Dinnery v. State

• Decision Date: 10 October 1979
• Docket Number: No. 61650,No. 2,61650,2
• Citation: 592 S.W.2d 343
• Court: Texas Court of Criminal Appeals
• Parties: Kelly Lee DINNERY, Appellant, v. The STATE of Texas, Appellee

Page 343

592 S.W.2d 343

Kelly Lee DINNERY, Appellant, v. The STATE of Texas, Appellee.

No. 61650.

Court of Criminal Appeals of Texas, Panel No. 2.

Oct. 10, 1979.

On Rehearing Jan. 23, 1980.

Paul W. Leech, Grand Prairie, for appellant.

Henry M. Wade, Dist. Atty., Stanley E. Keeton, J. T. Langford and Will Wilson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal follows an August 11, 1978 revocation of appellant's probation in which the trial court imposed a five year sentence for the offense of burglary by committing theft pursuant to V.T.C.A. Penal Code, § 30.02(a)(3). ¹ By his sole ground of error, appellant claims that at the time of the entry of his guilty plea and the trial court's suspension of his sentence on April 3, 1975, the only evidence introduced by the State was appellant's written stipulation which confessed his entry to the habitation With the intent to commit theft. See n. 1, supra. Appellant contends that "under the doctrine announced in Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978), ² this conviction cannot stand." The State retorts that appellant's argument is, in effect, a collateral attack on the sufficiency of the evidence to support the original conviction, and as such, may not be considered by this Court at this time.

It has been considered well settled by this Court that the sufficiency of the evidence to support a conviction may not be attacked by petition for writ of habeas corpus or otherwise collaterally, ³ so long as the guilty plea is entered voluntarily and the accused is represented by counsel. Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972). See also generally Sosa v. United States, 550 F.2d 244 (5 Cir. 1977). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), this Court determined that upon a showing that there is No evidence on which his conviction could be based, a habeas petitioner has shown a violation of his right to due process of law, and such abridgment will justify a collateral attack on that conviction. See also Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978).

The claim before us brought under the procedural facts of this case constitutes a collateral attack, e. g., Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978); we therefore must determine as a threshold issue whether all the evidence on which the trial court based his judgment that appellant was guilty of "burglary of a habitation as charged in the indictment," is before this Court. We find that all of the evidence, including a transcription of the court reporter's notes of the guilty plea hearing, is before us, and we therefore are in a position to consider appellant's "no evidence" ⁴ claim at this time. Compare Wolfe, supra.

Omitting the formal portions, the indictment returned against appellant in the instant case alleges that on or about January 31, 1975, appellant did unlawfully,

without the effective consent of Mrs. Robert E. Kimbrel . . . enter a habitation owned by . . . Complainant, and did then and there Commit theft, to-wit: . . . unlawfully exercise control over personal property of Complainant, . . . without the effective consent of . . . Complainant, and with intent to deprive the said owner of (the) property.

In a single document, appellant executed his waiver of jury, agreement to stipulate, ⁵ application for probation, waiver of delay in sentencing and waiver of appeal ⁶ dated March 28, 1975. ⁷ The written stipulation recites:

I do judicially confess that on the 31 day of January, 1975 in Dallas County, Texas, I did With the intent to commit theft, enter a habitation which was not open to the public, without the effective consent of Robert E. Kimbrel, ⁸ the owner, As charged as in the indictment.

The statement of facts reveals that at the April 3rd hearing, the trial judge admonished appellant of the consequences of his plea and the range of punishment and concluded:

The Court will accept your plea, if you make it, and find you guilty on your plea if the evidence proves you guilty beyond a reasonable doubt.

Appellant waived arraignment and informed the court that appellant's true name was as that alleged in the indictment.

The State then offered "the confession of the defendant, which is signed in open court and approved by his lawyer," without objection:

THE COURT: Mr. Dinnery, they have offered into evidence, which means they want me to consider as evidence, this confession made by you this Judicial confession. Did you sign this confession?

THE DEFENDANT: Yes sir.

THE COURT: And Are the facts contained therein true and correct ?

THE DEFENDANT: Yes sir.

THE COURT: And you want me to consider this as evidence?

THE DEFENDANT: Yes sir.

THE COURT: In other words, What I will be doing is finding you guilty and sentencing you based upon your own confession.

THE DEFENDANT: Yes sir.

THE COURT: State's Exhibit Number 1 is admitted.

(PROSECUTOR): State rests.

The defendant was then sworn in his own behalf and his attorney, on affirmation that appellant was the same person charged by indictment, inquired:

Q: You've gone over that Indictment with me, have you not?

A: Yes, sir.

Q: We have read it?

A: Yes, sir.

Q: And is it true and correct ?

A: Yes, sir.

Q: And how do you wish to plead to that indictment?

A: Guilty.

Q: Are you pleading guilty because you are guilty and for no other reason?

A: Yes, sir.

Q: Has anybody promised you anything, threatened you or forced you, or coerced you in an effort to induce you to plead guilty this morning?

A: No, sir.

Q: So, again, you're saying you're doing that of your own free will and accord?

A: Yes, sir.

Counsel then went over appellant's waiver of all his rights and proceeded:

Okay. Now, prior to coming to Court today, we went over what the State has introduced . . . as State's Exhibit Number 1, is that correct?

A: Yes, sir.

Q: And you signed that, is that correct?

A: Yes, sir.

Q: And that, as I told you, is a Judicial confession?

A: Yes, sir.

Q: And did you sign that freely and voluntarily?

A: Yes, sir.

Q: And Is it true and correct?

A: Yes, sir.

THE COURT: Mr. Dinnery, have you understood everything that has gone on here?

THE DEFENDANT: Yes, sir.

The court accepted appellant's plea, assessed his punishment and suspended his sentence.

In Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978) this Court was confronted with that appellant's two written stipulations concerning commission of two thefts; each stipulation omitted an essential element charged in the indictments: that the property was "taken without the owner's effective consent." The only testimony adduced was the defendant's statement that the contents of the confessions were "substantially true and correct." This Court held that this constituted sufficient proof of the indictment allegations, the determining factor being the stipulations' incorporation by reference of the indictment with use of the phrase, ". . . as charged in the indictment," citing Adam v. State, ⁹ 490 S.W.2d 189 (Tex.Cr.App.1973); and Miles v. State, ¹⁰ 486 S.W.2d 326 (Tex.Cr.App.1972).

The instant case, however, presents a significantly disparate situation because, unlike Potts, Adam or Miles, supra, the stipulations in which Omitted indictment recitations, the stipulation here is on its face Inconsistent with the indictment allegations. The instant stipulation's incorporation by reference of a wholly inconsistent indictment recitation renders that stipulation a nullity; it therefore cannot support a conviction based on that indictment. Cf. Franco v. State, 552 S.W.2d 142 (Tex.Cr.App.1977).

Finally, the only other part of the record which might be argued as constituting "any" evidence of appellant's guilt as alleged in the indictment, is appellant's affirmative answer to his counsel's query: "and is (the indictment) true and correct." The testimony of appellant, particularly when read in context and as a whole, was clearly "not a judicial confession, ¹¹ (but was in reply to) merely an additional admonishment by (defense) counsel." Drain v. State, 465 S.W.2d 939, 940 (Tex.Cr.App.1971). It therefore will not support the judgment of conviction before us.

We hold that for lack of any evidence to support appellant's conviction, the judgment declaring that conviction is reversed, and this cause is ordered remanded to the trial court with instructions for the entry of a judgment of acquittal.

DOUGLAS, Judge, dissenting.

The majority takes the view that an intent to commit theft is inconsistent with the commission of theft. Based upon this novel idea, the majority finds the written stipulation of appellant to have been rendered a nullity.

The stipulation recites:

"I do judicially confess that on the 31 day of January, 1975 in Dallas County, Texas, I did with the intent to commit theft, enter a habitation which was not open to the public, without the effective consent of Robert E. Kimbrel, the owner, As charged in the indictment." (Emphasis supplied)

Common sense should tell us that entering a habitation intending to commit theft, as stipulated by appellant, does not preclude carrying out the theft, as charged in the indictment. In Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978), this Court upheld a conviction based upon a written stipulation which failed to recite an essential element of the crime charged in the indictment. The crime was theft; the judicial admission failed to state that the property was "taken without the owner's effective consent." The stipulation in the present case recites that the appellant entered a habitation not open to the public without the effective consent of the owner As charged in the indictment. This Court should follow Potts and find the stipulation sufficient to support a plea of guilty.

But even if we consider the written stipulation a nullity, appellant's...