Carrasco, Oscar

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0173-04 OSCAR BRITO CARRASCO, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS PRESIDIO COUNTY Cochran, J., filed a concurring opinion in which Holcomb, J., joined. O P I N I O N I join the majority opinion. I write separately only to emphasize that there is an important distinction between a stipulation of evidence and an admission of a party opponent, which may be contained within a stipulation. A valid written stipulation of evidence which meets the legal requirements of formality is binding on the parties in that trial. (1) It is conclusive evidence of the facts to be proved and may not be countered with other evidence- at least not over objection. (2) A formal stipulation of evidence which has been used in one trial may be binding upon a party in a subsequent trial involving the same parties. (3) Nonetheless, a trial judge always has the discretion to modify or set aside a stipulation. (4) His action is reviewable only for abuse of that discretion except when the stipulation: 1) affects the substance of the cause of action; 2) counsel lacked knowledge of the facts; and 3) no prejudice to either party will result if the stipulation is set aside. (5) Under those specific conditions, the trial judge must allow a party to withdraw a stipulation. An admission by a party-opponent, e.g., one by the defendant in a criminal case, which is contained within a valid stipulation, is a judicial admission for purposes of the proceeding in which it was obtained. (6) It is conclusive against that party in the particular proceeding, and he cannot offer evidence to dispute the truth of that admission. (7) However, a judicial admission in one criminal case is not conclusive in another case, even a related case. It is, however, always admissible against that person or defendant. In law, a judicial confession in one case becomes an evidentiary admission in any future case. (8) In this case, the defendant's judicial admission that "I, Oscar Brito Carrasco, caused the death of Ivonne Juarez Duran, by stabbing her in the chest with a deadly weapon, to wit, a knife," was binding upon him the first trial, and it was conclusive of the facts stated. (9) After the first trial ended in a mistrial, the trial court had the judicial discretion to allow the defendant to withdraw the stipulation of evidence (which contained both appellant's admission of specific facts and his agreement to the admissibility of certain evidence). However, appellant's admission of facts remains an evidentiary admission under Rule 801(e)(2)(1) forever. (10) Unlike a guilty plea and statements made during plea negotiations which, under certain circumstances, may be withdrawn before a person is convicted and sentenced, (11) an admission by a party-opponent will never disappear. It cannot be erased. Like any street corner statement that appellant may have made to his neighbors, friends, enemies, or the local television news reporter, that statement will be admissible against him in any future proceeding in which it might be relevant. Appellant may explain the statement away, he may offer evidence that the statement is not true, but having voluntarily and intelligently made this admission, he cannot un-say it or "lure it back to cancel half a Line." (12) With these comments, I join the majority opinion and invite the interested reader to consult the informative opinion by the El Paso Court of Appeals in this case. (13) Cochran, J. Filed: January 19, 2005 Publish 1. Hollen v. State, 87 S.W.3d 151, 155 (Tex. App. - Fort Worth 2002) (stating that when "a stipulation limits the issues to be tried or considered by the jury, those issues are excluded from consideration. Moreover, a stipulation 'obviates the need for proof on [the] litigable issue'"), rev'd on other grounds, 117 S.W.3d 798 (Tex. Crim. App. 2003); Perry v. Brooks, 808 S.W.2d 227, 229 (Tex. App.-Houston [14th Dist.]1991, no writ ) (stating that "[s]tipulations are conclusive as to the facts stipulated and to all matters necessarily included therein .... As such, stipulations enjoy equal dignity with judicial admissions, which eliminate an adversary's necessity of proof and establish the admitted elements as a matter of law"); M.J.R.'s Fare of Dallas, Inc. v. Permit and License Appeal Bd. of Dallas, 823 S.W.2d 327, 330-31 (Tex. App.-Dallas1991, writ denied) (when parties stipulate to facts and documentary evidence, "[t]hese stipulations are binding upon the parties, the trial court, and the reviewing court"); Valdes v. Moore, 476 S.W.2d 936, 940 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). 2. M.J.R.'s Fare of Dallas, Inc., 823 S.W.2d at 331 (stating that trial courts are bound by stipulated facts and "cannot make any findings of fact which do not conform to the stipulated facts"). 3. High Plains Distributor v. Texas Liquor Control Bd., 318 S.W.2d 681, 683-684 (Tex. Civ. App.- Amarillo 1958, no writ) (stipulated agreement made in one suit bound same party in a later suit concerning the same subject); see generally, John Henry Wigmore, Evidence in Trials at Common Law § 2593 (Chadbourn rev. 1981) (concluding that, when there are "no special circumstances [to] indicate the contrary, the intention [to stipulate] should be implied to extend the effect of the admission to all subsequent parts of substantially the same litigation between the same parties, including a new trial"). 4. Valero Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852, 856 (Tex. App.-Tyler 1999, pet. denied) (stating that the "modification or recission of a stipulation is within the discretion of the trial court and will not be disturbed on appeal unless it is shown that the trial court abused its discretion"); Guerrero v. Smith, 864 S.W.2d 797, 801 (Tex. App.-Houston [14 Dist.] 1993, no writ ) (noting that "[a]lthough the trial court has the power to modify or set aside a stipulation, if it is not set aside, it is conclusive as to the facts stipulated and all matters necessarily included therein"). 5. Porter v. Holt, 73 Tex. 447, 450, 11 S.W. 494, 495 (1889) (when motion to withdraw stipulation showed that attorney "through a mistake had agreed to yield up a substantial defense to the action" and neither side would be prejudiced by withdrawal of stipulation, trial court erred in failing to grant motion); see also Franco v. State, 552 S.W.2d 142, 144 (Tex. Crim. App. 1977) (concluding that because defendant signed "stipulation of evidence involuntarily or under a mistake of fact as to the nature of the negotiated plea-agreement[,]" he should have been relieved of the binding nature of its effect). 6. Charles McCormick, McCormick on Evidence § 262, at 776 (3d ed. 1986). 7. Id. 8. Id. 9. See Ramirez v. State, 383 S.W.2d 606, 607 (Tex. Crim. App. 1964) ("[a]ppellant is in no position to complain at the admission of [unauthenticated prison records] in evidence, in view of his judicial admission in open court that he had been previously convicted as alleged"). 10. See Chaney v. State, 494 S.W.2d 813, 815 (Tex. Crim. App. 1973) ("[v]oluntary admissions of a party in one judicial proceeding are admissible against him in other judicial proceedings to which he may be a party"). See generally, McCormick, § 262, at 776 (distinguishing evidential admissions from judicial admissions; noting that "[j]udicial admissions are not evidence at all, but are formal admissions in the pleadings in the case, or stipulations, oral or written, by a party or his counsel which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus the judicial admission, unless it should be allowed by the court to be withdrawn, is conclusive in the case, whereas the evidential admission is not conclusive but is always subject to be contradicted or explained"); 2 Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 801.7 at 110 (2d ed. 1993) (stating that "Rule 801(e)(2) treats only the subject of 'evidentiary' admissions. As the name suggests, these are merely 'admissible,' not conclusive. The subject of 'judicial' admissions, which are conclusive is governed not by evidence law but by the law of procedure"); 24A Tex. Jur.3d (Admissions in Judicial Proceedings) § 3611 at 203-04 (2004) (noting that "[p]rior admissions of the accused before the grand jury, at the preliminary examination or inquest, in a former trial for either the same offense or a prior similar crime, in a prior civil case, or at the trial of another are ordinarily admissible in evidence against the accused") (footnotes omitted). 11. See Huseman v. State, 17 S.W.3d 704, 705 (Tex. App. - Amarillo 1999, pet. ref'd); see generally Tex. R. Evid. 410. 12. Edward Fitzgerald, The Rubáiyáit of Omar Khayyám st. 71 (4 th ed. 1879). 13. Carrasco v. State, 122 S.W.3d 366 (Tex. App. - El Paso 2003).