Opinion
No. 05-18-00073-CR No. 05-18-00074-CR
07-17-2019
JACCARI D. JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F16-00673-V; F16-39215-V
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Bridges
Jaccari D. Jones appeals his indecency with a child by contact conviction in cause number 05-18-00073-CR and his aggravated sexual assault of a child conviction in cause number 05-18-00074-CR. Following appellant's plea of nolo contendere before the court and the presentation of evidence, the trial court found the evidence substantiated appellant's guilt and sentenced him to two years' confinement in cause number 05-18-00073-CR and ten years' confinement in cause number 05-18-00074-CR. In a single issue, appellant argues the evidence is insufficient to prove the mens rea of each offense. In a single cross point, the State asks that the judgment in each case be reformed to show that neither case was a plea bargain case. As reformed, we affirm the trial court's judgments.
Appellant was charged by indictment with sexual contact in cause number 05-18-00073-CR by contacting, with the intent to arouse and gratify his sexual desire, the genitals of the complainant, DH1, with appellant's hand. Appellant was charged by indictment with aggravated sexual assault of a child in cause number 05-18-00074-CR by intentionally and knowingly contacting the anus of the complainant, DH2, with appellant's sexual organ.
We use DH1 and DH2 to identify the two complainants, who were not related.
At a trial before the court in October 2017, appellant entered a plea of nolo contendere to each charge. DH1, eight years old at the time of trial, testified that she spent the night at a woman's house when her father was dating the woman. The woman had a daughter and three sons living with her. One of the sons was appellant. DH1 was sleeping in the woman's bed with other children when she heard appellant come in the room. DH1 testified appellant pulled down the covers, pulled "some of [her] underwear down," and touched DH1 on her private with his hand.
DH2, seven years old at the time of trial and five years old at the time of the offense on April 26, 2016, testified he went to play basketball with his brother that day. DH2's brother asked appellant for some water, and the three went to appellant's house. DH2 had seen appellant before at DH2's apartments, and he knew appellant's name. After getting some water, DH2's brother went back to the basketball court. Appellant took DH2 to the bathroom and pulled down DH2's pants and underwear. Appellant pulled down his own pants and "put his thing in DH2's butt." DH2 identified a "thing" as "the part that you pee with." At the conclusion of trial, the trial court found the evidence substantiated appellant's guilt in both cases. These appeals followed.
In a single issue, appellant argues the evidence is insufficient to prove the mens rea of each offense. Specifically, appellant argues he is "intellectually disabled to a degree sufficient to rebut the inference that he acted with the required mens rea."
The legal effect of a plea of nolo contendere is the same as that of a plea of guilty. TEX. CODE CRIM. PROC. ANN. art. 27.02(5). A defendant relinquishes his right to complain about the State's proof of his guilt beyond a reasonable doubt when he voluntarily enters his guilty plea. McGill v. State, 200 S.W.3d 325, 331 (Tex. App.—Dallas 2006). Due process is not denied by a conviction based on a plea of guilty accompanied by a strong factual basis for the plea and a defendant's clearly expressed desire to enter it despite his professed innocence. Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004) (citing North Carolina v. Alford, 400 U.S. 25, 91 (1970)); McGill, 200 S.W.3d at 331.
During trial following appellant's nolo contendere pleas, appellant did not raise the issue of his intellectual ability in general or as it related to his ability to act with the required mens rea in each case. Only at the punishment hearing in December 2017 did appellant present evidence that his IQ is 54, and his mental age is eight years and six months. The expert stating this opinion, Dr. Kristi Compton, further testified that she evaluated appellant in June 2016 and again in December 2017, and she did not have "any concerns about his competency." Thus, the record shows appellant's competency was established prior to his trial following his plea of nolo contendere and again before the hearing on punishment.
We conclude the complainants' testimony constituted a strong factual basis for appellant's plea of nolo contendere to the charges that he touched DH1 with the intent to arouse and gratify his sexual desire and intentionally and knowingly contacted the anus of DH2 with his sexual organ. See Mendez, 138 S.W.3d at 344. We overrule appellant's single issue.
In a single cross point, the State asks that the judgment in each case be reformed to show that neither case was a plea bargain case. As the State points out, the record does not show that these were plea bargain cases. In each case, the trial court's certification of appellant's right to appeal states the case is not a plea bargain case. Nevertheless, the judgment in cause number 05- 18-00073-CR, under the heading "Terms of Plea Bargain:" reads "2 YEARS TDCJ," and the judgment in cause number 05-18-00074-CR, under the heading "Terms of Plea Bargain:" reads "10 YEARS TDCJ."
This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we sustain the State's cross point and reform the judgment in each case to reflect that the case is not a plea bargain case.
As reformed, we affirm the trial court's judgments.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 180073F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-00673-V.
Opinion delivered by Justice Bridges. Justices Brown and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
under the heading "Terms of Plea Bargain:" "2 YEARS TDCJ" is deleted, and "N/A" is substituted.As REFORMED, the judgment is AFFIRMED. Judgment entered July 17, 2019
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-39215-V.
Opinion delivered by Justice Bridges. Justices Brown and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
under the heading "Terms of Plea Bargain:" "10 YEARS TDCJ" is deleted, and "N/A" is substituted.As REFORMED, the judgment is AFFIRMED. Judgment entered July 17, 2019