McClain v. State, s. 1193-85

• Decision Date: 29 April 1987
• Docket Number: Nos. 1193-85,1194-85,s. 1193-85
• Citation: 730 S.W.2d 739
• Parties: Craig Houston McCLAIN and Charles Vincent Navarro, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 739

730 S.W.2d 739

Craig Houston McCLAIN and Charles Vincent Navarro, Appellants, v. The STATE of Texas, Appellee.

Nos. 1193-85, 1194-85.

Court of Criminal Appeals of Texas En Banc.

April 29, 1987.

Robert A. Shults, Houston, for appellants.

John B. Holmes, Jr., Dist. Atty. & J. Harvey Hudson and Veryl Brown, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANTS' PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

On direct appeal, the First Court of Appeals, in an unpublished opinion, see McClain and Navarro v. State, Nos. 01-83-0477-CR and 01-83-0478-CR, respectively, May 3, 1984, relying exclusively upon this Court's panel opinion of Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982), reversed the convictions of Craig Houston McClain and Charles Vincent Navarro, hereinafter referred to as appellants, after finding that the evidence was insufficient because there was no proof under the State's theory that was alleged in each respective indictment, i.e., that the evidence was insufficient to establish that appellants had participated in the initial unlawful appropriation of the property that was allegedly stolen. It ordered the trial court to acquit each appellant.

Thereafter, this Court granted the State's petition for discretionary review in order to make the determination whether the reasoning underlying Casey v. State, supra, should be overruled. A majority of this Court voted to overrule Casey, supra, see McClain and Navarro v. State, 687 S.W.2d 350 (Tex.Cr.App.1985), and reversed the judgment of the court of appeals, holding, inter alia, that "it is clear that the general allegation that the conduct and accompanying mental state (appropriation with the intent to deprive) were done 'unlawfully,' or even 'without the owner's consent,' would support a conviction for theft in which the proof established the actor's 'initial taking,' his 'receipt knowing the property was stolen' or neither such mode of acquisition, so long as all elements of theft were proved. Section 31.03(b)(1) and (2) simply do not provide the 'nature of the forbidden conduct;' instead, they are both only 'circumstances surrounding the conduct,' which in no way constitute 'acts or omissions of the defendant. It follows that these provisions have evidentiary import only in terms of establishing the 'unlawfulness' of the appropriation, and the defendant is not entitled to have them expressed in the State's charging instrument as a matter of 'form' under Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (Opinion on State's motion for rehearing), much less substance." (355). This Court then remanded the causes to the court of appeals in order for that court to make the determination whether the evidence established beyond a reasonable doubt that each appellant's exercise of control of the affected property was without the owner's effective consent.

Because of what later occurred, and what is before us to decide, we point out that what we will hold today has previously been effectively stated by Presiding Judge Onion in several opinions that he has filed that construed the provisions of Art. 1.15, V.A.C.C.P. His latest effort on the subject can be seen in this Court's recent opinion of Messer v. State, 729 S.W.2d 694 (Tex.Cr.App.April 1, 1987), which he authored for the Court. Also see Landers v. State, 720 S.W.2d 538 (Tex.Cr.App.1986), another opinion on the subject that he authored for the Court. The judges on this Court who disagreed with Presiding Judge Onion in Messer, supra, did not disagree over his construction of Art 1.15, supra; they only disagreed over his interpretation of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and how those cases applied to the situation where there was a failure by the trial judge to comply with the requirements of Art. 1.15, supra. After finding that the court of appeals had erred by considering the stipulated evidence, which was based upon a stipulation that did not comply with the provisions of Art. 1.15, supra, this Court reversed the judgment of the court of appeals which had held the evidence was sufficient to sustain the convictions This Court also held that the error was only "trial error" and not "insufficiency of the evidence error." Thus, in Messer, supra, the defendant was not entitled to an acquittal, but only to a new trial.

In the dissenting opinion that Presiding Judge Onion filed in this Court's opinion of McLain and Navarro, supra, he pointed out that "an examination of the appellate record quickly reveals [that] the evidence consists entirely of stipulations entered in this trial before the court on the pleas of not guilty. Such stipulations do not comply with the provisions of Article 1.15, V.A.C.C.P. The appellants' waivers of the appearance, confrontation and cross-examination of witnesses and consent to the stipulations has not been approved by the trial court in writing ... Such stipulations cannot be considered as evidence ..." (356-357). Presiding Judge Onion also pointed out that this Court had long held that error in failing to satisfy the mandatory requirements of the statute may be raised for the first time on direct appeal. (357). Today, we will approve the above statements by Presiding Judge Onion.

After this Court remanded the instant causes to the court of appeals, that court rejected a contention made by each appellant that had not been previously presented, i.e., their convictions after pleas of guilty before the court must be reversed because "the trial judge did not sign the agreements to waive the appearance of witnesses and stipulate to the evidence." McLain and Navarro v. State, 697 S.W.2d 807 (Tex.App.--1st 1985).

The court of appeals did not err in considering the appellants' new complaint. In this Court's majority opinion of Garrett v. State, (Tex.Cr.App., No. 642-83, June 11, 1986) (Pending on rehearing), it held that where this Court has remanded a cause to a court of appeals, notwithstanding the terms and conditions of the remand order, the court of appeals is free to entertain any new contentions that a defendant might then present, and in Garrett v. State, 656 S.W.2d 97, (Tex.App.-4th 1983), the San Antonio Court of Appeals did exactly that when it considered a contention which had not been presented to that court before this Court's remand order issued.

In this instance, on remand, the Houston First Court of Appeals applied "the reasoning set forth in Almanza [v. State, 686 S.W.2d 157 (Tex.Cr.App.1984) ], [and held] that no harm has been shown and fundamental error has not been proved." A majority of this Court in Almanza v. State, supra, established new standards that are to be used in making the determination whether error in the trial court's charge to the jury is reversible error. The basis of the court of appeals' holding is that the trial judge had orally approved the written stipulations and had also made written docket sheet entries, to the effect that "the stipulations [were] offered and approved."

This Court granted the appellants' combined petition for discretionary review in order to make the determination whether the court of appeals correctly disposed of the appellants' contention. We find and hold that the court of appeals erred in disposing of this contention, and will reverse its judgments.

The court of appeals held that "Article 1.15 does not require that the approval by the trial judge in writing be placed upon the face of the instrument being approved. It only requires that the approval be in writing and be filed in the papers of the cause." These findings enabled the court of appeals to conclude that the trial judge's oral approval of the stipulations, together with her handwritten notations of such approval on the docket sheets, constituted substantial compliance with the provisions of Art. 1.15, supra. By using the stipulations, the court of appeals was able to conclude that the evidence was sufficient to sustain each conviction, and affirmed the appellants' convictions.

Art. 1.15, supra, provides in pertinent part: "... such consent [to stipulate] must be approved by the court in writing, and filed in the file of the papers of the cause." This Court has long held that compliance with the requirements of the statute must be strictly followed before a stipulation can be considered as evidence where the plea is before the court, and the failure of the trial judge to comply with the requirements of the statute will require that the judgment of the trial court must be reversed if it is found that it was based upon such stipulation. See, for example, Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983). The statute is also applicable to pleas of not guilty before the court where a jury trial has been waived. See, for example, Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1979). ¹

It is not the stipulation itself that must be approved in writing by the trial judge; it is the defendant's consent to stipulate that must be approved in writing by the trial judge. See Landers v. State, supra. Thus, under the statute, the stipulation becomes a "writing of the court" only when the trial judge places his signature on the consent to stipulate. See Young v. State, supra.

In Landers v. State, supra, this Court stated the following:

What appellant overlooks is that Article 1.15 requires that before stipulated evidence may be permitted in any plea before the court in a felony case the written waiver by the defendant of appearance, confrontation and cross-examination of witnesses and his consent to stipulation of evidence must be approved by the trial court, not the stipulation itself. A stipulation may be oral under Article 1.15, supra. An oral stipulation cannot be signed and approved by the trial court. The trial court is not required [under the statute]...