Humason v. State

ONION, Presiding Judge,

concurring in part and dissenting in part.

Appellant entered a plea of not guilty before the court to the indictment charging him with intentionally and knowingly possessing less than 28 grams of a controlled substance, to-wit: cocaine. The court heard the stipulated evidence and found appellant guilty and assessed his punishment at confinement in the Department of Corrections for three years, probated, and a fine of $600.00.

On appeal appellant contended the evidence was insufficient to support appellant’s conviction for possession of a controlled substance. A panel of the Court of Appeals reversed the conviction finding, after a discussion of facts, that the evidence was insufficient to sustain the conviction. Humason v. State, 699 S.W.2d 922 (Tex. App.-Houston [1st Dist.] 1986). Chief Justice Evans dissented. We granted the State’s petition for discretionary review to determine the correctness of the holding that the State had failed to prove beyond a reasonable doubt that appellant knowingly possessed cocaine.

The majority has now concluded, after discussing the stopping by the police of a vehicle for speeding in which the appellant was the sole occupant, the determination that appellant was driving with a suspended driver’s license, etc., the arrest of appellant, the finding of an unzipped cloth bag on the seat of the pickup truck which contained a vial of a white powder residue, the testimony of a chemist that the vial contained cocaine, that no rational trier of fact could have found the appellant beyond a reasonable doubt of knowingly possessing a controlled substance.

If the evidence as described by the majority was properly before this Court, I would agree with the conclusions reached by Chief Justice Evans in his dissenting opinion in the Court of Appeals and by Judge W.C. Davis in his dissenting opinion rendered today. However, I must agree with the majority that the evidence is insufficient to sustain the conviction but for a different reason. The stipulated evidence, or at least a sufficient part of it, does not comply with the requirements of Article 1.15, V.A.C.C.P., and cannot be considered on the question of sufficiency.

Article 1.15, V.A.C.C.P., provides:

*369 “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.” (Emphasis supplied.)

It is well settled that Article 1.15, supra, applies to any plea entered before the court including a plea of not guilty. Rodriguez v. State, 442 S.W.2d 376 (Tex.Cr.App.1968); Thornton v. State, 601 S.W.2d 340 (Tex.Cr. App.1979). And Article 1.15, supra, is mandatory for a stipulation to be considered as evidence where the plea is before the court. Young v. State, 648 S.W.2d 6 (Tex.Cr.App. 1983); Valdez v. State, 555 S.W.2d 463 (Tex.Cr.App.1977); Duran v. State, 552 S.W.2d 840, 843 (Tex.Cr.App.1977), and cases there cited. See also Green v. State, 666 S.W.2d 291 (Tex.App.-Houston [14th Dist.] 1984). See also Landers v. State, 720 S.W.2d 538 (Tex.Cr.App.1986).

In the instant case, after the appellant entered his plea of not guilty before the court, the State offered a written stipulation (State’s Exhibit No. 2) concerning the testimony of the chemist. The stipulation was signed by the assistant district attorney, appellant and his counsel and by the trial judge. It was read into evidence as a stipulation. Appellant’s counsel stated, “No objection.”

There is not in the stipulation or elsewhere in the record a written waiver by the appellant as to the appearance, confrontation and cross-examination of the chemist, Michael R. McGeehon, or any other witnesses, nor consent to oral or written stipulations as required by the mandatory provisions of Article 1.15, supra. Further, there was no approval by the court in writing of any written waiver and consent or any filing in the papers of the cause as mandated by the statute. It is the written approval of the waiver and consent by the court, not approval of the stipulation, oral or written, that is required by Article 1.15, supra. See footnote # 3, Landers v. State, supra.

Thus the stipulation as to the chemist’s testimony that the substance was cocaine was not properly before the trial court and the evidence is insufficient for this reason alone.

After the above described “stipulation” (State’s Exhibit No. 2) was admitted into evidence, the record reflects:

“MR. MORRIS: The State rests, Your Honor.

“THE COURT: Just a minute, Gentlemen.

The Court has now received into evidence and admitted into evidence State’s Exhibit No. 1, the Statement of facts of the Motion to Suppress previously heard in this the 183rd District Court before me. I was the presiding Judge, Joseph M. Gaurino, at the time of the hearing on said motion. That has been received.

“Also the exhibits as offered by the Defense, Defense 1, 2, 3, that were offered during the Motion to Suppress hearing, all of that has been received and admitted into evidence.

“You rest at this time, Counsel?

“MR. MORRIS: The State rests, Your Honor.

“THE COURT: What says the Defense?

“MR. TURNER: The Defense would rest on guilt or innocence.”

*370 It would thus appear that the court, not the State, offered “State’s Exhibit No. 1” after the State had once rested. There appears to be no stipulation or agreement by the parties as to the introduction of the exhibit. It is not necessary to determine whether this “evidence” was properly before the trial court under the circumstances since the chemist’s testimony was not.

The trial court erred in admitting the stipulation as to the chemist’s testimony and without it the evidence is insufficient to sustain the conviction. The judgment of the Court of Appeals and the judgment of the trial court should be reversed and the cause remanded, not an acquittal ordered.