Valdez v. State

• Decision Date: 14 September 1977
• Docket Number: No. 53811,53811
• Citation: 555 S.W.2d 463
• Parties: Ben VALDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 463

555 S.W.2d 463

Ben VALDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 53811.

Court of Criminal Appeals of Texas.

Sept. 14, 1977.

Jerry D. Patchen, Houston, Gerald M. Birnberg, Bellaire, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Ken W. Sparks, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before the court on a plea of not guilty, appellant was found guilty of possession of a usable amount of marihuana in excess of four ounces. Punishment was assessed at ten years, probated.

A review of the record discloses that fundamental error accompanied the admission of appellant's stipulation of evidence, and upon the authority of Hughes v. State, Tex.Cr.App., 533 S.W.2d 824; Rodriquez v. State, Tex.Cr.App., 534 S.W.2d 335; Rangel v. State, Tex.Cr.App., 464 S.W.2d 858, and Elder v. State, Tex.Cr.App., 462 S.W.2d 6, the judgment must be reversed.

The trial was conducted on August 20, 1975. The docket sheet entry of that date reads "The defendant Valdez appeared in person with counsel Jerry Patchen. Defendant, duly arraigned according to law, in open court pleaded not guilty. Defendant waived formal reading of the indictment. Defendant filed written waiver of trial by jury. State offered written Stipulation of evidence. Both sides rested."

The docket sheet reflects that on that date the court found the defendant guilty, but postponed assessing punishment until a later date. Punishment of ten years with probation was assessed October 23, 1975.

The stipulation of evidence signed and sworn to by appellant and approved by the defense and prosecuting attorneys is included in the record. It provides in the opening paragraphs as follows:

"After BEN VALDEZ, the Defendant in the above numbered and entitled case, plead not guilty, the following written stipulation was made.

"It is hereby stipulated between the State of Texas, represented by Assistant District Attorney, Kenneth Sparks, and by the Defendant, Ben Valdez, with the approval of his retained counsel, Jerry D. Patchen, that if:

"Sgt. R. A. Barnard, a Houston Police Officer, were called as a witness, after being duly sworn he would testify that on December 24, 1974, at approximately 5:30 p. m., . . ."

It proceeds with a recitation of what Sgt. Barnard, subject to appellant's objection of an illegal search and seizure, would testify, and also what a chemist would testify. An examination of the record fails to reveal that appellant waived in writing his right to the appearance, confrontation and cross-examination of the witnesses and to the introduction of documentary evidence. The State admits in its brief that appellant did not consent in writing to waive these matters, and says:

"Since the 'Stipulation of Evidence' was offered by the State (R. 50, 64), it was not in compliance with the mandate of Article 1.15, supra (V.A.C.C.P.) and cannot be considered as evidence. Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976)."

Art. 1.15, V.A.C.C.P., provides that in cases where trial by jury is waived the evidence may be stipulated "if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation and cross-examination of witnesses,...