Braggs v. State, 31861

• Decision Date: 27 April 1960
• Docket Number: No. 31861,31861
• Parties: Theresa Mae BRAGGS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 793

334 S.W.2d 793

169 Tex.Crim. 405

Theresa Mae BRAGGS, Appellant, v. STATE of Texas, Appellee.

No. 31861.

Court of Criminal Appeals of Texas.

April 27, 1960.

[169 TEXCRIM 406] Clyde W. Woody (on appeal only), Houston, for appellant.

Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is possession of a narcotic drug; the punishment, 8 years.

The conviction must be reversed for two reasons.

The examining trial testimony of Officer Chavez was read into the record by agreement, which relates how he recovered a yellow cellophane capsule from appellant. In order to show that such capsule contained heroin, we find the following, 'I then took that capsule and turned it over to the City Chemist Robert F. Crawford, who ran a chemical analysis on the capsule and found that it contained heroin.' No testimony from Crawford appears in the record. It is apparent that what Crawford found was information which Chavez had received and not knowledge which he had acquired on the scene, and was hearsay such as we held to be of no probative value in Pitcock v. State, Tex.Cr.App., 324 S.W.2d 866; 324 S.W.2d 867. No report was introduced in evidence.

[169 TEXCRIM 407] The statement of the prosecutor as to what Crawford's report showed could not take the place of evidence given under 'the sanction of an oath.' Ex parte Clark, Tex.Cr.App., 299 S.W.2d 128, 130.

In accepting appellant's plea, the court did so in practically the same words as are set forth in our opinion in Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779, and which we held failed to properly admonish the accused of the consequences of his plea as required by Article 501, Vernon's Ann.C.C.P.

For the reasons set forth, the judgment is reversed and the cause is remanded.

DAVIDSON, Judge (concurring).

Attention is called to the fact that we are not here dealing with a collateral attack upon a judgment of conviction. This is a direct attack by appeal, attacking the sufficiency of the evidence to support the conviction.

In 1931, by Chap. 43, Acts of the Regular Session of the 42nd Legislature, and by the amendment thereof in 1959, by Chap. 2, Acts 3rd Called Session of the 56th Legislature, provisions are made whereby one charged with an ordinary felony might waive a trial by jury and enter a plea of guilty before the court. Arts. 10a and 12, Vernon's Ann.C.C.P., as amended.

The legislature, however, required that certain conditions must be complied with before a conviction of an ordinary felony might be lawfully obtained upon a plea of guilty before the trial court.

Chief among these requirements was 'that 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 of guilty * * * without sufficient evidence to support the same.'

Obviously the legislature had a good reason for making that requirement, that reason being that it did not want any man whom the state could not and did not prove guilty of the crime charged sent to the penitentiary upon his plea of guilty before a trial court.

[169 TEXCRIM 408] In order to insure that said requirement be fulfilled and carried out, the legislature precluded conviction until sufficient evidence had been introduced. In other words, the legislature made proof of guilt jurisdictional, without which proof a valid judgment of conviction could not be entered.

Jurisdiction to enter the judgment that is entered must be established. It cannot be presumed or waived.

The statement of facts upon which this appellant was convicted reflects that not a single witness testified in the case under the sanction of an oath, duly administered.

Here is how the state discharged the burden resting upon it to prove the guilt of the appellant.

State's counsel inquired of both appellant and her counsel if it was 'agreeable' with them 'that the formal reading of the indictment be waived and that the state be allowed to read from the examining trial testimony and certain reports from the chemist without bringing the witnesses in to testify in person.'

Both counsel and appellant agreed that the state could so prove its case and in that manner dispose of and set aside the mandate of the legislature that evidence be introduced showing the guilt of the defendant.

Thereupon state's counsel read the testimony given by the witness Chavez, upon examining trial in justice court, to the effect that he and a fellow officer, upon information that appellant was violating the law by having narcotics in her possession, apprehended appellant while her automobile was stopped at a railway crossing. As the officers approached, appellant was seen to "place a yellow cellophane capsule into her mouth."

The officers immediately placed appellant under arrest and carried her to a hospital, where she consented to take a saline solution. As a result, she vomited up the partially dissolved capsule.

The capsule was recovered and turned over to the city chemist.

That testimony related only to proof that appellant swallowed [169 TEXCRIM 409] a capsule and vomited it up. The state was under the burden of proving that the capsule contained a narcotic.

To make that proof the state introduced 'into evidence the report of Robert F. Crawford, Chemist and Toxicologist for the City of Houston Police Department showing that he ran a chemical analysis upon the yellow capsule submitted to him by Officer M. Chavez on July 10, 1959, and that an examination of that capsule revealed that it...