                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00183-CR


CHRISTOPHER WILLIAM DAVIS                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1381546D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Christopher William Davis entered an open plea of guilty to the

charge of aggravated robbery causing bodily injury to an elderly person, and after

ordering a presentence investigation report (PSI) and hearing evidence at a

punishment hearing, the trial court sentenced Davis to fifteen years’

      1
       See Tex. R. App. P. 47.4.
incarceration. In two points, Davis contends that there is insufficient evidence to

support his guilty plea as required by article 1.15 of the Texas Code of Criminal

Procedure and that his sentence is grossly disproportionate and unconstitutional.

We will affirm.

                                 II. BACKGROUND

      According to the PSI in this case, on August 11, 2014, and only five days

after being released from jail for an unrelated theft charge, Davis snatched the

purse of a ninety-three-year-old bank customer as she left the bank.             In the

process, Davis pulled on the elderly woman’s purse and dragged her a few feet.

As a result, the elderly woman suffered bruising on her arm and shoulder. She

also suffered a “swollen jaw.”

      After being arrested, Davis admitted that he had taken the purse and that

he had done so while under the influence of “many different things,” including

methamphetamine, marijuana, and alcohol.         Davis said that the reason he

snatched the purse was to obtain money to buy drugs.

      The remaining record indicates that the State charged Davis with

aggravated robbery causing bodily injury to an elderly person. Specifically, the

State’s indictment alleged that Davis had

      intentionally or knowingly, while in the course of committing theft of
      property and with intent to obtain or maintain control of said property,
      cause[d] bodily injury to . . . a person 65 years of age or older, by
      forcefully removing a purse off of her arm with his hand.




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      Later, Davis entered an open plea of guilty to the charge of aggravated

robbery.     In doing so, Davis signed written plea admonishments wherein he

acknowledged that he was pleading guilty to a first-degree felony that carried

with it a sentencing range of not more than ninety-nine years or less than five

years’ incarceration. Davis also executed a judicial confession that stated,

      Upon my oath I swear my true name is Christopher Davis and I am
      37 years of age; I have read the indictment or information filed in this
      case and I committed each and every act alleged therein, except
      those acts waived by the State. All facts alleged in the indictment or
      information are true and correct. I am guilty of the instant
      offense. . . . I swear to the truth of all of the foregoing . . . .

      On the page immediately following his judicial confession, Davis’s attorney,

the prosecutor, and the trial court signed Davis’s waiver, which included the

following:

      In open court we join and approve the waiver of jury trial . . . and the
      stipulations of evidence pursuant to Art. 1.15, TEX. CODE OF
      CRIMINAL PROCEDURE. . . . It is agreed that the Court may take
      judicial notice of this document and the Court takes judicial notice of
      same.

      At the sentencing hearing, Davis acknowledged that he had reviewed the

PSI with his attorney. At the hearing, the trial court again announced that Davis

was pleading guilty to aggravated robbery and that this charge carried with it a

sentencing range of not more than ninety-nine years or less than five years’

incarceration. Also at the hearing, the State asked the trial court to take judicial

notice of the PSI. The trial court did, and the trial court further announced that




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“[t]he Court has identified [the PSI] and it’s hereby admitted and will be placed

under seal with the clerk of the court in the clerk’s file.”

      Davis testified at the hearing and acknowledged that he had already

admitted guilt in this case. Davis averred that at the time of the offense, he was

under the influence of “[m]ethamphetamine, alcohol[,] and marijuana.”        Davis

said that he had taken the purse from a ninety-three-year-old woman. But Davis

denied that he had dragged the elderly woman, and he stated that he did not

know he had hurt her. He also averred that he had looked up cases “like [his]” in

a law library. When asked what type of cases he was referring to, Davis said,

“Aggravated robbery to elderly.”

      At the hearing, the State also introduced evidence, which is also found in

the PSI, that Davis’s criminal record included previous charges for theft, criminal

trespass, drug possession, and driving while intoxicated.       After hearing the

evidence, the trial court sentenced Davis to fifteen years’ incarceration and

entered judgment accordingly. This appeal followed.

                                    III. DISCUSSION

      A.     Sufficiency of the Evidence

      In his first point, Davis contends that there is insufficient evidence to

support his guilty plea as required by article 1.15 of the Texas Code of Criminal

Procedure. We disagree.




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      Texas Code of Criminal Procedure article 1.15 provides,

      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.

Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005).

      The appellate standard of review announced in Jackson v. Virginia, 443

U.S. 307, 99 S. Ct. 2781 (1979), is not applicable where the defendant enters a

plea of nolo contendere or guilty. Chindaphone v. State, 241 S.W.3d 217, 219

(Tex. App.—Fort Worth 2007, pet. ref’d). An appellate court will affirm the trial

court’s judgment under article 1.15 if the State introduced evidence that

embraces every essential element of the offense charged and that is sufficient to

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

App.—Dallas 1996, no pet.). A judicial confession, standing alone, is sufficient to

sustain a conviction upon a guilty plea and to satisfy the requirements of

article 1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.]

1979) (op. on reh’g).

                                        5
       Here, Davis executed a judicial confession stating that he had read the

indictment and had committed each and every act alleged therein. Davis also

executed a waiver that provided, “It is agreed that the Court may take judicial

notice of this document and the Court takes judicial notice of same.”            The

signatures of Davis’s attorney, the prosecutor, and the trial court all appear under

this provision.

       Furthermore, Davis stated at the punishment hearing that he was admitting

to the charge of aggravated robbery causing bodily injury to an elderly person.

Moreover, Davis stated that he had looked up cases “like” his own in a law library

and testified that the cases he had looked up were “[a]ggravated robbery to

elderly.”

       Davis argues that the evidence is insufficient despite this record evidence

because the State did not introduce his written judicial confession at the

punishment hearing. But when a trial court takes judicial notice of adjudicative

facts, it authorizes the factfinder to accept the facts as true without requiring

formal proof. Watts v. State, 99 S.W.3d 604, 609–10 (Tex. Crim. App. 2003).

Thus, as here, when the trial court takes judicial notice of a judicial confession,

the State is not required to introduce the judicial confession into evidence.

Chindaphone, 241 S.W.3d at 219; accord McDougal v. State, 105 S.W.3d 119,

120–21 (Tex. App.—Fort Worth 2003, pet. ref’d) (recognizing that “[t]he contents

of the clerk’s record are not evidence unless the trial court takes judicial notice of

them or they are offered into evidence”). And when the accused specifically

                                          6
states in the judicial confession, “I have read the indictment or information filed in

this case and I committed each and every act alleged therein,” the judicial

confession standing alone is sufficient to support a guilty plea under article 1.15

of the code of criminal procedure. See, e.g., Dinnery, 592 S.W.2d at 353; Tabora

v. State, 14 S.W.3d 332, 337–38 (Tex. App.—Houston [14th Dist.] 2000, no pet.)

(holding that form “Waiver of Constitutional Rights, Agreement to Stipulate, and

Judicial Confession” signed by appellant sufficiently supported plea of no contest

under article 1.15); Scott v. State, 945 S.W.2d 347, 348 (Tex. App.—Houston

[1st Dist.] 1997, no pet.) (holding that appellant’s stipulation that he “agree[d] that

the elements of the offense alleged [in the indictment] constitute the evidence in

this case” sufficiently supported a plea of no contest under article 1.15). We hold

that the evidence is sufficient to support the trial court’s judgment, and we

overrule Davis’s first point.

      B.     The Sentence

      In his second point, Davis contends that the trial court’s sentence of fifteen

years’ incarceration is grossly disproportionate and unconstitutional. Specifically,

Davis argues that his “actual conduct” was theft, a third-degree felony, and not

aggravated robbery causing bodily injury to an elderly person, a first-degree

felony. Thus, according to Davis, the trial court could only have considered a

sentencing range between two and ten years’ incarceration. See Tex. Penal

Code Ann. § 12.34 (West 2011) (setting range of punishment on third-degree

felony at “any term of not more than 10 years or less than 2 years”). Davis

                                          7
expressly states that he is relying upon “the reasons explored and explained” in

his first point—that there is insufficient evidence to support the trial court’s

judgment—to support his second point. But we have already overruled his first

point and held that the evidence supports the trial court’s judgment of aggravated

assault causing bodily injury to an elderly person.

      Aggravated assault causing bodily injury to an elderly person is a first-

degree felony. Tex. Penal Code Ann. § 29.03(b) (West 2011). A first-degree

felony is punishable by imprisonment for life or for not more than ninety-nine

years or less than five years. Tex. Penal Code Ann. § 12.32(a) (West 2011).

Thus, Davis’s fifteen-year sentence is near the lower end of the sentencing

range.   The trial court’s discretion to impose any punishment within the

prescribed range is essentially “unfettered.”     See Adetomiwa v. State, 421

S.W.3d 922, 928 (Tex. App.—Fort Worth 2014, no pet.); see also Ex parte

Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). Subject only to a very

limited, “exceedingly rare” gross-disproportionality review, a punishment that falls

within the legislatively prescribed range and that is based upon the sentencer’s

informed normative judgment is unassailable on appeal. Ex parte Chavez, 213

S.W.3d at 323–24. Because the sentence falls within the prescribed range of

punishment for the offense to which Davis pleaded guilty and because Davis has

failed to demonstrate how his sentence falls within those exceedingly rare cases

of gross-disproportionality review, we overrule his second point.



                                         8
                              IV. CONCLUSION

      Having overruled both of Davis’s points on appeal, we affirm the trial

court’s judgment.




                                               /s/ Bill Meier
                                               BILL MEIER
                                               JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 23, 2016




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