                                  NO. 07-11-00428-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   OCTOBER 30, 2012


                            JULIAN MONTOYA, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2010-428,623; HONORABLE JOHN J. "TREY" MCCLENDON, JUDGE


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


                               MEMORANDUM OPINION


       Appellant, Julian Montoya, was charged by indictment with the offense of driving

while intoxicated 1 enhanced by allegations of two previous driving while intoxicated

convictions. 2    Additionally, the indictment contained a punishment enhancement

allegation of a previous conviction for a felony offense. 3       Subsequently, appellant

entered a plea of guilty to the offense alleged, and true to the allegations of the previous

       1
           See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2012).
       2
           See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012).
       3
           See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2012).
driving while intoxicated convictions and the prior felony conviction. Appellant’s pleas

were entered without benefit of a plea bargain agreement. After hearing the evidence

regarding punishment, the trial court assessed appellant’s punishment at confinement in

the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for a

period of six years.     Appellant appeals his conviction contending that there was

insufficient evidence before the trial court to sustain his plea of guilty. We disagree and

will affirm.


                           Factual and Procedural Background


        On June 26, 2010, appellant was arrested for the offense of driving while

intoxicated. Based upon appellant’s previous convictions, a grand jury indicted him for

driving while intoxicated, felony offense. On March 22, 2011, appellant appeared with

trial counsel to enter a plea of guilty without the benefit of a plea agreement. Prior to

accepting appellant’s plea of guilty, and after admonishments regarding citizenship and

competency to enter a plea, the trial court entered into the following colloquy with

appellant:


        Mr. Montoya, would you please step forward.
        Mr. Montoya, we are here on Cause No. 2010-428,623, the State of Texas
        versus Julian Montoya, for the purpose of an open plea.
        Mr. Montoya, I have certain paperwork here that appears to bear your
        signatures. In signing this paperwork did you understand that you were
        giving up certain valuable rights?
        Mr. Montoya: Yes, sir.
        The Court: And you understand that in—did you sign these papers and
        give up those rights freely, knowingly and voluntarily?
        Mr. Montoya: Yes, sir.


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The trial court then went on to further admonish appellant regarding the range of

punishment and, once again, verified that appellant desired to enter a plea of guilty

without benefit of a plea bargain. After accepting appellant’s plea of guilty and pleas of

true to the jurisdictional paragraphs and punishment enhancement paragraph, the trial

court ordered a presentence investigation and adjourned the hearing.


       The clerk’s record filed in this case includes a two-page document, both pages of

which are titled, “Waiver of Constitutional Rights, Agreement to Stipulate and Judicial

Confession.” One of the pages contains the following statement,


       In open court and prior to entering my plea, I waive the right of trial by jury.
       I also waive the appearance, confrontation, and cross-examination of
       witnesses, and my right against self-incrimination. The charges against
       me allege that on or about the 26th day of June, A.D. 2010, in Lubbock
       County, Texas, I, Julian Montoya, hereafter styled the Defendant, did then
       and there operate a motor vehicle in a public place while intoxicated.
The waiver goes on to describe the jurisdictional enhancements of the prior driving

while intoxicated convictions, and the prior felony conviction. The other page of the

waiver contains the following statement, “I understand the foregoing allegations and I

confess that they are true.” In addition, this document again waives certain rights and

makes statements regarding being satisfied with his attorney. The box for “GUILTY” is

checked, as opposed to the box for “NOLO CONTENDERE.”                   This document then

contains the signature of appellant, appellant’s trial counsel, and the assistant district

attorney. Below those signatures is the trial judge’s signature. Above the trial judge’s

signature is the trial judge’s statement that the “document was executed by the

defendant, the Defendant’s attorney, and the attorney representing the State, and then

filed with the papers of the case.”



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       It was after receiving the plea in question that the trial court conducted a

punishment hearing that resulted in the sentence of confinement for six years in the ID-

TDCJ. Appellant now appeals contending that the evidence was insufficient to support

the plea of guilty. We disagree with appellant’s contention and affirm the judgment of

the trial court.


                                    Article 1.15 Issue


       Appellant’s issue is that the evidence introduced at his plea of guilty was not

sufficient to show appellant’s guilt.    Article 1.15 of the Texas Code of Criminal

Procedure provides that:


                                 Art. 1.15. Jury In Felony


       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 of trial by jury in writing in
       accordance with Articles 1.13 and 1.14; provided, however, that it shall be
       necessary for the state to introduce evidence into the record showing the
       guilt of the defendant and said evidence shall be accepted by the court as
       the basis for its judgment and in no event shall a person charged be
       convicted upon his plea without sufficient evidence to support the same.
       The evidence may be stipulated if the defendant in such case consents in
       writing, in open court, to waive the appearance, confrontation, and cross-
       examination of witnesses, and further consents either to an oral stipulation
       of the evidence and testimony or to the introduction of testimony by
       affidavits, written statements of witnesses, and any other documentary
       evidence in support of the judgment of the court. Such waiver and
       consent must be approved by the court in writing, and be filed in the file of
       the papers of the cause.




                                            4
TEX. CODE OF CRIM. PROC. ANN. art. 1.15 (West 2005). 4


       Appellant’s contention may be summed up that the record does not show any

judicial confession was offered or admitted into evidence and that, if such confession

was made, it was on a separate document page that did not contain the signature of

appellant or his counsel. Further, the trial court never took judicial notice of appellant’s

confession.


       This Court has previously addressed this same contention. See Gonzalez v.

State, Nos. 07-11-0166-CR to 07-11-0169-CR, 2012 Tex. App. LEXIS 3395, at *5-7

(Tex.App.—Amarillo Apr. 30, 2012, no pet.) (mem. op., not designated for publication).

In Gonzalez, we held that evidence sufficient to support a plea of guilty could be found

in the document styled, “Waiver of Constitutional Rights, Agreement to Stipulate, and

Judicial Confession,” wherein the appellant stated he understood the allegations against

him and he confessed to the truth of those allegations. Id. at *5. This was true even

though the confession was not introduced nor did the trial court take judicial notice of

the confession on the record. Id. at *6. The judicial confession need not be introduced

into evidence nor does the trial court need to affirmatively take judicial notice of the

same. Id. at *6-7 (citing Richardson v. State, 475 S.W.2d 932, 933 (Tex.Crim.App.

1972), and Rexford v. State, 818 S.W.2d 494, 495 (Tex.App.—Houston [1st Dist.] 1991,

pet. ref’d)). We cited Rexford for the proposition that, for purposes of article 1.15, as

long as the document was on file with, and approved by the trial court, the document

had been accepted by the trial court and properly utilized as evidence of guilt. Id.


       4
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “article ____.”

                                             5
       Today, we are faced with the same contention and the same facts. Appellant

executed the same waiver and the waiver contains the required waiver of trial by jury,

appearance, confrontation, cross-examination of witnesses, and right against self-

incrimination. The document contains appellant’s judicial confession that, on the 26th

day of June, 2010, appellant did then and there operate a motor vehicle in a public

place while intoxicated. The document then contains the jurisdictional allegations of

prior driving while intoxicated convictions and the prior felony conviction. On the page

containing appellant’s signature, appellant states, “I understand the forgoing allegations

and I confess that they are true.” Below this statement is appellant’s signature, trial

counsel’s signature, and the State’s attorney’s signature.        Finally, the trial court

accepted the waiver and judicial confession and ordered the documents filed in the

papers of the case. After which, the trial court signed the document.


       As can be seen by the forgoing factual recitation, the requirements of article 1.15

have been met. The waivers required by articles 1.13 and 1.14 are present. The

evidence was stipulated to, as required by article 1.15, and the documents were

approved by the trial court and filed in the papers of the case. There was sufficient

evidence adduced at trial to support appellant’s plea of guilty. Accordingly, appellant’s

issue is overruled.




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                                       Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.


                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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