                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00275-CR

DONALD JONES,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 12-02026-CRF-361


                          MEMORANDUM OPINION


       Appellant Donald Jones was charged by indictment with possession of a

controlled substance (a compound, mixture, or preparation in an amount of 200 grams or

more but less than 400 grams, that contained not more than 200 milligrams of codeine per

100 milliliters or 100 grams) with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.105(1) (West 2010). The indictment thus alleged a first-degree felony offense. Id. §

481.114(a, d).

       Also, the indictment included an enhancement paragraph alleging Jones’s prior
felony conviction of aggravated assault on a peace officer. Under a plea agreement, Jones

made an open plea of guilty and pled true to the enhancement paragraph.1 Accordingly,

the punishment range was life or fifteen to 99 years’ imprisonment. TEX. PENAL CODE

ANN. § 12.42(c)(1) (West Supp. 2014).              After a punishment hearing, the trial court

sentenced Jones to twenty years’ imprisonment.2 Jones appeals, asserting in his sole issue

that the evidence is insufficient to support the conviction.

                Article 1.15 of the Texas Code of Criminal Procedure provides that
        in the event of a felony conviction based upon a guilty plea in lieu of a jury
        verdict, “it shall be necessary for the state to introduce evidence into the
        record showing the guilt of the defendant and ... in no event shall a person
        charged be convicted upon his plea without sufficient evidence to support
        the same.” TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005). A judicial
        confession, standing alone, is sufficient to sustain a conviction upon a guilty
        plea and to satisfy the requirements of article 1.15 so long as the judicial
        confession covers all of the elements of the charged offense. Menefee v. State,
        287 S.W.3d 9, 13 (Tex. Crim. App. 2009). However, a judicial confession that
        fails to establish every element of the offense charged will not authorize the
        trial court to convict. Id. at 14.

Dowden v. State, 455 S.W.3d 252, 254-55 (Tex. App.—Fort Worth 2015, no pet. h.).

               Although the United States Constitution does not require
        substantiation of a guilty plea in state court, Texas Code of Criminal
        Procedure article 1.15 does provide this additional procedural safeguard.
        TEX. CODE CRIM. PROC. art. 1.15; Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
        App. 2009). Under the article, a court may not enter a conviction in a felony
        case based on a guilty plea unless evidence is presented establishing guilt
        in addition to and independent of the plea. TEX. CODE CRIM. PROC. art. 1.15;
        Menefee, 287 S.W.3d at 13-14. The evidence does not have to establish the

1
 As a part of the plea agreement, Jones agreed to admit his guilt to an unadjudicated and pending felony
charge (aggravated assault) and prosecution of that felony would be barred under Penal Code section 12.45,
which the trial court did when Jones was sentenced.

2
  At a hearing on Jones’s motion for new trial, Jones’s trial attorney said that, because of Jones’s severe
health problems, including Stage 4 kidney failure that requires dialysis three times a week, the defense
strategy was to plead guilty and seek deferred-adjudication community supervision from the trial court at
punishment because Jones had a felony conviction. The twenty-year sentence is at the low end of the 15-
to-99 years to life enhanced punishment range.

Jones v. State                                                                                      Page 2
          defendant’s guilt beyond a reasonable doubt but must embrace every
          element of the offense charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex.
          App.—Houston [1st Dist.] 2010, no pet.).

                 Evidence substantiating a guilty plea can take several possible forms.
          Menefee, 287 S.W.3d at 13. Article 1.15 itself states that a defendant may
          consent to the presentation of evidence either by oral testimony or in
          written form, or to an oral or written stipulation of what the evidence would
          be, without necessarily admitting to its veracity or accuracy.              Id.
          Additionally, courts have recognized that a defendant may enter a sworn
          written confession, or may testify under oath in open court, admitting his
          or her culpability or at least acknowledging generally that the allegations
          against him or her are in fact true and correct. Id. A deficiency in one form
          of proof may be compensated for by other competent evidence in the
          record. Id. at 14. Evidence adduced at a sentencing hearing may also suffice
          to substantiate a guilty plea. See id. at 18-19 … .

Jones v. State, 373 S.W.3d 790, 792-93 (Tex. App.—Houston [14th Dist.] 2012, no pet.).3

          In the punishment hearing, Michael Welch, a Brazos County Sheriff’s Office

Investigator, testified that he and Terry Young, another Investigator, were investigating

Jones, who was alleged to have filled a prescription at the Village Foods pharmacy and

then selling it. On December 1, 2011, the pharmacist alerted the Sheriff’s Office that




3
    Also, the State cites to and quotes from Saleh v. State, as follows:

          The judicial confession may take the form of an affirmative acknowledgment by the
          defendant that the indictment was true and correct. Id.

                   Here, appellant executed a sworn judicial confession in which he “admit[ted] and
          judicially confess[ed]” to the allegations and facts in the indictment and “stipulat[ed] that
          the allegations and facts [were] true and correct and constitut[ed] evidence in this case.”
          This judicial confession standing alone is sufficient under article 1.15 to support appellant’s
          convictions. See Keller, 125 S.W.3d at 605-06 (holding judicial confession that provided, “I
          understand the above allegations and I confess that they are true ...” was sufficient
          evidence to support judgment under article 1.15 and “the record need not otherwise
          provide proof”).

Saleh v. State, No. 14-05-01148-CR, 2007 WL 1892262, at *2 (Tex. App.—Houston [14th Dist.] July 3, 2007,
pet. ref’d) (mem. op., not designated for publication).

Jones v. State                                                                                              Page 3
Jones had filled a prescription and that the buyer was in a black Mercedes in the parking

lot. Welch and Young witnessed Jones get into the passenger side of the Mercedes for a

short time and then exit; in Welch’s experience, a drug transaction had taken place. As

the Mercedes attempted to leave the parking lot, Welch and Young blocked the Mercedes

from leaving and the driver, Cedric Rhodes, was detained.

        Jones was located at the back corner of the building and was also detained. A

search of the vehicle located a bottle of promethazine with codeine. The label on the

bottle that contained the customer’s name had been torn off. The torn-off portion of the

label was located in a trash can, and it showed that the prescription was for Donald Jones.

Photos of the Mercedes, the trash can where the torn label was found, and the torn label

placed next to the bottle of promethazine with codeine were admitted. Welch opined

that the reason to tear off the customer’s name would be to prevent identification of who

the bottle originally belonged to.

        Jones testified and admitted that he sold his prescription cough medicine (codeine

with promethazine) to Rhodes for cash.

        As a part of his guilty plea, Jones executed a “Defendant’s Plea of Guilty, Waiver,

Stipulation and Judicial Confession.” It states in part:

        I do further admit and judicially confess that I unlawfully committed the
        acts alleged in the indictment/information in this cause at the time and
        place and in the manner alleged, or as a lesser included offense of the offense
        charged in the indictment/information, and that such allegations are true and
        correct, and that I am in fact GUILTY of the offense alleged or as a lesser
        included offense.
        Jones’s sufficiency challenge asserts that his judicial confession to the offense

alleged in the indictment is insufficient evidence to support the conviction because the
Jones v. State                                                                            Page 4
indictment, which Jones asserts is flawed, does not embrace every element of the charged

offense. Jones admits that his guilty plea waived all non-jurisdictional defects in the

indictment by not objecting before his guilty plea. See Perez v. State, 129 S.W.3d 282, 288

(Tex. App.—Corpus Christi 2004, no pet.); Stahle v. State, 970 S.W.2d 682, 694 (Tex. App.—

Dallas 1998, pet. ref’d) (“The law in this State is well settled that a guilty plea entered

without benefit of a plea bargain waives all non-jurisdictional defects occurring prior to

entry of the plea.”); TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).

        The indictment alleged that Jones did:

        then and there knowingly possess, with intent to deliver, a controlled
        substance, namely, a compound, mixture, or preparation in an amount of
        200 grams or more but less than 400 grams, that contained not more than
        200 milligrams of codeine per 100 milliliters or 100 grams and includes one
        or more non-narcotic active medicinal ingredients of codeine, [Emphases
        added.]

        Section 481.105(1) of the Texas Health & Safety Code provides in pertinent part:

                 Penalty Group 4 consists of:

               (1) a compound, mixture, or preparation containing limited
        quantities of any of the following narcotic drugs that includes one or more
        nonnarcotic active medicinal ingredients in sufficient proportion to confer
        on the compound, mixture, or preparation valuable medicinal qualities other than
        those possessed by the narcotic drug alone:

                 not more than 200 milligrams of codeine per 100 milliliters or per 100
                 grams; ...

TEX. HEALTH & SAFETY CODE ANN. § 481.105(1) (emphasis added).

        Jones asserts that the body of the indictment does not allege delivery of a




Jones v. State                                                                             Page 5
controlled substance in Penalty Group 4,4 nor does it mention the nonnarcotic

promethazine as the “one or more nonnarcotic active medicinal ingredients in sufficient

proportion to confer on the compound, mixture, or preparation valuable medicinal

qualities other than those possessed by the narcotic drug alone.” Thus, Jones concludes,

his judicial confession to the offense charged in the indictment is insufficient to support

the conviction for the first-degree felony offense of possession of a Penalty Group 4

controlled substance with intent to deliver under section 481.114(a, d). That statute

provides in part:

         (a) Except as authorized by this chapter, a person commits an offense if the
         person knowingly manufactures, delivers, or possesses with intent to
         deliver a controlled substance listed in Penalty Group 3 or 4.

         ….

         (d) An offense under Subsection (a) is a felony of the first degree, if the
         amount of the controlled substance to which the offense applies is, by
         aggregate weight, including adulterants or dilutants, 200 grams or more but
         less than 400 grams.

TEX. HEALTH & SAFETY CODE ANN. § 481.114(a, d).

         To prove unlawful possession of a controlled substance, the State must prove

that: (1) the accused exercised control, management, or care over the substance; and (2)

the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex. Crim. App. 2005). Jones admitted that he sold the promethazine with

codeine for cash, and the DPS lab report, which was admitted, proved the controlled

substance, codeine, and the liquid amount weight of 228.53 grams.



4
    The indictment’s caption reads in part: “Charge: MAN/DEL CONT SUB PG 4 200-400 GRAMS.”

Jones v. State                                                                           Page 6
        The plea agreement that Jones signed states that he “agrees to plead guilty to the

offense … of Man/Del CS PG 4 200-400g … .” At the punishment hearing, after Jones

was sworn, the following occurred:

               THE COURT: It was on May the 15th. Do you remember signing
        this document that I’ve got in front of me called Defendant’s Plea of Guilty?

                 THE DEFENDANT: Yes.

              THE COURT: And you understand that I’m the person that's going
        to make the decision about your punishment today? And that’s what you
        want to do, right?

                 THE DEFENDANT: Yes, sir.

              THE COURT: Okay. Let me ask you this, sir: The State – ma’am,
        do you need to sit down?

               Okay. The State alleges that back on December 1st of 2011, here in
        Brazos County, Texas, you possessed -- knowingly possessed with the
        intent to deliver a compound mixture or preparation in an amount of more
        than 200 grams but less than 400 grams, that contained not more than 200
        milligrams of codeine per 100 milliliters or 100 grams and included one or
        more non-narcotic active medicinal ingredients of codeine.

               Do you understand that charge of manufacture and delivery of
        controlled substance, specifically codeine? Do you understand that
        charge against you?

               THE DEFENDANT: I guess I do, Your Honor. I didn’t know at first
        it was a controlled substance, but yes, sir.

                 THE COURT: But you understand that’s what you're charged with?

                 THE DEFENDANT: Yes, sir.

                 THE COURT: And how do you plead to that charge?

                 THE DEFENDANT: Guilty.

        We agree with the State that Jones’s judicial confession and the above evidence,

Jones v. State                                                                          Page 7
including Jones’s sworn answers to the trial court about the charge he was pleading guilty

to, embrace every constituent element of the offense charged in the indictment and is thus

sufficient to support Jones’s felony conviction based upon his guilty plea. We overrule

his sole issue and affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the judgment to the extent it affirms the judgment
       of the trial court. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed August 31, 2015
Do not publish
[CR25]




Jones v. State                                                                      Page 8
