Opinion
Nos. 05-03-01289-CR, 05-03-01290-CR
Opinion Filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th District Court Dallas County, Texas, Trial Court Cause No. F01-74233-Wn and F01-74234-WN. Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
OPINION
Kenny Johnson appeals his sentences for two third degree felony convictions for injury to a child. Tex. Pen. Code Ann. § 22.04((a)(3) (Vernon 2003). Appellant waived a jury trial and entered a non-negotiated guilty plea to the charges. After ordering a presentence investigation report (PSI) and hearing evidence on punishment, the trial court sentenced appellant to four years' imprisonment in cause number F01-74233-WN. In cause number F01-74234-WN, the trial court assessed punishment at seven years' imprisonment and a $1000 fine, probated for ten years. Appellant brings two issues on appeal, contending that (1) the trial court erred in failing to consider evidence of appellant's innocence at the sentencing hearing and (2) appellant received ineffective assistance of counsel. For the reasons stated below, we affirm the trial court's judgment.
Appellant pleaded guilty to the indictments with the exception that in cause number F01-74233-WN he admitted that he struck S.Y. with only a belt "and no other object.".
FACTUAL BACKGROUND
At the time of the offenses, appellant was dating Kiantia Wozner. Living with Wozner were her own three children and her late sister's children, S.Y. and his three sisters. One of Wozner's children is M.W. On the morning of the offenses, appellant called Wozner to see how she was doing with the kids. When Wozner told him that S.Y. and M.W. were playing instead of getting ready for school appellant came to the house and offered to administer discipline. He did so by striking S.Y. and M.W. repeatedly with a belt. Eyewitnesses testified that appellant also ripped an electrical cord from an old vacuum cleaner and struck S.Y. with the cord. Appellant pleaded guilty to two charges of injury to a child without the benefit of a plea recommendation from the State. The trial court deferred making a finding of guilt until after it received the PSI report. After reviewing the PSI report and hearing the testimony at sentencing, the trial court found appellant guilty and assessed punishment at four years' imprisonment and seven years' imprisonment and a $1000 fine, probated for ten years. Appellant then filed this appeal.CONSIDERATION OF EVIDENCE OF APPELLANT'S INNOCENCE
In his first issue, appellant contends that the trial court erred by failing to consider evidence of his innocence. He claims that he presented substantial evidence of his innocence at the sentencing hearing but that the record makes no showing that the trial court considered such evidence or that it conducted the proper analysis.A. Standard of Review
Under article 1.15 of the code of criminal procedure, the State must offer sufficient proof to support any judgment based on a guilty or nolo contendere plea in a felony case tried to the court. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2003); Young v. State, 8 S.W.3d 656, 660-61 (Tex.Crim.App. 2000); Hodges v. State, 116 S.W.3d 289, 295 (Tex. App.-Corpus Christi 2003, pet. ref'd). As the trier of fact, it is the duty of the trial court to consider the evidence submitted and, based on such evidence, find the defendant guilty, guilty of a lesser included offense, or not guilty. Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978); Hodges v. State, 116 S.W.3d at 294-95. The trial court, as the exclusive judge of the credibility of the witnesses' testimony, could accept or reject all or part of it. Hodges, 116 S.W.3d at 295. Moreover, a "trial court is not required to withdraw a guilty plea sua sponte and enter a plea of not guilty for a defendant when the defendant enters a plea of guilty before the court after waiving a jury, even if evidence is adduced that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to guilt." Moon, 572 S.W.2d at 682; Brown v. State, 11 S.W.3d 360, 362-63 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). A judicial confession, standing alone, will support a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979); Honeycutt v. State, 82 S.W.3d 545, 549 (Tex. App.-San Antonio 2003, pet. ref'd).B. Application of Law to Facts
Appellant freely pleaded guilty without the benefit of a plea agreement. Therefore, all that remained to be tried was evidence from the State to support appellant's guilty plea and evidence pertinent to appellant's sentence. At the sentencing hearing, the State entered into evidence appellant's judicial confessions. Appellant's judicial confession for F01-74233-WN reads:On the 2nd day of May 2001, in Dallas County, I did unlawfully . . . then and there intentionally and knowingly cause bodily injury to [S.Y.], a child 14 years of age or younger, hereinafter called complainant, by striking said complainant with a belt and by striking said complainant with a vacuum cleaner cord, I further judicially confess that I committed the offense with which I stand charged exactly as alleged in the indictment in this cause.His judicial confession for F01-74234-WN reads in part:
On the 2nd day of May 2001, in Dallas County, I did unlawfully . . . then and there intentionally and knowingly cause bodily injury to [M.W.], a child 14 years of age or younger, hereinafter called complainant, by striking the complainant with a belt. . . .Also, the victims and one of the other children present testified about the offenses. Regarding cause number F01-74233-WN, M.W. testified that on the morning of the offense M.W. and S.Y. and were supposed to be getting ready for picture day at school, but could not find their shoes. M.W. testified that when appellant arrived at the house that morning he cursed at the children and threatened M.W. and S.Y. that if they did not find their shoes he would "beat them to death." When the kids could not find their shoes appellant had M.W. undress and began whipping M.W. with a belt as M.W. lay over a chair. The record shows that the three children testified that the chair broke during this beating and that appellant then required M.W. to lean over a couch in order that appellant could give M.W. his "licks." The children testified that appellant's method for administering discipline was to give ten "licks" with a belt or paddle and that if the child squirmed during the beating, appellant would add more "licks." The record also includes photographs of the injuries to M.W., evidencing belt marks on his back, sides, hip, and buttocks. Regarding cause number F01-74234-WN, S.Y. testified that appellant beat him with a belt and then a vacuum cleaner's electrical cord because S.Y. could not find his shoes for picture day. S.Y. testified that appellant made him remove his clothes before the beating and that appellant struck him with a belt. S.Y. testified that because he squirmed and tried to move away, appellant began striking him on the back. S.Y. testified that during the beating appellant said something to the effect that the belt wasn't strong enough, ripped a cord from an old vacuum cleaner, and finished beating S.Y. with the cord. The record includes photographs of the injuries to S.Y. evidencing belt marks as well as thinner lines and cuts crossing his back, sides, hip, chest, arms, legs, and back of the head. The evidence appellant claims shows his innocence are his testimony and Wozner's testimony. Wozner testified that appellant's discipline was appropriate and that she would have been the first to step in if she had thought his discipline of her child was excessive. She testified that appellant only used a belt on S.Y. and not a vacuum cord. Further, she explained that the chair M.W. was leaning over as appellant whipped him did not break because of the intensity of the beating, but was already loose and merely collapsed. She testified that S.Y. was liar, stole money from her purse, and concocted stories about being abducted. Both Wozner and appellant testified that the injuries to S.Y. occurred because of a defect in appellant's belt. Appellant denied using the buckle of the belt to strike S.Y. Appellant also denied using a vacuum cord to strike S.Y. As to the wooden chair M.W. was leaning across, appellant explained that the seat of the chair simply slid off the legs of the chair because the screws holding the seat to the legs were missing. It is only fair to say that appellant's and Wozner's testimony challenges the credibility of conflicting testimony by the children, but does not necessarily establish appellant's innocence. The trial court, as the trier of fact, is the exclusive judge of the weight and credibility to be given conflicting testimony. See Hodges, 116 S.W.3d at 295. Nothing in the record reflects that the trial court did not properly consider the evidence which appellant contends supports a finding of innocence. Furthermore, the State introduced appellant's judicial confession admitting to the offenses as charged in the indictments. Therefore, we conclude the court did not err in finding appellant guilty of the offenses. Accordingly, we resolve appellant's first issue adversely to him.