscience,

and shall be taken subject to the pains and penalties of perjury.” Tex. Crim. Proc.

Code Ann. art. 1.17 (West 2005). This is a codification of article I, section 5 of the

Texas Constitution. Scott v. State, 80 S.W.3d 184, 191 (Tex.App.—Waco 2002, pet.

ref’d); Tex. Const. art. I, § 5.

       Without the safeguard of an oath in place, the general rule is that unsworn

testimony is not competent evidence. See United States v. Hawkins, 76 F.3d 545,

551 (4th Cir. 1996) (“[T]estimony taken from a witness who has not given an oath


                                                                                     22
or affirmation to testify truthfully is inadmissible,” citing Rule 603 of Federal Rules

of Evidence.); Alexander v. State, No. 03-95-00362-CR, 1997 WL 45127, at *5

(Tex.App.—Austin Feb. 6, 1997, pet. ref’d) (unpublished) (“As a rule, unsworn

testimony is inadmissible and is not legal evidence on which a judgment can be

based.”); United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971) (“Wigmore

instructs that ‘for all testimonial statements made in court the oath is a requisite[.]’”).



       (k) Only evidence from the guilty plea proceeding can cure article 1.15 proof
             deficiencies

       The Menefee opinion held that article 1.15 proof deficiencies ”may be

compensated for by other competent evidence in the record.” Menefee, 287 S.W.3d

at 14. However, this sentence from Menefee is accompanied by a footnote citing the

Texas Practice Series which concludes with the following sentence: “The entire

plea proceeding is examined to determine whether there is substantiation.” Id. at 14

n. 20. Menefee therefore appears to stand for the proposition that evidence in support

of a guilty plea can only come from the “plea proceeding” itself.8




8
 It should also be noted that Judge John F. Onion, Jr. (who wrote the special commentary to article
1.15 following its enactment), citing to the predecessor statutes upon which article 1.15 was based,
noted that the evidence satisfying article 1.15 “shall be accepted by the Court as the basis for its
verdict.” Rodriguez v. State, 442 S.W.2d 376, 380 (Tex. Crim. App. 1968) (Onion, J., dissenting).
This means the evidence must be admitted before the judge actually finds he defendant guilty – a
further indication that evidence from the later punishment phase should not be considered in
determining whether article 1.15 has been satisfied.
                                                                                                 23
      (l) Summary

      As noted above, Weatherspoon entered an unsworn guilty plea and the State

asked the court to take judicial notice of the unsworn plea papers. The State offered

no other evidence during the guilty plea proceeding. Nothing in Weatherspoon’s

unsworn plea or the plea papers establishes that on or about September 8th, 2013,

(1) Weatherspoon, individually and as a party (2) unlawfully appropriated the

property of Kevin Canfield: metal castings of the value of $1,500 or more but less

than $20,000, (3) without the effective consent of Kevin Canfield, (4) with the intent

to deprive Kevin Canfield of said property. Because the competent evidence

adduced during Weatherspoon’s guilty plea proceeding failed to satisfy article 1.15,

his conviction must be vacated.



2. Alternatively, assuming arguendo that Weatherspoon’s sentencing evidence
can be used to satisfy article 1.15, the evidence failed to establish all the elements
of the charged offense


      (a) Article 1.15 and sentencing/punishment evidence

      Several intermediate appellate courts, including the Austin Court, have held

that sentencing/punishment evidence can be used to cure article 1.15 deficiencies.

See Jones v. State, 373 S.W.3d 790, 793 (Tex.App.—Houston [14th Dist.] 2012, no

pet.); Stewart v. State, 12 S.W.3d 146 (Tex.App. – Houston [1st Dist.] 2000, no pet.);


                                                                                   24
Hatton v. State, No. 03-06-00453-CR, 2007 WL 924741 at *2 (Tex.App.—Austin

Mar. 27, 2007, pet. ref’d, untimely filed) (mem. op., not designated for publication);

Vandyne v. State, No. 10-07-00328-CR, 2009 WL 1478699 at *4 (Tex.App. – Waco

May 27, 2009, no pet.) (mem. op., not designated for publication); Hill v. State, No.

07-10-00281-CR, 2010 WL 4478389 at *2 (Tex.App. – Amarillo Aug. 31, 2011, pet.

ref’d) (not designated for publication).

      (b) Weatherspoon’s indictment

      Count 1 of Weatherspoon’s indictment reads in pertinent part as follows:

      Christopher Ray Weatherspoon, . . . Defendant, on or about the 8th day
      of September . . . 2013 . . . did then and there, individually and as a
      party with Kody Lee Broxton and Zachary David Castlow, unlawfully
      appropriate, by acquiring and otherwise exercising control over,
      property, to-wit: metal castings of the value of $1,500.00 or more but
      less than $20,000.00 from Kevin Canfield, the owner thereof, without
      the effective consent of the said owner, and with the intent to deprive
      the said owner of the property[.]
CR 4.



      (c) Sentencing testimony

      During the sentencing phase, Weatherspoon did testify under oath. 3 RR 5.

The relevant exchanges were as follows:

 Defense Counsel: Tell us about that. What happened?
 Weatherspoon: Kody Broxton was my roommate. He asked me to help him with

                                                                                   25
  some stuff one night, according to the police statement. And I went and helped
  him. He asked me to help him again. I went and helped him again and I was
  loading stuff into the truck and I seen this guy coming down the railroad tracks.
  He asked what we should do, I said nothing.
 Defense Counsel: What were you loading?
 Weatherspoon: Special metals.
 Defense Counsel: What kind of metal?
 Weatherspoon: I can’t pronounce it. It’s got a type of nickel in it. Makes it
  valuable.
 Defense Counsel: And was this at night?
 Weatherspoon: Yes, sir.
 Defense Counsel: You didn’t find it a little unusual that somebody is asking you
  to move some stuff at that location at night?
 Weatherspoon: Well, I should have but if that was the case I wouldn’t have wore
  my tennis shoes, white shorts and a white shirt.
 Defense Counsel: I don’t understand. Why? What difference does that make?
 Weatherspoon: I would have known he was stealing it.
3 RR 8.
 Defense Counsel: At some point during that episode did you finally figure out,
  hey, this is not right?
 Weatherspoon: Yes, sir when the cops showed up.
 Defense Counsel: But before the cops showed, you thought you were helping
  somebody move something?
 Weatherspoon: I know he was doing something wrong. I shouldn’t have been
  there.
 Defense Counsel: My question was, do you think it was wrong at the time you
  were doing it or just when the cops showed up?
 Weatherspoon: It was wrong before the cops showed up.
3 RR 9.
 State: And you told the Judge that when you started about the new case, about the

                                                                                26
  theft 1500, the events at Delta Centrifugal, you were trying to go off on the idea
  that you just happened to there. In fact you didn’t even dress for a burglary or a
  theft, you were . . . in shorts and a . . . plaid shirt?
 Weatherspoon: Yeah.
 State: And so are you telling this Judge you’re guilty of that offense?
 Weatherspoon: Yes, sir.
 State: Which means you knew when you went out there that night that you guys
  were going to steal those metal parts?
 Weatherspoon: No, I knew when I got there and I seen Kody going through the
  fence and bringing stuff over. That’s when I should have stopped and left but I
  didn’t.
3 RR 17-18.
 Court: Well, Kody Broxton says that you and he would go and pick up scrap at
  different places and you all went to Houston and sold stuff there. Is that true?
 Weatherspoon: Actually, ma’am, he’s the one that hooked up everything for work,
  where to take stuff. I didn’t know what it was until he told me and that’s the
  truth.
3 RR 24.
 Court: And so you took this scrap metal or this metal that was not scrap but what
  about other scrap metal? Were you guys . . . picking up lots of scrap from lots of
  places on farms and ranches and –
 Weatherspoon: No, ma’am.
 Court: I mean, he says both of you were out and about doing that and taking stuff
  from other places to make rent payments because you all were behind.
 Weatherspoon: Well, ma’am, I don’t know what he was doing on his own time.
  The only time I helped him was with Delta.
3 RR 25.




     (d) Analysis


                                                                                 27
      The existence of a specific owner is an element of the offense of theft. Byrd

v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011). Weatherspoon never

stipulated that Kevin Canfield was the owner of the property taken. Proof of an

owner’s lack of consent is required before a theft conviction will be sustained.

Griggs v. State, 558 S.W.2d 474, 476-77 (Tex. Crim. App. 1977); McClain v. State,

687 S.W.2d 350, 354 (Tex.Crim.App.1985) (“Few property transactions do not

involve the acquisition of another's property with intent to deprive him of it[.] With

this crucial feature [‘without the owner’s consent’], the actor’s acquisitive conduct

is clearly ‘unlawful.’”). Weatherspoon never stipulated that property was taken

without the owner’s consent. The value of the property is an essential element of

the offense under the Texas theft statute. Sowders v. State, 693 S.W.2d 448, 450

(Tex. Crim. App. 1985). Weatherspoon never stipulated to the value of the property

allegedly taken. And last but not least, nothing in Weatherspoon’s testimony

establishes that he had any intent to deprive the owner of the property had the time

the property was initially taken. His closest statement was: “I knew when I got there

and I seen Kody going through the fence and bringing stuff over. That’s when I

should have stopped and left but I didn’t.” 3 RR 18. “Theft is a single offense, not

a continuing offense.” Cupit v. State, 122 S.W.3d 243, 246 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref'd). And proof of intent to commit theft is determined when

all the elements of the charged offense “initially coalesce.” Barnes v. State, 824


                                                                                   28
S.W.2d 560, 562-63 (Tex. Crim. App. 1991), overruled on other grounds, Proctor

v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). Weatherspoon’s testimony, taken

as true, establishes that at the time Kody Broxton committed the offense of theft,

Weatherspoon had no intent to commit theft.




3. Alternatively, the written judgment should be corrected to reflect that
Weatherspoon did not plead guilty pursuant to a plea bargain.

      The written judgment, under “Terms of Plea Bargain” states “See Attached

Disclosure of Plea Recommendations.” CR 26. However, there was no plea bargain

– Weaherspoon entered an open plea. 2 RR 1, 9; CR 19. An appellate court has

authority to modify an incorrect judgment when it has the information necessary to

do so. See Tex. R. App. P. 43.2 (b); Figueroa v. State, 250 S.W.3d 490, 518

(Tex.App.—Austin 2008, pet. ref’d).




                                                                                29
                                 Prayer for Relief

      Because the State failed to present sufficient evidence to satisfy article 1.15,

Weatherspoon prays that his conviction be reversed and the cause remanded for a

new trial. Additionally, Weatherspoon requests that the judgment be modified to

reflect that he did not plead guilty pursuant to a plea agreement.

                                       Respectfully submitted,

                                       /s/ John A. Kuchera
                                       John A. Kuchera
                                       210 N. 6th St.
                                       Waco, Texas 76701
                                       (254) 754-3075
                                       (254) 756-2193 (facsimile)
                                       SBN 00792137
                                       johnkuchera@210law.com
                                       Attorney for Appellant


                               Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing Brief

has this 28th day of September, 2015 been mailed to:

Mr. Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513,




                          /s/ John A. Kuchera
                          John A. Kuchera,
                          Attorney for Christopher Ray Weatherspoon


                                                                                   30
                    Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 7,560 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Christopher Ray Weatherspoon


Dated: September 28, 2015




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