Opinion
No. 05-19-00389-CR
09-30-2020
REBECCA GOERDEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1730578-V
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Partida-Kipness
Appellant Rebecca Goerdel appeals her conviction for solicitation of a minor to commit sexual assault. Goerdel pleaded guilty and was sentenced to ten years in prison. Under the terms of a plea agreement, the sentence was suspended and Goerdel was placed on community supervision for nine years. Goerdel filed a motion for new trial, contending that she involuntarily pleaded guilty because she did not fully understand the charges against her. The trial court denied her motion. In one issue, Goerdel contends the trial court abused its discretion in denying her motion. We affirm the trial court's judgment.
BACKGROUND
In 2017, Goerdel was a middle school teacher. She was indicted for solicitation with intent to commit a sexual assault based on text communications recovered from a cell phone belonging to a student who attended the school at which Goerdel taught. The body of the indictment stated that Goerdel
did then and there, with intent that the offense of sexual assault of a child be committed, request, command, or attempt to induce F C, an individual younger than 17 years of age, to engage in specific conduct, to wit: to cause the sexual organ of F C to penetrate the female sexual organ of Defendant, that under the circumstances surrounding the conduct of the defendant, as the defendant believed them to be, would constitute the offense of sexual assault of a child.This language echoes section 15.031(b) of the penal code, which defines the offense of solicitation of a minor, and section 22.011(a)(2), which defines the offense of sexual assault of a child. TEX. PENAL CODE §§ 15.031(b), 22.011(a)(2). The caption of the indictment listed the offense as "Solicitation SOLICIT SEXUAL ASSAULT CHILD." Inconsistent with the body and listed offense, however, the caption incorrectly identified only section 22.011(a)(2) as the applicable statute.
Goerdel signed a judicial confession that contained the same language and offense as the indictment. Like the indictment, the caption of the confession incorrectly identified section 22.011(a)(2), instead of section 15.031, as the applicable statute. Before Goredel signed the confession, however, counsel conferred with the State on this inconsistency, struck "22.011(a)(2)" from the caption, and wrote "15.031" in its place. Goerdel also signed a plea agreement in which she pleaded guilty to the offense of "solicitation of a minor" and agreed to "sex offender conditions & therapy, sex offender registration, [and to] stay away from complainant, and surrender teacher's license."
At the outset of the hearing on Goerdel's plea, the trial court stated that Goerdel was charged with sexual assault of a child. Both Goerdel's counsel and the State corrected the court, stating that the indictment alleged a charge of solicitation of a minor. The court announced the corrected charge and asked Goerdel whether she understood the charge. She affirmed her understanding. She also affirmed that she was waiving her right to a jury trial and that she had no right to appeal under the terms of the plea agreement. The trial court then asked Goerdel whether there was anything she signed that she did not understand, and she said, "No sir." Goerdel entered her guilty plea and affirmed that she had done so freely and voluntarily. The court again asked whether Goerdel had any question, and she said, "Not at this time." When prompted about possible concerns over her living arrangements, Goerdel noted that she might not be able to move back in with her parents "because of schools and churches," in apparent reference to the sex offender registration requirement.
At the sentencing hearing held two months later, the trial court opened by noting that Goerdel had "entered a plea of guilty to the charge in the indictment [of] solicitation of a minor." Goerdel's counsel sought the court's approval of Goerdel's living arrangements. Specifically, counsel noted that Goerdel's "extensive" research had revealed that a day-care had been operating out of a house in her neighborhood. Although the house had been sold and was no longer a day-care, Goerdel was concerned that her probation officer might be unaware of this fact and sought the court's approval to remain in her current residence. Goerdel also informed the court that she had developed a safety plan for her church. The trial court approved of her living arrangements, reviewed the terms of the plea agreement, and pronounced its guilty finding. At the end of the hearing, the trial court asked whether Goerdel had any questions, and she responded, "No, sir."
Goerdel filed a motion for new trial on the grounds that she "was unaware of the consequences of her guilty plea at the time she entered it, rendering that plea unknowing and involuntary." At the hearing on her motion, Goerdel claimed she was confused by the charge because of the indictment's original reference to section 22.011(a)(2) (sexual assault of a child). She argued that even the trial court was initially confused about the charge, and that neither the trial court nor "any party" asked whether she pleaded guilty for no other reason than because she was guilty. Goerdel claimed that she would not have pleaded guilty if she had understood that she was charged with solicitation of a minor with intent to commit sexual assault. She also testified that she told her attorney she wanted to set the case for trial, and that she thought it had been set for trial.
She claimed at other points in her testimony, however, that she expected the State to present a new charge. She would have pleaded guilty to that charge, although she did not know what that charge would be. She implied that she would have pleaded guilty to misdemeanor enticement of a child. See TEX. PENAL CODE § 25.04. She also testified that she did not want to go to trial on the indicted charge because she feared the cellphone evidence was sufficient to convict her. A number of text messages were recovered from Goerdel's and complainant's cellphones. Goerdel admitted sending some messages but denied sending certain sexually explicit messages. According to Goerdel, someone else sent those messages. Thus, Goerdel said that she would now stand trial on the indicted charge if the trial court granted her motion for a new trial.
Goerdel testified that she had reviewed the indictment with counsel multiple times, reviewed the indictment "word by word" with her counsel, and understood that she had been charged with solicitation to commit sexual assault. Goerdel's trial counsel testified that he reviewed the judicial confession and indictment with Goerdel "line by line." In contrast, Goerdel's mother testified that counsel "didn't say a lot to us." She admitted, however, that counsel reviewed the judicial confession with both her and Goerdel, and that she saw Goerdel read the confession before signing it.
Goerdel further admitted that she never told the trial court that she was confused about or did not understand the charges against her. Rather, she acknowledged telling the trial court that she understood the plea agreement and judicial confession, which contained the same language as the indictment. When asked by the trial court why she signed the documents, Goerdel claimed she was told to sign them.
The trial court denied Goerdel's motion and this appeal followed.
Based on conflicting information in the record regarding Goerdel's right to appeal, we initially questioned whether we had jurisdiction to hear Goerdel's appeal and ordered the trial court to clarify whether it had given Goerdel permission to appeal. The trial court issued a certification on August 13, 2019, clarifying that Goerdel has the right to appeal from its denial of her motion for a new trial.
STANDARD OF REVIEW
We review a trial court's denial of a motion for a new trial for an abuse of discretion, "reversing only if no reasonable view of the record could support the trial court's ruling." Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Under this standard, we review the evidence in the light most favorable to the trial court's ruling. Int'l Fid. Ins. Co. v. State, 586 S.W.3d 9, 12 (Tex. Crim. App. 2019); Burch, 541 S.W.3d at 820. "A trial court abuses its discretion only when no reasonable view of the record could support its ruling." Int'l Fid. Ins. Co., 586 S.W.3d at 12.
ANALYSIS
In her sole issue, Goerdel contends the trial court erred in denying her motion for a new trial because the record reflects that she unknowingly and involuntarily entered her guilty plea. "No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." TEX. CODE CRIM. PROC. art. 26.13(b). "A guilty plea is voluntary if it is an intelligent admission that the accused committed the offense." Alexander v. State, 868 S.W.2d 356, 360 (Tex. App.—Dallas 1993, no pet.) (citing Smith v. O'Grady, 312 U.S. 329, 334 (1941)); see also Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) ("[A] guilty plea, to be consistent with due process of law, must be entered knowingly, intelligently, and voluntarily."). Thus, "a guilty plea must be the expression of the defendant's own free will and must not have been induced by threats, misrepresentations, or improper promises." Kniatt, 206 S.W.3d at 664. A defendant's plea can be involuntary if she has an incomplete understanding of the charge against her. McGowin v. State, 912 S.W.2d 837, 839 (Tex. App.—Dallas 1995, no pet.); Alexander, 868 S.W.2d at 360.
When considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam); Peterson v. State, No. 05-10-00782-CR, 2011 WL 4792866, at *3 (Tex. App.—Dallas Oct. 11, 2011, pet. ref'd) (not designated for publication). When the record reflects the defendant was duly admonished by the trial court before entering a guilty plea, there is a prima facie showing that the plea was both knowing and voluntary. McGill v. State, 200 S.W.3d 325, 333 (Tex. App.—Dallas 2006, no pet.). The burden then shifts to the defendant to show she entered the plea without understanding the consequences of her actions and was harmed as a result. Id. "A defendant's sworn representation that his guilty plea is voluntary 'constitute[s] a formidable barrier in any subsequent collateral proceedings.'" Kniatt, 206 S.W.3d at 664 (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). A plea is not involuntary simply because the defendant "did not correctly assess every relevant factor entering into his decision." Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Graves v. State, No. 05-10-00483-CR, 2011 WL 2685971, at *2 (Tex. App.—Dallas July 12, 2011, pet. ref'd) (not designated for publication).
A person commits the offense of solicitation of a minor if, with intent to commit sexual assault, "the person by any means requests, commands, or attempts to induce a minor or another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believes them to be," would constitute a sexual assault of a child. TEX. PENAL CODE §§ 15.031(b), 22.011(a)(2). Goerdel argues that she had an incomplete understanding of the charge against her because the plea agreement "states the offense as solicitation of a minor with several words following crossed out," while the judicial confession states that she "confessed to solicitation of a minor for sex." She notes that the crossed-out words state that she was pleading guilty to soliciting a minor for "sexual contact." Thus, she contends these documents are at "complete odds" with one another. We disagree.
Although Goerdel is correct that it appears the plea agreement was changed from "solicitation sex assault child" to "solicitation of a minor," other aspects of the plea agreement demonstrate that she was pleading guilty to solicitation to commit a sexual crime. Specifically, the plea agreement's agreed sentence includes "sex offender conditions & therapy, sex offender registration, stay away from complainant, surrender teacher's license."
Additionally, both the indictment and judicial admission state a charge of solicitation of a minor to commit sexual assault. Both documents contain language echoing that contained in sections 15.031(b) (solicitation of a minor) and 22.011(a)(2) (sexual assault of a child) of the penal code. Likewise, both documents correctly identified the offense, specifically stating, "Solicitation SOLICIT SEXUAL ASSAULT CHILD." The only error apparent on either document was the erroneous reference only to section 22.011(a)(2) in the caption. This error was corrected, however, on Goerdel's judicial confession before her plea hearing. Thus, even assuming that the caption constitutes part of the indictment, the record reflects that Goerdel had adequate notice that she was charged with solicitation of a minor to commit sexual assault. See, e.g., Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (finding that "although the indictment properly charged a misdemeanor and lacked an element necessary to charge a felony," other evidence was sufficient to provide adequate notice of the charged felony).
See Jenkins v. State, 592 S.W.3d 894, 900 (Tex. Crim. App. 2018) (discussing the court's prior declaration in Stansbury v. State, 82 S.W.2d 962, 964 (Tex. Crim. App. 1935), that "the caption is really no part of the indictment proper" and finding that "this statement in Stansbury does not control whether a charging instrument meets the constitutional definition of an indictment").
Moreover, the trial court properly admonished Goerdel regarding her guilty plea, thus creating a prima face showing that Goerdel entered a knowing and voluntary plea. See McGill, 200 S.W.3d at 333; TEX. CODE CRIM. PROC. art. 26.13(b). The plea agreement also contains these same admonitions. Once the prima facie showing of voluntariness was made, the burden shifted to Goerdel to show that she entered the plea without knowing its consequences and was thereby harmed. See McGill, 200 S.W.3d at 333.
At the hearing on her motion for a new trial, Goerdel testified that she did not understand the charge because she thought there would be a new charge presented, and she was innocent, so she would not plead guilty to a sexual offense. Goerdel was unable to say, however, what the new charge would have been. During her plea hearing, Goerdel testified to her inability to move in with her parents because of "schools and churches," in apparent reference to her sex offender registration. Goerdel's sex offender registration was also addressed during her sentencing hearing. Specifically, the trial court addressed Goerdel's concerns regarding a day-care in her neighborhood. Goerdel's counsel noted that Goerdel had "researched extensively" and determined that the day-care was no longer operating. Counsel further informed the court that Goerdel had developed a safety plan with her church. After receiving this evidence, the trial court approved of Goerdel's living arrangements.
Additionally, the plea agreement contains Goerdel's signed acknowledgement that she had read and understood the admonitions contained therein, that her attorney had explained the admonitions, and that her "statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences." Goerdel made the same affirmations in open court during her plea hearing. At the hearing on her motion for a new trial, Goerdel testified that counsel had reviewed the charge with her "word by word," and that she had reviewed the indictment and judicial confession with counsel multiple times. Goerdel's trial counsel likewise testified that he reviewed the plea agreement, indictment, and judicial confession with Goerdel "line by line." When asked, [I]n regards to the solicitation to commit sexual assault, what did you think that charge was," Goerdel responded, "What the indictment read."
The only testimony supporting Goerdel's claim that she had an incomplete understanding of the charges came from her mother, who testified that Goerdel's trial counsel "didn't say a lot to us." The trial court, as the sole judge of the facts, witness credibility, and weight given to the testimony was free to credit other testimony over that of Goerdel's mother. See Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Coronado v. State, 25 S.W.3d 806, 810 (Tex. App.—Waco 2000, pet. ref'd) (on defendant's motion to withdraw his plea, "[t]he court was the sole judge of the credibility of [defendant's] testimony and could accept or reject all of it or any part of it"). Regardless, Goerdel's mother admitted that trial counsel reviewed the judicial confession with both her and Goerdel, and that she saw Goerdel read the confession before signing it.
Based on our review of the record as a whole, we cannot conclude that Goerdel met her burden of proving her guilty plea was involuntary. See Martinez, 981 S.W.2d at 197. Accordingly, we conclude the trial court did not abuse its discretion in denying Goerdel's motion for a new trial, and we overrule Goerdel's sole issue.
THE STATE'S CROSS ISSUE
In one cross-issue, the State contends the trial court's judgment erroneously indicates that Goerdel was convicted for solicitation of a minor. The State asks us to modify the judgment to correctly reflect a conviction for solicitation to commit sexual assault of a child.
This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc when the evidence necessary to correct the judgment appears in the record. Asberry, 813 S.W.2d at 529. Appellate courts may reform judgments to correct improper recitations or omissions relating to punishment, delete affirmative findings improperly entered into the judgment, and correct statutory references. Id. at 530-31; Medlock v. State, No. 05-11-00668-CR, 2012 WL 4125922, at *1 (Tex. App.—Dallas Sept. 20, 2012, no pet.) (mem. op., not designated for publication).
The record reflects that the body of the indictment alleges that Goerdel solicited the complainant with intent to commit sexual assault. Section 15.031 of the penal code, which is titled "Criminal Solicitation of a Minor," refers to the victim as a "minor." TEX. PENAL CODE § 15.031. Section 15.031 describes an inchoate offense and refers to a number of other statutes for the ultimate intended crime. One of those statutes is section 22.011, which includes the offense of sexual assault of a child. Id. § 22.011(a)(2).
Consistent with section 15.031's broad inchoate scope, the plea agreement and judgment refer to the offense as "solicitation of a minor." The bodies of both the indictment and judicial confession, however, contain more precise language referring to solicitation to commit sexual assault of a child. We agree that the judgment should more accurately refer to the indicted offense as "solicitation to commit sexual assault of a child." Based on these facts, we sustain the State's cross-issue and modify the judgment accordingly. TEX. R. APP. P. 43.2(b); Asberry, 813 S.W.2d at 529-30.
CONCLUSION
Under this record, we conclude the trial court did not abuse its discretion in denying Goerdel's motion for a new trial. Consequently, we overrule her sole issue. We further conclude the trial court's judgment should be modified to correctly reflect the offense of which Goerdel was convicted. Thus, we sustain the State's cross-issue and modify the judgment accordingly. We affirm the trial court's judgment as modified.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b).
190389F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1730578-V.
Opinion delivered by Justice Partida-Kipness. Justices Myers and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section entitled "Offense for which Defendant Convicted" is modified to show "SOLICITATION TO COMMIT SEXUAL ASSAULT OF A CHILD." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 30th day of September, 2020.