                          NUMBER 13-14-00750-CR

                          COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

CHRISTOPHER CORDIL-
CORTINAS,                                                                Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                        MEMORANDUM OPINION

             Before Justices Garza, Benavides and Longoria
               Memorandum Opinion by Justice Longoria

      Appellant Christopher Cordil-Cortinas challenges his conviction for one count of

felony murder. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West, Westlaw through 2015

R.S.). We affirm.
                                              I. BACKGROUND

        On February 27, 2014, Officer Steven Lang of the Victoria Police Department

responded to a report of an intoxicated driver in the drive-through line of a McDonald’s.

Officer Lang approached the vehicle and the driver, appellant, rolled down the driver’s

side window “three or four inches.” At that time, Officer Lang observed that appellant had

a “droopy facial expression and glassy eyes and slurred speech.” Officer Lang asked

appellant for his identification. According to Officer Lang, appellant first appeared to be

reaching for his driver’s license but then rolled up the window and drove off at a high rate

of speed down Rio Grande Street. A short distance away, appellant’s vehicle collided

with one driven by Cynthia Partida. Partida died as a result of the injuries she sustained

in the collision.

        The State charged appellant by indictment with felony murder, see id., and alleged

two alternative theories of the offense in separate paragraphs of the indictment. In

Paragraph 1, the State alleged that appellant caused Partida’s death in the course of

committing the felony of driving while intoxicated.1 See id. §§ 49.04, 49.09 (West,

Westlaw through 2015 R.S.). The State alleged in Paragraph 2 of the indictment that

appellant caused Partida’s death in the course of committing the felony of evading arrest

with a motor vehicle. See id. § 38.04 (West, Westlaw through 2015 R.S.).

        Appellant chose to enter an open plea of guilty and request the trial court to assess

punishment. Appellant executed a plea memorandum under oath in which he agreed that

his plea was freely and voluntarily made, that he waived his rights to a jury trial and to


         1 The indictment further alleged that appellant had previously been convicted two or more times of

driving while intoxicated. See TEX. PENAL CODE ANN. § 49.09(b) (West, Westlaw through 2015 R.S.)
(providing that the offense of driving while intoxicated is a third-degree felony if the defendant has been
convicted two or more times of driving while intoxicated).

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confront the witnesses against him, and that he would give an oral stipulation of evidence

in open court. Appellant also stated in the memorandum that he “judicially confesses

under oath: that each and every allegation contained in the indictment or information

which is not waived by the State is true and correct.” During the plea hearing, appellant

orally stipulated in open court that Officer Lang would testify to the allegations in the

indictment and further orally stipulated that “all acts and allegations contained in the

State’s indictment are true and correct.”

       The trial court accepted appellant’s plea and stipulations and, following a separate

hearing on punishment, assessed sentence at imprisonment for life in the Texas

Department of Criminal Justice—Institutional Division. This appeal followed.

                                            II. DISCUSSION

       By three issues, which we have reordered and will address as two, appellant

asserts that (1) the trial court lacked jurisdiction because the indictment failed to allege

the required mental state for the predicate felony of evading arrest in Paragraph 2 of the

indictment and (2) that the evidence is insufficient to support his plea.

       A. Was Paragraph 2 of the Indictment Defective?

       Appellant argues by his first issue that Paragraph 2 of the indictment was defective

because it did not allege the essential element of a culpable mental state for the

underlying felony of evading arrest with a motor vehicle. Appellant reasons that the defect

in the indictment deprived the trial court of jurisdiction. We disagree.

       An indictment is sufficient to vest the trial court with jurisdiction over a case if it

charges a person with an identifiable offense over which the trial court possesses subject

matter jurisdiction. Teal v. State, 230 S.W.3d 172, 179–80 (Tex. Crim. App. 2007). A



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defendant must object to any other error in the indictment before the beginning of trial or

waives the issue. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West, Westlaw through 2015

R.S.); Teal, 230 S.W.3d. at 179. The indictment in this case meets both requirements

necessary to vest the trial court with jurisdiction: it charges appellant with the offense of

felony murder, and it alleges two alternative predicate offenses, felony driving while

intoxicated and evading arrest with a motor vehicle. See Teal, 230 S.W.3d. at 179.

Appellant waived any other alleged error in the indictment by failing to object to it before

the beginning of trial. See id. at 181–82 (holding that when the indictment was sufficient

to vest the trial court with jurisdiction, the defendant waived his argument that indictment

was flawed for not alleging a culpable mental state by not objecting before the beginning

of trial).

        Further, even if appellant had preserved error, “an indictment charging one offense

during the commission of another crime need not allege the elements of the latter

offense.” See Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979) (en banc)

(op. on reh’g). Thus, the indictment in this case was not erroneous for not including the

elements of the underlying felony of evading arrest with a motor vehicle. See id.; Yandell

v. State, 46 S.W.3d 357, 362 (Tex. App.—Austin 2001, pet. ref'd) (applying the holding of

Hammett to a felony murder case). We overrule appellant’s first issue.

        B. Was the Evidence Sufficient to Support the Guilty Plea?

        By his second and third issues, which we address together, appellant asserts that

the evidence was insufficient to support his guilty plea because there was no evidence

confirming that appellant: (1) was intoxicated at the time he operated a vehicle and

caused Partida’s death; (2) had previously been convicted of driving while intoxicated two



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or more times; and (3) knew Officer Lang was a police officer at the time appellant fled

from him. We disagree.

              1. Applicable Law

       Article 1.15 of the Texas Code of Criminal Procedure provides that Texas courts

may not render a conviction in a felony case based on a plea of guilty “without sufficient

evidence to support the same.” TEX. CODE CRIM. PROC. ANN. art. 1.15 (West, Westlaw

through 2015 R.S.). The supporting evidence must embrace each essential element of

the charged offense but need not establish the defendant’s guilt beyond a reasonable

doubt. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Flores-Alonzo v.

State, 460 S.W.3d 197, 203 (Tex. App.—Texarkana 2015, no pet.). Article 1.15 provides

that the defendant may supply this evidence by consenting to the proffer of evidence in

the form of testimony or affidavits, or by stipulating orally or in writing as to what the

evidence against him would be. TEX. CODE CRIM. PROC. ANN. art. 1.15; see Menefee v.

State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Case law from the Texas Court of

Criminal Appeals also authorizes a defendant to testify under oath “specifically admitting

his culpability or at least acknowledging generally that the allegations against him are in

fact true and correct.” Menefee, 287 S.W.3d at 13. Such a judicial confession is sufficient

to support a guilty plea so long as it covers all the elements of the charged offenses. Id.

However, a stipulation of evidence or judicial confession that fails to establish every

element of the charged offenses will not authorize the trial court to convict. Id. at 14. A

conviction without sufficient evidence to support a guilty plea constitutes trial error. Id.

              2. Analysis

       We conclude that there is sufficient evidence to support appellant’s plea of guilty



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because he stipulated under oath orally and in writing that all of the allegations in the

indictment were true and correct and the indictment contained all the essential elements

of the offense. See TEX. PENAL CODE ANN. § 19.02(b)(3).

       During the plea hearing, the State read out the entire indictment and asked

appellant if he stipulated that Officer Lang would testify to those allegations. Appellant

answered in the affirmative. The State next asked appellant: “[a]nd, Mr. Cortinas, do

you, further, agree and stipulate all acts and allegations contained in the State’s

indictment are true and correct?” Appellant responded “yes” and his trial counsel also

answered in the affirmative.     Appellant now argues that the stipulation was not a

stipulation but “equivalent to the plea itself” because the State read the indictment before

asking appellant to stipulate. We disagree because appellant specifically testified by his

stipulation that the allegations against him were true and correct, and the indictment

alleged all of the essential elements of the offense. The Texas Court of Criminal Appeals

explained in Menefee that whether the allegations in the indictment are true and correct

is distinct from the nature of the defendant’s plea to the charges in the indictment. See

287 S.W.3d at 18 (“A guilty plea entered under oath is still just a guilty plea. It does not

provide independent evidence to substantiate the defendant's guilt.”).         The State’s

reading of the indictment before asking if appellant stipulated to the truthfulness of the

indictment’s allegations does not remove that distinction. See id.; see also Brown v.

State, No. 13-11-00595-CR, 2012 WL 3594228, at **2–3 (Tex. App.—Corpus Christi Aug.

21, 2012, pet. ref'd) (mem. op., not designated for publication) (holding that a defendant’s

oral stipulation to the truthfulness of the allegations that was conducted in a similar

manner provided sufficient evidence to support the defendant’s guilty plea). We conclude



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that there is sufficient evidence in the record to support appellant’s plea of guilty. 2 See

Menefee, 287 S.W.3d at 13. We overrule appellant’s second and third issues.

                                                      III. CONCLUSION

         We affirm the trial court’s judgment.




                                                            NORA LONGORIA,
                                                            Justice

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

Delivered and filed the
12th day of November, 2015.




        2   At the beginning of the hearing in which appellant pled guilty, his trial counsel asked if appellant
“need[ed] to be sworn in.” The trial judge replied “You’ve been sworn in” but the record does not contain
appellant’s actual oath. Nevertheless, the plea memorandum reflects the trial court’s signed confirmation
that appellant appeared before the judge and swore to the truthfulness of the plea memorandum. The
judicial confession within the plea memorandum specifically confirms that the allegations in the indictment
are “true and correct.” See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Thus, even if
appellant was not sworn in, his written judicial confession in the plea memorandum is itself sufficient to
support his plea. See id.; Tijerina v. State, 264 S.W.3d 320, 323–24 (Tex. App.—San Antonio 2008, pet.
ref'd) (holding that a written judicial confession using almost identical language sworn to under oath by the
defendant was sufficient evidence to support the guilty plea).

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