Vanderburg v. State

• Decision Date: 16 August 1984
• Docket Number: No. C14-83-708CR,C14-83-708CR
• Citation: 681 S.W.2d 713
• Parties: Daniel Gordon VANDERBURG, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 713

681 S.W.2d 713

Daniel Gordon VANDERBURG, Appellant, v. The STATE of Texas, Appellee.

No. C14-83-708CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 16, 1984.

Henry Burkholder, III, Houston, for appellant.

Calvin Hartmann, Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

JUNELL, Justice.

This is an appeal from a order revoking probation. Appellant was originally charged with two counts of burglary of a habitation; the state abandoned the second count of the indictment. The trial court granted the state's motion to reduce the first count to burglary of a building, to which appellant pled guilty and received four years' probation beginning August 20, 1979. We affirm the revocation of probation.

On January 3, 1980 the state filed a Motion to Revoke Probation for appellant's failure to report, failure to pay supervisory fees, and failure to reimburse Harris County for his court-appointed attorney.

During the early part of 1980, appellant was convicted of two more felonies, one in Lubbock County and the other in Tarrant County. Subsequent to these convictions, appellant served approximately 16 months in the Texas Department of Corrections. Upon his release, appellant moved to Ohio and then to California where he was convicted for receiving stolen property and placed on probation. On March 18, 1983, the state filed an amended motion to revoke probation for the August 20, 1979 Harris county conviction. Appellant was extradited from California and made his first court appearance in the revocation proceeding on June 1, 1983. On August 17, 1983, the state filed a Second Amended Motion to Revoke Probation, adding the Tarrant County and Lubbock County felony convictions as grounds for revocation. At the revocation hearing on October 6, 1983, the court found all of the state's allegations of probation violations true. The court revoked appellant's probation, sentenced him to four years' confinement in the Texas Department of Corrections, and ordered him to pay restitution for extradition fees from California in the amount of $1,180 as a condition of parole.

Appellant presents eight grounds of error. Five of those grounds challenge TEX.CRIM.PROC.CODE ANN. art. 1.15 (Vernon 1977). Grounds one, two, and four argue Article 1.15 is unconstitutional for the reasons listed:

(1) violation of due process by denying appellant's federal right to compulsory process,

(2) violation of equal protection, and

(3) denial of state right to compulsory process

Along the same lines, appellant also argues in grounds three and eight the court committed fundamental error (1) in failing to advise the appellant he could not introduce evidence on his behalf in an article 1.15 proceeding and (2) in not requiring that appellant give written waiver of his right to compulsory process under an article 1.15 proceeding. We find no merit to these grounds of error. Appellant's first, second, third, fourth and eighth grounds of error are overruled.

TEX.CRIM.PROC.CODE ANN. § 1.15 (Vernon 1977) reads as follows:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. 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, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause. (emphasis supplied).

A defendant has certain enumerated rights under the United States and Texas constitutions. Nonetheless, he may elect to waive those rights, be they rights afforded under the federal constitution (See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) or under our own state's constitution (See Thornton v. State, 601 S.W.2d 340 (Tex.Crim.App.1980)).

In the instant case appellant specifically waived several of his constitutional rights. He stated that he waived his right to a jury trial in response to two separate sets of questions propounded by the trial court judge. Also, prior to pleading guilty appellant signed a Waiver of Trial by Jury and a Stipulation of Evidence. Then he orally waived the reading of the indictment, his constitutional rights to have the witnesses appear in person, to confront those witnesses, and to have his attorney cross-examine them. Finally, he waived his right against self-incrimination.

We find no case or statute requiring a judge to enumerate, laundry-list style, every constitutional right that a defendant possesses and demand that the defendant note for the record his separate waiver of each. The Fifth Circuit in United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971) held,

This court is ... aware of no precedent from the Supreme Court, or elsewhere, for the proposition that due process requires that the defendant be informed of each and every right which is waived by a guilty plea ... before a guilty plea may be accepted.

There is no requirement under United States or Texas law that a defendant expressly waive his right to compulsory process. FED.RULES CRIM.PROC.RULE 11(c), 18 U.S.C. outlines a defendant's right to a jury trial, right to counsel, right to confront and cross-examine witnesses, and the right against self-incrimination. State law requires an overt waiver of only three rights: (1) the right to a jury trial, (2) the right to confront one's accusers, and (3) the right to refuse to testify at trial. TEX.CODE CRIM.PROC.ANN. art. 26.13 (Vernon Supp.1984); see generally Casares v. State, 478 S.W.2d 462 (Tex.Crim.App.1972).

Appellant raises the unique argument that a defendant must also expressly waive the right to compulsory process. We disagree. The right to compulsory process is not one of the fundamental rights mentioned in Boykin v. Alabama, supra. Although certain other jurisdictions include it among the constitutional rights a defendant must expressly waive, Texas does not. We refuse to extend this state's policy to require such a waiver. Even assuming arguendo that the right to compulsory process should be included among those rights which must be expressly waived, our reading of the statement of facts compels us to find that appellant waived that right. When queried by the court whether he understood that he had the constitutional right to have the witnesses appear in person and that he was giving up that right, appellant twice answered, "Yes, sir." We construe this dialogue as a waiver by appellant of his right to compulsory process. However, we do not extend our ruling to hold that an express waiver of the right to compulsory process be mandated in future criminal trials in this state.

Appellant argues TEX.CRIM.PROC.CODE ANN. art. 1.15 is unconstitutional because it requires that the state produce sufficient evidence to support a conviction based on a plea of guilty but does not afford the defendant an opportunity to rebut the state's evidence. Appellant's argument lacks merit.

The United States Supreme Court stated in Boykin v. Alabama, supra that a guilty plea is more far-reaching than a confession admitting that a defendant performed certain deeds. It is a conviction with nothing remaining but for a court to render judgment and determine punishment. Article 1.15 is an additional procedural safeguard required by the State of Texas. Under this provision evidence is received to support the judgment, not to accept a plea. Thornton v. State, supra at 347.

After a defendant has entered a plea of guilty and after he has waived his right to a jury trial, the state is required to produce sufficient evidence before a judgment of guilty can be entered. Even though federal common law allows a conviction upon a guilty plea alone, Texas does not. Texas requires the judgment be supported by sufficient evidence from the state. Thornton held that Article 1.15, which forbids conviction without sufficient evidence supporting the judgment, "not only passes constitutional muster but also has little to do with admonishing an accused before accepting a guilty plea." Id. at p. 348.

Appellant alleges the trial court is barred from considering testimony elicited on cross-examination. However he cites no cases for this contention nor can we find any. Nothing in Article 1.15 prohibits the court from considering testimony produced through cross-examination of the state's witnesses or by the defense putting on its own evidence through rebuttal witnesses. It would, however, be illogical to allow a defendant to plead guilty and then to conduct a "mini-trial" on guilt-innocence. Any trial allowed would be on the punishment phase only, i.e., the introduction of mitigating evidence. The second sentence of Article 1.15 allows the evidence to be stipulated if the defendant consents in writing to waive the appearance, confrontation, and cross-examination of witnesses. This waiver may be done at the option of the defendant and is not required.

Section 1.15 does not bar the court from considering rebuttal evidence by the defendant, but even if it did, this would entail no violation of the appellant's constitutional rights. The fact that Texas requires an additional procedural safeguard after the...