## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

NO. P D-0578-18 ROBVIA LENEICE SIMP SON, App ellant

v. THE S TATE O F TEXAS ON STATE ’S P ETIT ION F OR DISCRETIONARY REVIEW F ROM THE TWE LFTH COURT OF AP P EALS

ANDERSON COUNTY S L A U G H T E R , J., fi led a concurring opin ion.

CONCURRING

OP INION I agre e with the Court that a defe ndant’s plea of “true ” to the State’s alleg atio n s i n a

revoc ation proce eding does not prec lude her from ra i s i n g an y defe nse she wishes to raise in a subsequent criminal proce eding

. I write separ ately , howeve r, to c larify that I believe a def endant’ s plea of “true ” in a revoc ation proce eding is a judicial admission of guilt that can be used as evidenc e ag ainst the defe ndant in a subseque nt criminal proce eding

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The documents showing Appellant enter ed a plea of “true ” at her prior revoc ation proce eding 1 wer e admitted ag ainst her in the instant criminal prosec ution for assault, and Appellant does not argue that it was err or for the trial court to admit this evidenc e. I addre ss this issue mere ly to clar ify my position.Simps on Concurre nce - 2

The Court’s opinion fo cu s es on a revoc ation hearing’ s preponde ranc e of the evidenc e standard of proof to explain why collater al estoppel should not apply for s ub sequent criminal proce eding s. But a plea of “true ” in a revoc ation proce eding is not mere l y t h e d ef en d ant’s acknow ledg ment that the State can prove the alleg ation by a preponde ranc e of the evidenc e; it is the defe ndant’s admission in open cour t on the rec ord that the a lleg ation is, in fact, true and cor rec t. It is no differ ent than when a defe ndant’s civil deposition is offe red and admitted ag ainst h er in a subsequent criminal trial. See Johnson v. State , 208 S.W .3d 478, 507 (Tex. App.—Austin 2006, pet. ref ’d) (conc luding trial court did not err in admitting defe ndant’s civil deposition when offe red ag ainst her in subsequent criminal trial); Kemme rer v. State , 113 S.W .3 d 5 13, 517-18 (Tex. App.—Houston [1stDist.] 2003, pet. re f’d) (same)

. Whil e a defe ndant cannot be compelled in any criminal case to be a witness ag ainst herse lf, that constitutional protec tion can be waived if such waiver is made “knowing l y , v o l untarily , and intelligently” for any rea son, including trial strategy . Brown v. State , 617 S.W .2d 234 , 236 (Tex. Crim. App. 1981); see also Taylor v. Stat e , 474 S.W .2d 207, 211 (Tex. Crim. App. 1971) (stating “constitutional ri g hts may be waived by conscious decisions of trial strategy”). Her e, Appellant’s plea of true wa s made in ope n court and consente d to in writing and by Appellant’s signature. The

rec ord in this case does not include a transcript from Appellant’s revoc ation hearing during which the trial judge acc epted her plea of “true ” to the assault at issue alon g wi t h sever al other criminal

o ffe nses and probation violations alleg ed by the State in its motion to adjudicate

. Howe v er , Appellant’s s i gn at u re on the document containing her plea of “true ” indicates that she rec eived notice of the waiver s and stipulations she was agree ing to b y enter ing her plea. Specifica lly , Appellant wa s made a

war e that her plea of “true ” would be considere d a judicial conf ession whenSimps on Concurre nce - 3

she receive d notice of the “St ipulation of Evidence and J u d icial C onfession” that was included in the documents she signe d. Thus, no matter the burden of proof in the revoc at i o n proce eding , 2 Appellant knowing ly , voluntarily , and intelligently made a judicial confe ssion that can be used ag ainst her in subsequent proce eding s. And while I agree with the Court that suc h confe ssion doe s not prec lude her from raising any defe nses in subsequent criminal proce eding s, it may cer tainly be used as e vidence in provingAppellant’s guilt. Wit h these c omments, Iconcur in the Court’s judgme nt. Filed: January

15, 2020 Publis h

The stipulation rea d: “De fenda nt consents in writing and i n o p en Court, waives the 2 appea ranc e, confr ontation, and cross-e x amination of witnesses, and further consents either to an oral stipulation of the evidenc e an d testimony or to the introduction of evidenc e in support of the judgme nt of the Court. Def endant waives the rig ht to rema in silent in both the guilt and innocenc e phases of trial. Def

endant judicially confe sses to the offe nse(s) alleg ed i n t h e i n d i ctm ent or complaint and information and admits that he/she committed eac h and ever y element alleg ed in the complaint and i n fo rm ati on and that he was guilty as char g ed. The defe ndant pleads true to enhanc ement alleg ations and spec ial issues.”