Alejandro Padilla Vilchis A/K/A Abraham Lopez v. State

Opinion issued February 11, 2010 In The Court of Appeals For The First District of Texas NO. 01-08-00510-CR ALEJANDRO PADILLA VILCHIS A/K/A ABRAHAM LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1141815 MEMORANDUM OPINION Appellant, Alejandro Padilla Vilchis, pleaded guilty to aggravated assault of a family member. The trial court assessed punishment at six years’ imprisonment. In two issues, appellant contends that the evidence was legally and factually insufficient to sustain a plea of guilty because the indictment alleged the use or exhibition of a deadly weapon, a motor vehicle, and no evidence was presented to support the finding that the motor vehicle was in fact a deadly weapon. We affirm. BACKGROUND On February 1, 2008, the State indicted appellant for threatening Lidia Pluma, a member of appellant’s family, with imminent bodily injury and exhibiting a deadly weapon, a car. On March 28, 2008, appellant pleaded guilty without a recommended punishment. In connection with entering his plea, appellant signed a document titled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” which stated, In open court and prior to entering my plea, I waive the right of trial by jury. I also waive the appearance, confrontation, and cross-examination of witnesses, and my right against self-incrimination. The charges against me allege that in Harris County, Texas, ALEJANDRO PADILLA VILCHIS, hereafter styled the Defendant, heretofore on or about NOVEMBER 9, 2007, did then and there unlawfully, intentionally and knowingly threaten LIDIA PLUMA, a member of the Defendant’s family, hereafter styled the Complaint, with imminent bodily injury by using and exhibiting a deadly weapon, namely, A MOTOR VEHICLE. I understand the above allegations and I confess that they are true and that the acts were committed on November 9, 2007. The trial court entered judgment finding appellant guilty of aggravated assault. Under “Finding on Deadly Weapon,” the trial court noted, “Yes, not a firearm.” The judgment further states, The Court FINDS Defendant used or exhibited a deadly weapon, namely, a motor vehicle, during the commission of a felony offense or during immediate flight therefrom or was a party to the offense and knew that a deadly weapon would be used or exhibited. The trial court assessed appellant’s punishment as 6 years in prison. This appeal followed. DISCUSSION In two points of error, appellant contends that the evidence was legally and factually insufficient to sustain a plea of guilty to the offense as charged because the indictment alleged the use or exhibition of a deadly weapon, to wit, a motor vehicle, but no evidence was presented to support the finding that the motor vehicle was in fact a deadly weapon. A. Standard of Review The traditional legal and factual sufficiency standards of review do not apply to a review of the sufficiency of the evidence to support guilty pleas. See Keller v. State, 125 S.W.3d 600, 604–05 (Tex. App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004). Article 1.15 of the Texas Code of Criminal Procedure requires that the State must “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.” Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2006); Ex Parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); Keller, 125 S.W.3d at 604 (holding that State must offer proof to support any judgment based on a guilty or nolo contendre plea in felony case tried to the court). The State, however, is not required to prove the defendant’s guilt beyond a reasonable doubt; the supporting evidence must simply embrace every essential element of the charged offense. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.); Breaux v. State, 16 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The “[e]vidence offered in support of a guilty plea may take many forms.” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). “The evidence may be stipulated if the defendant . . . 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 or to the introduction of testimony by affidavits, written statements by witnesses, and any other documentary evidence in support of the judgment of the court.” Tex. Code Crim. Proc. Ann. art. 1.15. A defendant who pleads guilty does not need to concede to the veracity of the evidence to which he stipulates, but if he does, the court will consider the stipulation to be a judicial confession. Stone v. State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Barnes v. State, 103 S.W.3d 494, 497 (Tex. App.—San Antonio 2003, no pet.); Wright v. State, 930 S.W.2d 131, 133 (Tex. App.—Dallas 1996, no pet.). A judicial confession must be separate and independent from the plea itself and is sufficient to support a guilty plea if the defendant “enter[s] a sworn written statement . . . admitting culpability or at least acknowledging generally that the allegations against him are in fact true and correct . . . so long as such a judicial confession covers all of the elements of the charged offense. . . . ” Menefee, 287 S.W.3d at 13; see also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (holding that judicial confession alone is generally sufficient to sustain conviction)). “A conviction rendered without sufficient evidence to support a guilty plea constitutes trial error.” Menefee, 287 S.W.3d at 14. B. Analysis Appellant argues that no evidence was produced to support the finding that a motor vehicle was a deadly weapon. The State argues that appellant entered a judicial confession that was sufficient to support the judgment of guilt. A person commits aggravated assault when he “intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse” and “uses or exhibits a deadly weapon during the commission of the assault.”Act of June 17, 2005, 79th Leg., R.S., ch. 788, 2005 Tex. Gen. Laws 2709, 2709 (amended 2009) (stating elements of aggravated assault) (current version at Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009)). A motor vehicle is not a deadly weapon per se, but it may “be a deadly weapon if it is driven so as to endanger lives.” Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). Therefore, appellant’s judicial confession had to cover the intentional or knowing threat of bodily injury with a deadly weapon to be sufficient to support the judgment of guilt. See Menefee, 287 S.W.3d at 13. Appellant signed a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” This document mirrors the indictment, and it states that appellant “did then and there unlawfully, intentionally and knowingly threaten Lidia Pluma, a member of the Defendant’s family . . . with imminent bodily injury by using and exhibiting a deadly weapon, namely, A MOTOR VEHICLE.” Appellant specifically acknowledged, “I understand the above allegations and I confess that they are true and that the acts alleged above were committed on November 9, 2007.” In addition, appellant initialed sworn admonishments indicating that he consented to “the oral and written stipulations of evidence in this case” and that he “[had] read the indictment and [had] committed each and every element alleged.” Thus, appellant entered a sworn written statement covering all elements of the charged offense, admitting his culpability and acknowledging that the allegations against him were true and correct. Appellant also acknowledged, independently of his guilty plea, that he “committed each and every element alleged.” See Menefee, 287 S.W.3d at 13. When an appellant has provided a valid judicial confession to all of the elements of the offense, the record need not provide further proof. See id. at 14, 17–18; see Stewart, 12 S.W.3d at 148. We overrule appellant’s two issues.CONCLUSION We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Keyes, Sharp, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).