concluding that evidence stipulated to by defendant could not be considered in determining whether there was sufficient evidence to support defendant’s conviction, as required by article 1.15, where the defendant’s consent to stipulate was not signed by the trial judge and where no other evidence was presented to substantiate guilt
How later courts described this case
- concluding that evidence stipulated to by defendant could not be considered in determining whether there was sufficient evidence to support defendant’s conviction, as required by article 1.15, where the defendant’s consent to stipulate was not signed by the trial judge and where no other evidence was presented to substantiate guilt
- holding that the trial court must sign the consent to stipulate in order for the defendant’s stipulation of evidence to be effective
- defendant’s stipulations of evidence did not comply with provisions of article 1.15, “which is a mandatory statute” and failure of trial court to satisfy requirements of article 1.15 could be raised for first time on appeal
- trial court must approve defendant’s waiver of appearance, confrontation, and cross examination of witnesses and his consent to oral stipulations of testimony or introduction of testimony in written form
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
Wordy as it is, the opinion of the Court is correct in its germane findings regarding the written waiver and consent by defendant under Article 1.15, V.A.C.C.P. I write to address further the opinion of the Court of Appeals, and then to comment on a matter of procedure suggested by Article 1.15.
The Court of Appeals observed that Article 1.15 “does not require that approval by the court in writing be placed upon the face of the instrument being approved.” McClain and Navarro, 697 S.W.2d 807 (Tex.App.—Houston [1st] 1985). The statute is not readily susceptible to that interpretation, and in Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983), the Court said *744 that “the printed [consent and waiver] form becomes a writing of the court only when the judge places his signature on it.” Id., at 7 . (All emphasis is mine throughout unless otherwise noted.) Granted the Court there was dealing with a form waiver and consent and not a separate approval in writing claimed to comply with Article 1.15, still the practice has long been to show written approval by the court on the waiver and consent form itself. See, e.g., Landers v. State, 720 S.W.2d 538, 540, n. 3 (Tex.Cr.App.1986).
We would be hardpressed to find the Legislature contemplated the judge of a trial court could disdain the written waiver and consent in order to indicate approval on some other paper. That procedure, as well as creating a risk that the latter paper may not be “filed in the file of the papers of the cause,” as the Court has always held a written approval must be, seems terribly impractical, mighty inconvenient and somewhat wasteful.
But even if the judge may cause the trial court to “approve in writing” on another paper a written waiver and consent, the same must still be filed among the papers of the cause. Here there is just a docket sheet entry, and it is not filed as the statute requires: “in the file of the papers of the cause.”
Turning to the opinion of this Court, there is also a similar question lurking about but not answered. Judge Teague writes for the Court that defendant’s written waiver and consent “must be approved in writing by the trial judge.” PP. 742 and 743. Landers v. State, supra, said Article 1.15 “requires” that a waiver and consent be “signed and approved by the trial court.” Neither opinion, nor so far as I have found has any opinion of the Court, dictates WHEN in the course of reviewing and approving a written waiver and consent a judge must do the “writing,” and cause the written approval of the trial court to be filed among the papers of the cause.
One reason for requiring approval is that the court is, in effect, accepting the stipulated evidence as a (if not the) basis for its judgment against an accused; that approval must be in writing is, as the Houston (1st) Court correctly discerned from the Special Commentary to Article 1.15, “to provide a permanent record in the event of any future question_ as to the sufficiency of the evidence to support the defendant’s plea or support the count’s judgment.” So it occurs to me that the last sentence of Article 1.15 may be construed to permit a trial judge orally to approve a written waiver and consent to signify the stipulated evidence will be accepted — as many judges already do during admonishment and taking a plea — and later memorialize approval of the court by signing the same waiver and consent paper, then to be filed among the papers of the cause. Of course, it cannot be claimed that was done here.
With those observations I concur with the reversal, but would order an acquittal rather remand to the trial court.