Julius Turner v. State

OPINION HEADING PER CUR NO. 12-07-00028-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JULIUS TURNER, § APPEAL FROM THE THIRD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS MEMORANDUM OPINION Julius Turner appeals his convictions for two counts of aggravated sexual assault of a child, for which he was sentenced to imprisonment for life on each count. On appeal, Appellant argues that his convictions have no underlying evidentiary support because his written stipulations are not valid. We affirm. Background Appellant was charged by indictment with one hundred eighty-two counts of aggravated sexual assault of a child. Appellant waived his right to a jury trial and pleaded “guilty” as charged as to counts one and two. Count one alleged that Appellant intentionally or knowingly caused the penetration of the sexual organ of B.P. by his finger. Count two alleged that Appellant intentionally or knowingly caused the penetration of the sexual organ of B.P. by Appellant’s sexual organ. Appellant signed a written stipulation to the evidence supporting these allegations, and the trial court found Appellant “guilty” on both counts. Thereafter, a trial on punishment was conducted. During the punishment phase, Appellant’s common law wife’s daughter, B.P., testified that Appellant “messed with her” for the first time the day before she began the fifth grade. B.P. explained that Appellant had put his hand “down there in [her] private area.” B.P. further testified that Appellant told her that he would kill her mother if she said anything about what he had done. B.P. also testified that later during her fifth grade year, Appellant began regularly having sex with her. B.P. stated that she told Appellant to stop and tried to push him off, but that he held her hands down. Ultimately, the trial court sentenced Appellant to imprisonment for life on each count. This appeal followed. Texas Code of Criminal Procedure, Article 1.15 In his sole issue, Appellant argues that his stipulations to the evidence in support of his guilty pleas are invalid for their failure to comply with Texas Code of Criminal Procedure, article 1.15, and as a result, there is no evidence to support his convictions. In a guilty plea case where the defendant has waived his right to a jury trial, the State must introduce evidence into the record showing the guilt of the defendant. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.–Dallas 2006, no pet.). Under this procedural safeguard, there is no requirement that the supporting evidence prove the defendant’s guilt beyond a reasonable doubt. Id. Instead, the supporting evidence must simply embrace every essential element of the offense charged. Id. Article 1.15 provides 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. Tex. Code. Crim. Proc. Ann. art. 1.15 (Vernon 2005). Article 1.15 is mandatory and must be followed for a stipulation to be considered as evidence where the plea is before the court. See Messer v. State, 729 S.W.2d 694, 698 (Tex. Crim. App. 1986) (op. on rehearing). The statute has always had application to a plea of not guilty entered before the court where a jury trial has been waived. Id. In the instant case, the record contains no written waiver by Appellant of his rights to appearance, confrontation, or cross examination. As such, Appellant’s stipulation may not be considered as evidence. However, in our review of the record, we may consider evidence introduced during the trial on punishment. See Lopez v. State, 852 S.W.2d 695, 697 (Tex. App.–Corpus Christi 1993, no pet.), overruled on other grounds, Resendez v. State, 160 S.W.3d 181, 186 n.3 (Tex. App.– Corpus Christi 2005, no pet.). In the case at hand, during the punishment phase, Appellant’s common law wife’s daughter, B.P., testified that Appellant “messed with her” for the first time the day before she began the fifth grade. B.P. explained that Appellant had put his hand “down there in [her] private area.” B.P. further testified that Appellant told her that he would kill her mother if she said anything about what he had done. B.P. also testified that later during her fifth grade year, Appellant began regularly having sex with her. B.P. stated that she told Appellant to stop and tried to push him off, but that he held her hands down.1 We hold that there was ample evidence admitted during Appellant’s trial on punishment embracing every essential element of the offense charged. See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2005). Appellant’s sole issue is overruled. Disposition Having overruled Appellant’s sole issue, we affirm the trial court’s judgment. JAMES T. WORTHEN Chief Justice Opinion delivered July 31, 2007. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 1 Appellant argues that the evidence supporting the convictions to which he pleaded guilty must be supported by evidence sufficient to prove the essential elements of the offense beyond a reasonable doubt. As set forth above, the supporting evidence must simply embrace every essential element of the offense charged. See McGill, 200 S.W.3d at 330. Nonetheless, we note that the testimony of a sexual assault victim alone can amount to legally sufficient evidence to support a conviction. Hellums v. State, 831 S.W.2d 545, 547 (Tex. App.–Austin 1992, no pet.).