Opinion
No. 05-06-00505-CR
Opinion Filed February 21, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F03-34510-UL.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT.
OPINION
Ronald Alex Johnson waived a jury and pleaded nolo contendere to aggravated sexual assault of a child younger than fourteen years. After finding appellant guilty, the trial court assessed punishment at five years' imprisonment. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment. Appellant argues the evidence is factually insufficient because of the complainant's inconsistent testimony and the fact that appellant passed a polygraph test. The State responds that appellant has waived a factual sufficiency review of the evidence because he pleaded nolo contendere and, alternatively, the evidence supports appellant's conviction. The legal effect of a nolo contendere plea is the same as a plea of guilty. See Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). There is no right to a factual sufficiency review of the evidence to support a guilty plea. See O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2005, no pet.). 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, and 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 789, 792-93 (Tex.Crim.App. 1988). We will 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 State was required to prove that appellant intentionally or knowingly caused the penetration of the sexual organ of A.R., a child younger than fourteen years of age, by any means. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2006). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). During a trial on the merits, A.R., who was fifteen, testified appellant began sexually abusing her when she was six or seven years old, and continued until she was twelve. Appellant married A.R.'s mother when A.R. was six years old. A.R.'s live-in nanny remained in their home for a few months after appellant married A.R.'s mother. The nanny slept in A.R.'s bed at night. A.R. testified her nanny moved to an apartment with her grown son about two months after appellant married A.R.'s mother. Appellant sexually abused A.R. in the early morning hours after her mother had gone to work. Appellant came into A.R.'s bedroom while she was still asleep and rubbed his hand and fingers on her vagina. Appellant usually wore only his underwear. Appellant rubbed A.R.'s vagina once or twice a week. After a few months, A.R. told her mother what appellant had been doing. Her mother became angry and did not believe A.R. A.R. testified that after her mother did not believe her, the sexual abuse escalated. Appellant came into her bedroom, pulled down her pants and underwear, and inserted his fingers inside her vagina. Appellant did this on numerous occasions. When A.R. was about nine years old, appellant pulled out his penis, got on top of A.R., and inserted his penis into her vagina. Appellant held A.R. down with his hand so she could not move or push him away. A.R. told appellant to "get off of me," but appellant laughed. A.R. testified appellant put his penis inside her vagina over fifty different times, but only ejaculated on her vagina once. One evening when A.R. was twelve years old, she and appellant had an argument in which she yelled, "[y]ou have no right to touch me and you can't hit me." A.R.'s mother demanded to know what she was talking about. Appellant left the house to go to the store, and A.R. told her mother what appellant had been doing to her. A.R.'s mother contacted the police. By agreement of the parties, appellant's polygraph examination results were admitted into evidence, as was A.R.'s medical records, forensic interview, therapy notes, and police report. Appellant denied having sexual intercourse with A.R. Appellant testified he married A.R.'s mother when A.R. was six years old, and the nanny lived in the house with them until sometime near the end of 2002. The nanny took over most of the care for A.R., and slept in A.R.'s bed. In December 2002, appellant and A.R. had an argument about composition books that A.R. needed for school. A.R. became very angry and slapped appellant on the arm. Appellant drew his arm back as if to hit A.R., intending to scare her. A.R.'s mother heard them and wanted to know why they were yelling at each other. Appellant left the house to go to the store to purchase the composition books. When he returned about one hour later, A.R.'s mother accused him of having sex with A.R. Appellant denied the allegations and suggested A.R. be taken to the doctor for an examination. The next day, appellant left for a job in Colorado, which had already been planned. Appellant was later arrested on a job in Oklahoma. Appellant believed A.R.'s mother coached her to make the allegations. Appellant testified he passed a polygraph test that showed he was truthful when he stated he did not have sex with A.R. Appellant further testified he was fifty-seven years old at the time of trial and when he was twenty years old, he had been convicted and received probation in Pennsylvania for exposing himself to three young girls. In rebuttal to appellant's testimony, the State called Arasely Huitrado, A.R.'s nanny. Huitrado testified she began caring for A.R. in November 1995, when A.R. was five years old. Huitrado left A.R.'s household on August 3, 1998 because she signed a lease on an apartment with her son and his wife on that date. Having reviewed all of the evidence, we conclude it embraces all of the essential elements of the offense charged, and is sufficient to support appellant's conviction. See Stone, 919 S.W.2d at 427; see also Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App. 2001). We overrule appellant's point of error. We affirm the trial court's judgment.