                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-349-CR


PETER AUSTIN SEYMOUR                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Pursuant to a plea bargain, Appellant Peter Austin Seymour pled guilty to

felony driving while intoxicated (DWI) and true to the enhancement allegations,

and the trial court convicted him of felony DWI and sentenced him to twenty-

five years’ confinement. The plea agreement preserved Appellant’s right to

appeal the denial of his pretrial motion to quash.




      1
          … See Tex. R. App. P. 47.4.
          In two points, Appellant argues that the trial court erred by imposing an

illegal sentence not supported by the evidence and that the trial court erred by

failing     to   determine    whether    the    statutory   minimum    was    grossly

disproportionate, considering the circumstances of the offense, prior to denying

the motion to quash. Because the trial court did not err, we affirm the trial

court’s judgment.

          In his first point, Appellant argues that the trial court imposed an illegal

sentence not supported by the evidence because the only evidence that the

State offered was State’s Exhibit One. The State identified its exhibit as a

document containing Appellant’s judicial confession. The trial court responded,

“Mr. Seymour, at this time the Court accepts your judicial confession and your

plea of guilty. I find you guilty of the offense as alleged by indictment.” The

reporter’s record contains a State’s Exhibit One, but that exhibit is not a judicial

confession; instead, it is a Drägersafety violation report admitted at a bond

hearing held almost three months before the plea hearing. The exhibit that was

offered during the plea proceeding is not included in the reporter’s record. It is,

however, included in the clerk’s record as “DEFENDANT’S WAIVERS AND

JUDICIAL CONFESSION.”

          Appellant argues that because the judicial confession is not marked as an

exhibit, it was never admitted by the court and therefore is not part of the

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evidence in the case. 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.2

When a jury has been waived, therefore, the judgment of guilt in a felony case

must be supported by evidence even when a plea of guilty is entered.3 The

supporting evidence must include every essential element of the offense

charged.4 “[A] judicial confession, standing alone, is sufficient to sustain a

conviction upon a guilty plea and to satisfy the requirements of Article 1.15.” 5

      The law is well established that undisputed factual assertions made by

counsel or by the trial court in open court will be accepted as true. 6 Therefore,

when both the State and the trial court refer to State’s Exhibit One as



      2
          … Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).
      3
          … Young v. State, 8 S.W.3d 656, 660–61 (Tex. Crim. App. 2000).
      4
          … Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
      5
       … Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op.
on reh’g) (citations omitted).
      6
          … Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996).

                                        3
Appellant’s written judicial confession that was already in the paperwork, we

accept as true the fact that State’s Exhibit One is a judicial confession “already

in the paperwork.”      Additionally, the clerk’s record contains a copy of

Appellant’s written judicial confession.

      We hold that State’s Exhibit One referred to in the record as Appellant’s

written judicial confession and plea papers “already in the paperwork” is the

same document offered into evidence by the State as State’s Exhibit One.

Apparently, the court reporter either omitted from the appellate record the

correct State’s Exhibit One for the plea hearing or marked the wrong document

as State’s Exhibit One at the plea hearing. In any event, the mistake is clerical

and not a failure of proof.

      In addition to the judicial confession to felony DWI contained in the

clerk’s record, Appellant also entered his plea of true to both enhancement

paragraphs in open court.      Because the State offered and the trial court

admitted sufficient evidence to prove all the elements of the offense alleged

against Appellant, we hold that the evidence is sufficient and that the sentence

is not illegal on the basis of the absence of evidence. We overrule Appellant’s

first point.

      In the trial court, on the same day but before entering his plea, Appellant

sought to quash the punishment enhancement paragraphs as a violation of due

                                        4
process, as cruel and unusual punishment, and as a violation of double jeopardy

prohibitions.   He preserved this complaint as part of his plea bargain.        On

appeal, he raises only the propriety of a twenty-five-year sentence under the

current circumstances, arguing that the statutory minimum sentence of twenty-

five years is disproportionate to the offense committed. This court has held,

as has the Texas Court of Criminal Appeals, that when the sentence imposed

is within statutory limits, as it is here, the sentence is generally not subject to

challenge for excessiveness. 7 That is not to say that an Eighth Amendment

gross-disproportionality review will never be appropriate when a sentence falls

within the legislatively prescribed range. But, in this case, it is clear that the

minimum sentence of twenty-five years is an appropriate sentence as

determined by the legislature and based upon the trial court’s informed

normative judgment; the sentence is therefore not constitutionally infirm.8 The

sentence is far from the maximum sentence that could be imposed. Indeed, it

is the minimum sentence that could be imposed under the statutory scheme of




      7
       … Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005,
no pet.).
      8
      … See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App.
2006).

                                        5
DWI legislation.9   It is the result of multiple prior DWI offenses and felony

offenses, it is within the legislatively prescribed range of punishment, and it

does not impose any irrationally punitive consequences. We therefore hold that

Appellant’s sentence is not disproportionate to the offense. We overrule his

second point.

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: August 31, 2009




      9
       … See Tex. Penal Code Ann. §§ 12.42(d) (providing that range of
confinement for a person’s third felony conviction other than a state jail felony
conviction is twenty-five years to ninety-nine years or life), 49.09(b)(2) (making
a person’s third DWI a felony) (Vernon Supp. 2008).

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