AFFIRMED; Opinion Filed November 30, 2016




                                                              In The
                                         Court of Appeals
                                  Fifth District of Texas at Dallas
                                                    No. 05-15-01246-CR
                                                    No. 05-15-01248-CR

                                       EMANUEL MCLEMORE, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                             On Appeal from the 204th Judicial District Court
                                           Dallas County, Texas
                            Trial Court Cause Nos. F14-58539-Q & F14-58540-Q

                                        MEMORANDUM OPINION
                                       Before Justices Lang, Myers, and Evans
                                              Opinion by Justice Myers
          Appellant Emanuel McLemore pleaded guilty to the offenses of aggravated robbery1 and

robbery,2 and the trial court set punishment at confinement for ten years in each case, to run

concurrently. In two issues, appellant contends the evidence is insufficient under article 1.15 of

the Texas Code of Criminal Procedure to support his guilty pleas to the charged offenses. We

affirm.

                                                        BACKGROUND

          Both offenses are alleged to have occurred on or about September 13, 2014. In cause

number 05–15–01246–CR, F14–58539–Q, the aggravated robbery case, the indictment alleged

   1
       Appeal number 05-15-01246-CR, trial court case number F14-58539-Q.
   2
       Appeal number 05-15-01248-CR, trial court case number F14-58540-Q.
appellant did then and there

        intentionally and knowingly, while in the course of committing theft of property
        and with intent to obtain or maintain control of said property, threaten and place
        SANTIAGO GALLEGOS in fear of imminent bodily injury and death, and the
        defendant used and exhibited a deadly weapon, to-wit: A KNIFE.

In cause number 05–15–01248–CR, F14–58540–Q, the indictment alleged appellant did then and

there

        intentionally and knowingly, while in the course of committing theft of property
        and with intent to obtain or maintain control of said property, cause bodily injury
        to another, SAMUEL MELKAMU, hereinafter called complainant, by
        STRIKING COMPLAINANT WITH A GUN, and the defendant used and
        exhibited a deadly weapon, to-wit: A PELLET GUN AND A FIREARM.

On the State’s motion, the court reduced this charge to the lesser-included offense of robbery.

        Appellant entered open pleas of guilty to aggravated robbery and robbery. Appellant also

made judicial confessions to both offenses. The trial court subsequently heard evidence to

determine punishment. The court accepted appellant’s guilty pleas and found the evidence

sufficient to prove appellant’s guilt in each case. Appellant testified that he knew he was

waiving his right to a jury trial and that he was entering his pleas freely and voluntarily.

                                            DISCUSSION

                                 The Aggravated Robbery Case

        Appellant alleges there is an insufficient factual basis under article 1.15 of the code of

criminal procedure to support his guilty plea to the charged offense of aggravated robbery in

cause number 05–15–01246–CR, F14–58539–Q, because he denied that he used a knife in the

robbery. He argues that his judgment and sentence should be reformed to show a conviction for

robbery, without a deadly weapon finding, or set aside and remanded for a new trial.

        When, as in this case, a defendant enters a plea of guilty to an offense whose punishment

is not absolutely fixed by law, punishment will be assessed by a jury or by the court if the

defendant waives his right to trial by jury. See TEX. CODE CRIM. PROC. ANN. art. 26.14. Article

                                                 –2–
1.15 of the code of criminal procedure provides that when a defendant waives his right to a jury

trial and pleads guilty, the State need only introduce sufficient evidence to support the plea and

establish the defendant’s guilt. See id. art. 1.15; Wright v. State, 930 S.W.2d 131, 132 (Tex.

App.––Dallas 1996, no pet.). The supporting evidence need not prove the defendant’s guilt

beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.––Dallas 2006, no

pet.); see also Ex parte Martin, 747 S.W.2d 789, 791–92 (Tex. Crim. App. 1988) (op. on reh’g);

Davis v. State, Nos. 05–15–00552–CR & 05–15–00553–CR, 2016 WL 3876586, at *4 (Tex.

App.––Dallas July 12, 2016, no pet.) (mem. op., not designated for publication). The evidence

sufficiently supports a guilty plea if it embraces every element of the offense charged. Stone v.

State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). “Due process of law is not denied by a

conviction based on a plea of guilty that is accompanied by ‘a strong factual basis for the plea

demonstrated by the State and [a defendant]’s clearly expressed desire to enter it despite his

professed belief in his innocence.’” Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App.

2004) (quoting North Carolina v. Alford, 400 U.S. 25, 38 (1970)). A judicial confession,

standing alone, is sufficient to sustain a conviction based on a guilty plea and satisfies the

requirements of article 1.15 as long as it embraces every element of the charged offense.

Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Dinnery v. State, 592 S.W.2d 343,

353 (Tex. Crim. App. 1980) (op. on reh’g); Ross v. State, 931 S.W.2d 633, 635 (Tex. App.—

Dallas 1996, no pet.); Davis, 2016 WL 3876586, at *4.

       Appellant signed a judicial confession in the aggravated robbery case in which he

admitted he was judicially confessing that he was guilty of aggravated robbery and that he used

and exhibited a deadly weapon, to wit: a knife. He judicially confessed that he committed the

offense “exactly as alleged in the indictment.” His judicial confession in the robbery case

likewise stated that he committed the offense “exactly as alleged in the indictment.” The judicial

                                               –3–
confessions that appellant and his attorney signed tracked the language of the indictment. The

trial court accepted appellant’s pleas of guilty.

       Appellant first argues that his judicial confession to the aggravated robbery charge is

insufficient to substantiate his guilt because in the proceeding to determine punishment, which

was held several months after appellant entered his judicial confession, he told the trial court, in

response to its question, that he punched Gallegos in the head but did not stab him. The relevant

portion of the record reads as follows:

       THE COURT: Now, you heard the young man, whose vehicle you jacked,
       describe how you stabbed him in the arm three times, was it you?

       A. [DEFENDANT:] I didn’t––no––ma’am, I did not stab him. Ma’am, I’m being
       honest with you. That’s the honest truth. I punched him in the head, ma’am. I
       did not stab him. I didn’t have––I didn’t have no kind of weapon. I just punched
       him in the head, but when we stole his car, the reason how we even got the BB
       gun, ‘cause the BB gun was inside his car. That’s only how we got access to the
       BB gun because it was inside his car.

       THE COURT: We’ll get to the BB gun, but what I wanna know about is, who had
       the knife and stabbed him?

       THE DEFENDANT: Eric––Eric––Eric had some––Eric had––I don’t know what
       he had in his hand, ma’am. I’m being––I don’t know if he had a knife or what it
       was, but all I know, I just punched him one time in the head. I think Eric had
       some––I don’t––I really don’t recall him having a weapon.

       I don’t recall myself having a weapon. I just remember me just punching him in
       the head. I’m being honest. I just remember me punching him in the head,
       ma’am. I don’t remember no––no knife being there. It probably was some type
       of––I don’t know what he had.

       I don’t remember a knife being there though, ma’am. That’s the honest to God
       truth, ma’am. I don’t remember a knife being there. All I remember me just
       punchin’ him in the head, and Eric hopping in his car, and I hopped in his car.

       THE COURT: Okay.

       THE DEFENDANT: I’m just being honest, ma’am. I don’t remember none of us
       having a knife, ma’am. We didn’t have no weapon.

       THE COURT: All right. So, Mr. Gallegos is just lying about somebody stabbing
       him in the arm three times.


                                                    –4–
       THE DEFENDANT: No. I’m not––I’m not saying he’s lying, but I just don’t
       recall myself having a knife. I don’t recall myself having a knife, ma’am. Eric
       probably did have a knife on him, but I––I remember I just punched him in the
       head one time, ma’am. I don’t remember me having no knife or stabbing him at
       all, ma’am. That’s the honest to God truth. I don’t remember me having no knife
       at all.

Regarding the robbery charge, appellant told the trial court that he robbed the store clerk using a

BB gun and hit the clerk in the head:

       THE COURT: So, then y’all go to the 7-Eleven. Which one of y’all are jacking
       this man in the head with this gun? Who’s hitting him in the head?

       THE DEFENDANT: I did that, ma’am, with the BB gun. I did that, ma’am.

       Santiago Gallegos, the complainant in the aggravated robbery case, testified that he and

his wife drove to a 7-Eleven store. As they returned to their truck after leaving the store, his wife

got in the vehicle. Two men approached the complainant and grabbed him. One man hit him in

the head with a closed fist and the other stabbed him through his thick clothing three times with a

small knife, which was, according to Gallegos’s testimony, like a penknife. Asked if appellant

was the one who stabbed him, Gallegos testified that he believed appellant was the one who

stabbed him in the arm three times because appellant, who was the younger of the two men, was

on the right side of Gallegos and the other individual, who was the older of the two, was to

Gallegos’s left. Gallegos was not sure which of the two men hit him in the head. Gallegos was

scared and thought the men were going to “pull out a gun or something” on him. He got his wife

out of the truck as the men got in his truck and drove away. Gallegos banged on the store

window to alert them to call the police. His mother picked them up from the store. He drove

around a nearby apartment complex and saw his truck parked there. When he got his truck back,

it was damaged.

       Samuel Melkamu testified that he was working at a 7-Eleven store on the night in

question when two men wearing masks entered the store, pointed what the clerk thought was a


                                                –5–
shotgun at his head, and demanded money. Melkamu testified that one of the two men, who

wore a red mask, ordered him to his knees and struck him in the back of the head with the gun.

Melkamu recalled that the blow to the head was painful. The weapon was, in fact, a BB gun.

       Appellant told the trial court that he wanted to take responsibility for the offenses. Asked

by his attorney whether he was taking “full responsibility” for robbing Gallegos and the store

clerk, appellant replied, “Yes, sir. I did that, sir.” When asked again by defense counsel whether

he was “taking responsibility for these offenses,” appellant testified: “Yes, sir. I’m taking full

fledge accountability for the stupidity I took on September 13th, 2014, by being young and dumb

and being a follower, not being a leader that night.” Appellant acknowledged that his juvenile

record included convictions for evading arrest and carrying a gun. He also told the trial court

that he and Eric were using Xanax and drinking alcohol that night; appellant told the court he

“was full of them Xanaxes and stuff.” Appellant testified he was “tripping” and that he and Eric

decided to “hit a lick.”

       The trial court accepted appellant’s guilty pleas and found the evidence sufficient to

prove appellant’s guilt in each case. Appellant accepted responsibility in these cases and never

sought to withdraw his guilty pleas, nor does he now contend his pleas or his judicial confessions

were not knowing and voluntary. When a defendant waives a jury and enters a plea of guilty or

nolo contendere before the court, the court is not required to sua sponte withdraw a guilty plea

and enter a plea of not guilty for a defendant so long as the court fulfills its duty to consider the

evidence submitted, even where evidence is adduced that raises a question as to the defendant’s

guilt. See Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (en banc); see also

Aldrich v. State, 104 S.W.3d 890, 894 (Tex. Crim. App. 2003) (stating that Moon requires

nothing more than a decision by the trial court “that a guilty-pleading defendant was guilty as he

pleaded, guilty of a lesser included offense, or not guilty”); Reyes v. State, No. 03–07–00115–

                                                –6–
CR, 2008 WL 4603576, at *3 (Tex. App.––Austin Oct. 16, 2008, no pet.) (mem. op., not

designated for publication) (“[l]f a defendant waives trial by jury and pleads guilty to the court,

and if evidence is thereafter adduced raising a question as to the defendant’s guilt, the trial court

need not withdraw the guilty plea; rather, the court has the duty to consider the evidence and, if

warranted, return a verdict of not guilty or guilty of a lesser included offense.”). The trial court

heard all of the evidence, including appellant’s judicial confessions and the testimony of

Gallegos and Melkamu. Having reviewed the record, we conclude the trial court acted within its

discretion in finding the evidence sufficient to prove appellant’s guilt beyond a reasonable doubt.

Appellant knowingly and voluntarily pleaded guilty to aggravated robbery and robbery, and the

State complied with article 1.15 by presenting sufficient evidence to support the pleas and

establish appellant’s guilt. We overrule appellant’s first issue.

                                        The Robbery Case

       Appellant’s second issue states that the issue “assumes that this Court will reverse the

judgment against him in cause number F14–58539–Q (05–15–01246–CR) and remand the case

for a new trial.” He asks that if this Court reverses in that case, we also reverse his conviction

for robbery in cause number 05–15–01248–CR, F14–58540–Q, because the aggravated robbery

case was inextricably intertwined with the robbery case. Appellant contends that if, on the other

hand, we reform, rather than reverse, his aggravated robbery conviction in cause number 05–15–

01246–CR, F14–58539–Q, issue two is not applicable and nothing is to be done to cause number

05–15–01248–CR, F14–58540–Q.

       As in the aggravated robbery case, the record shows appellant’s plea in the robbery case

was knowingly and voluntarily made. His judicial confession alone provided a sufficient basis to

establish his guilt. Appellant told the court he wanted to accept responsibility for the offenses

and he never sought to withdraw his guilty plea. In addition, the complainant, Samuel Melkamu,

                                                –7–
testified that he was struck in the head with what he thought was a shotgun, and which turned out

to be a BB gun. There is a sufficient evidence under article 1.15 to support appellant’s guilty

plea. We overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                                           /Lana Myers/
                                                           LANA MYERS
                                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47
151246F.U05




                                               –8–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EMANUEL MCLEMORE, Appellant                         On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
No. 05-15-01246-CR        V.                        Trial Court Cause No. F14-58539-Q.
                                                    Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                        Lang and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 30th day of November, 2016.




                                             –9–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EMANUEL MCLEMORE, Appellant                         On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
No. 05-15-01248-CR        V.                        Trial Court Cause No. F14-58540-Q.
                                                    Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                        Lang and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 30th day of November, 2016.




                                            –10–
