Public Defense

Shepard Permits Use of Texas Judicial Confession When Employing Modified Categorical Approach

By Brad Bogan

You can add another item to the list of documents a court can use when employing the modified Taylor/Shepard categorical approach: a judical confession.

In this illegal reentry case, Garcia had a prior Texas conviction for delivery of a controlled substance. As we all know, that offense isn't categorically a "drug trafficking offense" for purposes of the guideline §2L1.2 enhancements because it includes some conduct---an offer to sell a controlled substance---that lies outside the DTO definition. So the question was whether the available documents from Garcia's state court guilty plea established that he was convicted of committing the offense in a way that would constitute a DTO.

Here, there were three documents available from the state court proceedings: the indictment, the judgment, and a judicial confession. The indictment alleged all three alternative methods of delivery conjunctively (actual transfer, constructive transfer, and offer to sell), and the judgment simply said that Garcia was convicted of delivery. Because Texas law allows conjunctive pleading and disjunctive proof, the indictment and judgment together did not exclude the possibility that the conviction could have rested on an offer to sell (just like in this case).

But what about the judicial confession? The court looks to Shepard, which sanctioned reliance on ?the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some other comparable judicial record of this information.? (emphasis added). Looking to state law for the effect of a judicial confession in Texas, as it must, the court goes on to hold that

a written judicial confession . . . constitutes a ?comparable judicial record? under Shepard, and . . . it may be considered in determining whether a defendant?s prior conviction constitutes a drug trafficking offense under the guidelines. A Texas judicial confession is an admission made in the course of judicial proceedings by a party, ?such as a confession made to an examining court before the trial.? Under Texas law, a judicial confession which stipulates to the factual content in an indictment provides a strong enough evidentiary basis to support a judgment of conviction on the charge without the need for any corroborating evidence. Also, Texas courts have recognized written judicial confessions as providing necessary proof of prior convictions for state sentence enhancement purposes. Accordingly, we regard a written judicial confession as the type of reliable and accurate judicial record the Shepard court indicated that a federal court may rely upon in an effort to determine the nature of the Texas offense to which Garcia previously pleaded guilty.

That sounds right, but then things get a little odd when the court looks at Garcia's judicial confession, which admitted "that he did 'knowingly and intentionally deliver, to-wit, actually transfer, constructively transfer and offer to sell a controlled substance[,]' . . . [and]that he 'committed the offense with which [he] stand[s] charged exactly as alleged in the indictment in this case.'" The court holds that this confession established that Garcia committed all three forms of delivery: actual transfer, constructive transfer, and an offer to sell. Because two of those fit within the DTO definition, the enhancement applied.

Is the court right about that? It's easy to see how someone could offer to sell a controlled substance and then constructively transfer it, or offer to sell and then actually transfer. But actual and constructive transfer seem mutually exclusive, so does Texas law allow a conviction for both actual and constructive transfer where both acts are alleged in a single count? And if not, doesn't that create an ambiguity as to the exact type of delivery that Garcia was convicted of? I invite anyone familiar with Texas law on this point to chime in with a comment.

Full post as published by Fifth Circuit Blog on March 26, 2008 (boomark / email).