                                                                            ACCEPTED
                                                                       03-14-00729-CR
                                                                              4302719
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                  2/26/2015 3:51:35 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                 No. 03-14-00729-CR
                       IN THE
                COURT OF APPEALS                  FILED IN
                                           3rd COURT OF APPEALS
    OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
    ____________________________________________
                                           2/26/2015 3:51:35 PM
                                                  JEFFREY D. KYLE
               CLIFTON CARL LAMAR,                     Clerk
                     Appellant,

                          v.

                  STATE OF TEXAS
    ____________________________________________

                Appeal in Cause No. 72785
               in the 264th District Court of
                    Bell County, Texas
    _____________________________________________

REPLY BRIEF FOR APPELLANT CLIFTON CARL LAMAR
    _____________________________________________




                               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
                                 Table of Contents
                                                                             Page

Table of Contents                                                            ii

Table of Authorities                                                         iii-v

Argument

 Stipulations in the context of article 1.15 are treated differently than    2-4
  stipulations in the context of trial.

 A document cannot properly be deemed a “judicial confession” when           4-8
  it does not itself contain facts establishing that the defendant committed
  every element of the charged offense,

   The doctrine of judicial notice cannot properly be used to shortcut        9-11
   article 1.15’s requirement that the State put on evidence establishing the
   guilt of the defendant.


Certificate of Service                                                       12

Certificate of Compliance                                                    13




                                                                                     ii
                                           Table of Authorities

                                                                                                         Page(s)

Cases
Brewster v. State,
   606 S.W.2d 325 (Tex. Crim. App. 1980) ............................................................. 6

Bryant v. State,
   187 S.W.3d 397 (Tex. Crim. App. 2005) ............................................................. 3

Chindaphone v. State,
  241 S.W.3d 217 (Tex.App.—Fort Worth 2007, pet. ref.) .............................. 9, 11

Cole v. State,
  839 S.W.2d 798 (Tex. Crim. App. 1990) ........................................................... 11
Cooksey v. State,
  No. 06-13-00096-CR, [2014 WL 3359278] (Tex.App.—Texarkana
  July 9, 2014, no pet.).....................................................................................2, 3, 4

Ernst v. Child & Youth Servs.,
   108 F.3d 486 (3d Cir. 1997) ............................................................................... 11
Garza v. State,
  996 S.W.2d 276 (Tex.App.—Dallas, pet. ref’d)................................................. 10
Hammond v. State,
  470 S.W.2d 683 (Tex. Crim. App. 1971) ............................................................. 5
Jones v. State,
   857 S.W.2d 108 (Tex.App.-Corpus Christi 1993, no pet.) ............................... 2, 3

Knight v. State,
  481 S.W.2d 143 (Tex. Crim. App. 1972) ............................................................. 7

Menefee v. State,
  287 S.W.3d 9 (Tex. Crim. App. 2009) ............................................................. 2, 5

Messer v. State,
  729 S.W.2d 694 (Tex. Crim. App. 1986) ............................................................. 4


                                                                                                                  iii
Potts v. State,
   571 S.W.2d 180 (Tex. Crim. App. 1978) ............................................................. 8
Robinson v. State,
  739 S.W.2d 795 (Tex. Crim. App. 1987) ............................................................. 4

Rodriguez v. State,
  442 S.W.2d 376 (Tex. Crim. App. 1968) ............................................................. 8

Sexton v. State,
   476 S.W.2d 320 (Tex. Crim. App. 1972) ............................................................. 7

Shahar v. Bowers,
   120 F.3d 211 (11th Cir. 1997) .............................................................................. 9

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

Sprinkle v. State,
   456 S.W.2d 387 (Tex. Crim. App. 1970) ............................................................. 6

Stone v. State,
   919 S.W.2d 424 (Tex. Crim. App. 1996) ............................................................. 6
United States v. Garland,
  991 F.2d 328 (6th Cir. 1993) .............................................................................. 11
United States v. Hawkins,
  76 F.3d 545 (4th Cir. 1996) ................................................................................ 11
United States v. Neil,
  964 F.Supp. 438 (D.D.C. 1997) .......................................................................... 11

Waage v. State,
  456 S.W.2d 388 (Tex. Crim. App. 1970) ............................................................. 7

Statutes
Tex. Crim. Proc. Code Ann. Art. 1.15 ...................................... 2, 3, 4, 5, 6, 8, 10, 11

Other Authorities
1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
   Evidence (2nd ed. 2000) .................................................................................... 10
                                                                                                                iv
Tex. R. Evid. 201(a) ................................................................................................... 9




                                                                                                                        v
                                      IN THE
                             COURT OF APPEALS

           OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________


CLIFTON CARL LAMAR,
     Appellant,

     v.                                                  No. 03-14-00729-CR


STATE OF TEXAS

    ____________________________________________________________
                       Appeal in Cause No. 72785
                      in the 264th District Court of
                           Bell County, Texas
    ____________________________________________________________

       REPLY BRIEF OF APPELLANT CLIFTON CARL LAMAR
    ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES CLIFTON CARL LAMAR, Appellant, by and through

undersigned counsel, and submits this reply brief pursuant to the provisions of the

Texas Rules of Appellate Procedure. Appellant raised four issues in his principal

brief. The State has filed its Brief. This Reply Brief is a response to several

assertions made by the State regarding Lamar’s first issue. Appellant otherwise rests

on his principal brief.



                                                                                   1
Regarding Lamar’s first issue: Whether the evidence offered by the State in
support of Lamar’s guilty plea was sufficient to satisfy article 1.15 of the Code of
Criminal Procedure.


1. The State cites an unpublished Texarkana case for the proposition that a sworn

statement is not a mandatory requirement to comply with article 1.15:

      The Appellant contends that because a sworn statement “may” suffice,
      it is required. He ignores completely the express statement by the Court
      of Criminal Appeals that a sworn statement is an alternative, rather than
      a mandatory requirement. See Cooksey v. State, No. 06-13-00096-CR,
      [2014 WL 3359278] (Tex.App.—Texarkana July 9, 2014, no pet.)] at
      Op. Pg. 18, reconciling the statement in Menefee with the holding in
      Jones.

(State’s Brief, pg. 16).



      Appellant’s reply

      The Cooksey opinion treats stipulations in the context of article 1.15 in the

same way stipulations are treated in the context of trial. This holding is incorrect.

The contexts are not the same. The relevant language from Cooksey is as follows:

      As per the language of Article 1.15, there is no legal requirement that
      an accused swear to a written judicial confession when it is introduced
      in open court. Jones v. State, 857 S.W.2d 108, 110 (Tex.App.-Corpus
      Christi 1993, no pet.)[.] If the defendant elects to stipulate evidence
      against himself, “his stipulation is a kind of judicial admission.” Bryant
      [v. State], 187 S.W.3d [397,] 400 [Tex Crim. App. 2005)]. “Judicial
      admissions are not evidence at all.” Id. “Rather, they are formal
      confessions in the pleadings in the case or stipulations by a party or
      counsel that have the effect of withdrawing a fact from issue and
      dispensing wholly with the need for proof of the fact.” Id. Because
                                                                                        2
      “[a] fact that is judicially admitted needs no evidence from the party
      benefitting by the admission,” Cooksey's stipulation of evidence “d[id]
      away with the need for evidence” to be presented by the State. See Id.
      By stipulating, Cooksey “waived any right to contest the absence of
      proof on the stipulated elements.” See id. at 401[.] (emphasis added)

Cooksey, 2014 WL 3359278, at *4. The case cited as support for this Cooksey

holding is Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005). But in Bryant

the stipulation at issue took place in the context of a trial, not in the context of an

article 1.15 proceeding. The Court of Criminal Appeals held therein that the

defendant, by stipulating prior to trial to two prior DWI convictions (elements of the

charged felony DWI charge), thereby “judicially admitted” to the convictions,

removing the need for proof of the convictions during trial:

      Judicial admissions are not evidence at all. Rather, they are formal
      concessions in the pleadings in the case or stipulations by a party or
      counsel that have the effect of withdrawing a fact from issue and
      dispensing wholly with the need for proof of the fact.

Id. at 400 (citing McCormick on Evidence). Cooksey takes the Bryant language and

applies it in the context of article 1.15, holding that one who “judicially admits”

obviates the need for the opposing party to put on otherwise-required evidence; i.e.,

because a stipulation does away with the need for evidence, it need not be sworn.

But article 1.15 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). So does a stipulation do away with the need for evidence or

is a stipulation in fact evidence itself?

                                                                                     3
      In Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987), the Court of

Criminal Appeals described how a stipulation functions as a waiver of evidence in

the context of trial but actually functions as evidence in the context of article 1.15:

      While it is sometimes said in civil law that a stipulation constitutes a
      waiver of evidence . . . , it is settled that, as a matter of Texas criminal
      law, the term “stipulation,” at least as used in Art. 1.15, . . . includes
      inter alia agreements as to what particular evidence or testimony would
      be, if presented in full in open court[.]

Robinson, 739 S.W.2d at 799 n. 5; see also Messer v. State, 729 S.W.2d 694, 699

(Tex. Crim. App. 1986) (en banc) (“Stipulations, oral or written, in criminal cases

where the plea of not guilty is entered before the jury do not have to comply with

Article 1.15[.]”) Cooksey is in conflict with Robinson and Messer.




2. The State argues that a document can be a judicial confession even though the

document itself does not contain facts establishing the commission of each element

of the charged offense. Stated another way, the State argues that a document can

function as a judicial confession by making reference to facts set forth in another

document – the indictment:

      The judicial confession signed by the Appellant and approved by his
      counsel stated that he had read the indictment and that he committed
      each and every act alleged. The first paragraph of the indictment sets
      out all the elements of the felony driving while intoxicated offense.
                                                                                          4
(State Brief, pg. 13).



      Appellant’s reply

      First of all, the State’s argument is 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). Nowhere in the document the State describes as a “judicial confession”

(and asked the trial court to take judicial notice of) are there any facts that in and of

themselves show that Lamar committed the offense of felony DWI.

      Second, the State’s argument is at odds with Menefee v. State, 287 S.W.3d 9

(Tex. Crim. App. 2009), wherein the Court of Criminal Appeals cited nine cases as

examples wherein article 1.15 was satisfied by written or oral proffers/stipulations.

Id. at 13 n. 16 & n. 17. In every one of these nine cases, the facts necessary to satisfy

the charged conduct were actually introduced 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

                                                                                       5
      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.”

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

                                                                                  6
      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
      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).

                                                                                   7
      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).

      Third, the State’s argument is 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 for purposes of article 1.15 is in fact “substituted testimony”:

      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). Nowhere in the document relied

upon by the State herein is there any “substituted testimony” establishing that Lamar

committed the offense of felony DWI on or about April 3, 2014.




                                                                                        8
3. The State cites Chindaphone v. State, 241 S.W.3d 217 (Tex.App.—Fort Worth

2007, pet. ref.), for the proposition that so long as the trial court takes judicial notice

of a “judicial confession”, the confession need not be introduced into evidence:

      When the trial court takes judicial notice of a judicial confession the
      State is not required to introduce it into evidence in order to support the
      plea. (citing Chindaphone)

(State Brief, pg. 13).



      Appellant’s reply

      The State would appear to transform the legal doctrine of judicial notice into

a magical formula to turn lead into gold. Rule 201 of the Texas 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). As Lamar argued in his principal brief, it is one thing for a court

to take judicial notice of a document – it is a very different thing for a court to take

judicial notice of the truth of the statements contained in that document. (Appellant’s

Brief, pgs. 13-14).


                                                                                         9
      “Rule 201’s basic purpose is to promote judicial convenience and economy.”

1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

201.02[2] (2nd ed. 2000). The State’s proposed use of the doctrine of judicial notice

would certainly accomplish that. A guilty plea colloquy under facts like those

charged against Lamar would consist of little more than the following:

 State: Your Honor, we would ask the court to take judicial notice that the
  defendant before the court is the same defendant named in the indictment, and
  that on or about April 3, 2014, the defendant drove a vehicle in Bell County,
  Texas while intoxicated;
   The State would further ask that the court take judicial notice that this defendant
   was previously convicted of driving while intoxicated in Cause Number 10,446
   in the County Court of Law of Williamson, Texas on November 14th, 1987, and
   also in Cause Number 2C13-04982 in the County Court at Law #2 in Bell
   County, Texas.
 Court. I will.

This streamlined procedure would certainly “promote judicial convenience and

economy.” Of course it would also effectively gut the requirements of article 1.15.

Nonetheless, this is implicitly what the State is arguing: “We’ll put these facts down

on a piece of paper, have the defendant sign the piece of paper, get the court to take

judicial notice of this piece of paper, and voilà, via the transforming power of judicial

notice, this piece of paper has become a “judicial confession.” But the facts set forth

in the document the State refers to as a 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
                                                                                      10
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)1; 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 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”).

       To the extent the Chindaphone opinion suggests that judicial notice can be

taken of the truth of the statements included in plea papers, and that this alone

satisfies article 1.15, the case is incorrect. It should be noted however that in

Chindaphone, the defendant’s written confession was sworn to before a deputy

district clerk. Chindaphone, 241 S.W.3d at 223.


1
 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).
                                                                                                11
                                     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

Appellant’s Brief has this day been mailed to the office of Mr. Bob D. Odom,

Assistant District Attorney, P.O. Box 540, Belton, Texas 76513.

      SIGNED this 26th day of February, 2015.

                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Clifton Carl Lamar




                                                                              12
                    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 3,006 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 Clifton Carl Lamar


Dated: February 26, 2015




                                                                                 13
