                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00111-CR



       JESUS DE LA CRUZ HERRERA, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 27278




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                    MEMORANDUM OPINION
        Jesus De La Cruz Herrera entered an open plea of guilty to possession with intent to deliver

“Fluoro-ADB” in an amount of more than four, but less than 400, grams, a first-degree felony.

See TEX. HEALTH & SAFETY CODE ANN. §§ 481.1031, 481.113(d) (West 2017). The trial court

sentenced Herrera to fifteen years’ imprisonment and assessed $379.00 in court costs. On appeal,

Herrera questions whether the evidence is legally sufficient to support the plea of guilty “when the

substance alleged in the indictment is not a controlled substance that is named in Chapter 481 of

the Texas Health and Safety Code.”

        We find that Herrera waived any error he now attempts to raise with respect to the State’s

indictment under the guise of a complaint related to the sufficiency of the evidence. We further

find that Herrera’s judicial confession was sufficient to support his plea of guilt. Accordingly, we

affirm the trial court’s judgment. 1

I.      Herrera Waived Any Error with Respect to the Indictment

        The State’s indictment alleged that Herrera “knowingly possess[ed], with intent to deliver,

a controlled substance, namely Fluoro-ABD,” in an amount of more than four, but less than 400,

grams. The indictment specified that the degree of offense was a first-degree felony and listed the

statute of offense as Section 481.113 of the Texas Health and Safety Code, which states, “[A]

person commits an offense if the person knowingly . . . possesses with intent to deliver a controlled




1
In our companion cause number 06-18-00112-CR, Herrera also appeals a conviction for possession of a Penalty
Group 2 or 2A controlled substance in a drug-free zone in an amount of more than one, but less than four, grams.

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substance listed in Penalty Group 2 or 2-A.” TEX. HEALTH & SAFETY CODE ANN. § 481.113(a)

(West 2017).

        The Texas Health and Safety Code defines Penalty Group 2 and 2-A substances by listing

a host of chemical compounds that can be combined in a variety of ways to create controlled

substances, such as those commonly referred to as synthetic marihuana. See TEX. HEALTH &

SAFETY CODE ANN. § 481.1031; see also TEX. HEALTH & SAFETY CODE ANN. § 481.103 (West

Supp. 2018). Herrera complains that the substance alleged in the indictment is not a controlled

substance specifically named in the Texas Health and Safety Code because the indictment did not

list the particular chemical compounds or explain how they were combined. Essentially, though

the indictment alleged possession of a Penalty Group 2 or 2A controlled substance, Herrera

complains that it lacked the specificity required to establish that Fluoro-ABD met the definition of

a Penalty Group 2 or 2-A substance. 2 We find this complaint waived.

        “[D]efects in indictments are subject to waiver.” Smith v. State, 494 S.W.3d 243, 247 (Tex.

App.—Texarkana 2015, no pet.). Article 1.14(b) of the Texas Code of Criminal Procedure reads:

        If a defendant does not object to a defect, error, or irregularity of form or substance
        in an indictment or information before the date on which the trial on the merits
        commences, he waives and forfeits the right to object to the defect, error, or
        irregularity and he may not raise the objection on appeal or in any other
        postconviction proceeding.




2
 Although Hererra couches his argument as a legal sufficiency challenge, and although he specifically denies
challenging the indictment, he essentially complains that the indictment was deficient for failing to specify the
chemical compounds contained within Flouro-ADB which make it an illegal substance in this case.

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TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). Because (1) Herrera does not argue that

the indictment failed to allege a crime 3 and (2) complains of the specificity of the naming of the

controlled substance, we find that he was required to preserve his complaint by raising the issue

with the trial court. See Nguyen v. State, 506 S.W.3d 69, 78 (Tex. App.—Texarkana 2016, pet.

ref’d); Piland v. State, 453 S.W.3d 473, 479–80 (Tex. App.—Texarkana 2014, pet. ref’d); see also

TEX. R. APP. P. 33.1. Accordingly, he may not now complain that Fluoro-ABD is not a controlled

substance specifically named in the Texas Health and Safety Code.

II.     Herrera’s Judicial Confession Was Sufficient to Support His Plea of Guilt

        We next address Herrera’s argument that the evidence was insufficient to support his plea

of guilty to the possession with intent to deliver a Penalty Group 2 or 2-A substance in an amount

of more than four, but less than 400, grams.

        The State is required to introduce evidence demonstrating the defendant’s guilt, and no

trial court is authorized to 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 2005).

“Article 1.15 ‘[b]y its plain terms . . . requires evidence in addition to, and independent of, the plea

itself to establish the defendant’s guilt.’” Baggett v. State, 342 S.W.3d 172, 175 (Tex. App.—

Texarkana 2011, pet. ref’d) (quoting Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App. 2009)).

This is because, even if the defendant states that he or she is pleading guilty to the charges in the

indictment under oath, a guilty plea “does not constitute a judicial confession [since] the defendant


3
 To be clear, Herrera does not argue that Fluoro-ADB is never a Penalty Group 2 or 2A controlled substance, only
that the State failed to allege the chemical compounds contained within Fluoro-ADB which make it a controlled
substance in this case.
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is merely entering a plea, ‘not confessing to the truth and correctness of the indictment or otherwise

providing substance to the plea.’” Id. at 174 (quoting Menefee, 287 S.W.3d at 13, 15).

       “Evidence offered in support of a guilty plea may take many forms.” Menefee v. State, 287

S.W.3d 9, 13 (Tex. Crim. App. 2009). This evidence may include a judicial confession, which

will be sufficient to support a guilty plea as long as it “covers all of the elements of the charged

offense.” Id. Here, we find that the judicial confession did cover all the elements required by

Section 481.113.

       As set forth above, the indictment alleged each element of the offense. Herrera’s plea

paperwork further defined the offense as “PID CS PG 2 OR 2-A >=4G < 400G.” After receiving

the proper written admonishments, Herrera signed a judicial confession admitting that the

allegations in the indictment were true and correct and that he had committed each and every act

alleged in the State’s indictment. The State introduced the plea papers into evidence at the plea

hearing. Prior to his plea, Herrera testified he understood that the controlled substance contained

in the State’s indictment was a Penalty Group 2 or 2A controlled substance. He further affirmed

that he was pleading guilty because the allegations in the indictment were true.

       In Dinnery v. State, the Texas Court of Criminal Appeals held that, when a defendant

testifies that he has read the indictment and that it is true and correct, it is “tantamount to a

statement that all the allegations of the indictment [are] true and correct and [is] a judicial

confession that he [is] a guilty participant in the offense charged,” and it is sufficient to support a

guilty plea. Dinnery v. State, 592 S.W.2d 343, 352, 354 (Tex. Crim. App. [Panel Op.] 1979) (op.




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on reh’g). Likewise, we find Herrera’s judicial confession in this case sufficient to support his

guilty plea. See id.; see Menefee, 287 S.W.3d at 14. We overrule Herrera’s point of error.

III.   Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       March 18, 2019
Date Decided:         April 15, 2019

Do Not Publish




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