                                 NO. 07-11-0200-CR
                                 NO. 07-11-0201-CR
                                 NO. 07-11-0202-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                                   JULY 18, 2011

                        ______________________________


                           JOSHUA COBBS, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE

                      _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NOS. 2010-427,391, 2010-428,785, 2010-428,786;

                     HONORABLE JOHN McCLENDON, JUDGE

                       _______________________________

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


                             MEMORANDUM OPINION


      Upon pleading guilty in open court, Appellant, Joshua Cobbs, was convicted of

aggravated assault with a deadly weapon in three causes and sentenced to sixty years

confinement in each cause, with the sentences running concurrently.        The State

candidly concedes the trial court committed reversible error in Cause Nos. 07-11-0200-
CR and 07-11-0201-CR; however, it maintains the judgment in Cause No. 07-11-0202-

CR is supported by the record. We agree.


           CAUSE NO. 07-11-0200-CR (TRIAL COURT CAUSE NO. 2010-427,391)


       The indictment in this cause alleged Appellant committed the offense of

aggravated assault by causing serious bodily injury to Ashley Shedd, by striking her with

his hand. See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). Appellant raises four

issues contending the trial court erred: (1) by including a deadly weapon finding; (2) by

accepting Appellant's plea in contravention of article 1.15 of the Texas Code of Criminal

Procedure;1 (3) by proceeding without adequate jurisdiction; and (4) by finding Appellant

guilty of an uncharged offense. The State candidly concedes the trial court‟s judgment

is void in finding Appellant guilty of aggravated assault by the use or exhibition of a

deadly weapon; see Tex. Penal Code Ann. § 22.02(a)(2), an uncharged offense that is

not a lesser-included-offense. We accept the State's concession of error.


       Accordingly, as to this cause, we sustain Appellant‟s fourth issue. Our sustention

of issue four pretermits Appellant‟s remaining issues. See Tex. R. App. P. 47.1.


           CAUSE NO. 07-11-0201-CR (TRIAL COURT CAUSE NO. 2010-428,785)


       The indictment in this cause alleged Appellant committed the offense of

aggravated assault by causing serious bodily injury to Lanika Moore, by stabbing her

with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and, during the

commission of the assault, he did use or exhibit a deadly weapon. See Tex. Penal

1
 Throughout the remainder of this opinion, we will refer to provisions of the Texas Code of Criminal
Procedure as “article ___” or “art. ___.”

                                                 2
Code Ann. § 22.02(a)(2) (West 2011). Appellant raises two issues contending the trial

court erred: (1) by accepting his plea in contravention of article 1.15 of the Texas Code

of Criminal Procedure; and (2) by finding him guilty of an uncharged offense. The State

candidly concedes the trial court‟s judgment is void in finding Appellant guilty of an

uncharged offense, to-wit: “us[ing] a deadly weapon during the commission of the

assault and caus[ing] serious bodily injury to a person whose relationship to or

association with the defendant is described by Section 71.0021(b), 71.003, or 71.005,

Family Code.” See Tex. Penal Code Ann. § 22.02(b)(1) (emphasis added). Again, we

accept the State's concession of error.


        Accordingly, as to this cause, we sustain Appellant‟s second issue.          Our

sustention of issue two pretermits Appellant‟s remaining issue. See Tex. R. App. P.

47.1.


           CAUSE NO. 07-11-0202-CR (TRIAL COURT CAUSE NO. 2010-428,786)


        The indictment in this cause alleged Appellant committed the offense of

aggravated assault by causing serious bodily injury to Alecia Logan, by stabbing her

with a knife, see Tex. Penal Code Ann. § 22.02(a)(1) (West 2011); and by the use or

exhibition of a deadly weapon, during the commission of the assault. See Tex. Penal

Code Ann. § 22.02(a)(2) (West 2011). The indictment further alleged that Alecia Logan

was a person with whom Appellant has or has had a dating relationship, as described

by Section 71.005 of the Texas Family Code. See Tex. Penal Code Ann. § 22.02(b)(1).

By a single issue, Appellant contends the State‟s evidence was insufficient to show

either the use of a deadly weapon or the infliction of serious bodily injury in the


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commission of the offense and the trial court therefore erred by accepting his plea in

contravention of article 1.15 of the Texas Code of Criminal Procedure.


        In support of Appellant‟s guilty plea, the State introduced Appellant‟s “Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” By way of this

document, Appellant consented to the stipulation of evidence and waived certain rights.2

See art. 1.15. This document also represented that Appellant understood the "foregoing

allegations" and confessed to their truth.3 In that regard, the indictment alleged that,

"[Appellant] . . . on or about September 7, 2010, did then and there intentionally,

knowingly or recklessly cause serious bodily injury to Alecia Logan by stabbing [her]

with a knife, and [he] did then and there use or exhibit a deadly weapon, to-wit: [a] knife,

during the commission of said assault, and the said Alecia Logan was a person with

whom [Appellant] has or has had a dating relationship, as described by Section 71.005

of the Family Code . . . ." The stipulation and confession was signed by Appellant,

witnessed by his counsel, and approved by the prosecutor and trial court before being

filed with the court.


        The State contends Appellant‟s admission of guilt contained in this stipulation

and confession is sufficient to meet the requirements of article 1.15.                       Appellant


2
 Under article 1.15, the State‟s evidence may be stipulated if the defendant consents in writing, in open
court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents
to an oral stipulation of the evidence or the introduction of affidavits, written statements or other
documentary evidence in support of the judgment.
3
 The caption of the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession
indicates that it was a legal instrument filed in conjunction with "No. 2010428786, THE STATE OF TEXAS
VS. JOSHUA COBBS, . . . Felony Charge: AGG ASSAULT DV - DW & SBI, . . . Agency/Rpt#: LPD / 10-
44897 . . . ." The following page contained in the Clerk's Record is an unsigned document also entitled
Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, reciting the specific
allegations contained in the indictment. From this, we conclude that the "foregoing allegations" refer to
the allegations contained in the indictment in this cause.

                                                   4
acknowledges that a judicial confession alone would be sufficient to support a plea, but

contends the requirements of article 1.15 were not met here because this document

was not introduced into evidence by the State and the trial court did not take judicial

notice of it. In that regard, Appellant cites this Court to no authority specifically requiring

that a stipulation and confession be formally admitted into evidence or be judicially

noticed in order to meet the requirements of article 1.15, and we find none.


       As used in article 1.15, the term “stipulation” includes “agreements about what

particular evidence or testimony would be, if presented in full and open court, without

conceding the truthfulness of that evidence or otherwise waiving the need for proof.”

Nixon v. State, 928 S.W.2d 212, 214 (Tex.App.—Beaumont 1996, no pet.) (citing

Robinson v. State, 739 S.W.2d 795, 799 n.51 (Tex.Crim.App. 1987)) (Emphasis added).

“In reviewing our sufficiency of stipulated evidence to support the trial court‟s finding of

guilt, we view stipulations as if they were actual witness testimony.” Id. (quoting Stell v.

State, 496 S.W.2d 623, 626 (Tex.Crim.App. 1973)). Therefore, because the stipulation

and confession was filed as a legal document in this cause and became a part of the

record of this case, we find that the stipulation was "as if" presented by actual witness

testimony.


       Moreover, because Appellant‟s judicial confession is sufficient to show that he

committed the offense alleged in the indictment, the record need not contain other

evidence to satisfy the State‟s burden under article 1.15.         See Keller v. State, 125

S.W.3d 600, 605 (Tex.App.—Houston [1st Dist.] 2003, pet. dism‟d), (evidence sufficient

where Appellant read and signed a similar “Waiver of Constitutional Rights, Agreement

to Stipulate, and Judicial Confession stating „I understand the above allegations and I

                                              5
confess they are true”‟), cert. denied, 544 U.S. 906, 125 S.Ct. 1603, 161 L.Ed.2d 280

(2005). Accordingly, we conclude that the filing of Appellant‟s stipulation and judicial

confession was sufficient to support the judgment under article 1.15. See Dinnery v.

State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (“It is well settled that a judicial

confession, standing alone, is sufficient to sustain a conviction upon a guilty plea.

[collected cases cited therein]”). Appellant‟s single issue is overruled.


                                       CONCLUSION


       Agreeing with the State's position, the trial court‟s judgments in Cause Nos. 07-

11-0200-CR and 07-11-0201-CR are reversed and those causes are remanded to the

trial court for further proceedings; and the trial court‟s judgment in Cause No. 07-11-

0202-CR is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice

Do not publish




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