      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-16-00208-CR



                                    Raul Garcia, Jr., Appellant

                                                  v.

                                    The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 74493, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Raul Garcia, Jr., was charged with the aggravated sexual assault of his stepdaughter,

L.L., who was under the age of fourteen years old at the time of the assault. See Tex. Penal Code

§ 22.021(a)(1)(B)(i), (a)(2)(B) (setting out elements of offense), (e) (stating that offense is first-

degree felony). In an open plea, Garcia pleaded guilty to the charge and signed a judicial confession

as part of his plea paperwork. After accepting Garcia’s plea and finding him guilty of the offense,

the district court sentenced Garcia to 50 years’ imprisonment. See id. § 12.32 (listing permissible

punishment range for first-degree felony). In a single issue on appeal, Garcia challenges the

sufficiency of the evidence supporting his guilty plea. We will affirm the district court’s judgment

of conviction.
                                           DISCUSSION

Sufficiency of the Evidence

               In his sole issue on appeal, Garcia contends that the district court erred by accepting

his plea because the evidence presented in support of that plea did not satisfy the requirements of

article 1.15 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 1.15. Article 1.15

imposes a procedural safeguard before a trial court may render a conviction based on a guilty plea.

Id.; see Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Specifically, the provision

prohibits a court from “render[ing] a conviction in a felony case” unless evidence was presented

supporting the defendant’s guilt even when a defendant enters a plea of guilty. Menefee, 287 S.W.3d

at 13. “The evidence does not have to establish the defendant’s guilt beyond a reasonable doubt

but must embrace every element of the offense charged.” Jones v. State, 373 S.W.3d 790, 793 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); see also Menefee, 287 S.W.3d at 13-14 (discussing types

of evidence that may be considered). “A deficiency in one form of proof may be compensated for

by other competent evidence in the record.” Jones, 373 S.W.3d at 793. A judicial confession can

satisfy the requirements of article 1.15 if it embraces all of the elements of the charged offense. See

Menefee, 287 S.W.3d at 13.

               As discussed previously, Garcia was charged with aggravated sexual assault of a

child. The relevant portions of the Penal Code state that someone commits that offense if he

“intentionally or knowingly . . . causes the penetration of the . . . sexual organ of a child by any

means” and if “the victim is younger than 14 years of age.” Tex. Penal Code § 22.021(a)(1)(B)(i),

(a)(2)(B). Consistent with those provisions, the indictment in this case set out the elements of the



                                                  2
offense by alleging that Garcia “did then and there intentionally or knowingly cause the penetration

of the sexual organ of [L.L.], a child who was then and there younger than 14 years of age, by the

defendant’s sexual organ.” During the plea hearing, Garcia pleaded guilty to the charged offense.

In addition, as part of his plea, Garcia signed a judicial confession, which stated that he read the

“indictment . . . in this case and I committed each and every act alleged therein . . . . All facts alleged

in the indictment . . . are true and correct. I am guilty of the instant offense as well as all lesser

included offenses.” During the plea hearing, the district court took judicial notice of the judicial

confession, and Garcia stated that he had “[n]o objection” when the State asked the court to take

judicial notice of the confession and other plea paperwork.

                In challenging the sufficiency of the evidence, Garcia points to Menefee, in which the

court of criminal appeals discussed different ways in which a guilty plea may be supported in order

to satisfy article 1.15. See 287 S.W.3d at 13-14. Specifically, Garcia notes that the court explained

that “[e]vidence offered in support of a guilty plea may take many forms,” including the proffer of

evidence, oral or written stipulations of what the evidence would be, a sworn written statement from

the defendant, and testimony from the defendant under oath. See id. at 13. Further, Garcia insists

that the State did not produce evidence falling into any of the categories of supporting evidence listed

above. In particular, although Garcia admits that he signed a judicial confession, he contends that

the confession was insufficient because it was not sworn and because there was no jurat showing

that the confession was made while he was under oath. Similarly, although Garcia acknowledges

that he answered, “Yes,” when the district court asked him if he committed the offense during

the plea hearing, he notes that he was not under oath when he answered the question posed by the

district court and entered his guilty plea and, therefore, argues that his statement admitting that he

                                                    3
committed the offense could not constitute competent evidence to support his plea. Finally, he urges

that the “evidence supporting [his] guilty plea was only sufficient to” prove “the lesser-included

offense of indecency with a child by contact.” More specifically, Garcia contends that nothing in

L.L.’s testimony during the punishment hearing demonstrated that he penetrated her sexual organ.

Accordingly, he asserts that the district court’s judgment should be reformed to reflect a conviction

for indecency with a child by contact and that this Court should remand the case for a new

punishment hearing.

               Recently, we explained that “it is well-established that a judicial confession need

not be sworn to before a clerk or other authority to support a conviction.” Weatherspoon v. State,

No. 03-15-00237-CR, 2016 WL 3919673, at *2 (Tex. App.—Austin July 15, 2016, no pet. h.) (mem.

op., not designated for publication); see Walker v. State, No. 03-03-00018-CR, 2003 WL 21554285,

at *2 (Tex. App.—Austin July 11, 2003, no pet.) (mem. op., not designated for publication) (noting

that “[t]here is no requirement that the defendant swear to the waiver and stipulation before the clerk

or anyone else”); Ybarra v. State, 93 S.W.3d 922, 927 n.4 (Tex. App.—Corpus Christi 2002, no pet.)

(observing that “the judicial confession was neither sworn to before the clerk nor signed by the judge”

but explaining that “these omissions do not affect either the confession’s validity or admissibility”);

Weiss v. State, Nos. 05-92-01764—01768-CR, 1997 WL 53354, at *2 (Tex. App.—Dallas Feb. 11,

1997, no writ) (not designated for publication) (stating that “[j]udicial confessions are evidentiary

in nature and are not required to be sworn”).

               In fact, on the day that Garcia filed his brief in this case, this Court issued an opinion

addressing a similar situation where a defendant entered an open plea and signed an unsworn



                                                   4
judicial confession as part of his plea paperwork in which he admitted “that he had read the

information ‘in this case,’ that he ‘committed each and every act alleged,’ and that ‘[a]ll facts

alleged in the . . . information are true and correct,’” and this Court determined that “[i]f a judicial

confession states that the defendant has read the charging instrument and that he admits to having

committed each alleged act, the confession alone is sufficient to support a conviction from a

guilty plea under article 1.15.” Scott v. State, No. 03-15-00096-CR, 2016 WL 4506156, at *2, *4

(Tex. App.—Austin Aug. 24, 2016, no pet. h.) (mem. op., not designated for publication); see

Chindaphone v. State, 241 S.W.3d 217, 218, 220 (Tex. App.—Fort Worth 2007, pet. ref’d)

(concluding that judicial confession was sufficient to support plea where it stated as follows: “I have

read the indictment or information filed in this case and I committed each and every act alleged

therein”). In reaching this conclusion, this Court rejected the assertion that Menefee requires that

a judicial confession be sworn before it can properly support a guilty plea. Scott, 2016 WL 4506156,

at *3 n.2. Further, this Court explained that “[b]ased on the language of the judicial confession and

the information, we must conclude that the judicial confession embraced every element of the

charged offense and ‘contained sufficient reference to the [information]’s allegations to support the

trial court’s conviction on his guilty plea under article 1.15.’” Id. at *4 (quoting Weatherspoon, 2016

WL 3919673, at *3); see also Brooks v. State, Nos. 03-13-00251—00254-CR, 2014 WL 2918000,

at *2-4 (Tex. App.—Austin June 19, 2014, no pet.) (mem. op., not designated for publication)

(determining that conviction on guilty plea was proper when defendant signed stipulation of guilt

stating that he had read indictments, which set out all required elements, and that State’s evidence

would show that he had committed all alleged acts); Tijerina v. State, 264 S.W.3d 320, 323-24 (Tex.



                                                   5
App.—San Antonio 2008, pet. ref’d) (mem. op.) (concluding that conviction on guilty plea was

proper when defendant signed document stating that he judicially confessed that “‘all the acts,

charges, and allegations’” in indictment were “‘true and correct’”); Watson v. State, 974 S.W.2d 763,

765 (Tex. App.—San Antonio 1998, pet. ref’d) (explaining that “judicial confession is sufficient to

sustain a conviction upon a guilty plea even if the defendant does nothing more than affirm that the

allegations in the indictment are true and correct”).1

                In light of our prior controlling precedent, of the language of the indictment in this

case, and of the fact that the language in the judicial confession at issue in Scott is nearly identical

to the language present here, we must also conclude that the judicial confession in this case

embraced every element of the charged offense and was sufficient to support Garcia’s conviction

under article 1.15. Having determined that Garcia’s plea of guilty to the charge of aggravated sexual

assault of a child is properly supported by his judicial confession, we need not address Garcia’s

remaining arguments challenging whether his plea was otherwise properly supported, including

Garcia’s assertion that the evidence presented during the punishment hearing was insufficient. See

Scott, 2016 WL 4506156, at *2; see also id. at *1 (explaining that various “courts have held that


       1
           In his brief, Garcia asserts that the district court’s taking judicial notice of the judicial
confession was a “nullity” because trial courts cannot properly take judicial notice of judicial
confessions and because the confession was not admitted into evidence. We fully addressed and
rejected those arguments in Scott v. State, No. 03-15-00096-CR, 2016 WL 4506156, at *2 n.1 (Tex.
App.—Austin Aug. 24, 2016, no pet. h.) (mem. op., not designated for publication); see also Jones
v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (providing that “[a]
written confession approved by the court, and thus considered by the court, can be sufficient to
substantiate a guilty plea even if not introduced into evidence”); Chindaphone v. State, 241 S.W.3d
217, 219 (Tex. App.—Fort Worth 2007, pet. ref’d) (explaining that trial courts may take judicial
notice of judicial confessions and that if trial court does take judicial notice of judicial confession,
“the State is not required to introduce the judicial confession into evidence”).

                                                   6
evidence produced during the punishment hearing can be considered when determining if a guilty

plea is properly supported”).2 Accordingly, we overrule Garcia’s sole issue on appeal.


                                          CONCLUSION

                 Having overruled Garcia’s issue on appeal, we affirm the district court’s judgment

of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: September 28, 2016

Do Not Publish




       2
          Although we do not address Garcia’s argument that the evidence presented during the
punishment hearing only established his guilt of the lesser-included offense of indecency by contact
because the evidence did not establish that he penetrated L.L.’s sexual organ, we do note that L.L.
testified that there was at least “[o]ne time” when Garcia put his “middle part” into “her private.”
Further, she testified regarding multiple text messages that were sent from Garcia’s phone to her
phone indicating that he had already penetrated L.L.’s sexual organ with his penis or intended to
in the near future.

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