Steven Wayne Massey v. State

Steven Wayne Massey v. State of Texas IN THE TENTH COURT OF APPEALS No. 10-99-278-CR STEVEN WAYNE MASSEY, Appellant v. THE STATE OF TEXAS, Appellee From the 87th District Court Freestone County, Texas Trial Court # 99-038-CR O P I N I O N Steven Wayne Massey was indicted for “on or about the 21st day May A.D., 1999, . . . intentionally or knowingly possess[ing], with intent to deliver a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than 200 grams . . . .” At a hearing on August 30, 1999, Massey waived his right to a jury and pled guilty to this first-degree felony without the benefit of a plea-bargain agreement. On September 8, 1999, the judge assessed punishment at the minimum sentence of five years in prison. Massey complains: (1) that the evidence of the amount of methamphetamine was legally and factually insufficient to support a conviction for a first-degree offense, and (2) that his due process rights were violated because the judge refused to consider deferred adjudication community supervision as an option for disposition of the case. We will affirm. BACKGROUND On the day of the plea hearing, Massey swore to and signed a document called “Written Plea Admonishments.” The document began: “You are charged with the offense of: Manufacture or Delivery of Substance in Penalty Group 1, 4 grams or more but less than 200 grams, to-wit: methamphetamine, 76.53 grams, Section 481.112(d) Health and Safety Code.” It contained a “consent to oral and written stipulations of evidence.” It also had a section called “Judicial Confession” which says: “I further state that I have read the indictment or information filed in this case and that I committed each and every allegation it contains. I am guilty of the offense alleged as well as all lesser included offenses. I swear to all of the foregoing and I further swear that all testimony I give in the case will be the truth, the whole truth and nothing but the truth, so help me God.” The “Written Plea Admonishments” was signed by Massey, his lawyer, the prosecutor, and the judge. At the hearing, the judge referred to the document by name and asked Massey if the statements in the “Judicial Confession” were true and if he had signed the document. Massey responded affirmatively to both questions. The judge then received Massey’s guilty plea and proceeded to give a number of standard admonishments, including one about the consequences of violating deferred adjudication if granted. The judge asked Massey if he “underst[ood] all the facts that were alleged in the indictment” to which Massey responded “Yes, sir, I believe so.” The “Written Plea Admonishments” was not admitted as an exhibit at the hearing, but it was filed with the clerk on September 8, 1999, the date of the sentencing hearing. Also on August 30, 1999, Massey swore to and signed a “Stipulation of Evidence” which states in relevant parts: “I, the Defendant in the above entitled and numbered cause, in open Court, agree to stipulate the evidence in this case and I waive the appearance, confrontation and cross-examination of witnesses, I consent to the oral stipulation of evidence and to the introduction of affidavits, written statements of witnesses and other documentary evidence. I waive my right against self-incrimination and confess to the following facts: On the 21st day of May 1999, in Freestone County, Texas, I did then and there intentionally or knowingly possess, with intent to deliver a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than 200 grams, to-wit: 76.53 grams.” The “Stipulation of Evidence” was not mentioned at the hearing on August 30, but it was signed by the judge and Massey’s lawyer. It was not admitted as an exhibit at the hearing, but it was filed with the clerk on September 8, 1999, the date of the sentencing hearing. After the admonishments, the judge accepted the plea of “guilty” and found Massey “guilty of the offense of manufacture or delivery of methamphetamine in an amount of four grams or more, but less than 200 grams as charged in the indictment.” The court then heard evidence regarding punishment. Before any witnesses were called, Massey’s lawyer reminded the judge that by finding Massey guilty at this time, the judge could not later grant deferred adjudication because a finding of “guilty” precludes it. Tex. Code Crim. Proc. Ann. art. 42.12, sec. 5 (Vernon Supp. 2001). The judge responded: “Let me make it clear to you. I’m not even going to consider it. Is that going to affect your guilty plea?” The lawyer responded: “No, it’s not, Your Honor.” The State called a witness who testified to finding methamphetamine at Massey’s home when a search warrant was served. Based on his testimony, the aggregated amount of methamphetamine found was 2.9375 grams. Also introduced as an exhibit at the punishment hearing was a written confession Massey signed on May 21, 1999, in which he admitted to having financial troubles which prompted him to buy methamphetamine in Dallas for $800 an ounce, which he sold for about $1,600 an ounce. He did not admit to any specific amount of methamphetamine. After other witnesses testified for both parties, the judge ordered a presentence report. A sentencing hearing was held on September 8, 1999, and Massey was sentenced to five years in prison. SUFFICIENCY OF THE EVIDENCE Massey’s first two complaints are that he was indicted, convicted, and sentenced for selling four or more grams of methamphetamine, but the testimony at the hearing showed only 2.9375 grams, a second-degree felony. Tex. Health & Safety Code Ann. § 481.112(c) (Vernon Supp. 2001). Article 1.15 of the Code of Criminal Procedure requires that when a person pleads guilty, “it shall be necessary for the state to introduce [sufficient] evidence into the record showing the guilt of the defendant.” Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2001). Massey signed a document called “Written Plea Admonishments” which contained a section called “Judicial Confession.” In that section it says “I committed each and every allegation [the indictment] contains.” The indictment alleged that Massey “possess[ed], with intent to deliver a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than 200 grams.” The judge asked Massey if the confession was true and if he signed the document, and Massey answered affirmatively. An uncorroborated judicial confession is sufficient to support a conviction. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh’g); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978) (a confession’s incorporation by reference of the indictment is sufficient proof of the allegations in the indictment); Daw v. State, 17 S.W.3d 330, 333 (Tex. App.—Waco 2000, no pet.); Monse v. State, 990 S.W.2d 315, 318 (Tex. App.—Corpus Christi 1999, pet. ref’d); Rexford v. State, 818 S.W.2d 494, 496 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). Furthermore, the document did not have to be admitted into evidence at a hearing if it is in the clerk’s record and, without objection, it was considered by the trial court as though it had been admitted into evidence. Ex Parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977); Killion v. State, 503 S.W.2d 765 (Tex. Crim. App. 1973); Kissinger v. State, 501 S.W.2d 78, 79 (Tex. Crim. App. 1973); Richardson v. State, 475 S.W.2d 932, 933 (Tex. Crim. App. 1972); Daw, 17 S.W.3d at 333; see Pitts v. State, 916 S.W.2d 507, 508-10 (Tex. Crim. App. 1996). Consideration of the “Written Plea Admonishments” was not objected to and it was filed with the clerk. This confession was legally and factually sufficient to support the conviction. The “Stipulation of Evidence” which was executed by Massey on the date of the plea hearing, and which was signed by the judge and Massey’s lawyer and later filed with the clerk, is independently sufficient, legally and factually, to support the conviction. The document is actually a confession. It states in part: “I . . . confess . . . I did then and there intentionally or knowingly possess, with intent to deliver a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than 200 grams, to-wit: 76.53 grams.” Although the judge never referred to the stipulation on the record, he saw it, and presumably read it, because he signed it on the day of the plea hearing. Therefore, we assume the judge relied on the stipulation at the hearing. For the same reasons which were true for the “Written Plea Admonishments,” the confession in the stipulation was sufficient to support the conviction, and the stipulation did not have to be admitted as an exhibit at the hearing as long as it was not objected to and is in the clerk’s record. Massey’s first two issues are overruled. FAILURE TO CONSIDER DEFERRED ADJUDICATION Massey claims his due process rights were violated when the judge told him before taking evidence regarding sentencing that the judge had already excluded deferred adjudication as a possible disposition of the case. ”A court’s arbitrary refusal to consider the entire range of punishment would constitute a denial of due process . . . .” McLennan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); Burke v. State, 930 S.W.2d 230, 234 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Cole v. State, 757 S.W.2d 864, 866 (Tex. App.—Texarkana 1988, pet. ref’d) (citing McLennan v. State). Assuming the judge did improperly exclude deferred adjudication, the issue was not preserved for appeal. Massey’s lawyer merely reminded the judge that finding Massey “guilty” would preclude deferred adjudication as a possibility. The judge gave Massey an opportunity to withdraw his plea which Massey refused. Massey made no other comments or objections about the issue. We will not review this unpreserved complaint. Tex. R. App. P. 33.1(a). Massey’s third issue is overruled. The judgment is affirmed. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed May 2, 2001 Do not publish