Nos. 05-06-00078-CR, 05-06-00079-CR
Opinion Filed October 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-15754-Is and F05-15755-Ihs. Affirm and Modifided.
Before Justices BRIDGES, FITZGERALD, and RICHTER.
Opinion By Justice RICHTER.
Wendell Lloyd Standifer appeals his convictions for violating a protective order (appellate cause number 05-06-00078-CR) and for sexual assault (appellate cause number 05-06-00079-CR). Standifer, who pleaded no contest in each case and waived a jury trial, argues in four issues that (a) the evidence is legally and factually insufficient to support his conviction for violating the protective order, (b) his no contest plea in the sexual assault case was not knowing or voluntary, and (c) the judgment in each case incorrectly reflects a not guilty plea and the imposition of a fine. Finding error in the judgments, we modify the judgments and affirm as modified.
Background
Lisa Standifer, Standifer's wife, testified at trial that she obtained an emergency protective order on December 27, 2004 after Standifer physically assaulted her. Based on the advice of a counselor, Lisa moved into a shelter with their two young daughters for thirty days and then into her own house. Although she communicated with Standifer by phone, Lisa did not give Standifer her address. According to Lisa, the protective order prohibited Standifer from going to her work, her home, and their daughters' daycare center, and also from "committing family violence against her." Lisa testified that on the evening of February 17, 2005, Standifer broke into her house and threatened that only the girls would "make it out of the house alive." Standifer had been drinking and was very upset. Lisa testified that Standifer took away her phone so she could not "call the police" and told her that "nobody was going to keep him from seeing his girls." After putting the girls to sleep for the night and drinking some more, Standifer began masturbating and then forcibly penetrated Lisa. About fifteen minutes later, Standifer "passed out" and Lisa was able to call the police. Lisa testified she was scared throughout the entire ordeal and the following day, she obtained a two-year protective order. The responding officers testified they found Lisa "shaking violently" and "extremely distraught." Lisa stated Standifer had "raped" her and informed them that she had an emergency protective order on file. Police dispatch confirmed a protective order was on file and the officers arrested Standifer. Standifer subsequently admitted to the officers that he "should not have been" at Lisa's house, but stated that Lisa had invited him over. Standifer also stated to the officers that Lisa had consented to intercourse. Standifer did not testify. Legal Sufficiency of the Evidence to Support Conviction for Violating the Protective Order
In his first issue, Standifer challenges the legal sufficiency of the evidence to support his conviction for violating the protective order. Specifically, Standifer asserts the evidence is legally insufficient because the State failed to show he knew of the protective order. In arguing this issue, Standifer relies on the Jackson standard of review used when guilt is contested. See Jackson v. Virginia, 443 U.S. 307 (1979). However, when, as here, a defendant in a non-capital felony case pleads no contest before the court, we do not apply that standard.See Ex parte Martin, 747 S.W.2d 789, 791-92 (Tex.Crim.App. 1988) (op. on reh'g); O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2005, no pet.). Instead, we affirm the trial court's judgment if the evidence introduced at trial embraces every essential element of the offense charged and is sufficient to establish the defendant's guilt. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Based on the indictment in this case, to establish Standifer's guilt, the State had to prove Standifer, in violation of a magistrate's order for emergency protection issued under article 17.292 of the code of criminal procedure, knowingly or intentionally sexually assaulted Lisa. See Tex. Pen. Code Ann. § 25.07(a)(1),(b)(1) (Vernon Supp. 2006); Tex. Code Crim. Proc. Ann. art. 17.292 (Vernon Supp. 2006); Tex. Fam. Code Ann. § 71.004(1) (Vernon 2002). Although the culpable mental states "knowingly or intentionally" apply to the commission of the assault and not to the language "in violation of a magistrate's order," the State had to prove Standifer had at least knowledge of the application for a protective order if not knowledge of the order itself. Harvey v. State, 78 S.W.3d 368, 371 (Tex.Crim.App. 2002). In arguing the State failed to prove he had knowledge of the protective order, Standifer correctly notes that the order was not admitted into evidence and no direct evidence was offered showing he had knowledge of the order. Nonetheless, as the State points out, the State elicited testimony that Standifer broke into Lisa's house, took Lisa's phone so she could not call the police, told Lisa that "nobody was going to keep him from seeing his girls," and told the responding officers that he knew he "should not have been" there. We conclude this evidence was sufficient to show Standifer had knowledge of the order. We resolve Standifer's first issue against him. Factual Sufficiency of the Evidence to Support the Conviction for Violating the Protective Order
In his second issue, Standifer challenges the factual sufficiency of the evidence to support his conviction for violating the protective order. However, a defendant, who pleads guilty or no contest before the court to a felony charge, is precluded from challenging the factual sufficiency of the evidence to support the conviction and is deemed to have waived any such challenge. See Brewster v. State, 606 S.W.2d 325, 329 (Tex.Crim.App. [Panel Op.] 1980) (no contest plea has same legal effect as guilty plea); McGill v. State, No. 05-05-00904-CR, slip op. at 6-7, 2006 WL 2408618, at *4 (Tex.App.-Dallas Aug. 22, 2006, no pet. h.) (defendant who pleads guilty to court waives right to challenge factual sufficiency of evidence to support conviction). We resolve Standifer's second issue against him. Voluntariness of Plea in Sexual Assault Case
In his third issue, Standifer argues his no contest plea in the sexual assault case was not "knowing and voluntary" and should be set aside because the court failed to admonish him about the sex offender registration requirement in accordance with article 26.13 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 26.13 (Vernon Supp. 2006). The State does not dispute that the court failed to properly admonish Standifer, but correctly points out that article 26.13(h) specifically provides that the failure of the court to admonish a defendant about the sex offender registration requirement is not a ground for setting aside a conviction, sentence, or plea. See id. art. 26.13(h). Because Standifer's sole complaint about his plea in the sexual assault case is the court's failure to admonish him concerning the sex offender registration requirement, we resolve Standifer's third issue against him. Judgments
In his fourth issue, Standifer complains the judgement in each case incorrectly reflects he pleaded "not guilty" and was assessed a $100 fine. The State agrees, as do we. As stated, Standifer pleaded no contest in each case. Additionally, the record reflects the trial court pronounced an enhanced twenty-year sentence in the violation of a protective order case and an enhanced thirty-year sentence in the sexual assault case but did not orally pronounce a fine in either. Accordingly, we sustain this issue and modify the judgment in each case to reflect Standifer pleaded no contest and to delete the fine. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). As modified, we affirm the trial court's judgments.