Drain v. State, 43658
| Decision Date | 20 April 1971 |
| Docket Number | No. 43658,43658 |
| Citation | 465 S.W.2d 939 |
| Parties | Dyon Weslie DRAIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Paul H. Stanford, Charles L. Caperton, Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulrz, Jr. and Edgar A. Mason, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for felony theft. Trial was before the court on a plea of guilty. The punishment was assessed at two years.
The appellant, in his third ground of error, alleges that insufficient evidence was introduced to support his plea of guilty. We believe that this contention is with merit. The record contains the appellant's agreement to stipulate testimony and a waiver of jury. No written judicial confession appears in the record.
Oral stipulations concerning this cause were dictated into the record. The stipulations were to the effect that a television set was acquired in Dallas County by means of a fraudulent check and that appellant was one of the co-conspirators to the crime.
The defendant then took the stand and testified as follows:
'Q Your name is Dyon Weslie Drain?
'A Yes, sir.
'Q And you heard me make several waivers for you, and did I have the right to make those waivers for you?
'A Yes, sir.
'Q And are you guilty of this charge and are you pleading guilty because you are guilty and for no other reason?
'A Yes, sir.
(Whereupon, the defendant was sentenced by the Court.)'
Art. 1.15, Vernon's Ann.C.C.P., provides: (Emphasis added)
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Morris v. State, 197-84
...1.15 as necessary to support the trial court's judgment. See Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980). In Drain v. State, 465 S.W.2d 939 (Tex.Cr.App.1971) an oral stipulation was dictated into the record in support of the judgment. Because as Article 1.15, supra, read at that tim......
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Dinnery v. State
...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 We hold that for lack of any evidence to support appel......
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Vasquez v. State
...the decisions before the amendment it was held that oral stipulations were insufficient to support a conviction. See Drain v. State, 465 S.W.2d 939 (Tex.Cr.App.1971). In this case there was an oral stipulation which covered the elements of the offense and the facts concerning the prior conv......
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Menefee v. State
...Dix & Dawson, supra § 34.75, at 379 (footnote omitted). 23. Dinnery v. State, supra at 359 n. 14 (Clinton, J., dissenting). 24. 465 S.W.2d 939 (Tex.Crim.App.1971). 25. The statute was subsequently amended to permit oral stipulations. Acts 1971, 62nd Leg., ch. 996, p. 3028, § 1, eff. June 15......