No. 05-07-00648-CR
Opinion issued June 10, 2008. DO NOT PUBLISH Tex. R. App. P. 47 061297F.U05
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-73411-JV.
Before Chief Justice THOMAS and Justices FRANCIS and MALONEY. Opinion By Justice MALONEY
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FRANCES MALONEY, Justice, Assigned.
The trial court convicted Lee Jerome Lewis of stalking, found the enhancement paragraph true, and assessed a twelve-year sentence. In a single issue, appellant complains the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
Appellant entered a plea of nolo contendere, without benefit of a plea bargain, to stalking and signed a judicial confession. The trial court heard testimony from the complainant, the detective who filed this case, and appellant. SUFFICIENCY OF THE EVIDENCE
Appellant argues that the State did not present factually sufficient evidence to support the trial court's finding appellant guilty of stalking. Specifically, he contends that the complainant lied to the police when she told them that appellant "had never lived with her." After he left her, he only went to her apartment to retrieve his photographs. The State responds that appellant waived his right to challenge the factual sufficiency of the evidence when he entered his plea of nolo contendere to the allegations contained in the indictment. We agree. 2. Standard of Review
The appellate standards of review announced in Jackson v. State, 443 U.S. 307, 319 (1979) (legal sufficiency), and Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (factual sufficiency), do not apply when an appellant enters a plea of guilty or nolo contendere. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988); O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2005, no pet.). However, the State must introduce sufficient evidence to support the plea and establish appellant's guilt. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). We affirm the trial court's judgment under article 1.15 if the State introduced evidence that embraces every essential element of the offense charged and that evidence establishes appellant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996); Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). 3. Applicable Law
In relevant part, a person commits the offense of stalking if "on more one than occasion, and pursuant to the same scheme or course of conduct . . . [which he specifically directs] . . . at another person. . . .," he knowingly engages in conduct, including following the other person, that (1) he reasonably believes the other person will regard as threatening bodily injury or death, (2) places the other person in fear of bodily injury or death, and (3) would cause a reasonable person to fear bodily injury or death. Tex. Penal Code Ann. § 42.072 (Vernon 2003). 4. Application of Law to the Facts
The indictment charged that appellant knowingly engaged in conduct "specifically directed toward [the complainant]" knowing and reasonably believing that the "complainant would regard [his conduct] as threatening bodily injury . . . by [telephoning her] and by threatening to murder [her] and . . . by going to [her] residence." It also alleged that appellant's "conduct would cause a reasonable person to fear, and did cause the complainant to fear" bodily injury. Additionally, it alleged that appellant had gone to the complainant's residence on multiple occasions. The complainant testified that she and appellant had lived together for about nine months. During their relationship, appellant was physically violent toward her. After they broke up, appellant began showing up everywhere she went and continued to contact her. Around December 1, 2006, she was in a vehicle leaving her home when appellant blocked her driveway with his truck and demanded she get out of her vehicle. Appellant yanked on her door, but she would not get out and eventually appellant left. He began telephoning her. On December 6, 2006, he called her "cell phone" and threatened to come to her home and kill her and her children. She took his threats seriously because she believed he would actually carry out his threats. She took her children to the Fire Station and telephoned the police. After the police left, appellant came to her front door, knocked and wanted to talk. Later that evening, appellant came back a second time and told her, "Bitch, the police can't help you." On cross-examination, the complainant confirmed that she and appellant had lived together through May 2006. She admitted that she had asked appellant to help her when "Fats" had "whooped [her child] with a belt." But, she denied telephoning appellant, contending she did not have a telephone number for him. Rather, he had telephoned her sometime in June. A few weeks later, appellant contacted her and wanted to get back together. Later, he came to her house and tried to kick in her front door. The officer that filed this stalking case testified that he had gone through previous reports and found complaints for harassing telephone calls and an earlier assault directed at the complainant. His interview with the complainant and review of reports showed a continuing course of conduct that was escalating in intensity. On cross, the officer revealed that six offense and miscellaneous incident reports existed and appellant had been arrested about eight or ten times. The officer admitted that he did not investigate beyond the first week of December 2006 because enough happened in that one week to justify a stalking charge. Appellant entered his plea of nolo contendere to stalking and judicially confessed to stalking as alleged in the indictment. He testified that he met the complainant one day and moved in with her the next day. Appellant maintained he had taken the children to school every day when they were living together. He took the complainant and her children to the fair in October 2006 because she asked him to take them. Appellant insisted that the complainant did not "force" him out of her apartment, he left on his own because he came home and found her talking with a guy in the parking lot. He only went to her apartment twice after he moved out-to get his photographs. The complainant instigated most of their telephone contacts. He denied that he ever threatened the complainant. In reviewing the evidence to sustain appellant's plea of nolo contendere, we look to the existence of evidence supporting the plea, not its veracity. Appellant's argument does not show a lack of evidence establishing appellant's guilt of stalking. We resolve appellant's sole issue against him. We affirm the trial court's judgment.