Opinion
No. 05-06-00699-CR
Opinion issued February 21, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-72518-LQ.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Jaime R. Moreira waived a jury and pleaded guilty to sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2006). The trial judge assessed punishment at twelve years' imprisonment and a $2500 fine. In a single point of error, appellant contends the trial judge erred in not withdrawing his guilty plea. We affirm. The trial judge admonished appellant both orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (Vernon Supp. 2006); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). Appellant's signed judicial confession and stipulation of evidence was admitted without objection. At the plea hearing, appellant testified he understood the charges in the indictment, the punishment range for the offense, and that the judge could assess punishment anywhere within the punishment range. Appellant testified he freely and voluntarily waived a jury trial and wanted to plead guilty. During the sentencing hearing, C.J., the complainant's grandmother, testified appellant lived in the house next door to her and her husband for more than six years. Her granddaughter J.J. would often live with her, especially over the summer months. On the night of June 10, 2002, J.J. was fifteen years old and staying with C.J. over the summer. C.J. went to J.J.'s bedroom, as she did every night before going to bed. When she opened the door, C.J. saw appellant in J.J.'s bed. The bedroom window was open because it was a hot night and the air conditioning was not working. Appellant slid to the side of the bed trying to hide, but C.J. clearly saw him. C.J. yelled for her husband, who was in the back bedroom, but he did not hear her. Appellant jumped out of the window. C.J. called the police, then took J.J. to the hospital to be examined. J.J. testified she first met appellant when she was seven or eight years old and would visit her grandparents over the summer. Appellant often "worked on cars outside in the yard" when J.J. and her brother were playing. J.J., who lived in Missouri, spent the summer of 2002 with her grandparents. J.J. testified that on the night of June 10, 2002, appellant climbed through her open bedroom window and sexually assaulted her. J.J. had been talking on the telephone to her boyfriend in Missouri at about 11:00 p.m. When she finished, she went to sleep. She woke up when she felt appellant lying on top of her and with his hand over her mouth. J.J. pushed appellant's hand away and told him to stop. Appellant removed J.J.'s shorts and underwear, inserted his fingers into her vagina, then pulled down his shorts and "had intercourse" with J.J. Appellant said, "let it happen because he wanted it" and told J.J. she wanted it but "didn't know it." J.J. testified she tried to push appellant off of her, but she was not strong enough. J.J.'s grandmother opened the bedroom door, and appellant tried to hide. Appellant then stood at the foot of the bed and pulled up his pants. J.J.'s grandmother yelled for her grandfather, then looked for something to use to hit appellant. Appellant jumped out of the window. After J.J. talked with the police, she went to the hospital for an examination. DNA analysis was performed on sperm that was found on vaginal swabs taken from J.J. The lab reports were admitted into evidence without objection and stated the results showed a mixture with at least two contributors, and appellant's DNA matched one of the contributors. Appellant testified that on June 10, 2002, he had been drinking all evening, consuming approximately eighteen beers. He had been working in his yard on some cars. Sometime around midnight, he saw J.J. motioning toward him through her open bedroom window. J.J. whispered appellant's name a few times and said she wanted appellant to come into her bedroom. Appellant said no, then walked towards his back yard. J.J. continued to call appellant's name. Appellant walked back to the open window and saw J.J. standing "not wearing anything." J.J. told appellant to "come in and have sex with her." Because appellant was drunk, J.J. helped him through the window. Appellant testified he did not recall putting his penis inside J.J.'s vagina, but he did remember that J.J.'s grandmother came into the room. Appellant recalled standing at the foot of the bed and jumping out of the window after the grandmother entered the room. Appellant argues that because he denied committing the offense, did not admit penetrating the complainant, and the evidence showed the complainant had sexual intercourse with at least one more person shortly before the offense, the trial judge should have withdrawn appellant's guilty plea. The State responds that appellant has waived any error because he did not raise the issue at trial and, alternatively, the trial judge properly accepted appellant's guilty plea. Appellant did not complain about the trial judge's alleged failure to withdraw his guilty plea during the proceedings or in his motion for new trial. See Tex. R. App. P. 33.1(a)(1). Moreover, when the trial judge acts as the fact-finder, it is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty because no purpose would be served by doing so. See Aldrich v. State, 53 S.W.3d 460, 467 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). When a defendant waives his right to a jury trial and enters a guilty plea, the trial judge's duty is to consider all the evidence submitted. The trial judge may find the defendant guilty as charged, guilty of a lesser-included offense, or not guilty, as the evidence requires. See id. Thus, the trial judge had no duty to withdraw appellant's guilty plea. Appellant further complains that ineffective assistance of cousel rendered his guilty plea involuntary. The State responds that appellant has not adequately briefed his argument concerning ineffective assistance of counsel. We agree the complaint is not adequately briefed. See Murphy v. State, 112 S.W.3d 592, 596 (Tex.Crim.App. 2003). Having reviewed the records, we conclude appellant's guilty plea was voluntary. See Kirk, 949 S.W.2d at 771. Because the trial judge had no duty to withdraw appellant's guilty plea, he did not abuse his discretion in not doing so. See Aldrich, 53 S.W.3d at 467. We overrule appellant's point of error. AFFIRMED.