Opinion
No. 05-08-01456-CR
Opinion issued November 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F06-86919-MY.
Before Justices O'NEILL, FRANCIS, and FILLMORE.
MEMORANDUM OPINION
Rolando Gariby Garcia appeals his conviction for indecency with a child. After appellant entered a plea of nolo contendere, the trial court found appellant guilty of the charged offense and assessed punishment at eighteen years in prison. In two points of error, appellant claims the evidence is factually insufficient to support his conviction and the trial court erred in admitting certain evidence. We affirm. In his first point of error, appellant claims the evidence is factually insufficient to support his conviction because the complainant did not allege with any degree of certainty that appellant touched her genitals. Although appellant cites this Court to the traditional factual sufficiency review of Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), Watson does not apply to felony cases where, as here, a defendant pleads nolo contendere. Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988) (op. on reh'g); O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.). Rather, when a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty; said evidence shall be accepted by the court as the basis for its judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); see also Ex parte Martin, 747 S.W.2d at 792-93. We affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). The legal effect of a plea of nolo contendere is the same as that of a plea of guilty, "except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). A person commits indecency with a child if he engages in sexual contact with the child. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009). Sexual contact means any touching of any part of the child's genitals with intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 21.01(2) (Vernon Supp. 2009). A child's testimony, in language appropriate for her age to describe the incident, is sufficient to support a conviction. See Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)). The eight-year-old complainant, R.D., testified at trial she knew the difference between a good touch and a bad touch. Using a diagram of a young girl without clothing, R.D. circled the parts of the body where "it is not okay to touch," including the breasts, the "back part" (buttocks), and the "middle part" (genitals). According to R.D., her teacher touched her "middle part" with his hand while she was at school. R.D. identified appellant as her teacher. R.D. said appellant touched her "middle part" three times. One time, appellant had offered the children candy from a drawer in his desk. When R.D. took some of the candy, he set her on his lap and started touching her under her pants but on top of her underwear. R.D. was asked to indicate on the diagram as well as on her own body where the "middle part" was. Each time, the trial court stated, for the record, that she had indicated the vagina. Appellant did not object to this testimony or to the trial court's statement. This evidence embraces every essential element of the offense charged and is sufficient to establish appellant's guilt. See Stone, 919 S.W.2d at 427. We overrule appellant's first point of error. In his second point of error, appellant claims the trial court erred in allowing the "hearsay testimony of Erika Ware because the record fail[ed] to establish that she was the true outcry witness." To preserve error, the record must show the complaint was made to the trial court by a timely request, objection or motion. See Tex. R. App. P. 33.1. At trial, appellant did not object to any of Ware's testimony. By failing to raise any objection in the trial court, appellant has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1. We overrule his second point of error. We affirm the trial court's judgment.