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No. 03-15-00096-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

WALTER LEE SCOTT, JR. 

VS. 

THE STATE OF TEXAS 

********

ON APPEAL FROM THE 264th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 73,759 

****** 

STATE’S BRIEF

****** 

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-15-00096-CR

4820905

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 10:13:10 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 10:13:10 AM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

ITEM PAGE

Index of Authorities ....................................................................... 4

Statement Regarding Oral Argument .......................................... 6

Statement of the Case .................................................................... 6

Statement of Facts ......................................................................... 7

Evidence Supporting Plea of Guilty ................................... 7

Evidence Supporting Restitution ...................................... 9

Trial Court’s Judgment ...................................................... 9

Summary of State’s Argument .................................................... 10

Argument and Authorities .......................................................... 11

First Issue on Appeal ......................................................... 11

EVIDENCE SUFFICIENT TO SUPPORT PLEA 

OF GUILITY UNDER ART. 1.15?

Standard of Review .................................................. 11

Application and Analysis ......................................... 12

Second Issue on Appeal ..................................................... 15

EVIDENCE SUFFICIENT AT PUNISHMENT 

PHASE TO SUPPORT PLEA OF GUILTY

UNDER ART. 1.15?

Application and Analysis ........................................ 15
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Third Issue on Appeal ....................................................... 16

EVIDENCE SUFFICIENT TO SUPPORT 

COURT’S ORDER FOR PAYMENT OF 

RESTITUTION?

Standard of Review ................................................. 17

Application and Analysis ........................................ 17

Fourth Issue on Appeal ..................................................... 18

MUST JUDGMENT BE MODIFIED TO SHOW 

NO PLEA BARGAIN?

Application and Analysis ........................................ 18

Prayer ........................................................................................... 20

Certificate of Compliance with Rule 9 ....................................... 20

Certificate of Service ................................................................... 21
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INDEX OF AUTHORITIES

CASES PAGE

Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. ................... 13-14

LEXIS 6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), 

not designated for publication.

Campbell v. State, 5 S.W.3d 693 (Tx. Cr. App. 1999) ..................... 17 

Cartwright v. State, 605 S.W.2d 287 (Tx. Cr. App. 1980) .............. 17

Chindaphone v. State, 241 S.W.3d 217 ........................................... 12-14

(Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.)

Jackson v. Virginia, 443 U.S. 307 (1979) ........................................ 11

Jones v. State, 373 S.W. 3d 790 ....................................................... 14

(Tx. App. Houston 14th Dist. 2012 no pet.)

Jones v. State, 857 S.W. 2d 108 ...................................................... 14

(Tx. App. Corpus Christi 13th Dist. 1993 no pet.)

Jones v. State, 713 S.W. 2d 796 ...................................................... 17

(Tx. App. Tyler 12th Dist. 1986 no pet.)

Ex Parte Martin, 747 S.W.2d 789 (Tx. Cr. App. 1988) .................. 11

Montgomery v. State, 810 S.W. 2d 372 (Tx. Cr. App. 1991) ......... 17

Taylor v. State, No. 03-14-0300-CR, 2014 Tex. App. ..................... 16

LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not 

designated for publication. 

Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. ................. 14

LEXIS 5935 (Tx. App. Austin 3rd Dist. 2003 no pet.), 

not designated for publication.
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OTHER

Texas Penal Code

Section 22.01 ......................................................................... 12-13

Section 22.01(a) .................................................................... 12

Section 22.01(b) ................................................................... 12

Texas Code of Criminal Procedure

Article 1.15 ............................................................7-8, 10-13, 15-16

Texas Family Code

Section 71.002(b) ................................................................. 12 

Section 71.003 ......................................................................... 12-13

Section 71.005 ...................................................................... 12-13
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STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Walter Lee Scott, Jr., was charged by information 

with the third degree felony offense of assault on a family member by 

strangulation. The information alleged that he intentionally, knowingly 

and recklessly caused bodily injury to Kassandra Holt, a member of his 

family or of his household, by intentionally, knowingly, and recklessly 

impeding the normal breathing or circulation of blood of Kassandra Holt 

by applying pressure to the throat or neck of Kassandra Holt. (CR-4).

The Appellant entered a plea of guilty to the offense charged (RR2-2) and the trial court, without objection, took judicial notice of the 

“plea papers” in the court’s file (CR-12, 17), expressly including the 

judicial confession. (RR2-7). The trial court then found the evidence 

sufficient to support a finding of guilty and ordered a presentence 

investigation. (RR-7). There was no plea bargain with the State (CR-12; 

RR2-6, 7).

At the subsequent punishment hearing the court received and 

examined the presentence report (RR3-4) and assessed punishment at 5 
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years in the Texas Department of Criminal Justice, Institutional Division, 

and a fine of $750.00. The court also ordered the payment of $50.00 in 

restitution to Kassandra Holt. (CR-26; RR3-9).

The Appellant gave timely notice of appeal (CR-29) and the trial 

court certified his right to do so. (CR-24).

STATEMENT OF FACTS

The Appellant raises two issues concerning the sufficiency of the 

evidence to support his plea of guilty under Article 1.15, Texas Code of 

Criminal Procedure, as well as the sufficiency of the evidence to support 

the order for the payment of restitution and the recitation in the trial 

court’s written judgment allegedly implying that there was a plea 

bargain with the State.

Evidence Supporting the Plea of Guilty

The Appellant executed a packet of “plea papers” in the case. (CR12-21). Those papers included the following judicial confession:

 “Upon my oath, I swear my true name is Walter Lee

Scott, Jr. and I am 24 years of age; I have read the

indictment or information filed in this case and I committed

each and every act alleged therein, except those waived by

the State. All facts alleged in the indictment or information 

are true and correct. I am guilty of the instant offense as

well as all lesser included offenses. All enhancement and 

habitual allegations set forth in the indictment or
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information are true and correct except those waived by the

State. All deadly weapon allegations are true and correct. 

All other affirmative findings to be made by the Court 

pursuant to this Written Plea Agreement are true and 

correct. I swear to the truth of all of the foregoing and 

further, that all the testimony I give in this case will be the

truth, the whole truth and nothing but the truth so help me

God.” (CR-17).

That judicial confession was signed by the Appellant. (CR-17). 

Furthermore, thereafter, the Appellant executed a declaration stating 

under penalty of perjury that all of the matters contained in the plea 

papers are true and correct. (CR-18).

The Appellant’s trial counsel also signed an acknowledgment that 

expressly stated that he had explained everything, including the judicial 

confession, to him and that he had waived his rights and executed the 

documents intelligently, knowingly, and voluntarily. Counsel 

specifically joined in the stipulations of evidence pursuant to Article 

1.15 and consented to the trial court taking judicial notice of the 

contents of the Written Plea Agreement (CR-18). The State also 

approved all of the contents. (CR-19). 

The trial court approved the plea papers in writing and stated that 

it was taking judicial notice of the matters contained therein. (CR-19).
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During the hearing and after the Appellant entered his plea of 

guilty to the information, the State asked the court to “...take judicial 

notice of the court’s file that includes the plea paperwork and the 

defendant’s signed judicial confession”. The Appellant had no objection 

and the court did so. (RR2-7). Thereafter the court immediately found 

the evidence sufficient to support a finding of guilty. (RR2-7).

Evidence Supporting Restitution

At the punishment hearing the State referred the trial court to the 

presentence report that included a victim impact statement. In that 

statement the victim, Kassandra Holt, stated that during the Appellant’s 

attack upon her he threw her cell phone at her. She stated that the 

phone was damaged and that her loss was $50.00. (CR-Supplimental-8).

The trial court, in its oral pronouncement of sentence (RR3-9) and its 

written judgment (CR-26) ordered the Appellant to pay $50.00 in 

restitution to Ms. Holt. 

Trial Court’s Judgment

There was no plea bargain with the State in the case. (CR-12; RR2-

6, 7). In the trial court’s written judgment on the line denoted as “Terms 

of Plea Bargain” is found the phrase “SEE ATTACHED DISCLOSURE OF 

PLEA RECOMMENDATIONS”. (CR-26). There is no such disclosure 
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attached to the judgment and the “plea papers” also contained in the 

court’s file state that plea was “open” and thus recite no plea 

recommendations. (CR-12).

SUMMARY OF STATE’S ARGUMENT

The trial court took judicial notice of judicial confession, signed by 

the Appellant and approved by the State, his counsel, and the court, as 

well as all of the “plea papers” in the case, without objection by the 

Appellant. That judicial confession stated that all of the allegations in 

the information were true and correct. The information contained all of 

the statutory elements of the offense charged. The evidence was 

sufficient to support the Appellant’s plea of guilty and for the court to 

enter such a finding under Article 1.15.

Although unnecessary, the evidence at the punishment hearing 

wherein the Appellant admitted his violent attack upon the victim as 

charged in the information may be properly considered and sufficiently 

supports the Appellant’s plea of guilty as well.

The evidence contained in the presentence report, which included 

the victim impact statement, which was considered by the trial court 
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without objection sufficiently supported the court’s order for the 

payment of restitution.

Although the written judgment of the trial court does not 

specifically state that there was a plea bargain with the State when, in 

fact, there was not, if it could be so construed then the judgment should 

be modified to reflect that there was no plea bargain.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

Was the evidence sufficient to support the finding of guilty 

pursuant to the Appellant’s plea of guilty as required by Article 1.15 of 

the Texas Code of Criminal Procedure?

Standard of Review

When the accused enters a plea of guilty the standards of review set out 

in Jackson v. Virginia, 443 U.S. 307 (1979), as to sufficiency of the 

evidence are inapplicable. Ex Parte Martin, 747 S.W.2d 789, 792-93 

(Tex. Crim. App. 1988). Instead the sufficiency of the evidence is 

governed by Article 1.15 of the Code of Criminal Procedure.

Article 1.15 provides that in a non-capital felony case, where the 

defendant waives trial by jury and enters a plea of guilty or nolo 
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contendere, it is necessary for the State to “introduce evidence into the 

record” that shows the guilt of the defendant and that such evidence be 

accepted by the trial court as the basis for its judgment. See Martin at 

793. The appellate court will affirm the trial court’s judgment under 

Article 1.15 if the State introduced evidence that embraces every 

essential element of the offense charged that is sufficient to establish 

the defendant’s guilt. A judicial confession stating that the defendant 

has read the charging instrument and that he committed each and every 

act alleged therein, standing alone, is sufficient to sustain a conviction 

upon a guilty plea under Article 1.15. Chindaphone v. State, 241 S.W.3d 

217, 219 (Tx. App. Ft. Worth 2nd Dist. 2007 rev. ref.). 

Application and Analysis

The Appellant was charged with the offense of assault on a family 

or household member by strangulation as set out in Section 22.01 of the 

Texas Penal Code. Section 22.01(a) states that a person commits an 

offense if he or she intentionally, knowingly, or recklessly causes bodily 

injury to another. Section 22.01(b) makes such an offense a felony of 

the third degree if the offense is committed against a person whose 

relationship to or association with the defendant is defined by Sections 

71.002(b), 71.003, or 71.005 of the Texas Family Code and if the offense 
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is committed by intentionally, knowingly, or recklessly impeding the 

normal breathing or circulation of the blood of the victim by applying

pressure to the person’s throat or neck or by blocking the person’s nose 

or mouth. Section 71.003 of the Family Code defines family members 

and Section 71.005 defines those who make up a household.

The information in this case set out all of the elements of the 

offense under Section 22.01, alleging that the Appellant intentionally, 

knowingly, and recklessly caused bodily injury to Kassandra Holt, that 

she was a member of his family or of his household, and that he did so 

by intentionally, knowingly and recklessly impeding her normal 

breathing or circulation of blood by applying pressure to her throat or 

neck. (CR-4).

The Appellant’s judicial confession stated that he had read the 

information and that everything alleged in it was true and correct and 

that he committed the offense as alleged. (CR-17). 

A judicial confession stating that the defendant has read the 

charging instrument and that it is true and correct, where that charging 

instrument contains each and every element of the offense is sufficient 

to support a plea of guilty as required by Article 1.15. Chindaphone at 

219. See also Brooks v. State, No. 03-13-00252-CR, 2014 Tex. App. LEXIS 
14

6588 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for 

publication, following Chindaphone.

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The Appellant would ignore his judicial confession because it was 

not formally offered into evidence nor sworn to before a notary or 

district clerk. That Appellant’s protestations to the contrary, however, 

the judicial confession may be judicially noticed by the trial court and, in 

that case, it need not be introduced formally into evidence. Chindaphone 

at 219; Jones v. State, 373 S.W. 3d 790 (Tx. App. Houston 14th Dist. 2012 

no pet.); Brooks op. at pg. 6. 

Likewise, a judicial confession that was signed by the accused, 

approved by his counsel, the State and the trial court and of which the 

court takes judicial knowledge need not be sworn. Jones v. State, 857 

S.W. 2d 108, 110 (Tx. App. Corpus Christi 13th Dist. 1993 no pet.); 

Walker v. State, No. 03-03-00018-CR, 2003 Tex. App. LEXIS 5935 (Tx. 

App. Austin 3rd Dist. 2003 no pet.) (“There is no requirement that the 

defendant swear to the waiver and stipulation before the clerk or 

anyone else” Op. at pg. 4). 

 

1 Brooks also arose from the 264th District Court and involved essentially the same “plea 

papers” and judicial confession as the present case.
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Here the Appellant signed the judicial confession and declared 

under penalty of perjury that it was true and correct. That judicial 

confession confirmed the truth of all of the allegations in the 

information. The information contained all of the statutory elements of 

the offense charged. The judicial confession was approved by defense 

counsel, the State and the trial court. The judicial confession and other 

“plea papers” were filed of record. The trial court expressly took 

judicial notice of the papers, including the judicial confession, and based 

its judgment upon that instrument. The evidence was certainly 

sufficient to support the Appellant’s plea under Article 1.15. 

Second Issue on Appeal

Was the evidence at the sentencing phase of the plea proceeding 

sufficient to support the Appellant’s plea of guilty under Article 1.15?

Application and Analysis

It must first be observed that the evidence during the first phase 

of the plea proceeding was sufficient to support the plea and, therefore, 

it is not necessary to rely upon the events during the punishment 

hearing. 

Presumably the Appellant has reference to his very brief 

testimony at the sentencing hearing. He told the court that he accepted 
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full responsibility for his actions and that he apologized to the victim 

and the court. (RR3-5, 6). Then, during cross examination by the State, 

the Appellant admitted the violent nature of his assault in wrapping a 

belt around her neck and stated that he had no good reason for it. (RR3-

6). This testimony was at least corroborative of his judicial confession 

of which the trial court took judicial notice at the first phase of the trial. 

A guilty plea is a unitary proceeding and Article 1.15 does not 

distinguish between evidence offered at guilt/innocence or the 

punishment phase. The courts may consider evidence at the 

punishment phase in order to determine if the requirement of Article 

1.15 has been fulfilled. See Taylor v. State, No. 03-14-0300-CR, 2014 Tex. 

App. LEXIS 11324 (Tx. App. Austin 3rd Dist. 2014 rev. ref.), not 

designated for publication2, and cases cited therein.

Third Issue on Appeal

Was there sufficient factual basis in the record to support the trial 

court’s order for payment of restitution to the victim?

 

2 Taylor also arose in the same district court concerning a virtually identical fact situation 

as in this case and raising the same issues. Counsel for both the defendant and the State 

were also the same.
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Standard of Review

Restitution orders are reviewed under an abuse of discretion 

standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A 

trial court abuses its discretion only when its decision is arbitrary, 

unreasonable, or is outside the zone of reasonable disagreement. 

Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991). The 

amount of restitution ordered must be just, must have a factual basis 

within the loss of the victim, and must be for a crime for which the 

defendant is criminally responsible. Campbell v. State, 5 S.W.3d 693, 

696, 697 (Tx. Cr. App. 1999).

Application and Analysis

Sufficient evidence to support a trial court’s order imposing 

restitution may be provided by statements contained in the presentence 

report where, as here, there is no objection to the court taking it under 

consideration. Jones v. State, 713 S.W.2d 796, 797, 798 (Tx. App. Tyler 

12th Dist. 1986 no pet.). 

In this case the presentence report included a victim impact 

statement. In that statement the victim, Kassandra Holt, described how 

the Appellant threw a phone at her during the assault. She also stated 
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that her cell phone had been damaged and her loss was $50.00. (CR. 

Supplemental-8). 

During the punishment phase of the proceeding the State pointed 

out that a presentence report had been prepared that included a victim 

impact statement as ordered by the court. When asked if there were 

any corrections or additions to the report that he wished to present 

counsel for the Appellant said no. There were no objections to the trial 

court considering the report. (RR3-4). At the conclusion of the hearing 

the trial court included the $50.00 in restitution to the victim as claimed 

in the presentence report. There was no objection by the Appellant. 

(RR3-9). It was so ordered in the trial court’s written judgment. (CR26).

The evidence was sufficient to support the order for payment of 

restitution.

Fourth Issue on Appeal

Must the judgment of conviction be modified to reflect that the 

Appellant entered his plea of guilty without a plea bargain?

Application and Analysis

The Appellant entered his plea of guilty to the trial court without a 

plea bargain with the State. (RR2-6, 7). The plea papers reflect that the 
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plea was “open”. (CR-12). The judgment of conviction recites: “Plea 

Bargain: SEE ATTACHED-DISCLOSURE OF PLEA RECOMMENDATIONS 

ATTACHED HERETO AND MADE A PART HEREOF”. (CR-26). There is 

no apparent attachment to the judgment in the record. The only 

disclosure of plea bargain shows an open plea and therefore contains no 

plea recommendations. 

While it might well be argued that the judgment does not actually 

state that there was a plea bargain in this case, nevertheless, if the Court 

so interprets it, the State agrees that it be modified in order to speak the 

truth.
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PRAYER

The State of Texas respectfully prays that the judgment of 

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000

CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 2,493 words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney
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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, John A. Kuchera, Counsel for Appellant, by electronic 

transfer via Email, addressed to him at johnkuchera@210law.com on 

this 9th day of April, 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney