Opinion
NO. 01-15-01093-CR NO. 01-15-01094-CR
03-09-2017
DERRICK BONNER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case Nos. 14-DCR-066830 & 14-DCR-066831
MEMORANDUM OPINION
Appellant, Derrick Bonner, pleaded guilty to the felony offense of aggravated robbery. Following a punishment hearing, the trial court assessed appellant's punishment at twelve years' confinement. In his sole point of error, appellant contends that the evidence was legally insufficient to support his conviction. We affirm.
See TEX. PENAL CODE ANN. § 29.03 (West 2014).
Background
On July 21, 2014, the State charged appellant with the first-degree felony offense of aggravated robbery in cause numbers 14-DCR-066830 and 14-DCR-066831. On March 2, 2015, following his arraignment, appellant entered a plea of guilty in both cause numbers, without an agreed recommendation. The record reflects that, prior to appellant's plea of guilty, no pretrial motions or notices were filed.
The indictment alleged that, on or about June 27, 2014, in Fort Bend County, appellant "did then and there while in the course of committing theft of property owned by Stephanie Morales and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Jennifer Popper in fear of imminent bodily injury and death, and the [appellant] did then and use and exhibit a deadly weapon, to wit: a firearm."
The indictment alleged that, on or about June 27, 2014, in Fort Bend County, appellant "did then and there while in the course of committing theft of property owned by Stephanie Morales and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Stephanie Morales in fear of imminent bodily injury and death, and the [appellant] did then and use and exhibit a deadly weapon, to wit: a firearm."
In conjunction with his guilty plea, appellant executed a sworn written stipulation and judicial confession in both causes, in which he admitted
[t]hat in Fort Bend County, Texas, I (the same individual indicted in this cause) on June 27, 2014, committed the acts alleged in the indictment in this cause, and that the evidence and testimony would prove beyond a reasonable doubt that [the] acts and allegations in the indictment in this cause are true and correct[.]Appellant received written admonishments from the trial court, waived the right to the appearance, confrontation, and cross-examination of witnesses and to a jury trial, and requested that the trial court approve the written stipulations and judicial confessions and that they be used as evidence against him. The State offered the plea paperwork as State's Exhibit 1 and the offense report from the Sugar Land Police Department as State's Exhibit 2 in support of appellant's guilty plea.
On March 2, 2015, appellant signed a waiver of right to appeal his plea of guilty only. The trial court's certification of defendant's right to appeal reflects that the case "is not a plea-bargain case, and the defendant has the right of appeal [] for punishment only[.]"
On June 19, 2015, following completion of a presentence investigation (PSI) report, the trial court conducted a sentencing hearing at which the two complainants and appellant's mother and sister testified. The trial court took judicial notice of its file, including the offense report and the PSI report, as amended. At the conclusion of the hearing, the trial court found appellant guilty of aggravated robbery and assessed his punishment at twelve years' confinement in both causes, to run concurrently. The trial court entered the judgments on November 20, 2015. On December 17, 2015, appellant filed notices of appeal "for punishment only."
The State stipulated to a correction to the PSI report reflecting that appellant's co-defendant was the one who fired the weapon.
Appellant's Right of Appeal
At the outset, we note that appellant does not challenge the punishment assessments on appeal. Rather, he complains that the evidence is legally insufficient to support his convictions for aggravated robbery, i.e., a guilt-innocence issue, despite the language of the trial court's certification limiting his appeal to "punishment only." The State contends that this Court has no jurisdiction over the appeal because appellant gave notice of appeal as to punishment only.
Rule of Appellate Procedure 25.2(a)(2) provides:
A defendant in a criminal case has the right of appeal under Code of Criminal Procedure 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order. In a plea bargain case—that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only:
TEX. R. APP. P. 25.2(a)(2). The limitation of a defendant's right to an appeal as stated in Rule 25.2(a)(2) expressly applies to a "plea bargain case[.]" Id.; see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).(A) those matters that were raised by written motion filed and ruled on before trial, or
(B) after getting the trial court's permission to appeal.
Here, it is undisputed that appellant did not plead guilty to the charged offense pursuant to a plea bargain agreement or in exchange for the State recommending a sentence. Accordingly, nothing in Rule 25.2(a)(2) limits appellant's right of appeal. See TEX. R. APP. P. 25.2(a)(2). Because appellant's right to appeal is not limited, the trial judge's additional handwritten notation of "punishment only" at the end of the typed statement that the case "is not a plea-bargain case, and the defendant has a right of appeal," does not restrict appellant's right of appeal. See id.; see also Diaz v. State, No. 10-15-00324-CR, 2016 WL 4498783, at *2 (Tex. App.—Waco Nov. 9, 2016, pet. ref'd) (mem. op., not designated for publication); Solis-Caseres v. State, No. 09-13-00580-CR, 2015 WL 993476, at *8 (Tex. App.—Beaumont Mar. 4, 2015, no pet.) (mem. op., not designated for publication). Therefore, we will address the merits of appellant's appellate issue.
Sufficiency of the Evidence
Appellant contends that the evidence is legally insufficient to support his convictions for aggravated robbery. He argues that the witnesses' testimony is contradictory and that "the State failed to have the victims make a positive identification of [a]ppellant as using or exhibiting a deadly weapon."
A. Standard of Review
When a criminal defendant pleads guilty, he waives his right to challenge the legal and factual sufficiency of the evidence. Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004) (per curiam); see also Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In such cases, we confine our review of the sufficiency of the evidence to determining whether the evidence supports the conviction under article 1.15 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005) (stating that State must "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."); Keller, 125 S.W.3d at 604 (citing TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005)). The State must offer sufficient proof to support any judgment based on a guilty plea in a felony case tried before a court. Id.; see also Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986).
B. Analysis
Appellant contends that the evidence is insufficient to support his plea of guilty to the offense of aggravated robbery. A person commits the felony offense of aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, and uses or exhibits a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (West 2014).
The evidence supporting a guilty plea may take several forms. See Menefee v. State, 287 S.W.3d 9, 13-14 (Tex. Crim. App. 2009). Article 1.15 provides that "the evidence may be stipulated if the defendant in such a 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." TEX. CODE CRIM. PROC. ANN. art. 1.15. When a defendant pleads guilty, article 1.15 does not require him to admit the truth of the evidence to which he stipulates, but if he does so, the stipulation will be considered a judicial confession. Stone v. State, 919 S.W.2d 424, 426-27 (Tex. Crim. App. 1996); see also Guiterrez v. State, 176 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (holding "judicial confession or stipulation of evidence, by itself, suffices to sustain a conviction rendered upon a guilty plea."). Evidence presented during a sentencing hearing may also substantiate a guilty plea. Menefee, 287 S.W.3d at 18-19; see also Stewart v. State, 12 S.W.3d 146, 147-49 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Here, appellant agreed in writing, in open court, to waive the right to the appearance, confrontation, and cross-examination of witnesses and the right to a jury trial. In conjunction with his guilty plea, appellant executed a sworn written stipulation and judicial confession in both causes, admitting that he "committed the acts alleged in the indictment[s]" and that "the evidence and testimony would prove beyond a reasonable doubt that [the] acts and allegations in the indictment[s] are true and correct." These judicial confessions, standing alone, are sufficient under article 1.15 to support appellant's conviction. See Stewart, 12 S.W.3d at 148 (noting that, under article 1.15, "[a] judicial confession alone is sufficient evidence to sustain a conviction upon a guilty plea" and that confession "may take the form of an affirmative acknowledgment by the defendant that the indictment was true and correct."). It was not necessary for the State to introduce any other evidence. See McGill v. State, 200 S.W.3d 325, 330 n.1 (Tex. App.—Dallas 2006, no pet.) ("[T]he judicial confession in [t]his case constituted sufficient evidence to support [appellant's] plea under article 1.15."); Keller, 125 S.W.3d at 605-06 (holding judicial confession that contained statement, "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").
We conclude that there was sufficient evidence to support the trial court's judgments under article 1.15. We overrule appellant's sole point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).