Messer v. State, 570-84

• Decision Date: 17 September 1986
• Docket Number: No. 570-84,570-84
• Citation: 729 S.W.2d 694
• Parties: Charles Andrew MESSER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 694

729 S.W.2d 694 Charles Andrew MESSER, Appellant,
v.
The STATE of Texas, Appellee. No. 570-84. Court of Criminal Appeals of Texas,
En Banc. Sept. 17, 1986.
On Rehearing April 1, 1987.

Don Ervin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Calvin A. Hartmann & Wilford Anderson, William J. Delmore, III, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. & Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

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OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by the trial court of possession of cocaine. Punishment was assessed at three years imprisonment. On appeal to the First Court of Appeals, appellant's conviction was affirmed in an unpublished opinion. Messer v. State, No. 01-83-0312-CR, (Tex.App.--Houston [1st], delivered March 8, 1986). We granted appellant's petition for discretionary review to determine whether the court of appeals was correct in holding that there was sufficient evidence to support the guilty verdict. We will reverse.

The record indicates that on May 4, 1982, appellant was arrested as he was entering his office building and was taken by the arresting officers to his residence. A black camera case was taken from appellant at the time of the arrest. Appellant told the officers that the case contained a pistol and some cocaine. The officers searched the case and, pursuant to a search warrant, searched appellant's apartment.

Appellant waived his right to a jury trial and entered into a stipulation with the State wherein both sides agreed that if the State were to call its witnesses, they would testify to the facts contained in the offense report. The stipulation was signed by appellant, his attorney, and the assistant district attorney. The stipulation was not, however, approved and signed by the trial court.

Appellant argues that since the stipulation was not signed by the trial court, it may not be considered as evidence. Thus, there is no evidence to prove the substance was cocaine. In response the State relies on a statement made by appellant at the time he was arrested to show that his bag contained cocaine. The only place in the record where any statement made by appellant is found is in the offense report, which states:

"At the time of the arrest, the suspect was carrying a black vinyl camera case which was taken possession of by this Det. When we were leaving the parking lot of the aforementioned location, the suspect stated that he had a pistol and some cocaine in the bag."

Article 1.15, V.A.C.C.P., provides that in order for a stipulation to be valid, the defendant's consent and waiver of rights must be approved by the court in writing. This provision has been interpreted to require that the judge's signature appear on the stipulation. Lopez v. State, 708 S.W.2d 446 (Tex.Cr.App.1986); Clark v. State, 657 S.W.2d 121 (Tex.Cr.App.1983); Ellard v. State, 650 S.W.2d 840 (Tex.Cr.App.1983); Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983).

For example, in Clark, supra, the defendant was charged with possession of more than four ounces of marijuana. One officer testified in court that the substance was indeed marijuana. The parties stipulated that a second officer would testify that the amount exceeded four ounces. The stipulation was not signed by the trial court, and this Court held there was no evidence of the amount of marijuana.

In Lopez, supra, a similar case, the defendant was charged with possession of heroin. The parties stipulated that the officer would testify that the substance was indeed heroin. The trial court did not sign the stipulation and the State offered no other evidence to prove the substance was heroin. This Court held that there was insufficient evidence to show that the defendant was guilty.

The instant case presents a fact pattern nearly identical to those in Clark, supra, and Lopez, supra. Appellant and the State stipulated that the officer's testimony would contain the same information as the offense report. The offense report was virtually incorporated into and made a part of the stipulation of evidence. The offense report contained appellant's statement that there was cocaine in his case. The trial court did not sign the stipulation so the offense report may not be considered as evidence in this case, under the authority of the preceding cases.

The State offered no other evidence that appellant was guilty of possession of cocaine. Therefore, there was insufficient

Page 696

evidence to show that appellant was guilty of the offense with which he was charged.

The State makes three contentions in support of its position. First, regardless of the defective stipulation, the trial court could consider the contents of the offense report, to wit: appellant's statement, the visual inspection and field test of the cocaine performed by the officers at the scene, and the array of contraband found in appellant's apartment. This argument is unpersuasive. As previously stated, the offense report, though a separate exhibit from the written agreement to stipulate, was in fact the evidence that was stipulated. To contend that it was admitted into evidence on its own, separate and apart from the agreement to stipulate, flies in the face of the record before us.

The State's second contention is that appellant failed to object to the stipulation when it was offered. This Court has held that a stipulation of evidence without the trial court's signature constitutes fundamental error and may be raised for the first time on appeal. Lopez, supra.

The State's third contention is that appellant's statement is direct evidence that the substance in his bag was cocaine. The State is correct in its assertion that a statement concerning the nature of a substance made by someone with personal knowledge is direct evidence of the nature of the substance, as was held in Pesina v. State, 560 S.W.2d 97 (Tex.Cr.App.1978); and Bright v. State, 556 S.W.2d 317 (Tex.Cr.App.1977).

In Pesina, supra, the defendant took the stand and admitted that the substance found in his possession was heroin. This Court held the defendant's testimony provided sufficient evidence to support a guilty verdict, and there was no requirement that a chemist testify or that a lab report be admitted into evidence.

In Bright, supra, the defendant was in the Coulson home when he was arrested. Coulson testified that the defendant had heroin with him while he was there. This Court held that Coulson's statement that the defendant had heroin was admissible as a statement of fact within the knowledge of the witness. If the defendant had told Coulson that the substance was heroin, Coulson's testimony would have been direct evidence of the nature of the substance.

In the case at bar the issue of whether appellant's statement was direct evidence that the substance in his bag was cocaine is never reached because, unlike Pesina, supra, and Bright, supra, appellant's statement was never properly admitted into evidence.

In conclusion, we find the following: (1) the stipulation of evidence and everything it contains, specifically the offense report, may not be considered as evidence; (2) appellant did not waive the error in the stipulation by failing to object to it at trial; and (3) we never reach the issue of whether appellant's statement is direct evidence that his bag contained cocaine because it was never properly admitted into evidence.

The judgments of the court of appeals and the trial court are reversed. This cause is remanded to the trial court for entry of judgment of acquittal.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

Appellant was convicted in a bench trial of possession of cocaine upon his plea of not guilty before the court. His punishment was assessed by the court at three years' imprisonment.

The record shows that following a hearing on appellant's motion to suppress evidence the appellant waived trial by jury and entered his plea of not guilty. The evidence was "stipulated" and the appellant was found guilty. The judgment of conviction was entered.

On appeal the sole point (nee ground) of error was that the "evidence is insufficient to establish beyond a reasonable doubt that the substance recovered from the appellant was in fact cocaine, as alleged in the indictment."

The argument in support of the appellant's contention was that the State had failed to offer a chemist's testimony that

Page 697

the substance was cocaine or even a laboratory report reflecting that the substance submitted to the chemist tested as cocaine.

The Court of Appeals observed in its unpublished opinion that the stipulated evidence before the trial court in the form of an offense report showed that appellant, at the time of his arrest, told the arresting officers that the camera case or bag he had with him contained a pistol and cocaine. Approximately 20 grams of white powder was recovered from the bag. The tests were performed on the suspected narcotics with positive results. These tests included the cocaine found in the bag. The Court of Appeals found that the field tests were not sufficient in themselves to establish the nature of the substance, but the positive results of such tests tended to confirm the direct evidence in the form of appellant's admission that the substance was cocaine. Citing Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982), the Court of Appeals, viewing the evidence in the light most favorable to the judgment, concluded that a rational trier of fact could have found all essentials of the offense proven beyond a reasonable doubt because the question of sufficiency is determined by the combined weight of all incriminating evidence. Messer v. State (Tex.App.-Houston [1st Dist.] March 8, 1984--unpublished).

In appellant's petition for discretionary review the sole ground of review was that the Court of Appeals erred because there was...