Summary
holding where record showed Vollmer was a U.S. citizen, failure to give deportation admonishment was harmless
Summary of this case from Salazar v. StateOpinion
No. 05-10-00081-CR
Opinion issued August 31, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F07-73954-H.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
At trial, Leslie Earl Vollmer pleaded nolo contendere to indecency with a child. He complains on appeal that the evidence against him is legally insufficient to sustain the verdict and the trial court erred by overruling his hearsay objection and failing to admonish him about the deportation consequences of his nolo contendere plea. We affirm the trial court's judgment.
Factual Background
Child complainant M.H. testified that she used to live with appellant because he was her mother's boyfriend. One day after appellant picked up M.H. from her elementary school, he took her to a drug store to buy her some Oreos and some Polaroid film for himself. When they got home, he instructed M.H. to pose for him as he photographed her with the Polaroid camera. He began by lifting her knee-length dress to the top of her thigh and took her picture as she stood. He told her how to pose and photographed her. Then he instructed her to remove her underwear. M.H. removed her underwear in the bathroom and returned to pose for more photographs. Appellant instructed M.H. to lie down on a bed. He continued to photograph her, including her unclothed vaginal area, occasionally telling M.H. that she was doing a "good job." As he moved her clothes and told her how to pose, appellant put his hand inside her vagina. Afterward, he showed M.H. the photographs and gave her ten dollars, saying it was one dollar for each picture taken. He told M.H. "anytime I want more money that's the way to make it." Approximately two days later, M.H. told her mother and sister what had happened. M.H. testified that appellant was usually unkind to her and her older sister. He called M.H. fat and said that she and her sister were no good.Discussion
In his first issue, appellant complains the evidence against him is legally insufficient to support the guilty verdict. He contends that because M.H. was not a credible witness, no rational juror could have found beyond a reasonable doubt that appellant was guilty. Where a defendant knowingly, intelligently, and voluntarily enters a plea of nolo contendere, the legal sufficiency standard of Jackson is inapplicable. O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.). The State must merely introduce evidence showing the defendant's guilt under code of criminal procedure article 1.15. When the State does so, we must affirm if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish the defendant's guilt. See Wright v. State, 930 S.W.2d 131, 132 (Tex. App.-Dallas 1996, no pet.); see also Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). We do not apply the "rationality" test of a traditional legal sufficiency analysis where a defendant voluntarily enters a nolo contendere plea. See Wright, 930 S.W.2d at 132-33. Here, appellant was charged with engaging in sexual contact with M.H. by contact between his hand and M.H.'s genitals with the intent to arouse and gratify appellant's sexual desire. M.H.'s testimony sufficiently establishes every element of this offense, and appellant does not challenge the voluntariness of his plea. Accordingly, the evidence is sufficient to satisfy the requirements of article 1.15. We resolve appellant's first issue against him. In his second issue, appellant complains the trial court erred when it overruled appellant's hearsay objection to testimony given by a police officer about what M.H. had told him appellant did to her. The officer testified,She told me that she had come home that afternoon and that Mr. Vollmer had taken her to CVS to purchase a camera and/or film. Once they returned home they went into the bedroom where he wanted her to lay on the bed in various different poses to take pictures of her.
During conversation she stated she did not understand what he meant. At that time he told her different ways he wanted her to lay. That's when she stated that he started to rub her chest area initially. After he rubbed her chest area he then rubbed down her stomach and rubbed her vagina, where he inserted his fingers in her vagina.Appellant contends this testimony should not have been admitted as a prior consistent statement because there was no cross-examination that implied or suggested that M.H. "had not told the story told in court prior to coming to court." Rule 801(e) of the Texas Rules of Evidence provides that a prior statement by a witness is not hearsay if it is consistent with the declarant's testimony at trial and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. See Tex. R. Evid. 801(e)(1)(B). During cross-examination of M.H., defense counsel asked her if it was fair to say that her descriptions of the event as they were told to the police officer, someone at the child advocacy center, someone at a forensic interview, her sister, and her grandma were never the same. M.H. responded that they "were all the same subject and it was all true." She denied telling her mother that appellant had only touched her breasts. She stated she did not recall telling the forensic interviewer that she had told her mother a lot less than she told the interviewer and did not recall telling the lead detective that there was no penetration. When asked if she recalled telling her therapist that there was no penetration, M.H. explained that she did not get "into detail" with the therapist because her aunt had told the therapist what had happened. M.H. and her sister both admitted that they did not like appellant before M.H. made the accusation and were aware that appellant and their mother had recently gotten engaged. The thrust of appellant's defense at trial was that M.H. was motivated to lie about appellant because she disliked him and did not want him marrying her mother. Given this context, we cannot say the trial court abused its discretion in admitting the testimony as a prior consistent statement. We resolve appellant's second issue against him. In his final issue, appellant complains the trial court failed to admonish him about the immigration consequences of his nolo contendere plea. The State concedes the trial court did not give the admonishment that if appellant were not a citizen of the United States his plea could result in his deportation. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 2005 Supp. 2010). The State asserts, however, that appellant was not harmed by the error because the record shows appellant is a U.S. citizen. To assess the harm in appellant's case, we must determine whether we have a fair assurance that appellant's decision to plead nolo contendere would not have changed had the trial court properly admonished him about the deportation consequences of his plea. See VanNortick v. State, 227 S.W.3d 706, 711 (Tex. Crim. App. 2007). In doing so, we consider whether appellant knew the consequences of his plea and his citizenship or immigration status. See id. at 712-13. Neither the court reporter's record nor the clerk's record in this case indicates that appellant was admonished on this matter in this case. The record does show, however, that appellant had pleaded nolo contendere and guilty to felony offenses in Texas in 1996 and 1995, respectively, so we have some indication that he may have been given the admonishment before. Moreover, the supplemental clerk's record shows that appellant, during his arraignment for this offense, stated that he is a U.S. citizen. The record also shows appellant had been previously convicted of offenses in North Carolina and Ohio. Jail records from both states contain extensive references to appellant's birthplace as Virginia — or specifically Norfolk, Virginia — on April 8, 1950. Fingerprints on the documents were linked to appellant's fingerprints during the sentencing phase of appellant's trial. The record shows, therefore, that appellant is a U.S. citizen and is not subject to deportation. See Lawrence v. State, 306 S.W.3d 378, 379 (Tex. App.-Amarillo 2010, no pet.); Cain v. State, 893 S.W.2d 681, 685 n. 4 (Tex. App.-Fort Worth 1995), aff'd, 947 S.W.2d 262 (Tex. Crim. App. 1997). Based on the record before us, we have a fair assurance that appellant's decision to plead nolo contendere would not have changed had the trial court properly admonished him. See VanNortrick, 227 S.W.3d at 711; see also Tex. R. App. P. 44.2(b). We resolve appellant's third issue against him. We affirm the trial court's judgment.