Opinion
Nos. 05-04-01488-CR, 05-04-01489-CR
Opinion filed November 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-30005-Tq F02-30006-TQ. Affirmed as Reformed.
Before Justices MOSELEY, O'NEILL, and FITZGERALD.
OPINION
Appellant appeals a conviction for aggravated sexual assault of a child and an order placing him on deferred adjudication probation for aggravated sexual assault of a child. In four issues, appellant contends (1) the evidence is factually insufficient to support the conviction, (2) his plea of nolo contendere in the conviction case was involuntary, (3) his pleas in both cases must be set aside because they were not made in person, and (4) the judgment of conviction and the deferred adjudication order must be reformed to show he pleaded no contest in both cases. For the following reasons, we reform the trial court's judgment of conviction and deferred adjudication order and affirm the judgment and the order as reformed. Appellant was indicted in two cases for sexually assaulting his thirteen-year-old stepdaughter. Appellant waived his right to a jury trial and pleaded "no contest." He did not, however, execute any stipulations, admissions or judicial confessions. In fact, at the plea hearing, appellant contested his guilt. Thus, the State presented evidence to prove the allegations. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). The State first called T.J. who testified appellant was her stepfather. When she was thirteen, appellant would sometimes come in her bedroom at night and "feel on" her chest and "private area." She specifically testified appellant's hand would go inside her "private part." One morning, when her mother was out, appellant sexually assaulted her in the room he shared with T.J.'s mother. On that occasion, appellant went to T.J.'s room and told her to follow him to his room. Appellant told her to lie on the bed. He then "had sex" with her. T.J. first told her mother about the accusations one night after her mother caught appellant leaving her room. T.J.'s mother asked T.J. what they were doing and T.J. told her mother appellant had been "feeling on" her. While T.J. testified her mother initially believed her, she later accused T.J. of lying. T.J.'s mother testified she is still married to appellant. Mother said the night T.J. made her accusations, Mother had been unable to sleep. She noticed appellant was not in bed so she got up to go look for him. As she approached T.J.'s room, Mother saw appellant running out of the room and into a bathroom across the hall. Mother pushed the bathroom door open and asked appellant what was going on. Appellant responded that it was "not what she thought." Appellant and Mother then went to their bedroom to discuss the situation. Appellant told Mother that he had found some of T.J.'s letters that caused him to be concerned that T.J. was having sex. Appellant showed Mother the letters and told her that he had been talking to T.J. about them. Mother then returned to T.J.'s room to ask her what was going on. T.J. first claimed appellant had been showing her "something." When pressed, she claimed appellant had been "messing with" her. Mother became angry and confused and called some friends, Mark and Angela Knight, who came over to discuss the situation. With appellant's agreement, they decided appellant should leave the house. The following day, Mother took T.J. to Parkland for a rape exam that revealed her hymen had been broken. Mother testified that although she was initially confused, she did not believe appellant had abused T.J. According to Mother, T.J. had a bad reputation for being truthful. Mother became very concerned when she looked at T.J.'s letters because they showed she was "having sex." The letters were introduced into evidence and, while some were sexually explicit, Mother could not point to anything that would establish T.J. was having sex. Angela Knight testified that Mother called her the night T.J. made her accusations. She went to their house and talked to T.J.T.J. repeated the allegations, but seemed detached and did not provide details. According to Knight, T.J. did not have an `honest reputation." Mark Knight also testified that he did not find T.J. "truthful." Appellant testified and denied committing the offenses. Before T.J. made her accusations, T.J. had been acting up and appellant was disciplining her. According to appellant, the afternoon before T.J. made her allegations, he had overheard a conversation she was having with another girl at church. The conversation caused him to become more concerned about some letters he had found in T.J.'s room earlier. As he was getting ready for bed that night, appellant began thinking about the letters and the conversation, and decided to confront T.J. When he was in T.J.'s room, he heard T.J.'s mother approach. He was afraid she might think he was "molesting" T.J., so he got up and went into the bathroom. Appellant attempted to present an "alibi" defense. He called detective I.C. Hale who testified that T.J. had reported that appellant assaulted her on the "morning" of December 28, 2001. Appellant then called Kymonique Hill. Hill and appellant had begun an "intimate relationship" after meeting in an internet chat room. Hill testified appellant was with her from 9:00 a.m. to 3:00 p.m. on December 28, 2001. After hearing the evidence, the trial court stated that it did not find appellant credible and that it did find T.J. credible. It stated that the evidence in each case proved appellant's guilt "beyond a reasonable doubt," but did not make a finding of guilt pending its punishment determination. Following a punishment hearing, the trial court reiterated that it found the evidence proved appellant's guilt in each case beyond a reasonable doubt. The trial court deferred a finding of guilt in one case and put appellant on community supervision for ten years. In the other case, the trial court found appellant guilty, convicted him of aggravated sexual assault and assessed punishment at seven years' confinement. In the first issue presented, appellant contends the evidence is factually insufficient to support the conviction for sexual assault. Appellant recognizes that the Clewis factual sufficiency standard does not generally apply to pleas of no contest. See O'Brien v. State, 154 S.W.3d 908 (Tex.App.-Dallas 2005, no pet.). He nevertheless argues that we should apply the Clewis standard here because the trial court effectively withdrew the no contest plea when it applied the heightened beyond a reasonable doubt standard of review. Assuming, without deciding, the standard applies under the facts of this case, we conclude the evidence is factually sufficient to support appellant's conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. Here, T.J. testified appellant committed the offense as alleged. Moreover, the night T.J. made her outcry, T.J.'s mother saw appellant running out of T.J.'s room late at night. Appellant admitted that he feared T.J.'s mother would think he was molesting T.J. Although appellant offered an explanation for his actions, and presented evidence showing T.J. had a bad reputation for truthfulness, as well as some "alibi" evidence, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We resolve the first issue against appellant. In the second issue presented, appellant contends his plea of no contest in the case for which he was convicted and sentenced to prison was not voluntary. Before accepting appellant's plea, the trial court admonished appellant of the charges against him and the range of punishment for the offenses. Appellant indicated that he understood the charges and the range of punishment. Appellant stated he was waiving his right to a jury trial. Appellant's trial attorney then stated appellant was pleading "no contest." Later, during his testimony at the "plea hearing," appellant testified that he discussed the risks of his plea with his attorney. He said he knew he might receive a better sentence if he "changed his plea," but he could not plead "guilty" to something he did not do. Later, at the punishment hearing, appellant testified he knew he had a choice to plead guilty, not guilty, or no contest and remembers he pleaded "no contest." He testified the reason he pleaded no contest was because it gave the judge the option of giving him deferred adjudication probation. Appellant acknowledged that "everything was done with [his] agreement in terms of how [they] got to trial." In this issue, appellant asserts his plea was not voluntary. Although he generally complains that he was not properly admonished, he does not contend the trial court failed to give any specific admonishment. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05). Instead, he argues that his plea was not voluntary under the federal constitution because he did not understand that a plea of no contest has the effect of a guilty plea, relieving the State of the beyond a reasonable doubt burden of proof. See Boykin v. United States, 395 U.S. 238 (1969). Initially, we note the fact that the beyond a reasonable doubt burden of proof does not apply to guilty pleas and pleas of nolo contendere is not an admonition a trial court is required to give before accepting a plea of guilty or no contest. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05). Furthermore, to show he was unaware of the burden of proof at the plea hearing, appellant directs us to an isolated statement at the punishment hearing in which he indicated his lawyer told him that a plea of "no contest requires the State to prove the case to substantiate [his] guilt or beyond a reasonable doubt." However, both before and after this far from clear statement, trial counsel correctly referred to the correct standard, i.e. evidence to substantiate guilt. Additionally, even though the trial court was not required to apply the beyond a reasonable doubt burden of proof to the case, the record shows the trial court did, in fact, hold the State to the higher burden. Moreover, the record establishes appellant pleaded no contest rather than "not guilty" to give the trial court the option of granting deferred adjudication probation. Indeed, appellant was actually granted deferred in one of the cases. Despite this benefit, the trial court also conducted a full trial on the merits, holding the State to the constitutional beyond a reasonable doubt burden of proof and found appellant committed the offenses "beyond a reasonable doubt." At the subsequent punishment hearing, appellant specifically acknowledged that "everything was done with [his] agreement in terms of how [they] got to trial." We conclude the record, as a whole, refutes appellant's argument that his plea was not knowingly and voluntarily made. See Gardner v. State, 164 S.W.3d 393, 399 (Tex.Crim.App. 2005) (record established voluntariness where guilty plea was part of trial strategy). We resolve the second issue against appellant. In the third issue presented, appellant contends the trial court erred in accepting his pleas in both cases because they were not made by him, in person. A plea of guilty or a plea of nolo contendere must be made "in open court by the defendant in person." See Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989). Appellant asserts his pleas were not made by him in person because, although he was present in the courtroom when his pleas were entered, his attorney entered the pleas on his behalf. In Costilla v. State, 146 S.W.3d 213 (Tex.Crim.App. 2004), the defendant, who claimed he did not speak English, appeared at his plea hearing with his attorney, but no interpreter. When asked how he pleaded, his attorney responded "Guilty." The trial court accepted the plea. Written plea documents also showed a guilty plea. Later, at the punishment hearing, an interpreter was present. Trial counsel asked the defendant if he had pleaded guilty. The defendant did not answer this question, but requested that the trial court put him on probation. The trial court also admonished the defendant, with the help of the interpreter, as to the consequences of the plea and the defendant indicated he understood. On appeal, the defendant complained he had not personally entered his plea in violation of article 27.13 of the code of criminal procedure. The court of criminal appeals disagreed concluding the statute does not require an oral plea. Id. at 217. It concluded the record showed the defendant's voluntary desire to plead guilty and that "[the defendant] was present, the plea was entered in open court by [the defendant,] albeit through his bi-lingual attorney. That is all the statute requires." Id. Here, although appellant did not sign plea papers, he did speak English and was present when his attorney entered his pleas. Appellant failed to voice any objection at that time. Moreover, appellant expressly acknowledged at the subsequent punishment hearing that he had pleaded no contest to the charges. We conclude the trial court substantially complied with article 27.13. See id. We resolve the third issue against appellant. In the fourth issue presented, appellant contends the deferred adjudication order and the judgment of conviction must both be reformed to show his actual pleas. The deferred adjudication order shows appellant pleaded "guilty" and the judgment of conviction shows he pleaded "not guilty." Appellant requests reformation to show he actually pleaded "no contest" in both cases. The State agrees reformation is proper under these circumstances. See Lucero v. State, 502 S.W.2d 750, 752 (Tex.Crim.App. 1973). We reform the deferred adjudication order and the judgment of conviction to show appellant pleaded "no contest" in both cases. As reformed, we affirm the trial court's deferred adjudication order and judgment of conviction.