                                                                           ACCEPTED
                                                                       03-15-00237-CR
                                                                               7174853
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  9/30/2015 4:35:34 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                    No. 03-15-00237-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      9/30/2015 4:35:34 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ******
 CHRISTOPHER RAY WEATHERSPOON
                           VS.

           THE STATE OF TEXAS
                          ******

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 71839

                          ******
                  STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000


Oral Argument Not Requested

                             1
                   TABLE OF CONTENTS
ITEM                                                      PAGE

Index of Authorities …………………………………………………………………              4

Statement Regarding Oral Argument ………………………………………..         6

Statement of the Case ………………………………………………………………              6

Statement of Facts …………………………………………………………………..              7

       Evidence Supporting Plea of Guilty …………………………………     7

       Trial Court’s Judgment …………………………………………………..         9

Summary of State’s Argument …………………………………………………            10

Argument and Authorities ………………………………………………………             11

       First Issue on Appeal …………………………………………………….         11
                    EVIDENCE SUFFICIENT TO SUPPORT PLEA
                    OF GUILITY UNDER ART. 1.15?

            Standard of Review ……………………………………………..         11

            Application and Analysis ……………………………………..      12

       Second Issue on Appeal ………………………………………………..         14
                  EVIDENCE SUFFICIENT AT PUNISHMENT
                  PHASE TO SUPPORT PLEA OF GUILTY
                  UNDER ART. 1.15?

            Application and Analysis …………………………………….       14

       Third Issue on Appeal ………………………………………………….          16
                   MUST JUDGMENT BE MODIFIED TO SHOW
                   NO PLEA BARGAIN?

            Application and Analysis ……………………………………        16

                               2
Prayer ……………………………………………………………………………….                17

Certificate of Compliance with Rule 9 …………………………………   17

Certificate of Service ………………………………………………………….        18




                              3
                   INDEX OF AUTHORITIES

CASES                                                           PAGE

Brooks v. State, No. 03-13-00252-CR, ……………………………………..             13
     2014 Tex. App. LEXIS 6588 (Tx. App. Austin 3rd Dist.
     2014 no pet.), not designated for publication.

Chindaphone v. State, 241 S.W.3d 217 ……………………………………             12-13
     (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.)

Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………            11

Jones v. State, 373 S.W. 3d 790 ………………………………………………                13
      (Tx. App. Houston 14th Dist. 2012 no pet.)

Jones v. State, 857 S.W. 2d 108 ………………………………………………                13
      (Tx. App. Corpus Christi 13th Dist. 1993 no pet.)

Ex Parte Martin, 747 S.W.2d 789 (Tx. Cr. App. 1988) ……………..       11

Taylor v. State, No. 03-14-0300-CR, 2014 Tex. App. ……………….        15
      LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.),
      not designated for publication.

Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. ……………         14
     LEXIS 5935 (Tx. App. Austin 3rd Dist. 2003 no pet.),
     not designated for publication.

OTHER

Texas Penal Code

     Section 31.03 ……………………………………………………………..                      12

     Section 31.03(a) …………………………………………………………                      12

     Section 31.03(b) …………………………………………………………                      12


                                   4
Texas Code of Criminal Procedure

     Article 1.15 ……………………………………………………………….. 7-8, 10-15




                                   5
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      Christopher Ray Weatherspoon, was charged by indictment with

the state jail felony offense of theft. In Count I the indictment alleged

that he, acting individually and as a party with Kody Lee Braxton and

Zachary David Castlow, did 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 owner,

and with intent to deprive the owner of said property. (CR-4).

      The Appellant entered a plea of guilty to the offense charged in

Count I (RR-2-9) and the trial court, without objection, took judicial

notice of the “plea papers” in the court’s file (CR-19), expressly

including the judicial confession. (RR2-11). The trial court then found

the evidence sufficient to support a finding of guilty and ordered a

presentence investigation. (RR-7). There was no plea bargain with the

State.(CR-19; RR2-10).     The court found the evidence sufficient to

support a finding of guilty upon the plea of guilty. (RR2-11).



                                     6
         At the subsequent punishment hearing the court received and

examined the presentence report (RR3-5) and heard testimony from the

Appellant. The trial court assessed punishment at 2 years in State Jail

(RR3-57).

         The Appellant gave timely notice of appeal (CR-36) and the trial

court certified his right to do so. (CR-39).

STATEMENT OF FACTS

         The Appellant raises two issues concerning the sufficiency of the

evidence to support his plea of guilty under Article 1.15, Texas Code of

Criminal Procedure, and the recitation in the trial court’s written

judgment allegedly implying that there was a plea bargain with the

State.

Evidence Supporting the Plea of Guilty

         The Appellant executed a packet of “plea papers” in the case. (CR-

19-28). Those papers included the following judicial confession:

              “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 waived by
              the State. All facts alleged in the indictment or information
              are true and correct. I am guilty of the instant offense as
              well as all lesser included offenses. All enhancement and
              habitual allegations set forth in the indictment or


                                      7
            information are true and correct except those waived by the
            State. All deadly weapon allegations are true and correct.
            All other affirmative findings to be made by the Court
            pursuant to this Written Plea Agreement are true and
            correct. I swear to the truth of all of the foregoing and
            further, that all the testimony I give in this case will be the
            truth, the whole truth and nothing but the truth so help me
            God.” (CR-24)

That judicial confession was signed by the Appellant. (CR-24).

Furthermore, thereafter, the Appellant executed a declaration stating

under penalty of perjury that all of the matters contained in the plea

papers are true and correct. (CR-25).

      The Appellant’s trial counsel also signed an acknowledgment that

expressly stated that he had explained everything, including the judicial

confession, to him and that he had waived his rights and executed the

documents    intelligently,   knowingly,   and   voluntarily.     Counsel

specifically joined in the stipulations of evidence pursuant to Article

1.15 and consented to the trial court taking judicial notice of the

contents of the Written Plea Agreement. (CR-25).            The State also

approved all of the contents of the plea papers. (CR-26).

      The trial court approved the plea papers in writing and stated that

it was taking judicial notice of the matters contained therein. (CR-26).




                                    8
      During the hearing and after the Appellant entered his plea of

guilty to the information, the State asked the court to “…take judicial

notice of the contents of the court’s file including the plea papers which

will contain the defendant’s judicial confession to count one..” The

Appellant had no objection and the court did so. (RR2-11). Thereafter

the court immediately found the evidence sufficient to support a finding

of guilty. (RR2-11).

      At the sentencing phase of the trial, while attempting to minimize

his culpability, the Appellant admitted helping Kody Broxton to take the

metal casings (RR3-16) and taking the property to Houston for sale and

sharing equally with Broxton in the profits. (RR3-37).

Trial Court’s Judgment

      There was no plea bargain with the State in the case. (CR-19; RR2-

10). In the trial court’s written judgment on the line denoted as “Terms

of Plea Bargain” is found the phrase “SEE ATTACHED DISCLOSURE OF

PLEA RECOMMENDATIONS”. (CR-31).            There is no such disclosure

attached to the judgment and the “plea papers” also contained in the

court’s file state that plea was “open” and thus recite no plea

recommendations. (CR-19).




                                    9
SUMMARY OF STATE’S ARGUMENT

      The trial court took judicial notice of judicial confession, signed by

the Appellant and approved by the State, his counsel, and the court, as

well as all of the “plea papers” in the case, without objection by the

Appellant. That judicial confession stated that all of the allegations in

the information were true and correct. The information contained all of

the statutory elements of the offense charged.         The evidence was

sufficient to support the Appellant’s plea of guilty and for the court to

enter such a finding under Article 1.15.

      Although unnecessary, the evidence at the punishment hearing

wherein the Appellant admitted participation in the theft as charged in

the indictment may be properly considered and sufficiently supports

the Appellant’s plea of guilty as well.

      The written judgment of the trial court does not specifically state

that there was a plea bargain with the State and, in fact, there was not.

It merely says see attached disclosure. That disclosure states that it was

an open plea. The judgment does not, therefore, indicate that there was

a plea bargain in the case. If, however, it could be so construed then the

judgment should be modified to reflect that there was no plea bargain.



                                     10
ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Was the evidence sufficient to support the finding of guilty

pursuant to the Appellant’s plea of guilty as required by Article 1.15 of

the Texas Code of Criminal Procedure?

Standard of Review

      When the accused enters a plea of guilty the standard of review

set out in Jackson v. Virginia, 443 U.S. 307 (1979), as to sufficiency of the

evidence are inapplicable. Ex Parte Martin, 747 S.W.2d 789, 792-93

(Tex. Crim. App. 1988).      Instead the sufficiency of the evidence is

governed by Article 1.15 of the Code of Criminal Procedure.

      Article 1.15 provides that in a non-capital felony case, where the

defendant waives trial by jury and enters a plea of guilty or nolo

contendere, it is necessary for the State to “introduce evidence into the

record” that shows the guilt of the defendant and that such evidence be

accepted by the trial court as the basis for its judgment. See Martin at

793. The appellate court will affirm the trial court’s judgment under

Article 1.15 if the State introduced evidence that embraces every

essential element of the offense charged that is sufficient to establish



                                     11
the defendant’s guilt. A judicial confession stating that the defendant

has read the charging instrument and that he committed each and every

act alleged therein, standing alone, is sufficient to sustain a conviction

upon a guilty plea under Article 1.15. Chindaphone v. State, 241 S.W.3d

217, 219 (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.).

Application and Analysis

      The Appellant was charged with the offense of theft as set out in

Section 31.03 of the Texas Penal Code. Section 31.03(a) states that a

person commits an offense if he unlawfully appropriates property with

the intent to deprive the owner of property. Section 31.03(b)(1) states

that appropriation of property is unlawful if it is without the owner’s

effective consent.

      Count I of the indictment in this case set out all of the elements of

the offense under Section 31.03, alleging that the Appellant unlawfully

appropriated property, to-wit: metal castings, from the owner and

without the effective consent of the owner and with the intent to

deprive the owner of that property. (CR-4)

      The Appellant’s judicial confession stated that he had read the

indictment and that everything alleged in it was true and correct and

that he committed the offense as alleged. (CR-24).


                                     12
       A judicial confession stating that the defendant has read the

charging instrument and that it is true and correct, where that charging

instrument contains each and every element of the offense is sufficient

to support a plea of guilty as required by Article 1.15. Chindaphone                 at

219. See also Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. LEXIS

6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for

publication, following Chindaphone.1

       The Appellant would ignore his judicial confession because it was

not formally offered into evidence nor sworn to before a notary or

district clerk. That Appellant’s protestations to the contrary, however,

the judicial confession may be judicially noticed by the trial court and, in

that case, it need not be introduced formally into evidence. Chindaphone

at 219; Jones v. State, 373 S.W. 3d 790 (Tx. App. Houston 14th Dist. 2012

no pet.); Brooks op. at pg. 6.

       Likewise, a judicial confession that was signed by the accused,

approved by his counsel, the State and the trial court and of which the

court takes judicial knowledge need not be sworn. Jones v. State, 857

S.W. 2d 108, 110 (Tx. App. Corpus Christi 13th Dist. 1993 no pet.);



1
 Brooks also arose from the 264th District Court and involved essentially the same “plea
papers” and judicial confession as the present case.


                                          13
Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. LEXIS 5935 (Tx.

App. Austin 3rd Dist. 2003 no pet.) (“There is no requirement that the

defendant swear to the waiver and stipulation before the clerk or

anyone else” Op. at pg. 4).

      Here the Appellant signed the judicial confession and declared

under penalty of perjury that it was true and correct. That judicial

confession confirmed the truth of all of the allegations in the

information. The information contained all of the statutory elements of

the offense charged. The judicial confession was approved by defense

counsel, the State and the trial court. The judicial confession and other

“plea papers” were filed of record.      The trial court expressly took

judicial notice of the papers, including the judicial confession, and based

its judgment upon that instrument.          The evidence was certainly

sufficient to support the Appellant’s plea under Article 1.15.

Second Issue on Appeal

      Was the evidence at the sentencing phase of the plea proceeding

sufficient to support the Appellant’s plea of guilty under Article 1.15?

Application and Analysis

      It must first be observed that the evidence during the first phase

of the plea proceeding was sufficient to support the plea and, therefore,

                                    14
it is not necessary to rely upon the events during the punishment

hearing. His contentions as to this issue are moot.

       While the Appellant did not go down the list of elements of the

offense charged in his testimony at punishment one by one, he did tell

the trial court that he and Broxton took the property, that he knew it

was wrong and that he should have backed out (RR3-9, 17, 18), but that

they did it at least twice. He also said that they took the metal castings

to Houston on two occasions and sold it for a total of $9,000.00, which

they split evenly. (RR3-37). This certainly, coupled with his plea of

guilty and his judicial confession serves to satisfy the requirements of

Article 1.15.

       A guilty plea is a unitary proceeding and Article 1.15 does not

distinguish between evidence offered at guilt/innocence or the

punishment phase.             The courts may consider evidence at the

punishment phase in order to determine if the requirement of Article

1.15 has been fulfilled. See Taylor v. State, No. 03-14-0300-CR, 2014

Tex. App. LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not

designated for publication2, and cases cited therein.


2
 Taylor also arose in the same district court concerning a virtually identical fact situation
as in this case and raising the same issues. Counsel for the Appellant also represented the
defendant in that case.


                                             15
Third Issue on Appeal

      Must the judgment of conviction be modified to reflect that the

Appellant entered his plea of guilty without a plea bargain?

Application and Analysis

      The Appellant entered his plea of guilty to the trial court without a

plea bargain with the State. (RR2-10). The plea papers reflect that the

plea was “open”. (CR-19). The judgment of conviction recites: “Terms

of   Plea   Bargain:     SEE    ATTACHED       DISCLOSURE      OF    PLEA

RECOMMENDATIONS. (CR-31). There is no apparent attachment to the

judgment in the record. The only disclosure of plea bargain shows an

open plea and therefore contains no plea recommendations (CR-19).

      The judgment does not actually state that there was a plea bargain

in this case. There is no such attachment to the judgment and the

court’s file, as well as the reporter’s record clearly show that there was

no plea bargain. Thus there is really nothing in the judgment to reform.

If, however, the Court interprets the statement to imply otherwise then

the judgment should be reformed to delete that reference.




                                    16
                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 2,027 words.



                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     17
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, John A. Kuchera, Counsel for Appellant, by electronic

transfer via Email, addressed to him at johnkuchera@210law.com on

this 30th day of September, 2015.



                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    18
