                           NUMBERS 13-13-00616-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

MICHAEL FITZGERALD REESE,                                                            Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                  Appellee.


                       On appeal from the 27th District Court
                              of Bell County, Texas.


                             MEMORANDUM OPINION
    Before Chief Justice Valdez, and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes1
       Appellant Michael Fitzgerald Reese appeals his conviction for the offense of

murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw




       1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. §
73.001 (West, Westlaw through Ch. 46 2015 R.S.).
through Ch. 46 2015 R.S.). Appellant pled guilty and the trial court assessed punishment

at life imprisonment.   By two issues, appellant argues:     (1) the trial court erred in

accepting appellant’s guilty plea because the evidence offered by the State in support of

his plea was insufficient to comply with article 1.15 of the Code of Criminal Procedure;

and (2) assuming arguendo that appellant’s punishment evidence could be used to satisfy

article 1.15, the evidence established only that he was guilty of the lesser-included

offense of manslaughter. See TEX. PENAL CODE ANN. § 19.04. We affirm.

                                     I. BACKGROUND

       Appellant was charged by indictment with “intentionally and knowingly caus[ing]

the death of an individual, namely, Justin Richardson, by shooting the said Justin

Richardson with a firearm.” At trial, five witnesses testified before appellant entered a

plea of guilty and signed a judicial confession.

       The following evidence was presented prior to appellant’s guilty plea. On April 1,

2011, around 1 a.m., appellant’s former girlfriend and her friends went to Club Rosse.

While there, appellant approached her and asked what she was doing at the club and

“what’s going on?” She asked him to leave her alone and to stop calling her. She then

left the club with her friends and went to a Denny’s restaurant. Justin Richardson was

among those present. Appellant arrived at Denny’s about ten minutes later, wearing a

pink shirt and khakis. He demanded she go outside with him and talk. When the others

at the table said that this was not the time and place for this conversation, appellant

responded by using combative and vulgar language.




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       The manager and security guard then asked appellant and the three men standing

near him to leave the restaurant and escorted them out. Richardson and appellant,

along with the two other men, went outside. The manager, who knew appellant because

he was a regular customer, pushed him outside and told him to leave. The manager

testified to the following:

       [PROSECUTOR:]          Okay. What happened when you walked outside with
                              Mike?

       [MANAGER:]             When I walked outside, I was trying to calm Mike down.
                              I was like, "Mike, just leave, just leave it alone." The
                              next thing I know, when I turned my head, I seen him
                              pull out a gun. And after that I heard people shouting,
                              "Mike, no. Mike, no. Stop, Mike." And I looked. The
                              security guard was trying to push me back in. About
                              that time I heard two gunshots.

       [PROSECUTOR:]          And did you see Mike shoot either one of the shots?

       [MANAGER:]             No, I just went blank. I don't remember anything after
                              that.

       [PROSECUTOR:]          How close were you to him when he pulled out his gun?

       [MANAGER:]             It wasn't-- I wasn't that close, but I was close enough to
                              notice that he had pulled out a gun.

       [PROSECUTOR:]          Do you see where he pulled his gun from?

       [MANAGER:]             I just-- his shorts.

       Another customer at Denny’s testified that he thereafter witnessed “the guy with

the pink shirt” running away with a gun.

       Before the trial concluded, appellant entered a six-page written plea agreement,

supported by a signed “Judicial Confession.” The Judicial Confession reads as follows:



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      Upon my oath I swear my true name is Michael Fitzgerald Reese and I am
      30 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 as well as all lesser
      included offenses. All enhancements and habitual allegations set forth in
      the indictment or information are true and correct, except those waived by
      the State. All deadly weapon allegations are true and correct. All other
      affirmative findings to be made by the Court pursuant to this Written Plea
      Agreement are true and correct. I swear to the truth of all the foregoing and
      further, that all testimony I give in the case will be the truth, the whole truth
      and nothing but the truth, so help me God.

Appellant also signed a declaration within the same document that reads as follows:

      My name is MICHAEL FITZGERALD REESE . . . I am presently
      incarcerated in the Bell County Jail in Belton, Bell County, Texas 76513. I
      declare under penalty of perjury that all of the foregoing is true and correct.

The trial court admonished appellant and discussed the indictment with appellant:

      THE COURT:             Sir, at this point in time you are charged with the first-
                             degree felony offense that on or about the 2nd day of
                             April in 2011, here in Bell County, Texas, and before
                             this indictment was presented, that you did then and
                             there intentionally and knowingly cause the death of
                             an individual, namely, Justin Richardson, by shooting
                             the said Justin Richardson with a firearm. Did you
                             understand that charge?

      [APPELLANT]:           Yes.

      THE COURT:             To that charge, sir, what is your plea, guilty or not
                             guilty?

      [APPELLANT]:           Guilty.

          ...

      THE COURT:            Then is it true that you are pleading “guilty” solely
                            because you are guilty and for no other reason?

      [APPELLANT]:          Yes.


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       THE COURT:           All right. I will accept your plea.

       [PROSECTOR]:         I would ask the Court to take judicial notice of
                            [appellant’s] confession contained in the plea
                            paperwork on page six, your Honor.

       [APPT. ATTY]:        No objection.

       THE COURT:           For the record, I am going to mark page six of the
                            written plea agreement entitled “Judicial Confession”
                            as State’s Exhibit No. 1 [sic] and admit it into evidence.

       The trial court admitted the Judicial Confession into evidence. The Court further

admitted the following into evidence, without objection:          (1) the medical examiner’s

report; (2) the ballistics report; and (3) voluminous photographs from the crime scene, the

victim, and appellant’s apartment and truck. After a short recess, the State re-offered all

of the evidence from the guilt-innocence phase for the sentencing portion of the trial,

which the trial court admitted without objection.

       Appellant subsequently testified to the following during the sentencing hearing:

       [PROSECUTOR:]        There are pictures and everything that has come into
                            evidence. There is really not any issue. He was shot
                            twice. If you didn't shoot him, who shot him the second
                            time?

       [APPELLANT:]         If it serves me correctly, I only fired my weapon once.

       [PROSECUTOR:]        Okay. And when you shot him, you shot him in the
                            back.

       [APPELLANT:]         Correct.

       [PROSECUTOR:]        Right? And you heard all the witnesses that testified.
                            You're the only person they saw with a gun, right?

       [APPELLANT:]         Yes.



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        [PROSECUTOR:]            And Justin Richardson was walking away from you
                                 when you shot him. He had to be. You shot him in the
                                 back, right?

        [APPELLANT:]             Yes.

                                 ...

        [PROSECUTOR:]            Right? You had that gun where on your body? In your
                                 waist? In your pocket? Where did you have it?

        [APPELLANT:]             On my waist, sir.

        [PROSECUTOR:]            On your waist. And your shirt was covering it, right?

        [APPELLANT:]             Yes, sir.

        [PROSECUTOR:]            So when you pulled up your shirt-- You had to do that
                                 to get the gun, right?

        [APPELLANT:]             Yes, sir.

        The trial court sentenced appellant to life in prison. This appeal followed.

                        II. SUFFICIENCY OF THE EVIDENCE – ARTICLE 1.15

        In his first issue, appellant contends the trial court erred in accepting his guilty plea

because the evidence offered by the State in support of the plea was insufficient to comply

with article 1.15 of the Code of Criminal Procedure.2 See TEX. CODE CRIM. PROC. ANN.

art. 1.15 (West, Westlaw through Ch. 46 2015 R.S.). Additionally, appellant contends

that, because his written confession was not sworn before a district clerk and his oral




         2 Although appellant did not object at trial, we note this issue is preserved for appellate review.

Article 1.15 contains an absolute or systematic requirement that “in no event” shall a person be convicted
without evidentiary support. Baggett v. State, 342 S.W.3d 172, 175 (Tex. App.—Texarkana 2011, no pet.).
Therefore, failure to object does not forfeit or waive a claim of error. Id.; see also McClain v. State, 730
S.W.2d 739, 742 (Tex. Crim. App. 1987).
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guilty plea was not taken under oath, the requirements for a judicial confession were not

met. Appellant further argues he did not plead true to the facts alleged in the indictment.

      A. Standard of Review and Applicable Law

      When a defendant chooses to plead guilty, the standard of review set out in

Jackson v. Virginia for sufficiency of the evidence is inapplicable. Ex Parte Martin, 747

S.W.2d 789, 792–93 (Tex. Crim. App. 1988). Texas Code of Criminal Procedure article

1.15 governs sufficiency of the evidence when pleading guilty in a noncapital felony case.

TEX. CODE CRIM. PROC. ANN. art. 1.15. The evidence is considered sufficient under

article 1.15 when it embraces every element of the offense. See Stone v. State, 919

S.W.2d 424, 427 (Tex. Crim. App. 1996); Chindaphone v. State, 241 S.W.3d 217, 219

(Tex. App.—Fort Worth 2007, pet ref’d).         “A conviction rendered without sufficient

evidence to support a guilty plea constitutes a trial error.” Menefee v. State, 287 S.W.3d

9, 14 (Tex. Crim. App. 2009).

      Article 1.15 states:

      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.

TEX. CODE CRIM. PRO. ANN. art. 1.15. Article 1.15 is “an additional procedural safeguard

required by the State of Texas but not by federal constitutional law.” Ex parte Williams,

703 S.W.2d 674, 682 (Tex. Crim. App. 1986).



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       Evidence in support of a guilty plea can take one of four forms: (1) defendant’s

consent to proffer the evidence in testimonial or documentary form; (2) defendant’s

consent to an oral or written stipulation of what the evidence against him would be, without

necessarily admitting to its veracity of accuracy; (3) defendant entering a sworn written

statement; or (4) defendant testifying under oath in open court, 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. “A deficiency in one form of proof . . .

may be compensated for by other competent evidence in the record.” Id. “Evidence

adduced at a sentencing hearing may also suffice to substantiate a guilty plea.” Jones

v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing

Menefee, 287 S.W.3d at 18–19).

       B. Discussion

       The State argues that appellant’s written judicial confession taken along with the

evidence admitted during the trial was sufficient to support the trial court’s judgment. We

agree with the State that the evidence was sufficient to support appellant’s plea of guilty

to murder.

       A judicial confession standing alone is sufficient to sustain a conviction on a guilty

plea and to satisfy the requirements of article 1.15. Dinnery v. State, 592 S.W.2d 343,

353 (Tex. Crim. App. 1979) (op. on reh’g); Breaux v. State, 16 S.W.3d 854, 857 (Tex.

App.—Houston [14th Dist.] 2000, no pet.). A judicial confession that simply admits the

acts as alleged in the indictment without detailing them is sufficient evidence of guilt.

Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim. App. 1973). However, a deficiency of


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one form of proof, such as a judicial confession, can be compensated for by other

competent evidence in the record. Menefee, 287 S.W.3d at 14. For example, a judicial

confession that appellant committed an offense as charged and an in-court affirmation of

that judicial confession together constitute compliance with the requirements of article

1.15. Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. [Panel Op.] 1978). While a

sworn confession is one form of evidence that may support a guilty plea, we note that

article 1.15 contains no requirement that a judicial confession be sworn. See TEX. CODE

CRIM. PROC. ANN. art. 1.15; Jones v. State, 857 S.W.2d 108, 110 (Tex. App.—Corpus

Christi 1993, no pet.); see also Walker v. State, No. 03-03-00018-CR, 2003 WL

21554285, at *1 (Tex. App.—Austin July 11, 2003, no pet.) (mem. op., not designated for

publication).

       When the judicial confession states, “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. Chindaphone, 241 S.W.3d at 220.

In Cindaphone, the defendant pleaded guilty to the offense of sexual assault. Id. at 218.

The Second Court of Appeals affirmed the judgment of the trial court because his judicial

confession indicated he read the indictment and had committed each and every act

alleged therein.   Id. at 220.   The operative language of the judicial confession in

Chindaphone is nearly identical to the language used in appellant’s judicial confession.

See id. Therefore, we conclude that appellant’s judicial confession is sufficient evidence

to satisfy article 1.15 because he states that he read the indictment filed in the case and




                                             9
“committed each and every act alleged therein” and that “all facts alleged in the indictment

or information are true and correct.” See Potts, 571 S.W.2d at 181.

       Even if we were to conclude that appellant’s judicial confession was deficient, there

is other competent evidence in the record to compensate for the deficiency, including the

guilt/innocence phase evidence (which was re-offered and admitted at the sentencing

hearing) and the sentencing phase evidence.          See Menefee, 287 S.W.3d at 14.

Appellant was seen pulling a gun from his shorts, while bystanders yelled, "Mike, no.

Mike, no. Stop, Mike." After witnesses heard shots fired, appellant was seen running

from the scene with a gun. Further, during the sentencing hearing, appellant admitted

to pulling his gun out from his waistband, pointing it at Justin Richardson, pulling the

trigger, and shooting him in the back.      See Jones, 373 S.W.3d at 793 (“Evidence

adduced at a sentencing hearing may also suffice to substantiate a guilty plea.”). We

conclude that the evidence, when viewed together with the judicial confession, sufficiently

embraces every element of the offense.

       We next address appellant’s contention that he was not placed under oath before

entering his guilty plea. Article 27.13 of the Texas Code of Criminal Procedure provides

that “[a] plea of ‘guilty’ or a plea of ‘nolo contendere’ in a felony case must be made in

open court by the defendant in person.” TEX. CODE CRIM. PRO. ANN. art. 27.13. But

article 27.13 does not require the plea be made under oath, or even an oral plea. See

Costilla v. State, 146 S.W.3d 213, 216 (Tex. Crim. App. 2004) (concluding that plea made

on behalf of defendant by his attorney satisfied article 27.13); Neal v. State, 400 S.W.2d

550, 551 (Tex. Crim. App. 1966) (“There is no statutory requirement that the plea be in


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writing and under oath.”); see also Smith v. State, No. 03-99-00821-CR, 2000 WL

329362, at *1 (Tex. App.—Austin Mar. 30, 2000, pet ref’d) (mem. op., not designated for

publication) (“It is not necessary that a defendant be sworn before entering his plea.”);

Maldonado v. State, No. B14-93-00176-CR, 1994 WL 286391, at *3 (Tex. App.—Houston

[14th Dist.] June 30, 1994, no pet.) (mem. op., not designated for publication) (“[W]e find

no merit in appellant's contention that the trial court erred in accepting his plea of guilty

from an unsworn interpreter.”) Where, as here, the record demonstrates a defendant’s

voluntary desire to plead guilty, the defendant is present, and the plea is entered in open

court by the defendant, article 27.13 is satisfied. See Costilla, 146 S.W.3d at 216. We

overrule appellant’s first point of error.

       Because we conclude there is sufficient evidence to support appellant’s plea of

guilty for murder, we need not address the claim that the evidence was sufficient only for

a conviction of manslaughter.

                                       IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
16th day of July, 2015.




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