Franco v. State, 54410
| Decision Date | 08 June 1977 |
| Docket Number | No. 54410,54410 |
| Citation | 552 S.W.2d 142 |
| Parties | Emilio FRANCO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a revocation of probation. The trial court entered written findings that appellant violated three conditions of his probation and imposed the original punishment of five years' confinement in the Texas Department of Corrections.
The trial court's written findings reflect that appellant (a) committed a burglary, (b) associated with a person of disreputable or harmful character and (c) failed to pay the court costs of his original trial.
Appellant challenges the sufficiency of the evidence on all three findings. His central contention is that an instrument entitled "Stipulation of Evidence," which he and his attorney signed, should not have been admitted into evidence. In this instrument appellant admits to all three violations of the conditions of his probation.
If appellant is correct, the judgment must be reversed because other evidence in the record is insufficient to show that he committed the burglary, 1 that his failure to pay the court costs was willful or intentional, 2 or that he violated a condition of his probation by association with a person of disreputable or harmful character. 3
Although the record is poorly developed, this is apparently what happened: As the result of plea negotiations, appellant had originally intended to enter, at a prior time, a plea of "true" to the State's motion to revoke. At this time he signed a boiler plate "Stipulation of Evidence." By this instrument, appellant stipulated that the facts in the State's motion to revoke were true and correct and constituted the evidence in the case. The appellant's attorney also signed the instrument and it was sworn to before the district clerk. However, when the actual hearing began before Judge Evins, the appellant entered a plea of untrue to all the allegations in the State's motion to revoke. Judge Evins questioned the appellant and determined that appellant was not going to enter a valid plea of true. Consequently, Judge Evins refused to sign the stipulation of evidence, recessed the case and said he would leave it up to Judge Smith (the original trial court).
At the hearing before the original trial court, the appellant persisted in pleading untrue and strenuously objected to the admission of the stipulation of evidence. The prosecutor admitted that plea negotiations had taken place and that at the prior hearing before Judge Evins the appellant had denied violating any of the three conditions of his probation. Nevertheless, the prosecutor urged that by virtue of the boiler plate language the stipulation was a "judicial confession." The trial court found that the instrument was not a judicial confession because "there wasn't any confession in open Court." We agree. Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707, 708 (1958); Botello v. State, 145 Tex.Cr.R. 50, 165 S.W.2d 903, 904 (1942).
"Judicial confessions are those which are made before the magistrate, or court, in the due course of legal proceedings." Speer v. State, 4 Tex.App. 474, 479 (1878), quoting 1 Greenl. on Ev., Section 216, 6th edition.
Nonetheless, the trial court admitted the stipulation of evidence into evidence because
Apparently, plea negotiations had fallen through. The record...
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Dinnery v. State
...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 al......
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