Opinion
No. 05-08-00550-CR
Opinion Filed May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-00511-TM.
Before Chief Justice THOMAS and Justices FITZGERALD and LANG. Opinion By Justice LANG.
OPINION
Juan Antonio Arana waived a jury and pleaded nolo contendere to indecency with a child younger than seventeen years. After a trial on the merits, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, assessed a $2500 fine, and ordered him to serve six months in the county jail as a condition of probation. In two issues, appellant contends the evidence is legally and factually insufficient to sustain the judgment. We affirm. Appellant argues the evidence is legally and factually insufficient because the complainant's testimony was not credible, and she had a bad reputation for telling the truth. Appellant asserts that if he touched the complainant at all, it was nothing more than an accidental touch, and not with any sexual intent. The State responds that the evidence embraces every essential element of the offense and is sufficient to establish appellant's guilt. 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.). 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, 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 engaged in sexual contact with P.A., a child younger than seventeen years and not appellant's spouse, by contact between appellant's hand and P.A.'s breast, with the intent to arouse and gratify his sexual desires. See Tex. Penal Code Ann. § 21.11(a) (Vernon 2003). The testimony of a child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Courts give wide latitude to the testimony of child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990) (en banc). The trial court heard P.A.'s testimony describing appellant touching her breast. See id. The trial court also heard appellant's testimony denying P.A.'s allegations. P.A. was twenty-one years old at trial. She testified she met appellant when she was six years old, and she spent time in appellant's home with C.A., appellant's daughter. When P.A. was fourteen years old, she stayed overnight with C.A. because they were going to an all-day church concert the next day. While C.A. was taking a shower, P.A. sat on the bedroom floor brushing her hair in front of a mirror. Appellant came into the bedroom, stood behind P.A., put his hands on her shoulders, then put his right hand on P.A.'s right breast and "squeezed." The contact lasted only a few seconds, then appellant removed his hand and laughed. P.A. testified she "felt like I had done something wrong" and "felt like I wasn't clean." After C.A. came out of the bathroom, P.A. went into the bathroom alone and cried. She did not tell C.A. or anyone what appellant had done because she was afraid and embarrassed, and because appellant was a "higher up" in the church. A short time after this incident, P.A. went to live in Mexico. She came back to Dallas during the summer, often visiting with C.A. When P.A. was eighteen years old, she talked to Charles Cato, a youth director at the church and a Dallas police officer, about appellant touching her breast. Cato asked P.A., and two other girls who made similar accusations against appellant, to write down what had occurred with appellant. Sometime later, P.A. talked with a Mesquite police detective and gave a written statement. P.A. testified that both before and after the time when appellant had touched her breast, he would shake her hand following church services and would wiggle his middle finger in her hand. P.A. felt "uncomfortable" and "like he knew something that was going on between us" whenever appellant shook her hand in this manner. P.A. testified she did not know anything about "church business," but she knew the church split with appellant and some members going one way and other members going a different way. P.A. testified she did not make up the allegations against appellant nor had anyone suggested she make up allegations. Officer Charles Cato testified he received a telephone call in June 2004 from a man who said appellant was touching young girls inappropriately. Cato contacted one of the girls, J.G., who gave him the names of two other girls, including P.A. When P.A. came to Dallas for summer camp, he talked to her about the allegation, and asked her to write down what had occurred. Cato and his wife met with P.A.'s and J.G.'s mothers and told them about the "letters" the girls had written about what appellant had done to them. Cato notified the parents he would have to notify the Mesquite police department about the incidents because they occurred at appellant's home. Although Cato was not on the church board, he attended their next meeting and confronted appellant with the allegations. He read the girls' letters out loud without stating their names. According to Cato, appellant responded to each letter, acknowledging the incidents and stating each case was an "accident." When Cato read P.A.'s letter, appellant admitted he touched her breast, but said the touching was accidental. Cato also testified P.A. had a good reputation in the community for truthfulness. Seven witnesses testified that appellant had a good reputation in the community for truthfulness, but none were fact witnesses. C.A. testified that P.A. did stay overnight with her on one occasion because they were going to an all-day concert the next day. C.A. took a shower that lasted between fifteen and thirty minutes while P.A. remained in the bedroom. Because the bathroom door was closed during her shower, C.A. did not know if anyone came into her bedroom. When C.A. had finished showering, P.A. went in the bathroom alone and stayed about five minutes. Appellant denied touching P.A.'s breast with his hand and denied "confessing" at the church board meeting to touching any of the girls. P.A. was one of his daughter's friends who spent the night with his daughter sometimes. Appellant denied rubbing his middle finger on P.A.'s palm while shaking her hand at church. Appellant admitted that one day when P.A. was in his daughter's bedroom and his daughter was in the shower, he went into the room while P.A. was sitting on the floor brushing her hair in front of a mirror. Appellant put his hands on P.A.'s shoulders and said, "a picture, a picture." Appellant testified he did not grab P.A.'s breast at any time. During questioning by the trial judge, appellant testified he went into his daughter's room knowing that she was in the shower because he has a "custom" that "for my guest that they feel comfortable, that they feel at home." Having reviewed all of the evidence, we conclude it embraces all of the essential elements of the offense charged, and is sufficient to support the verdict. See Stone, 919 S.W.2d at 427; see also Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App. 2001). We resolve appellant's two issues against him. We affirm the trial court's order of deferred adjudication.