Opinion issued December 30, 2014




                                   In The

                          Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                          NO. 01-13-00760-CR
                        ———————————
                  IRIS ROSALES GUERRA, Appellant
                                     V.
                   THE STATE OF TEXAS, Appellee



                 On Appeal from the 208th District Court
                         Harris County, Texas
                     Trial Court Case No. 1369989



                    MEMORANDUM OPINION
      Iris Rosales Guerra pleaded guilty without an agreed recommendation to

credit card abuse against an elderly person,1 enhanced with a prior felony

conviction. The trial court sentenced her to three years’ confinement. In two

points of error, appellant contends that the trial court erred in finding her guilty

because (1) the indictment was fundamentally defective and (2) the State failed to

offer sufficient evidence to support her guilty plea. We affirm.

                                    Background

      The State charged appellant by indictment with credit card abuse against an

elderly person, enhanced with a prior felony conviction of driving while

intoxicated. Appellant ultimately pleaded guilty to the offense. As a part of her

plea, appellant signed a judicial confession that was notarized and was also signed

by appellant’s trial counsel, the prosecutor, and the trial court. The confession

provides, in relevant part,

      The charges against me allege that in Harris County, Texas, Iris
      Rosales Guerra, hereafter styled the Defendant, heretofore on or about
      October 22, 2012, did then and there unlawfully, possess with the
      intent to use a CREDIT card without the effective consent of the
      cardholder, May Paulissen, a person other than the Defendant, and a
      person at least 65 years of age.
                                       ....

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      “A person commits an offense if . . . not being the cardholder, and without the
      effective consent of the cardholder, he possesses a credit card or debit card with
      intent to use it.” TEX. PENAL CODE ANN. § 32.31(b)(8) (West 2011). The offense
      is a third-degree felony if it was committed against a person sixty-five years or
      older. Id. §§ 32.31(d), 22.04(c)(2) (West 2011 & Supp. 2014).

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      I understand the above allegations and I confess that they are true and
      that the acts alleged above were committed on October 22, 2012.

      In open court I consent to the oral and written stipulation of evidence
      in this case and to the introductions of affidavits, written statements of
      witnesses, and other documentary evidence.

      The confession also contained a paragraph above the trial court’s signature.

That paragraph provides, in pertinent part, “This document was executed by the

defendant, [her] attorney, and the attorney representing the State, and then filed

with the papers of the case. The defendant then came before me and I approved

the above and the defendant entered a plea of guilty.” This document is included

in the appellate record as a part of the clerk’s record.

                                       Analysis

   A. Sufficiency of Indictment

      Appellant’s first point of error contends that the indictment was

fundamentally defective because it failed to allege the manner and means with

which she intended to use the credit card. Thus, she contends, the indictment was

insufficient to put her on notice of the crime with which she was charged.

      Initially, we note that appellant did not object to the indictment in the trial

court. Article 1.14 of the Texas Code of Criminal Procedure provides that a

defendant must object to a defect, error, or irregularity of form or substance in an

indictment before the date of trial; otherwise, she waives her right to challenge that

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error on appeal. TEX. CODE CRIM. PROC. art. 1.14(b) (West 2005); see Studer v.

State, 799 S.W.2d 268 & 271 n.11 (Tex. Crim. App. 1990); Massey v. State, 933

S.W.2d 582, 584 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Having failed to

object to the alleged defect in the indictment before trial, appellant waived any

error as to the sufficiency of the indictment.

      However, absent waiver, appellant’s argument is unavailing for another

reason. With rare exceptions, an indictment that tracks the language of the relevant

statute satisfies constitutional and statutory notice requirements. See State v. Mays,

967 S.W.2d 404, 406 (Tex. Crim. App. 1998).             Here, the language of the

indictment tracks the statutory language provided by the “credit card abuse”

statute. Under Penal Code section 21.31(b)(8), “[a] person commits an offense if

. . . not being the cardholder, and without the effective consent of the cardholder,

he possesses a credit card or debit card with intent to use it.” TEX. PENAL CODE

ANN. § 32.31(b)(8) (West 2011). The indictment reads, in pertinent part,

      Iris Rosales Guerra, hereafter styled the Defendant, heretofore on or
      about October 22, 2012, did then and there unlawfully possess with
      the intent to use a CREDIT card without the effective consent of the
      cardholder, May Paulissen, a person other than the defendant, and a
      person at least 65 years of age.

      The State was not required to plead evidentiary matters regarding the

particular manner and means by which appellant intended to use the card. See

Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010); see also Moallen v.

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State, 699 S.W.2d 926, 927 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d)

(concluding it unreasonably burdensome to require State to allege in indictment

what defendant, who was charged with credit card abuse, intended to obtain

because fact is generally only known to defendant and not to State); 2 Gonzales v.

State, 638 S.W.2d 41, 44 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d)

(concluding in case where defendant was charged with possession with intent to

deliver cocaine that “[t]he State was not required to speculate on which manner of

delivery the [defendant] intended to use and allege such in the indictment.”).

Accordingly, we overrule appellant’s first point of error.

    B. Sufficiency of Evidence in Support of Guilty Plea

       Appellant’s second point of error contends that the State failed to introduce

sufficient evidence to support her guilty plea.

    1. Standard of Review


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        Appellant mistakenly cites to this Court’s original opinion in Moallen v. State,
       661 S.W.2d 204 (Tex. App.—Houston [1st Dist.] 1983), rev’d, 690 S.W.2d 244
       (Tex. Crim. App. 1985), in which we concluded that the indictment was
       fundamentally defective because it did not allege the victim from whom the
       defendant obtained something, against whom she used the card, and how or in
       what manner the credit card involved was fictitious. See 661 S.W.2d at 205. The
       Court of Criminal Appeals, however, reversed the judgment of the panel and
       remanded for a determination of whether it was reversible error for the trial court
       to have denied the motion to quash on any of the remaining grounds asserted. See
       Moallen v. State, 690 S.W.2d 244, 246 (Tex. Crim. App. 1985). On remand, we
       affirmed the trial court’s judgment and concluded, among other things, that the
       State was not required to describe what property and services the defendant
       intended to obtain. See Moallen v. State, 699 S.W.2d 926, 927 (Tex. App.—
       Houston [1st Dist.] 1985, pet. ref’d).
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      When a criminal defendant pleads guilty, she waives her right to challenge

the sufficiency of the evidence. Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—

Houston [1st Dist.] 2003), pet. dism’d, improvidently granted, 146 S.W.3d 677

(Tex. Crim. App. 2004) (per curiam); see also Staggs v. State, 314 S.W.3d 155,

159 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In such cases, we confine our

review of the sufficiency of the evidence to determining whether the evidence

supports the conviction under article 1.15 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005); Keller, 125

S.W.3d at 605 (citing TEX. CODE CRIM. PROC. ANN. art. 1.15). The State must

offer sufficient proof to support any judgment based on a guilty plea in a felony

case tried before a court. Keller, 125 S.W.3d at 604 (citation omitted). “The State,

however, is not required to prove the defendant’s guilt beyond a reasonable doubt;

the supporting evidence must simply embrace every essential element of the

charged offense.” Staggs, 314 S.W.3d at 159.

   2. Analysis

      Article 1.15 of the Texas Code of Criminal Procedure requires 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.” TEX. CODE CRIM. PROC. ANN. art. 1.15; see Menefee v. State,

                                         6
287 S.W.3d 9, 13–14 (Tex. Crim. App. 2009). The evidence supporting a guilty

plea may take several forms. Menefee, 287 S.W.3d at 13. Specifically, article 1.15

provides that

      the evidence may be stipulated if the defendant in such a 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.

TEX. CODE CRIM. PROC. ANN. art. 1.15.

      The State argues that the facts of this case are nearly identical to those in

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

ref’d). In Rexford, the defendant had pleaded guilty to a charge of sexual assault.

Id. at 495. On appeal, the defendant argued that the evidence was insufficient to

support his plea of guilty. Id. As in this case, the defendant had signed and

notarized a judicial confession which identified the elements of the crime for

which he had been charged and further stated that the defendant confessed that the

allegations were true. Id. In addition to the defendant’s signature, the confession

contained the signature of the defendant’s attorney, the prosecutor, and the trial

court. Id. As here, the confession was never formally admitted into evidence, but

the document stated that it was executed by the defendant, filed with the papers of

the case, and approved by the trial court. Id. Based on these facts, we held that the

                                         7
confession was accepted and considered by the court and, therefore, constituted

sufficient support of the defendant’s guilty plea. Id. at 495–96.

      All relevant facts present in Rexford are present in this case. Because there

is no legally significant distinction between Rexford and this case, the holding of

Rexford applies. See id.; see also Sosa v. State, No. 01-13-00665-CR, 2014 WL

2933154, at *2 (Tex. App.—Houston [1st Dist.] June 26, 2014, no pet.) (mem. op.,

not designated for publication) (finding evidence supporting guilty plea sufficient

where facts were identical to relevant facts in Rexford). As such, we hold that

there is sufficient supporting evidence to uphold appellant’s plea of guilty. We

overrule appellant’s second point of error.

                                    Conclusion

  We affirm the judgment of the trial court.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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