                           990-/5
                                                         PPIPJM A I
                  CAUSE NUMBER PD-0990-15                U i\ tu I! \! n L

               IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS



              MICHAEL FITZGERALD REESE,
                                      PETITIONER

                           VS.


                    THE STATE OF TEXAS,
                                   RESPONDENT

SEEKING REVIEW OF THE THIRTEENTH COURT OF APPEALS' JUDGMENT
AND OPINION IN COURT OF APPEALS CAUSE NUMBER 13-13-00616-CR


                    PETITION FOR DISCRETIONARY REVIEW




                                      MICHAEL FITZGERALD REESE
                                      NO. 1883306
                                      1391 FM 3328- BETO UNIT
                                      TENN COLONY TEXAS 75880

                                      PRO   SE




                                                           FILED IN
                                                   COURT OFCRIMINAL APPEALS

                                                         OCT 1 b 23.5

                                                       Abel Acosta, Cierk




                                                 JOURT OF CMMl APPEALS
                                                      OCT 15 2015

                                                   AbiiAcosla,Cterk
                            IDENTITY OF PARTIES      AND COUNSEL

MICHAEL FITZGERALD REESE               DEFENDANT

THE STATE OF TEXAS                     PROSECUTION

HON. JOHN GAUNTT                       TRIAL JUDGE
27TH DISTRICT COURT
P.O. BOX 747
BELTON.      TEXAS 76513

HON.   EDWARD VALLEJO                  PROSECUTOR
HON.   STEPHANIE NEWELL
BELL COUNTY DISTRICT ATTORNEY'S OFFICE
P.O.   BOX 540
BELTON,      TEXAS 76513

HON.   MICHAEL F.         WHITE        DEFENSE COUNSEL
100 KASBERG DRIVE.           SUITE A
TEMPLE.      TEXAS 76502

JOHN A. KUCHERA                        APPELLATE    COUNSEL
210 N. 6TH STREET
WACO. TEXAS 76701

HON.   BOB    D.   ODOM    STATE OF TEXAS

BELL COUNTY DISTRICT ATTORNEY'S OFFICE
APPELLATE      SECTION
ADDRESS      ABOVE
                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                           i
TABLE OF CONTENTS                                                       ii
INDEX OF AUTHORITIES                                                   iii
STATEMENT REGARDING ORAL ARGUMENT                                         1
STATEMENT OF THE CASE                                                     1
STATEMENT OF PROCEDURAL HISTORY                                           1
GROUNDS FOR REVIEW                                                        1
ARGUMENT AND AUTHORITIES                                              1-14

1. DID THE COURT OF APPEALS ERR BY DETERMINING THAT. THE TEXAS
CODE OF CRIMINAL PROCEDURE, ART. 1.15 CONTAINS NO REQUIREMENT
THAT A JUDICIAL CONFESSION BE SWORN? AND THAT THE COURT OF
APPEALS DECISION HAS AUTHORITY OVER THE COURT OF CRIMINAL APPEALS
OF TEXAS?                                                              3-6

  A. PETITIONER'S PLEA PAPERS WERE UNSWORN, HE WAS NOT PUT UNDER
OATH DURING HIS PURPORTED GUILTY PLEA. HE NEVER AFFIRMED THAT THE
ALLEGATIONS IN THE INDICTMENT WERE TRUE
     B. WAS THE COURT OF APPEALS OBLIGATED TO UPHOLD "JONES"
ALTHOUGH INCONSISTENT WITH THE MULTIPLE COURT OF CRIMINAL APPEALS
CASES. TO DO OTHERWISE WOULD CONFLICT ITS PREVIOUS RULING
  C. THE COURT OF APPEALS WAS OBLIGATED TO UPHOLD THEIR VERY
OWN CASE "JONES" OVER A LONG LINE OF AUTHORITIES FROM THE COURT
OF CRIMINAL APPEALS?

2.        DID THE COURT OF APPEALS ERR BY DETERMINING THAT, THE
JUDICIAL CONFESSION, GUILT/INNOCENCE PHASE EVIDENCE. AND THE
SENTENCING PHASE EVIDENCE "ALTOGETHER" WAS SUFFICIENT TO SUPPORT
THE TRIAL COURT'S JUDGMENT?                                           6-12
     A.     THE GUILT/INNOCENCE PHASE "FAILED" TO ESTABLISH THE
ELEMENT OF INTENT AND THE REQUIRED CULPABLE MENTAL STATE.
  B. PETITIONER'S SENTENCING PHASE TESTIMONY WAS CONTRARY TO
HIS "UNSWORN JUDICIAL CONFESSION"
  C. THE STIPULATED MEDICAL REPORT "STATE'S EX. 16" DOES NOT
REVEAL WHICH GUNSHOT WOUND CAUSED THE DEATH... PETITIONER DID
NOT ADMIT TO THE GUNSHOT WOUND TO THE CHEST.

3.        DID THE COURT OF APPEALS ERR BY DETERMINING THAT. ARTICLE
1.15 OF TEX. C. CRIM. PRO. CONTAINS NO REQUIRMENT THAT A
JUDICIAL CONFESSION BE SWORN?                                     12-14
     A.    SINCE THE REQUISTE OATH OF SWEARING WAS NOT APPLIED, THE
TITLED JUDICIAL CONFESSION IS MERELY AN EXTRA JUDICIAL
CONFESSION.
  B. THE RECORD REFLECTS THAT THE STATE OFFERED NO EVIDENCE AT
THE HEARING WHERE PETITIONER OFFERED HIS PLEA.

PRAYER                                                                  iv
OFFENDER DECLARATION                                                    Iv
CERTIFICATE OF SERVICE                                                  iv
COURT OF APPEALS'      OPINION AND JUDGMENT




                                   li
                            INDEX OF AUTHORITIES
CASES

US v FIORE. 443 F. 2D 112, 115 (2D CIR 1971)
US v ROBERTSON,      582 F. 2D 1356
US v WARSZOWER.      312 US 342. 347 61 S CT 603.        85 L ED 87610
(1941)
ABDOR v OVARD. 653 SW 2D 793 (TEX CRIM APP 1983)
BEATY v STATE. 466 SW 2D 284, 286 (TEX CRIM APP 1971)
BENDER v STATE, 758 SW 2D 278., ^.5 (TEX CRIM APP 1988)
BROWN v STATE, 657 SW 2D 143, 145 (TEX CRIM APP 1983)
DINNERY v STATE, 592 SW 2D 343. 353 (TEX CRIM APP 1979)
(OP. ON REH'G)
FLANAGAN v STATE, 675 SW 2D 734, 744 (TEX CRIM APP 1984)
(OP. ON REH'G)
GALITZ v STATE, 617 SW 2D 949, 954-55 (TEX CRIM 1981)
GODSEY v STATE, 719 SW 2D 578, 580-81 (TEX CRIM APP 1986)
HAMMETT v STATE, 578 SW 2D 699, 713 (TEX CRIM APP 1979)
HARRELL v STATE, 659 SW 2D 825, 26-27 (TEX CRIM APP 1983)
KILLION v STATE, 503 SW 2D 765, 66 (TEX CRIM APP 1973)
LUGO-LUGO v STATE, 650 SW 2D 72, 81 (TEX CRIM APP 1983)
(OP. ON REH'G)
MCKENNA v STATE, 780 SW 2D 797, 800 (TEX CRIM APP 1989)
MENEFEE v STATE, 287 SW 3D 9 (TEX CRIM APP 2009)
MOON v STATE, 572 SW 2D 681 (TEX CR APP 1978)
SALAZAR v STATE, 86 SW 3D 640, 644 (TEX CRIM APP 2002)
SHIELDS v STATE,      820 SW 2D 831,       833
SOTO v STATE, 456 SW 2D 389- 90 (TEX CRIM APP 1970)
(OP. ON REH'G) (ONION, J. CONCURRING)
STONE v STATE, 919 SW 2D 424, 427 (TEX CRIM APP 1996)
BARNES v STATE, 103 SW 3D 494 (TEX APP SAN ANTONIO 2003)
BEAM v    STATE,   500 SW 2D 802
CHAVIS v    STATE,   NO.   08-10-00025-CR.       2011 WL 3807747 AT *6
(TEX APP EL PASO AUG 26, 2011 PET. REF'D)(UNPUBLISHED)
CHINDAPHONE v STATE, 241 SW 3D 217 (TEX APP FORT WORTH 2007
PET REF'D)
FLOYD v STATE, 914 SW 2D 658 (TEX APP TEXARKANA 1996)
JONES v STATE, 857 SW 2D 108, 110 (TEX APP CORPUS CHRISTI 1993)
LEAL v STATE, 800 SW 2D 346, 348 (TEX APP CORPUS CHRISTI 1990)
(PET REF'D)
REXFORD v STATE, 818 SW 2D 494 (TEX APP H0UST0N[1ST DIST] 1991)-
SOUTHWICK v STATE, 701 SW 2D 927, 929 (TEX APP H0UST0N[1ST DIST]
1985)
WALKER v STATE,      NO. 03-03-00018-CR,         2003 WL 21554285 AT *1
(TEX APP AUSTIN JULY 11, 2003) MEMO OP. NOT DISGNATED FOR
PUBLICATION


STATUTES    AND RULES
PENAL CODE 19.01(B)(1)
PENAL CODE 6.03(A)(B)
TEX.    GOV. CODE 312.011
TEX.    R. EVID. 603
TEX.    C. CRIM. PRO. 1.15
TEX.    C. CRIM. PRO. 1.14
TEX.    C. CRIM. PRO. 1.13
TEX.    CONST.   AMEND.    ART XVI SEC 1
BLACK'S LAW DICTIONARY.         8TH ED.

                                      iii
TO THE HONORABLE SAID JUDGES OF THE COURT OF CRIMINAL APPEALS OF
TEXAS:



  COMES NOW MICHAEL FITZGERALD REESE, PETITIONER, UNDERSIGNED,
PRO SE AND PURSUANT TO RULE 68, TEXAS RULES OF APPELLATE
PROCEDURE, FILES THIS 'PETITION FOR DISCRETIONARY REVIEW*. AND
FOR SUCH PETITION WOULD SHOW THIS COURT AS FOLLOWS:


                   STfiTEHENINREGARMSGCSHAL ARGUMENT


  THIS COURT SHOULD GRANT ORAL ARGUMENT, WOULD BE HELPFUL TO
HELP AID THE COURT WITH DETAILED INFORMATION ABOUT THE
INCONSISTENCY OF JONES AND MENEFEE, AS WELL AS, THE MERITS OF
THE CLAIMS.



                    STATEMENT OF THE CASE


  PETITIONER WAS CHARGED BY INDICTMENT WITH THE OFFENSE OF ^
MURDER, A FIRST-DEGREE FELONY. ON MAY 18, 2011 (CR 4). T x
PETITIONER ENTERED A PLEA OF NOT GUILTY AND CAUSE WAS SET FOR
TRIAL. ON JULY 29, 2013 (10 RR 197-98). AFTER THE STATE PUT ON
FIVE WITNESSESS, PETITIONER DECIDED TO PLEAD GUILTY,WITHOUT A
PLEA AGREEMENT (11 RR 153-54). THE TRIAL COURT ACCEPTED THE PLEA
AND DID NOT FIND PETITIONER GUILTY BUT ORDERED A PRESENTENCE
INVESTIGATION (11 RR 158-159, 61).   ON JULY 30, 2013. FOLLOWING
A SENTENCING HEARING, THE TRIAL COURT ASSESSED PUNISHMENT AT
LIFE IN PRISON (12 RR 84; CR 71-73). ON SEPTEMBER 16, 2013. THE
TRIAL COURT CERTIFIED PETITIONER'S RIGHT TO APPEAL (CR 100).
NOTICE OF APPEAL WAS FILED (CR74) ON SEPTEMBER 17, 2013. TRIAL
COUNSEL WAS ALLOWED TO WITHDRAW AND JOHN A. KUCHERA WAS APPOINTED
TO REPRESENT ON APPEAL (CR 75-76,78,81). ON SEPTEMBER 18, 2013.
MOTION FOR NEW TRIAL WAS FILED ARGUING GUILTY PLEA WAS NOT A
KNOWING AND VOLUNTARY PLEA (CR 86-96) AND TRIAL COURT DENIED
SAID MOTION FOLLOWING A HEARING (13RR33; CR101) ON OCTOBER 16,
2013. APPELLATE BRIEF WAS FILED WITH THE THIRTEENTH COURT OF
APPEALS CAUSE NUMBER 13-13-00616-CR AND TRIAL COURT JUDGMENT
WAS AFFIRMED, DELIVERED AND FILED ON JULY 16, 2015. MOTION FOR
REHEARING WAS   FILED AND DENIED.



                    STATEMENT OF PROCEDURAL HISTORY



  JULY 16, 2015, COURT OF APPEALS HANDED DOWN ITS OPINION
"AFFIRMING" THE TRIAL COURT'JUDGMENT. AUGUST 3, 2015, MOTION
FOR REHEARING WAS FILED, ALSO MOTION FOR EXTENSION OF TIME WAS
FILED AND GRANTED BY COURT OF CRIMINAL APPEALS, THE TIME WAS
EXTENDED TO OCTOBER 14, 2015. AUGUST 10, 2015, MOTION FOR
REHEARING WAS   DENIED.



                           GROUNDS   FOR REVIEW



GROUND NO. 1: IN DECIDING PETITIONER'S COMPLAINT THAT, BECAUSE
HISJUaiGTAlJ CONFESSION WAS NOT SWORN BEFORE A DISTRICT CLERK
AND HIS ORAL GUILTY PLEA WAS NOT TAKEN UNDER OATH, THE CCKuu.'
REQUIREMENTS FOR A JUDICIAL CONFESSION WERE NOT MET. DID THE
COURT OF APPEALS ERR BY DETERMINING THAT THE      V.A.C.C.P, ART.
1.15 CONTAINS NO REQUIREMENT THAT A JUDICIAL CONFESSION BE
SWORN? AND THAT THE COURT OF APPEALS DECISION HAS AUTHORITY OVER

THE COURT OF CRIMINAL APPEALS?


GROUND NO 2: IN DECIDING PETITIONER'S COMPLAINT THAT, THE
EVIDENCE OFFERED BY THE STATE IN SUPPORT OF THE PLEA WAS

INSUFFICIENT TO COMPLY WITH V.A.C.C.P, ART. 1.15. DID THE COURT
OF APPEALS ERR BY DETERMINING THAT, THE JUDICIAL CONFESSION,
GUILT/INNOCENCE AND SENTENCING PHASE EVIDENCE "ALTOGETHER" WAS
SUFFICIENT TO SUPPORT THE TRIAL COURT JUDGMENT?


GROUND N0.:3: IN DECIDING PETITIONER'S COMPLAINT THAT,
PETITIONER'S PLEA PAPERS WERE UNSWORN.     THEY WERE THEREFORE NOT
COMPETENT EVIDENCE TO SATISFY THE STATE'S BURDEN UNDER V.A.C.C.P,
ART.   1.15. DID THE COURT OF APPEALS ERR BY DETERMINING THAT, ART.
1.15 OF V.A.C.C.P CONTAINS NO REQUIREMENT THAT A JUDICIAL      .,.,,,
E0NFESSI0N BE SWORN?



                    ARGUMENT AND AUTHORITIES



TEX. R. APP. P. 66.3(C) WHETHER THE COURT OF APPEALS HAS DECIDED
AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT
CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL
APPEALS OR THE UNITED STATES SUPREME COURT?


GROUND NO. 1: IN DECIDING PETITIONER'S COMPLAINT THAT, BECAUSE Hi.
HISJDSI'CIAiL CONFESSION; WAS NOT SWORN BEFORE A DISTRICT CLERK AND
HIS ORAL GUILTY PLEA WAS NOT TAKEN UNDER OATH, THE REQUIREMENTS
FOR A JUDICIAL CONFESSION WERE NOT MET.   DID THE COURT OF APPEALS
ERR BY DETERMINING THAT V.A.C.C.P, ART. 1.15 CONTAINS NO
REQUIREMENT THAT A JUDICIAL CONFESSION BE SWORN? AND THAT THE
COURT OF APPEALS DECISION HAS AUTHORITY OVER THE COURT OF
CRIMINAL APPEALS?



COURT OF APPEALS OPINION..

  THE COURT OF APPEALS HELD A SWORN CONFESSION IS ONE FORM OF
EVIDENCE THAT MAY SUPPORT A GUILTY PLEA, "WE NOTE": THAT ART.
1.15 CONTAINS NO REQUIREMENT THAT A JUDICIAL CONFESSION BE SWORN.
THEN CITES ART. 1.1.5; JONES v STATE, 857 SW 2D 108, 1.10(TEX APP
CORPUS CHRISTI 1993- NO PET.); WALKER v STATE, NO 03-03-00018-CR,
WL 21554285 AT *1(TEX APP AUSTIN JULY 11, 2003- NO PET.)(MEM. OP.
NOT DESIGNATED FOR PUBLICATIONS, MEM. OP AT 9)


  THE JUDICIAL CONFESSION IS INSUFFICIENT AS A MATTER OF LAW.     IT
WAS NOT SWORN BEFORE A DISTRICT CLERK, PETITIONER'S ORAL SI.T ;i .;:
STATEMENT WAS NOT TAKEN UNDER OATH. MAKING THE EVIDENCE OFFERED
BY THE STATE IN SUPPORT OF THE PLEA INSUFFICIENT TO COMPLY WITH
ART. 1.15, THE COURT OF APPEALS CONTEND ART. 1.15 CONTAINS NO
REQUIREMENT THAT A JUDICIAL CONFESSION BE SWORN.    ARGUMENT IS
THAT TEXAS LAW HAS BEEN CLEAR, "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) PLEA PAPERS WERE UNSWORN, THEY WERE
THEREFORE NOT COMPETENT EVIDENCE TO SATISFY THE STATE'S BURDEN
UNDER ART. .11.15, AND WAS NOT PUT UNDER OATH DURING PURPORTED
GUILTY PLEA. FURTHERMORE, ALTHOUGH HE PLED GUILTY, HE NEVER
AFFIRMED THAT THE ALLEGATIONS IN THE INDICTMENT WERE TRUE. THUS,
NEITHER WAS ORAL.STATEMENT COMPETENT EVIDENCE TO SATISFY THE
STATE'S BURDEN UNDER ART. 1.15 OTHER EVIDENCE ADDUCED DURING THE
ART. 1.15 PROCEEDING DID NOT CURE THESE DEFICIENCIES.(GOV. CODE
312.011 AT (8) OATH INCLUDES AFFIRMATION, (16) SWEAR OR SWORN
INCLUDES AFFIRM OR AFFIRMED, (9) OFFICIAL OATH MEANS THE OATH
REQUIRED BY ART. XVI, SEC. 1 TEXAS CONSTITUTION.(AS A RULE,
UNSWORN TESTIMONY IS INADMISSIBLE AND IS NOT LEGAL EVIDENCE ON
WHICH A JUDGMENT CAN BE BASED.)(US v FIORE, 443 F 2D 112,115
[2D CIR 1971]) TEX. R. EVID. 603 HOLDS, THIS IS REQUISTE AND A
RULE. WHAT THE COURT OF APPEALS HAS DETERMINED, THAT A JUDICIAL
CONFESSION DOES NOT HAVE TO BE SWORN. ART. 1.15 THAT DETERMINAT .
-ION CONFLICTS WITH TEX. R. EVID. 603 AND FED. R. EVID. 603, AS
WELL AS, A LONG LINE OF AUTHORITIES THAT THE COURT OF CRIMINAL
APPEALS HAS DECIDED. THE COURT OF APPEALS IN ITS MEM. OP. CITED
JONES, QUOTES: "WE FIND NO AUTHORITY THAT APPELLANT WAS
ADDITIONALLY 'REQUIRED* TO SWEAR TO THE STATEMENT". THIS OPINION
CONFLICTS WITH OTHER COURT OF APPEALS OPINIONS. SEE FLOYD v STATE
914 SW 2D 658(TEX APP TEXARKANA 1996). IN "FLOYD" THE WAIVER AND
CONSENT WERE SIGNED BY APPELLANT AND HIS TRIAL COUNSEL, APPROVED
BY THE TRIAL COURT, AND SWORN TO BY THE DISTRICT CLERK. AS SUCH,
THE "REQUIREMENTS         " OF ART. 1.15 WITH RESPECT TO
STIPULATIONS WERE SATISFIED. THE COURT OF APPEALS MUST FOLLOW
THE LAW DECLARED BY THE HIGHEST COURT OF THIS STATE. SEE
SOUTHWICK v STATE 701 SW 2D 927,929(TEX APP HOUSTON[l DIST] 1985,
NO PET.). WHEN THE COURT OF CRIMINAL APPEALS HAS DECLARED THE LAW
ON A ISSUE, THE LOWER COURTS MUST FOLLOW ITS DECLARATION .ID, CF.
ABDOR v OVARD 653 SW 2D 793,793 (TEX CRIM APP 1983). THE CASES
THE COURT OF APPEALS RELIES ON TO HOLD THAT A "JUDICIAL CONFESS.,
-ION" DOES NOT HAVE TO BE SWORN TO...ARE ONE OF THEIR OWN. SEE
JONES v STATE 857 SW 2D 108,110 (TEX APP CORPUS CHRISTI 1993, NO
PET.); WALKER v STATE NO. 03-03-00018-CR, 2003. WL 21554285 AT *1
(TEX APP AUSTIN JULY 11,2003 NO PET.)(MEM. OP NOT DESIGNATED FOR
PUBLICATION). IN BRIEF TO COURT OF APPEALS PETITIONER OFFERED THE
FOLLOWING CASES, THE HIGHEST COURT HELD A "CONFESSION MUST BE
SWORN". SEE KILLION v STATE 503 SW 2D 765-66 (TEX CRIM APP 1973)
SOTO v STATE 456 SW 2D 389-90 (TEX CRIM APP 1970) (ONION, .; J CON
CURRING) MOST RECENTLY UPHELD IN CHAVIS v STATE NO 08-10-00025-CR
2011 WL 3807747 AT *6 (TEX APP EL PASO AUG 26,2011 PET. REF'D)(UN
-PUBLISHED), B-EATY v STATE 466 SW 2D 284,286 (TEX CRIM 1971) IN
BENDER v STATE 758 SW 2D 278 (TEX CR APP 1988) JUSTICE TEAGUE'S
AND CLINTON DISSENTED: STATING, "INTERMEDIATE COURT OF APPEALS
ERRED IN APPLYING ITS OWN STANDARD THAT WAS IN CONFLICT WITH THE
STANDARD ANNOUNCED BY THE COURT OF CRIMINAL APPEALS. THEREFORE,J I
WOULD DECLINE TO RECONSIDER THE ISSUE ALREADY ADDRESSED BY THE
COURT OF CRIMINAL APPEALS".


WAS THE COURT OF APPEALS OBLIGATED TO UPHOLD THEIR VERY OWN CASE
"JONES" OVER A LONG LINE OF AUTHORITIES FROM THE COURT OF
CRIMINAL APPEALS?



  THE STATE IN ITS BRIEF PG17, ARGUES THAT APPELLANT'S WRITTEN
"JUDICIAL CONFESSION" WAS SUFFICIENT TO ESTABLISH HIS GUILT FOR
PURPOSES OF ART. 1.15, EVEN THOUGH, IT WAS UNSWORN. AND CITE TO
THE JONES v STATE 857 SW 2D 108 (TEX APP CORPUS CHRIST 1993 NO
PET.) PETITIONER CONTENDS "JONES" IS THE RULING THE COURT OF
APPEALS PREVIOUSLY MADE.   ARGUMENT THE COURT OF APPEALS WAS

OBLIGATED AT NO CHOICE TO UPHOLD "JONES" TO DO OTHERWISE WOULD
CONFLICT PETITIONER'S ;CASE, WITH PREVIOUS "JONES". HOWEVER,
'JONES'   IS INCONSISTENT WITH MULTIPLE COURT OF APPEALS DECISIONS
AND MANY COURT OF CRIMINAL APPEALS DECISIONS.   AS   STATED IN REPLY

BRIEF AT 2, MOST RECENTLY IN MENEFEE v STATE 287 SW 3D 9 (TEX CRj.
APP 2009) FROM THE COURT IN MENEFEE: "WHILE NOTING THAT THERE
ARE MULTIPLE WAYS BY WHICH THE STATE CAN SATISFY THE EVIDENTARY

REQUIREMENT OF ART. 1.15, MADE IT VERY CLEAR THAT IF THE STATE
INTENDS TO USE THE DEFENDANT'S WRITTEN STATEMENT, THAT STATE
MENT MUST BE SWORN; AND IF THE STATE INTENDS TO USE THE ORAL
STATEMENT'S, HE MUST BE SWORN IN AS A WITNESS        THE COURT OF
APPEALS (MEM. OP AT 9) CONTENDS, THE OPERATIVE LANGUAGE OF THE
JUDICIAL CONFESSION, 'IN CHINDAPHONE' IS NEARLY IDENTICAL TO THE
LANGUAGE USED IN PETITIONER'S JUDICIAL CONFESSION. THEN STATES:      '
THEREFORE, WE CONCLUDE THAT JUDICIAL CONFESSION IS SUFFICIENT
EVIDENCE TO SATISFY ART.   1.15 BECAUSE HE STATES THAT HE READ THE
INDICTMENT FILED IN THE CASE (MEM. OP AT 9) AND COMMITTED EACH -u:
AND EVERY ACT ALLEGED 'THEREIN' AND THAT ALL FACTS ALLEGED IN THE
INDICTMENT OR INFORMATION ARE TRUE AND CORRECT". THE LOGIC OF
CLAIMS WERE IGNORED. THE DEFENDANT MAY ENTER A "SWORN" STATEMENT,
AND IF THE JUDICIAL CONFESSION COVERS ALL OF THE ELEMENTS OF THE
CHARGED OFFENSE,   IT WILL SUPPORT THE PLEA OF GUILTY. PETITIONER
MAINTAINS THE WRITTEN JUDICIAL CONFESSION IN THIS CASE IS VOID,
BECAUSE IT WAS NOT SWORN TO BEFORE A DISTRICT CLERK, THE ORAL P ,;
PLEA WAS NOT TAKEN UNDER OATH.   PLEA OF GUILTY ALONE WILL NOT
SUPPORT CONVICTION, ART. 1.15 AND A DEFENDANT WHO PLEDS GUILTY
CANNOT WAIVE STATUTORY REQUIREMENTS, THAT THE STATE PLACE EVID.^, .
ENCE OF GUILT IN THE RECORD ART.    1.15 BECAUSE OF THESE REASONS
PETITIONER REQUESTS THIS MATTER BE REVERSED AND REMANDED FOR A
NEW TRIAL.



TEX. R. APP. 66.3(B) WHETHER THE COURT OF APPEALS HAS DECIDED
AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW, THAT HAS NOT BEEN
BUT SHOULD BE SETTLED BY THE COURT OF CRIMINAL APPEALS?


GROUND NO. 2: IN DECIDING PETITIONER'S COMPLAINT THAT, THE
EVIDENCE OFFERED ,BY THE STATE IN SUPPORT OF THE GUILTY PLEA WAS
INSUFFICIENT TO COMPLY WITH ART.    1.15? DID THE COURT OF APPEALS
ERR BY DETERMINING THAT, THE JUDICIAL CONFESSION, GUILT/INNOCENCE
AND SENTENCING PHASE EVIDENCE "ALTOGETHER" WAS SUFFICIENT TO
SUPPORT THE TRIAL COURT JUDGMENT?


"MENEFEE(287 SW 3D 13) THE LAW- THE UNITED STATES CONSTITUTION
DOES NOT REQUIRE THAT THE STATE PRESENT EVIDENCE IN SUPPORT OF A
GUILTY PLEA, IN TEXAS COURTS. ART. 1.15 CONSTITUTES "AN ADDITION
AL PROCEDURAL SAFEGUARD REQUIRED BY THE STATE OF TEXAS BUT NOT BY
FEDERAL CONSTITUTION LAW".   AT 14. NO TRIAL,COURT IS AUTHORIZED TO
RENDER A CONVICTION IN A FELONY CASE,    CONSISTENT WITH ART. 1.15
BASED UPON A GUILTY PLEA "WITHOUT SUFFICIENT EVIDENCE TO SUPPORT
THE SAME".    AT 15.    EVIDENCE IN SUPPORT OF GUILTY PLEA MAY TAKE
MANY FORMS, THE STATUTE EXPRESSLY PROVIDES THAT THE DEFENDANT MAY
CONSENT TO THE PROFFER OF EVIDENCE IN TESTIMONAL OR DOCUMENTARY

FORM, OR TO AN ORAL OR WRITTEN STIPULATION OF THE EVIDENCE AGAIN
ST HIM WOULD BE, WITHOUT NECESSARILY ADMITTING TO ITS VERACITY OR
ACCURACY.    AND   SUCH A   PROFFER OR STIPULATION OF EVIDENCE WILL SUFF

-ICE TO SUPPORT THE GUILTY PLEA SO LONG AS              IT EMBRACES     EVERY   ..

CONSTITUENT ELEMENT OF THE CHARGED OFFENSE.



                                      ARGUMENT



    GUILT/INNOCENCE PHASE EVIDENCE: THE STATE PUT ON FIVE
WITNESSESS, WHO WERE ALL PRESENT AT THE DENNY'S AT THE TIME OF
THE INCIDENT, NONE OF THE WITNESSES TESTIFIED THAT THEY SEEN
PETITIONER ACTUALLY SHOOT THE VICTIM; (1) ERIKA GARCIA TESTIFIED
PETITIONER WAS SCREAMING AT HIS GIRLFRIEND,              SHE RECORDED THE
INCIDENT. THE CELLPHONE VIDEO WAS ADMITTED AS STATE'S EXHIBIT
(11RR34-37,40,42). SHE ALSO.TESTIFIED1SHE DID NOT SEE WHAT
HAPPENED OUTSIDE AFTER THEY LEFT (11RR49). (2) ANGELA BURT
TESTIFIED SHE DID NOT SEE THE SHOOTING.              BURT:   SECURITY

APPROACHED AND ASKED EVERYONE TO LEAVE (11RR75-76), TESTIFIED
PETITIONER, CHAVALIER JENKINS, JUSTIN RICHARDSON AND DARIAN
CARPENTER WALKED OUT THE DOOR.            STATE:   DID YOU HEAR OR SEE ANY

THING AS THEY WERE LEAVING DENNY'S? BURT: AFTER THEY LEFT OUT,
I HEARD TWO GUNSHOTS.        STATE:     DID YOU SEE ANYBODY SHOOTING THAT
NIGHT? BURT: NO I DIDN'T. (3) TINA PELLETIER, A WAITRESS AT THE
DENNY'S TESTIFIED, SHE WAS PRESENT DURING THE INCIDENT. IN -5,
STATE'S OPENING STATEMENT TO THE JURY 11RR20-21:                STATED THAT
PELLETIER WILL TELL YOU SHE SAW A GUY IN A PINK SHIRT, TAKE OUT
A   FIREARM AND    SHOOT.   PELLETIER TESTIFIED       SHE DID NOT   SEE THE

SHOTS, SHE JUST HEARD THEM 11RR101-102. SHE DESCRIBED THE PERSON
TO THE JURY, PELLETIER: HE WAS WEARING A "WHITE SHIRT" AND HE WAS
ABOUT MY HEIGHT.       HE HAD A   GUN    IN HIS RIGHT HAND AND HE WAS WALK

ING TOWARDS THE VICTIM WHEN I HEARD THE SHOTS. (4) CHARMAINE
HUNTER, ALSO AN EMPLOYEE AT THE DENNY'S TESTIFIED, SHE HAD KNOWN
PETITIONER A COUPLE MONTHS PRIOR TO APRIL 2D, BECAUSE "HE IS A
REGULAR" 11RR115-116. HUNTER IDENTIFIED PETITIONER AS BEING
INVOLVED IN THE DISTURBANCE, SHE TESTIFIED SHE TRIED TO CALM
DOWN PETITIONER 11RR120-122,INSIDE AND OUTSIDE THE DENNY'S.
HUNTER TESTIFIED SHE TURNED HER HEAD, SHE SEEN HIM PULL OUT A
GUN. AFTER THAT.."HUNTER: I HEARD PEOPLE SHOUTING, 'MIKE, NO.
STOP, MIKE!' HUNTER TESIFIES SHE HEARD TWO SHOTS". STATE: AND
DID YOU SEE MIKE SHOOT EITHER ONE OF THOSE SHOTS? HUNTER: NO,
I JUST WENT BLANK. I DON'T REMEMBER ANYTHING AFTER THAT 11RR22.
(5) JOESPH TAYLOR, WAS AT A TABLE IN DENNY'S, HE TESTIFIES THST
TWO GUYS CAME IN AFTER A LARGER GROUP HAD BEENWSEATED AND CAUSED
A DISTURBANCE 11RR128-131,135.. TAYLOR TESTIFIES THE GUY IN THE
PINK SHIRT WAS ARGUING OR TALKING LOUD...WITH ONE OF THE GUYS IN
THE LARGER GROUP.   STATE: DO YOU REMEMBER WHICH GUY HE WAS ARGUING
WITH? TAYLOR: HE...KIND-OF LOOKED AT HIM, BUT HE WAS TALKING TO
THE FEMALE.   TAYLOR TESTIFIES SECURITY GUARD TOLD THEM TO GET OUT
OR TAKE IT OUTSIDE.   STATE: DID YOU REMEMBER WHAT HAPPENED WHEN /
THEY WERE OUTSIDE? TAYLOR:    BUT AS THEY ARE--THERE ARE TWO GUYS
WALKING DOWN THE SIDEWALK, AND I HEARD TWO SHOTS. AND IMMEDIATE
LY 'AFTER' I HEARD THE TWO SHOTS, I LOOKED UP, LOOKED OUT THE
WINDOW TO SEE WHAT WAS GOING ON.   AND I SEE THE ONE GUY FALLING
LIKE HE-THE ONE THAT GOT SHOT FALLING AND THE OTHER TWO GUYS
RUNNING. I SAW ONE GUY RUNNING WITH THE GUN, THE GUY IN THE PINK
SHIRT 11RR137-138. TAYLOR PICKED PETITIONER OUT A PHOTO LINE UP,
WRITING UNDER HIS SELECTION THIS LOOKS LIKE THE SHOOTER 11RR141- .
142.   PETITIONER ARGUES...

A STIPULATION OF EVIDENCE OR JUDICIAL CONFESSION THAT FAILS TO
ESTABLISH EVERY ELEMENT OF THE OFFENSE CHARGED WILL NOT AUTHORIZE
THE TRIAL COURT TO CONVICT.   MENEFEE v   STATE 287 SW 3D 14.   THE

GUILT/INNOCENCE PHASE    "FAILED" TO ESTABLISH THE ELEMENT OF
INTENT AND THE REQUIREMENT OF A CULPABLE MENTAL STATE. MURDER
AS DEFINED IN SECTION 19.02(B)(1) STATES: WHEN A PERSON
INTENTIONALLY OR KNOWINGLY CAUSESj THE DEATH OF AN INDIVIDUAL. AN
INTENTIONAL KILLING OCCURS WHEN THE PERSON'S CONSCIOUS DESIRE OR
OBJECTIVE IS TO CAUSE THE DEATH, A KNOWING KILLING OCCURS WHEN ,..
THE PERSON KNOWS THAT DEATH IS REASONABLY CERTAIN TO RESULT
[iPEN. C. 6.03(A)(B)]. THUS, A KNOWING KILLING CONTEMPLATES THE
COMMISSION OF AN ACT THAT IS OBJECTIVELY DANGEROUS TO HUMAN LIFE
WHEN THE DEFENDANT IS       SUBJECTIVELY AWARE THE ACT RESULTING           IN
DEATH IS CLEARLY DANGEROUS TO HUMAN LIFE (LUGO-LUGO[650 SW 2D
72,81](TEX CRIM APP 1983)(OP. ON REH'G) ) TO PROVE MURDER UNDER
THIS THEORY, THE STATE MUST SHOW THAT THE DEFENDANT INTENTIONALLY
OR KNOWINGLY ENGAGED IN THE ACT THAT CAUSED THE DEATH AND INTEND

ED OR KNEW THAT DEATH WOULD RESULT FROM THAT ACT (LEAL[800 SW 2D
346,348(TEX APP CORPUS CHRIST 1990] PET REF'D) PETITIONER ARGUES,
NONE OF THE STATE'S WITNESSESS GAVE TESTIMONIES OR PROVIDED
EVIDENCE OF THE "ACT" THAT CAUSED THE DEATH OF THE VICTIM.                 THE
MANAGER(    ) SAID SHE HEARD PEOPLE SHOUTING "MIKE, NO. MIKE, NO.
STOP, MIKE". BUT NO ONE GAVE EYE-WITNESS TESTIMONIES AS A RESULT,
THE STATE FAILED TO ESTABLISH THE ELEMENT OF INTENT AND THE

REQUIRE OF A1CULPABLE MENTAL STATE. THE COURT OF' APPEALS OMMITTED
ANY CONCLUSION REGARDING THE STIPULATED EVIDENCE, WHICH WAS NOT
CORROBORATED BY PETITIONER'S TESTIMONY..
SENTENCING PHASE EVIDENCE              STATE: THE NIGHT YOU "SHOT.RICH"
IN THE BACK, YOU SHOT HIM TWICE? IS THAT RIGHT? REESE: NO. STATE:
HOW MANY TIMES DID YOU      SHOOT HIM?    REESE:     I FIRED MY WEAPON ONCE.

STATE:     WHERE DID THE OTHER BULLET COME FROM BECAUSE HE WAS HIT
WITH TWO BULLETS?    REESE:   I WAS    NEVER TOLD ABOUT THAT..       STATE:

THERE ARE PICTURES AND EVERYTHING THAT HAS COME INTO EVIDENCE.

THERE IS REALLY NOT AN ISSUE.         HE WAS SHOT TWICE.     IF YOU DIDN'T
SHOOT HIM, WHO SHOT HIM THE SECOND TIME? REESE: IF IT SERVES ME
CORRECTLY,    I ONLY FIRED MY WEAPON ONCE.          STATE: WHEN YOU SHOT HIM
YOU SHOT HIM IN THE BACK?      REESE:    CORRECT 12RR18-19.       STATE:   THAT

WAS A    MISTAKE OR DID YOU DO THAT ON PURPOSE?          REESE:   THAT WAS    A
MISTAKE, SIR. STATE: WOULD YOU SAY "OOPS"? WAS IT AN ACCIDENT?
YOU DID    IT ON PURPOSE.   REESE:    IT WAS   A   MISTAKE SIR.   STATE:   WAS

IT INTENTIONAL?    REESE:   NO SIR IT WAS NOT INTENTIONAL.          STATE:      IT
WAS UNINTENTIONAL? REESE: YES, SIR.ESTATE: AND WHEN YOU PUT YOUR
FINGER ON THE TRIGGER, WAS THAT UNINTENTIONAL? REESE: YES, SIR.
STATE: AND THEN WHEN YOU SQUEEZED IT, WAS THAT AN ACCIDENT? WAS
THAT A MISTAKE? REESE: THAT WAS A MISTAKE, SIR. STATE: A MISTAKE.
SO YOU DIDN'T MEAN TO DO THAT.REESE: NO, SIR. STATE: SO ALL THE
THINGS THAT YOU DID THAT DAY YOU ARE TELLING THE COURT YOU DID

NOT MEAN TO DO THOSE THINGS. REESE: NO, SIR IT WAS A MISTAKE..
PETITIONER ARGUES...    IN CONJUNCTION WITH THE ABOVE TESTIMONY
FROM PETITIONER, WAS HIS SIGNED PLEA AGREEMENT(CR6) THAT HE HAS
READ THE INDICTMENT AND COMMITTED EACH AND EVERY ACT ALLEGED
THEREIN. THE INDICTMENT READ IN PART: "DEFENDANT, ON OR ABOUT
THE 2D DAY OF APRIL...2011, DID THEN AND THERE INTENTIONALLY
AND KNOWINGLY CAUSE THE DEATH OF AN INDIVIDUAL, NAMELY, JUSTIN
RICHARDSON, BY SHOOTING THE SAID JUSTIN RICHARDSON WITH A FIREARM
THE PENAL CODE CONTAINS NO PROVISION THAT THE INTENT TO KILL
MAY BE PRESUMED WHEN THE INJURY, DEATH OR ATTEMPTED DEATH IS     ,:
CAUSED BY VIOLENCE TO THE PERSON OR WHEN THE MEANS WERE USED
WHICH ORDINARILY RESULT IN THE COMMISSION OF THE FORBIDDEN ACT.
SEE BROWN v STATE 657 SW 2D 143,145 (TEC CRIM APP 1983) [ACT
OF FIRING PISTOL INTO RESIDENCE, IN AND OF ITSELF, NOT SUFFICIENT
TO SUPPORT PROOF OF INTENT TO KILL.] THE PRESUMPTION OF AN INTENT
TO KILL DOES NOT ARISE MERELY BECAUSE THE DEFENDANT USES A DEADLY
WEAPON PER SE IN A DEADLY MANNER. AS A RESULT, IF THE DEFENDANT
TESTIFIES TO THE ABSENCE OF ANY INTENT TO KILL (AS DONE IN THIS
CASE), HE OR SHE MAY BE ENTITLED TO AN INSTRUCTION ON A LESSER-
INCLUDED OFFENSE BASED ON THAT TESTIMONY (SEE HARRELL v STATE
659 SW 2D 825,826-827 [TEX CRIM APP 1983]) IN THE ABSENCE OF A
JURY, DURING THE SENTENCING PHASE, PETITIONER TESTIFIED "HE FIRED
HIS WEAPON ONCE IN THE BACK OF THE VICTIM..IT WAS A MISTAKE".
HOWEVER, AN INTENT TO KILL MAY BE INFERRED BY THE JURY FROM;THE
USE OF A DEADLY WEAPON. [FLANAGAN v STATE 675 SW 2D 734,744 (TEX
CRIM APP 1984)(OP ON REH'G)] THIS INFERENCE MAY NOT BE MADE WHEN
THE MANNER OF THE WEAPON'S USE MAKES IT REASONABLY APPARENT THAT
DEATH OR SERIOUS BODILY INJURY COULD NOT RESULT (GODSEY v STATE
719 SW 2D 578,580-581 (TEX CRIM APP 1986) THE STATE FAILED TO
SATISFY THIS BURDEN.
  THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENTS OF THE CRIME,
IN THIS CASE AND THE COURT OF APPEALS ERRED IN AFFIRMING THE T
TRIAL COURT'S JUDGMENT.
  THE STATE FAILED TO PROVE THE CONSTITUENT PARTS OF CRIME, CON
SISTING OF THE ACTUS REUS, MENS REA AND CAUSATION. TO SUSTAIN A
CONVICTION THE PROSECUTION MUST PROVE THESE ELEMENTS.
PETITIONER TESTIFIED: "I NEVER HAD INTENTINOS ON HARMING ANYONE.
I WAS NEVER TAUGHT ANYTHING OF THAT NATURE" 12RR15. PETITIONER'S
INDICTMENT IN PART READS..DID THEN AND THERE 'INTENTIONALLY AND
KNOWINGLY' CAUSED THE DEATH OF AN INDIVIDUAL     IF THE INDICT
MENT CHARGES THAT THE KILLING WAS KNOWING AND INTENTIONAL, SUCH

                              10
THE JURY MAY BE INSTRUCTED TO CONVICT IF THE KILLING WAS EITHER
INTENTIONAL OR KNOWING. SUCH AN INDICTMENT EXPRESSES TWO THEORIES
OF THE OFFENSE AND PROOF OF EITHER ONE IS SUFFICIENT TO CONVICT.
[HAMMETT v STATE 578 SW 2D 699,713 (TEX CRIM APP 1979)]
PETITIONER'S TESTIMONY WAS CONTRARY TO HIS "UNSWORN" JUDICIAL
CONFESSION THAT THEY ALLEGATIONS IN THE INDICTMENT ARE TRUE AND
CORRECT. ART. 1.15 REQUIRES THE STATE TO INTRODUCE SUFFICIENT
EVIDENCE TO SUPPORT A JUDGMENT UPON A GUILTY PLEA OR NOLO CON
TENDERE. MCKENNA v STATE 780 SW 2D 797,800 (TEX CRIM APP 1989).
THE SUPPORTING EVIDENCE CAN CONSIST OF ORAL BY THE ACCUSED, SEE
GALITZ v STATE 617 SW 2D 949,954-55 (TEX CRIM APP 1981). THE
PETITIONER STIPULATED TO THE MEDICAL EXAMINER'S REPORT, AT 11RR62
WHICH REVEALED TWO GUNSHOT WOUNDS WERE THE CAUSE OF DEATH. BUT
WHEN PETITIONER WAS QUESTIONED ABOUT HIS INVOLVEMENT OF THE DEATH
OF THE INDIVIDUAL, PETITIONER TESTIFIES HE ONLY FIRED HIS "WEAPON
ONCE IN THE VICTIMS BACK.(VICTIM WAS SHOT IN THE CHEST ALSO...SEE
STATE'S EXHIBIT 16, AT GUNSHOT WOUND #2). INSTEAD OF THE STATE
PROVING THAT PETITIONER SHOT THE VICTIM TWICE (ACTUS REUS) HE
CHANGED THE LINE OF QUESTIONING. WHEN A DEFENDANT HAS WAIVED
TRIAL BY HURY AND PLEADED GUILTY, A TRIAL COURT HAS A DUTY TO -C
CONDUCT SOME SORT OF PROCEEDING WHEN EVIDENCE, THAT'S INCONSIST
ENT WITH THE GUILT IS INTRODUCED. SEE MOON v STATE 572 SW 2D 681
(TEX CR APP 1978). (1) STIPULATION IN CONTEXT OF NOLO CONTENDERE
OR GUILTY PLEA INCLUDES AGREEMENTS ABOUT WHAT THE EVIDENCE OR
TESTIMONY WOULD BE, IF PRESENTED IN OPEN COURT, WITHOUT CONCEDING
THE TRUTHFULNESS OF THAT EVIDENCE OR OTHERWISE WAIVING THE NEED
FOR V.A.C.C.P 1.15. (2) A DEFENDANT WHO PLEADS NOLO CONTENDERE
OR GUILTY DOES NOT NEED TO CONCEDE THE VERACITY OF THE STIPULATED
EVIDENCE, HOWEVER, IF THE DEFENDANT CONCEDES, THE COURT'S CONSIDE
-R THE STIPULATION A JUDICIAL CONFESSION. BARNES v STATE 103 SW 1,
3D 494 (TEX APP SAN ANTONIO 2003). IN THIS CASE STATE EXHIBIT 16
COPY OF MEDICAL EXAMINER'S REPORT, REVEALS TWO GUNSHOT WOUNDS, 0.
ONE IN THE BACK AND ONE IN THE FRONT UPPER CHEST. THIS REPORT
DOES NOT REVEAL WHICH WOUND WAS THE FATAL GUNSHOT WOUND THAT
RESULTED IN THE DEATH OF THE INDIVIDUAL. PETITIONER DID NOT ADMIT
GUILT TO THE GUNSHOT WOUND TO THE CHEST, THE STATE FAILED TO
ESTABLISH THE ACTUS REUS, THE SENTENCING PHASE EVIDENCE NOR THE



                                11
GUILT/INNOCENCE PHASE EVIDENCE ESTABLISH MENS REA OR INTENT. THUS
THE STATE FAILED TO   ESTABLISH    EVIDENCE     SUFFICIENT TO    SUPPORT THE

PLEA UNDER V.A.C.C.P ART.   1.15, IT DID NOT PROVIDE INDEPENDENT
EVIDENCE TO   SUBSTANTIATE DEFENDANTS     GUILT.     THE   COURT OF APPEALS

ERRED BY HOLDING THAT THE WRITTEN JUDICIAL CONFESSION             BY

PETITIONER, TAKEN ALONG WITH THE EVIDENCE ADMITTED DURING THE
TRIAL WAS SUFFICIENT TO SUPPORT THE TRIAL COURT'S JUDGMENT. A
JUDICIAL CONFESSION STANDING ALONE       IS    SUFFICIENT TO SUSTAIN A

CONVICTION ON A PLEA OF GUILTY AND TO SATISFY THE REQUIREMENTS
OF ART. 1.15. DINNERY v STATE 592 SW 2D 343,353 (TEX CRIM APP
1979)(OP. ON REH'G). THERE WAS A DEFICIENCY IN THE JUDICIAL
CONFESSION, IT WAS NOT SWORN BEFORE A DISTRICT CLERK, AS MANY
CASES IN OTHER COURT OF APPEALS'     AND THE COURT OF CRIMINAL
APPEALS. THIS DEFICIENCY WAS NOT REMEDIED BY THE GUILT/INNOCENCE
OR SENTENCING PHASES, THEREFORE, PETITIONER REQUEST RELIEF.


TEX. R. APP. 66.3(D) WHETHER THE COURT OF APPEALS HAS DECLARED
A STATUTE, RULE, REGULATION,      OR ORDIANCE UNCONSTITUTIONAL OR
APPEARS TO HAVE MISCONSTRUED A STATUTE, RULE, REGULATION, OR
ORDIANCE.



GROUND THREE: IN DECIDING PETITIONER'S COMPLAINT THAT,
PETITIONER'S PLEA PAPERS WERE UNSWORN.          THEY WERE THEREFORE NOT
COMPETENT EVIDENCE TO SATISFY THE STATE'S BURDEN UNDER ART.              1.15.
DID THE COURT OF APPEALS ERR BY DETERMINING THAT, ART. 1.15
CONTAINS NO REQUIREMENT THAT A JUDICIAL CONFESSION BE SWORN?


(1) V.A.C.C.P ARTICLE 1.15 IS THE LAW REGARDING THE SUFFICIENCY
OF THE EVIDENCE   WHEN PLEADING GUILTY        IN A   NON-CAPITAL CASE.   THE

EVIDENCE IS CONSIDERED SUFFICIENT UNDER ART.            1.15 WHEN IT EMBRACE
EVERY ELEMENT OF THE OFFENSE. STONE v STATE 919 SW 2D 424, 427
(TEX CRIM APP 1996) "A CONVICTION RENDERED WITHOUT SUFFICIENT
EVIDENCE TO SUPPORT A GUILTY PLEA CONSTITUTES A TRIAL ERROR."
MENEFEE v STATE 287 SW 3D 9,13 (TEX CRIM APP 2009).

(2) ARTICLE 1.15, V.A.C.C.P- 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 PLEA, HAS IN
OPEN COURT, IN PERSON WAIVED HIS RIGHT TO TRIAL BY JURY, IN.

                                    12
WRITING IN ACCORDANCE WITH ART.(S) 1.13, 1.14. PROVIDED, HOWEVER,
THAT IT SHALL BE NECESSARY FOR THE STATE TO    INTRODUCE EVIDENCE          IN

-TO 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.


                               ARGUMENT

THE COURT OF APPEALS ADOPTED THE STATE'S CONTENTION THAT
PETITIONER'S "UNSWORN"        WRITTEN JUDICIAL CONFESSION, TAKEN
ALONG WITH THE EVIDENCE ADMITTED DURING THE TRIAL WAS SUFFICIENT

TO SUPPORT GUILTY PLEA OF MURDER.    DUE PROCESS    DOES   NOT PRECLUDE

WRITTEN ADMONISHMENTS AND WRITTEN JUDICIAL CONFESSIONS.          LEE ANN

DAUPHINOT, JUSTICE DISSENTING..CHINDAPHONE v STATE 241 SW 3D 217
(TEX APP FORT WORTH 2007) PET. REF'D. THE APPELLANT RECORD DOES
INCLUDE A COPY OF A DOCUMENT SIGNED BY APPELLANT STYLED "JUDICIAL
CONFESSION" IN WHICH APPELLANT DID NOTaADMIT THAT HE INTENTIONALL
-Y AND KNOWINGLY COMMITTED THE OFFENSE AS SET OUT IN THE INDICT
-MENT, NEITHER IS THERE A COPY OF THE INDICTMENT ATTACHED TO THE
JUDICIAL CONFESSION, SETTING FORTH THE FACTS AND ELEMENTS OF THE
CRIME. THIS DOCUMENT WAS SIGNED BY APPELLANT, APPROVED BY HIS
ATTORNEY AND THE COURT. BUT, "WAS NOT SWORN" TO BEFORE A DEPUTY
CLERK OF THE COURT LIKE THE DEFENDANT IN FLOYD v       STATE 914 SW 2D
658 (TEX APP TEXARKANA 1996)(NOTE: FLOYD CAME AFTER JONES).
PETITIONER ARGUES SINCE THE REQUISTE OATH OF SWEARING WAS NOT
APPLIED (TEX R EVID 603) THE TITLED WRITTEN JUDICIAL CONFESSION
IS MERELY AN "EXTRAJUDICIAL CONFESSION".    SEE SALZAR v STATE 86
SW 3D 640,644 (TEX CRIM APP 2002)(THE CORPUS!DELICIT RULE, '
REQUIRING CORROBORATION OF CONFESSIONS PROTECTS THE ADMINIST
RATION OF THE CRIMINAL LAW AGAINST ERRORS IN CONVICTIONS BASED

UPON UNTRUE CONFESSIONS ALONE.) WARSZOWER v UNITED STATES 312
US 342,347 61 S CT 603, 85 L ED 876 (1941). THE RECORD REFLECTS
"DURING A RECESS" THE PETITIONER WAIVED HIS RIGHT TO TRIAL BY
JURY AND CHANGED HIS PLEA TO GUILTY WITHOUT A       PLEA AGREEMENT

11RR153. A WRITTEN JUDICIAL CONFESSION WAS GIVEN CR66 OUT OF
COURT PROCEEDINGS.   THE ORAL CONFESSION WAS NOT     SWORN TO.    WHILE
ALL GUILTY PLEAS ARE CONFESSIONS, NOT ALL CONFESSIONS ARE NOT
GUILTY PLEAS. US v ROBERTSON 582 F 2D 1356.    AN    'EXTRAJUDICIAL
CONFESSION' DEFINED IS: A CONFESSION MADE OUT OF COURT, AND NOT

                                    13
PART OF JUDICIAL EXAMINATION OR INVESTIGATION. SUCH A GONFESSION
MUST BE CORROBORATED BY SOME OTHER PROOF OF THE CORPUS DELICIT OR
ELSE IT IS INSUFFICIENT TO WARRANT A CONVICTION. BLACK'S LAW
DICTIONARY- EIGHTH EDITION. RULES GOVERNING ADMISSIBILITY OF
CONFESSIONS EXTEND ALSO TO STATEMENTS IN NATURE OF A CONFESSION,
THOUGH LACKING ALL OF THE ESSENTIAL ELEMENTS OF A CONFESSION. SEE
BEAM v STATE 500 SW 2D 802. PETITIONER'S BRIEF AT 22 ARGUES "IF
THE STATE'WANTED TO USE THE TESTIMONIES TO SATISFY ITS BURDEN
FOR PURPOSES OF THE ART. 1.15 PROCEEDINGS IT WOULD NEED TO HAVE
OFFERED THE TESTIMONIES AS A STIPULATION OR ASKED THE COURT TO
TAKE JUDICIAL NOTICE THEREOF. CITING TO: SHIELDS v STATE 820 SW
2D 831,833; 'THE STATE DID NEITHER' ". JUSTICE LEE ANN DAUPHINOT,
DISSENTED IN 'CHINDAPHONE' IN PART.. "HAD THE STATE OFFERED
APPELLANT'S JUDICIAL CONFESSION INTO EVIDENCE THERE WOULD BE NO
QUESTION WHETHER THE CONSTITUTIONAL AND STATUTORY DUE PROCESS
REQUIREMENTS WERE MET. DINNERY v STATE 592 SW 2D 343,353 (TEX CR
APP 1979)(OP. ON REH'G). THE JUSTICE'S DISSENT IN CLOSING WAS
DUE TO THE STATE NOT ASKING THAT THEJUDICIAL CONFESSION BE ADMIT
-TED INTO EVIDENCE OR THAT THE TRIAL COURT TAKE JUDICIAL NOTICE.
IN THIS CASE THE STATE IN ITS BRIEF AT 19 SAYS IT 'REOFFERED'
ALL THE EVIDENCE HEARD THAT SAMEDAY BUT THE JURY WAS "ALREADY
DISMISSED" THE STATE ARGUED, THE PROSECUTORS, COUNSEL FOR APP
-ELLANT WERE THE SAME AS HAD TRIED THE CASE ALL THAT DAY BEFORE
THE JURY... THE ONLY DIFFERENCE IT WAS NOT OFFERED NOR ACCEPTED
BY THE COURT UNTIL "AFTER" THE PLEA WAS ACCEPTED. 11RR154-166
THE COURT OF APPEALS CONCLUDED MEM. OP. AT 10, "EVEN IF WE
WERE TO CONCLUDE THAT APPELLANT'S JUDICIAL CONFESSION WAS
DEFICIENT, THERE IS OTHER EVIDENCE IN THE. RECORD TO COMPENSATE
FOR THE DEFICIENCY, INCLUDING THE GUILT/INNOCENCE EVIDENCE...
(WHICH WAS REOFFERED AND ADMITTED AT THE SENTENCING PHASE)...
AND THE SENTENCING PHASE EVIDENCE". THE STATE FAILED TO OFFER
ANY EVIDENCE IN SUPPORT OF PETITIONER'S GUILTY PLEA. A CONVICTION
CANNOT BE BASED ON A GUILTY PLEA UNLESS THE STATE INTRODUCES
EVIDENCE INTO THE RECORD SHOWING THE GUILT OF THE DEFENDANT ART.
1.15 V.A.C.C.P. THE RECORD REFLECTS THAT THE STATE OFFERED NO
EVIDENCE AT THE HEARING:-WHERE -PETITIONER OFFERED HIS PLEA. QUOTE:
REXFORD v STATE 818 SW 2D 494 (TEX APP H0UST0N[1ST DIST] 1991)



                                 14
JUSTICE TREVATHAN, C.J. DISSENTING         FOR THESE REASONS THE
COURT OF APPEALS MISCONSTRUED A STATUTE AND RULE.     PETITIONER
REQUEST RELIEF BE GRANTED.


                                PRAYER

WHEREFORE, PETITIONER PRAYS THAT HE MAY BE GRANTED RELIEF THAT
THIS COURT GRANT THIS PETITION FOR DISCRETIONARY REVIEW.


                             DECLARATION



I SWEAR UNDER THE PENALTY OF PERJURY THE INFO&Mft        IN THIS

FOREGOING DOCUMENT IS TRUE AND CORREC



                                           MICHA    TZGERALD REESE




                         CERTIFICATE OF SERVICE
THIS IS TO CERTIFY THAT A TRUE AND CORRECT COPY OF THE ABOVE AND
FOREGOING PETITION FOR DISCRETIONARY REVIEW HAS BEEN MAILED TO:..
HON. BOB D. ODOM, P.O. BOX 540, BELTON, TEXAS 76513; THE COURT
OF CRIMINAL APPEALS OF TEXAS, P.O. BOX 12308, CAPITAL STATION,
AUSTIN, TEXAS 78711 AND, STATE PROSECUTING ATTORNEY. ON THIS DATE




                                           MICH     ITZGERALD REESE




                                   iv
Reese v. State, Not Reported in S.W.3d (2015)




                    2015 WL 4381223                                                    I. BACKGROUND
   Only the Westlaw citation is currently available.
                                                                  Appellant was charged by indictment with "intentionally and
            SEE TX R RAP RULE 47.2 FOR                            knowingly caus [ing] the death of an individual, namely,
   DESIGNATION AND SIGNING OF OPINIONS.                           Justin Richardson, by shooting the said Justin Richardson
                                                                  with a firearm." At trial, five witnesses testified before
     DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).                     appellant entered a plea of guilty and signed a judicial
               Court of Appeals of Texas,                         confession.
               Corpus Christi-Edinburg.
                                                                  The following evidence was presented prior to appellant's
          Michael Fitzgerald Reese, Appellant,
                                                                  guilty plea. On April 1, 2011, around 1 a.m., appellant's
                             v.
                                                                  former girlfriend and her friends went to Club Rosse. While
              The State of Texas, Appellee.                       there, appellant approached her and asked what she was doing
                                                                  at the club and "what's going on?" She asked him to leave
             Numbers 13-13-00616-CR |
                                                                  her alone and to stop calling her. She then left the club
             Delivered and filed July 16, 2015
                                                                  with her friends and went to a Denny's restaurant. Justin
On appeal from the 27th District Court of Bell County,            Richardson was among those present. Appellant arrived at
Texas.
                                                                  Denny's about ten minutes later, wearing a pink shirt and
                                                                  khakis. He demanded she go outside with him and talk. When
Attorneys and Law Firms                                           the others at the table said that this was not the time and place
                                                                  for this conversation, appellant responded by using combative
John Kuchera, for Michael Fitzgerald Reese.                       and vulgar language.

Henry Garza, Bob Odom, for the State of Texas.
                                                                  The manager and security guard then asked appellant and
Before Chief Justice Valdez, and Justices Benavides and           the three men standing near him to leave the restaurant and
Perkes                                                            escorted them out. Richardson and appellant, along with
                                                                  the two other men, went outside. The manager, who knew
                                                                  appellant because he was a regular customer, pushed him
               MEMORANDUM OPINION
                                                                  outside and told him to leave. The manager testified to the
                                                                  following:
Memorandum Opinion by Justice Perkes
                                                                     [PROSECUTOR:] Okay. What happened when you
                                                                       walked outside with Mike?
 *1 Appellant Michael Fitzgerald Reese appeals his
conviction for the offense of murder, a first-degree felony.
                                                                     [MANAGER:] When I walked outside, I was trying to calm
See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw
                                                                       Mike down. I was like, "Mike, just leave, just leave
through Ch. 46 2015 R.S.). Appellant pled guilty and the
                                                                       it alone." The next thing I know, when I turned my
trial court assessed punishment at life imprisonment. By
                                                                       head, 1 seen him pull out a gun. And after that I heard
two issues, appellant argues: (1) the trial court erred in
                                                                       people shouting, "Mike, no. Mike, no. Stop, Mike." And
accepting appellant's guilty plea because the evidence offered
                                                                       I looked. The security guard was trying to push me back
by the State in support of his plea was insufficient to comply
                                                                       in. About that time I heard two gunshots.
with article 1.15 of the Code of Criminal Procedure; and
(2) assuming arguendo that appellant's punishment evidence           [PROSECUTOR:] And did you see Mike shoot either one
could be used to satisfy article 1.15, the evidence established        of the shots?
only that he was guilty of the lesser-included offense of
manslaughter. See TEX. PENAL CODE ANN. § 19.04. We                   [MANAGER:] No, I just went blank. I don't remember
affirm.                                                                anything after that.




WestlawNext*©2015 Thomson Reuters. No claim to original U.S. Government Works.
Reese v. State, Not Reported in S.W.3d (2015)



                                                                              County Jail in Belton, Bell County,
  [PROSECUTOR:] How close were you to him when he                             Texas 76513. I declare under penalty
    pulled out his gun?                                                       of perjury that all of the foregoing is
                                                                              true and correct.
  [MANAGER:] It wasn't—I wasn't that close, but I was
    close enough to notice that he had pulled out a gun.          The trial court admonished appellant and discussed the
                                                                  indictment with appellant:
  [PROSECUTOR:] Do you see where he pulled his gun
       from?
                                                                    THE COURT: Sir, at this point in time you are charged
                                                                      with the first-degree felony offense that on or about the
  [MANAGER:] I just—his shorts.
                                                                      2nd day of April in 2011, here in Bell County, Texas,
                                                                      and before this indictment was presented, that you did
*2 Another customer at Denny's testified that he thereafter
                                                                      then and there intentionally and knowingly cause the
witnessed "the guy with the pink shirt" running away with a
                                                                      death of an individual, namely, Justin Richardson, by
gun.
                                                                      shooting the said Justin Richardson with a firearm. Did
                                                                      you understand that charge?
Before the trial concluded, appellant entered a six-page
written plea agreement, supported by a signed "Judicial             [APPELLANT]: Yes.
Confession." The Judicial Confession reads as follows:
                                                                    THE COURT: To that charge, sir, what is your plea, guilty
               Upon my oath I swear my true name                      or not guilty?
               is Michael Fitzgerald Reese and I
               am 30 years of age; I have read the                  [APPELLANT]: Guilty.
               indictment or information filed in this
               case and I committed each and every
               act alleged therein, except those acts
                                                                    THE COURT: Then is it true that you are pleading "guilty"
               waived by the State. All facts alleged
                                                                      solely because you are guilty and for no other reason?
               in the indictment or information are
               true and correct. I am guilty of the                 [APPELLANT]: Yes.
               instant offense as well as all lesser
               included offenses. All enhancements                  THE COURT: All right. I will accept your plea.
               and habitual allegations set forth in
                                                                    [PROSECUTOR]: I would ask the Court to take judicial
               the   indictment   or        information     are
                                                                      notice of [appellant's] confession contained in the plea
               true and correct, except those waived
                                                                      paperwork on page six, your Honor.
               by the State. All deadly weapon
               allegations are true and correct. All
                                                                    [APPT. ATTY]: No objection.
               other affirmative findings to be made
               by the Court pursuant to this Written                THE COURT: For the record, I am going to mark page
               Plea Agreement are true and correct. I                  six of the written plea agreement entitled "Judicial
               swear to the truth of all the foregoing                 Confession" as State's Exhibit No. 1 [sic] and admit it
               and further, that all testimony I give                  into evidence.
               in the case will be the truth, the whole
               truth and nothing but the truth, so help           The trial court admitted the Judicial Confession into evidence.
               me God.                                            The Court further admitted the following into evidence,
                                                                  without objection: (1) the medical examiner's report; (2) the
Appellant also signed a declaration within the same document      ballistics report; and (3) voluminous photographs from the
that reads as follows:
                                                                  crime scene, the victim, and appellant's apartment and truck.
                                                                  After a short recess, the State re-offered all of the evidence
               My        name          is        MICHAEL
                                                                  from the guilt-innocence phase for the sentencing portion of
               FITZGERALD         REESE           ...   I   am
                                                                  the trial, which the trial court admitted without objection.
               presently incarcerated in the Bell



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Reese v. State, Not Reported in S.W.3d (2015)



Appellant subsequently testified to the following during the      In his first issue, appellant contends the trial court erred in
sentencing hearing:                                               accepting his guilty plea because the evidence offered by
                                                                  the State in support of the plea was insufficient to comply
   *3 [PROSECUTOR:] There are pictures and everything
                                                                  with article 1.15 of the Code of Criminal Procedure.       See
    that has come into evidence. There is really not any issue.
                                                                  TEX. CODE CRIM. PROC. ANN. art. 1.15 (West, Westlaw
    He was shot twice. Ifyou didn't shoot him, who shot him
                                                                  through Ch. 46 2015 R.S.). Additionally, appellant contends
    the second time?
                                                                  that, because his written confession was not sworn before a
  [APPELLANT:] If it serves me correctly, I only fired my         district clerk and his oral guilty plea was not taken under
    weapon once.                                                  oath, the requirements for a judicial confession were not met.
                                                                  Appellant further argues he did not plead true to the facts
  [PROSECUTOR:] Okay. And when you shot him, you shot             alleged in the indictment.
    him in the back.


  [APPELLANT:] Correct.                                           A. Standard of Review and Applicable Law
                                                                  When a defendant chooses to plead guilty, the standard of
  [PROSECUTOR:] Right? And you heard all the witnesses            review set out in Jackson v. Virginia for sufficiency of the
    that testified. You're the only person they saw with a gun,
                                                                  evidence is inapplicable. Ex Parte Martin, 747 S.W.2d 789,
    right?
                                                                  792-93 (Tex. Crim. App. 1988). Texas Code of Criminal
                                                                  Procedure article 1.15 governs sufficiency of the evidence
  [APPELLANT:] Yes.
                                                                  when pleading guilty in a noncapital felony case. TEX. CODE
  [PROSECUTOR:] And Justin Richardson was walking                 CRIM. PROC. ANN. art. 1.15. The evidence is considered

    away from you when you shot him. He had to be. You            sufficient under article 1.15 when it embraces every element
    shot him in the back, right?                                  of the offense. See Stone v. State, 919 S.W.2d 424, 427 (Tex.
                                                                  Crim. App. 1996); Chindaphone v. State, 241 S.W.3d 217,
  [APPELLANT:] Yes.                                               219 (Tex.App.-Fort Worth 2007, pet refd). "A conviction
                                                                  rendered without sufficient evidence to support a guilty plea
                                                                  constitutes a trial error." Menefee v. State, 287 S.W.3d 9, 14
  [PROSECUTOR:] Right? You had that gun where on your             (Tex. Crim. App. 2009).
    body? In your waist? In your pocket? Where did you
                                                                  Article 1.15 states:
     have it?


  [APPELLANT:] On my waist, sir.                                               No person can be convicted of a felony
                                                                               except upon the verdict of a jury
  [PROSECUTOR:] On your waist. And your shirt was                              duly rendered and recorded, unless the
     covering it, right?                                                       defendant, upon entering a plea, has in
                                                                               open court in person waived his right
  [APPELLANT:] Yes, sir.                                                       of trial by jury in writing in accordance
                                                                               with Articles 1.13 and 1.14; provided,
  [PROSECUTOR:] So when you pulled up your shirt—You
                                                                               however, that it shall be necessary for
     had to do that to get the gun, right?
                                                                               the state to introduce evidence into

  [APPELLANT:] Yes, sir.                                                       the record showing the guilt of the
                                                                               defendant and said evidence shall be

The trial court sentenced appellant to life in prison. This                    accepted by the court as the basis for
appeal followed.                                                               its judgment and in no event shall
                                                                               a person charged be convicted upon
                                                                               his plea without sufficient evidence to
                                                                               support the same.
                II. SUFFICIENCY OF THE
                EVIDENCE—ARTICLE 1.15                              *4 TEX. CODE CRIM. PRO. ANN., art. 1.15. Article 1.15
                                                                  is "an additional procedural safeguard required by the State



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Reese v. State, Not Reported in S.W.3d (2015)



of Texas but not by federal constitutional law." Ex parte          (Tex.App.-Austin July 11, 2003, no pet.) (mem. op., not
Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986).              designated for publication).

Evidence in support of a guilty plea can take one of four          When the judicial confession states, "I have read the
forms: (1) defendant's consent to proffer the evidence in          indictment or information filed in this case and I committed
testimonial or documentary form; (2) defendant's consent to        each and every act alleged therein," the judicial confession
an oral or written stipulation of what the evidence against        standing alone is sufficient to support a guilty plea.
him would be, without necessarily admitting to its veracity of     Chindaphone, 241 S.W.3d at 220. In Cindaphone, the
accuracy; (3) defendant entering a sworn written statement; or     defendant pleaded guilty to the offense of sexual assault. Id.
(4) defendant testifying under oath in open court, specifically    at 218. The Second Court of Appeals affirmed the judgment
admitting his culpability or at least acknowledging generally      of the trial court because his judicial confession indicated
that the allegations against him are in fact true and correct.     he read the indictment and had committed each and every
Menefee, 287 S.W.3d at 13. "A deficiency in one form of            act alleged therein. Id. at 220. The operative language of
proof... may be compensated for by other competent evidence        the judicial confession in Chindaphone is nearly identical to
in the record." Id. "Evidence adduced at a sentencing hearing      the language used in appellant's judicial confession. See id.
may also suffice to substantiate a guilty plea." Jones v. Slate,   Therefore, we conclude that appellant's judicial confession is
373 S.W.3d 790, 793 (Tex.App.-Houston [14th Dist.] 2012,           sufficient evidence to satisfy article 1.15 because he states
no pet.) (citing Menefee, 287 S.W.3d at 18-19).                    that he read the indictment filed in the case and "committed
                                                                   each and every act alleged therein" and that "all facts alleged
                                                                   in the indictment or information are true and correct." See
B. Discussion
                                                                   Potts, 571 S.W.2dat 181.
The State argues that appellant's written judicial confession
taken along with the evidence admitted during the trial was         *5 Even if we were to conclude that appellant's judicial
sufficient to support the trial court's judgment. We agree         confession was deficient, there is other competent evidence
with the State that the evidence was sufficient to support         in the record to compensate for the deficiency, including
appellant's plea of guilty to murder.                              the guilt/innocence phase evidence (which was re-offered
                                                                   and admitted at the sentencing hearing) and the sentencing
A judicial confession standing alone is sufficient to sustain      phase evidence. See Menefee, 287 S.W.3d at 14. Appellant
a conviction on a guilty plea and to satisfy the requirements      was seen pulling a gun from his shorts, while bystanders
of article 1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.       yelled, "Mike, no. Mike, no. Stop, Mike." After witnesses
Crim. App. 1979) (op. on reh'g); Breaux v. State, 16 S.W.3d        heard shots fired, appellant was seen running from the scene
854, 857 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A          with a gun. Further, during the sentencing hearing, appellant
judicial confession that simply admits the acts as alleged in      admitted to pulling his gun out from his waistband, pointing it
the indictment without detailing them is sufficient evidence       at Justin Richardson, pulling the trigger, and shooting him in
of guilt. Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim.           the back. See Jones, 373 S.W.3d at 793 ("Evidence adduced
App. 1973). However, a deficiency of one form ofproof, such        at a sentencing hearing may also suffice to substantiate a
as a judicial confession, can be compensated for by other          guilty plea."). We conclude that the evidence, when viewed
competent evidence in the record. Menefee, 287 S.W.3d at 14.       together with the judicial confession, sufficiently embraces
For example, a judicial confession that appellant committed        every element of the offense.
an offense as charged and an in-court affirmation of that
judicial confession together constitute compliance with the        We next address appellant's contention that he was not placed
requirements of article 1.15. Potts v. State, 571 S.W.2d 180,      under oath before entering his guilty plea. Article 27.13 of
 182 (Tex. Crim. App. [Panel Op.] 1978). While a sworn             the Texas Code of Criminal Procedure provides that "[a] plea
confession is one form of evidence that may support a guilty       of 'guilty' or a plea of 'nolo contendere' in a felony case
plea, we note that article 1.15 contains no requirement that       must be made in open court by the defendant in person."
a judicial confession be sworn. See TEX. CODE CRIM.                TEX. CODE CRIM. PRO. ANN., art. 27.13. But article 27.13
PROC. ANN. art. 1.15; Jones v. State, 857 S.W.2d 108, 110          does not require the plea be made under oath, or even an
(Tex.App.-Corpus Christi 1993, no pet.); see also Walker           oral plea. See Costilla v. Slate, 146 S.W.3d 213, 216 (Tex.
v. State, No. 03-03-00018-CR, 2003 WL 21554285, at *1              Crim. App. 2004) (concluding that plea made on behalf of



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Reese v. State, Not Reported in S.W.3d (2015)



                                                                       article 27.13 is satisfied. See Costilla, 146 S.W.3d at216. We
defendant by his attorney satisfied article 27.13); Neal v.
                                                                       overrule appellant's first point of error.
State, 400 S.W.2d 550, 551 (Tex. Crim. App. 1966) ("There
is no statutory requirement that the plea be in writing and
                                                                       Because we conclude there is sufficient evidence to support
under oath."); see also Smith v. State, No. 03-99-00821-CR,
                                                                       appellant's plea of guilty for murder, we need not address the
2000 WL 329362, at *1 (Tex.App.-Austin Mar. 30, 2000,
                                                                       claim that the evidence was sufficient only for a conviction
pet refd) (mem. op., not designated for publication) ("It is
                                                                       of manslaughter.
not necessary that a defendant be sworn before entering his
plea."); Maldonado v. State, No. Bl 4-93-00176-CR, 1994
WL 286391, at *3 (Tex.App.-Houston [14th Dist.] June 30,
1994, no pet.) (mem. op., not designated for publication)                                   IV. CONCLUSION
("[W]e find no merit in appellant's contention that the trial
court erred in accepting his plea of guilty from an unsworn            We affirm the trial court's judgment.
interpreter.") Where, as here, the record demonstrates a
defendant's voluntary desire to plead guilty, the defendant is
                                                                       All Citations
present, and the plea is entered in open court by the defendant,
                                                                       Not Reported in S.W.3d, 2015 WL 4381223


Footnotes
1       Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has been transferred to this
       Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch.
       46 2015R.S.).
2      Although appellant did not object at trial, we note this issue is preserved for appellate review. Article 1.15 contains an
       absolute or systematic requirement that "in no event" shall a person be convicted without evidentiary support. Baggett v.
       State, 342 S.W.3d 172, 175 (Tex.App.-Texarkana 2011, no pet.). Therefore, failure to object does not forfeit or waive a
       claim of error. Id.; see also McClain v. State, 730 S.W.2d 739, 742 (Tex. Crim. App. 1987).


 End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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