Opinion
No. 05-04-01081-CR
Opinion Filed August 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01737-MT. Reversed and Remanded.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Miguel Ventura appeals his conviction for aggravated sexual assault of a child under the age of fourteen. Ventura waived his right to a jury trial and entered a plea of no contest. After hearing evidence, the trial court convicted Ventura and assessed punishment at eight years' confinement and a $3000 fine. In seven points of error, Ventura argues the trial court erred by failing to give the statutory admonishments regarding the consequences of a plea of guilty or nolo contendere, that this failure violated his due process rights, that he did not personally enter the plea, the plea was not knowing or voluntary, the evidence was legally and factually insufficient to support his conviction, and he received ineffective assistance of counsel. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. Because we conclude the trial court's failure to admonish Ventura about the consequences of his plea affected his substantial rights, we reverse the trial court's judgment and remand for further proceedings. The record indicates Ventura filed a written waiver of jury trial and was admonished on the record by the trial court about the waiver of his right to a jury trial. Ventura, through his attorney, initially pled not guilty, but, after a discussion off the record, changed his plea to no contest. The trial court then proceeded to hear evidence, stating "We'll proceed on that plea. There's been no admission of guilt. There's been no stipulations as to evidence filed." Ventura testified and maintained his innocence. At the conclusion of the guilt/innocence phase, the trial court stated "I find the evidence does prove your guilt. I'm not finding you guilty at this time. Your lawyer can explain the consequences of me not finding you guilty. What I'm saying is the evidence substantiates your guilt." At the punishment hearing, the trial court found Ventura guilty and assessed punishment at eight years' confinement and a $3000 fine. Before accepting a plea of guilty or nolo contendere, the trial court is required to admonish the defendant of several of the consequences of his plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004-05). The trial court must admonish the defendant of: (1) the range of punishment: (2) the fact that the State's sentencing recommendation is not binding on the court; (3) the limited right of appeal in cases where the court follows a plea bargain; (4) the possibility of deportation; and (5) the requirement of registration as a sex offender if the conviction is for a sex offense. Id. The statutory admonishments in article 26.13(a) are not constitutionally required; thus a trial court's failure to show on the record that it admonished a guilty-pleading defendant is nonconstitutional error, subject to the harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure. Aguirre-Mata v. State, 125 S.W.3d 473, 473 (Tex.Crim.App. 2003); see also Gardner v. State, 164 S.W.3d 393, 398 n. 1 (Tex.Crim.App. 2005). It is undisputed the record before us does not show that the trial court admonished Ventura of the consequences of his plea. In Aguirre-Mata, the court of criminal appeals stated "[i]t is undisputed that the trial court erred in failing to show on the record that it admonished appellant on the range of punishment when appellant pled guilty to the charged offense." Aguirre-Mata, 125 S.W.3d at 474. The trial court's total failure to admonish Ventura on the record violates the mandatory language of article 26.13(a) and constitutes error. The State asks us to abate this appeal so that a hearing may be conducted before the trial court to determine whether Ventura may have been admonished off the record. We decline to do so because the admonishments are required to be given on the record. See Aguirre-Mata, 125 S.W.3d at 474. We must now determine whether this error affected Ventura's substantial rights. See Tex.R.App.P. 44.2(b); Aguirre-Mata, 125 S.W.3d at 473. We review the record as a whole to determine whether the error may have had a substantial influence on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). We examine the entire record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of those consequences. See id. at 638. The record must support an inference that the defendant did not know the consequences of his plea. Id. A silent record will support that inference. Id. There is no mention of the range of punishment in the record other than a brief reference to the possibility of a life sentence by the prosecutor when she asked that Ventura's bond be revoked after the trial court found the evidence substantiated his guilt. At the punishment phase, the State requested a sentence of fifteen years and the defense requested probation. The record indicates that Ventura is permanent resident alien; however, nothing in the record indicates that Ventura was aware that he risked deportation. See Song Sun Hwang v. State, 130 S.W.3d 496, 500-01 (Tex.App.-Dallas 2004, pet. ref'd) (concluding defendant was harmed by trial court's failure to admonish on deportation consequences of guilty plea). Nor does the record indicate Ventura knew he would be required to register as a sex offender as a result of his plea. After a conscientious review of the record, we are left with grave doubt as to whether Ventura was aware of the consequences of the his plea. Thus, we conclude the trial court's error in failing to admonish Ventura on the record under article 26.13 affected his substantial rights. Tex.R.App.P. 44.2(b). We therefore sustain his first point of error. Ventura also challenges the legal sufficiency of the evidence under the Jackson v. Virginia standard. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (that upon the evidence adduced at trial no rational trier of fact could have found proof of the essential elements of the crime beyond a reasonable doubt); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). We address the legal sufficiency issue because if the evidence is insufficient under the Jackson standard, the defendant is entitled to a judgment reversing the conviction and rendering a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996) (citing Tibbs v. Florida, 457 U.S. 31, 42 (1982)); see McFarland v. State, 930 S.W.2d 99, 100 (Tex.Crim.App. 1996) (stating appellate court must always address legal sufficiency challenge, "even if the conviction must be reversed on other grounds"). Where a defendant voluntarily enters a guilty or no contest plea, we do not apply the "rationality" test of Jackson. Ex parte Martin, 747 S.W.2d 789, 792 (Tex.Crim.App. 1988); see Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986) (stating Jackson test not applicable where defendant knowingly, intelligently, and voluntarily enters plea of guilty or nolo contendere, citing Boykin v. Alabama, 395 U.S. 238 (1969)). Because the record indicates that Ventura did not know the consequences of his plea, this lower standard of review arguably would not apply. However, because we conclude the evidence is legally sufficient even under the more stringent Jackson analysis, we need not decide whether the standard for voluntary pleas of guilty or nolo contendere applies in this case. Under the Jackson standard, we review all the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact the mouth, anus, or sexual organ of another person, including the actor, if the victim is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2004-05). The record contains evidence that when Ventura's daughter, J.D., was about nine years old, she told her aunt that about a year before, Ventura had put his mouth on her vagina over her clothes. The aunt and some of her nieces had been watching a movie about a stepfather who had molested a stepchild. The aunt told her nieces that she had been molested by family members as a child and they should not be afraid to tell if anything had happened to them. The aunt told J.D.'s mother, Susie Serrato, about the incident and thought Serrato had contacted police and had Ventura removed from the house. Serrato testified that she had been Ventura's common-law wife for about ten years. They had separated when J.D. was about nine years old, but continued to see each other. Serrato believed J.D. had said that Ventura touched her leg and pulled her panties down, but not that he had put his mouth on her. Serrato talked to J.D., but thought she was lying and had been influenced by watching the movie with her aunt. Serrato never believed the sexual abuse happened. However, she did testify about an earlier incident when J.D. was in bed asleep with her and Ventura came home drunk. He crawled into bed and touched J.D.'s leg inappropriately. Serrato woke up and argued with Ventura about it. She kicked him out of the house, but later let him return because he was paying the bills. Serrato believed Ventura did not know J.D. was in the bed and touched her accidentally thinking J.D. was Serrato. J.D. was about seven at the time. When J.D. was eleven or twelve, about two years after she had told her aunt about the incident, her school counselor became concerned about some things J.D. had said at school. The counselor began seeing J.D. and after several weeks, J.D. told her that in the summer between third and fourth grade, J.D. fell asleep on the couch and when she woke up, Ventura had pulled her panties to her knees and was licking her between her legs, indicating her female sexual organ. J.D. was very upset and crying. The counselor called the police and went with J.D. to the police station. J.D. testified that when she first talked to the police — before her mother arrived at the station — she told them the same thing she had told the counselor. The counselor also testified that J.D. did not want her to call Serrato. When Serrato did arrive at the police station, she was agitated and upset. Serrato talked to the detective and child protective services worker while J.D. stood on one side of the room; the counselor thought it was unusual that Serrato did not interact with her daughter because J.D. was visibly upset. After some time, J.D. left the station with her mother. Later that evening, J.D. called her counselor and said that what she had told her was not true. J.D. was crying and said that her mother had taken her to see a counselor after they left the police station and the counselor had said it was okay for her to sleep with her dad. At trial, J.D. testified that she knew she was there because of something that had happened between her and Ventura when she was eight or nine years old. She then denied that anything happened and said it was all a lie. She testified that she had told her aunt that Ventura had put his mouth on her private part because she thought her aunt would not tell anyone. She also said she told her school counselor the same thing because she thought she would not tell anyone. She told the police the same thing when she first talked to them. The next day she tried to tell everyone that it was not true, but nobody heard her. A child protective services worker testified that she made weekly visits for about seven months. During that time, J.D. said the abuse never happened about three times, but another time said that it had happened. The worker felt that Serrato was pressuring J.D. to deny the abuse and Serrato always tried to be present when J.D. talked to anyone. Ventura testified the abuse never happened. He admitted the earlier incident where he came home and did not expect J.D. to be in bed with Serrato. However, he said he only touched J.D.'s leg accidentally. He did not know why J.D. would say he abused her, other than that shortly before she told the counselor, he had gotten mad at her for shaving her legs and grabbed her and pushed her into the sofa. Ventura argues the evidence is insufficient because J.D. recanted shortly after telling her counselor and the police about the abuse and that the outcry to her aunt was influenced by the movie and the aunt's disclosure of her own abuse. However, a recantation does not destroy the probative value of the prior statement. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The fact finder is entitled to judge the credibility of the witnesses and may believe all, some, or none of the testimony presented. Id. Having considered the evidence in the record (including the above evidence) in the light most favorable to the judgment, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). We conclude the evidence is legally sufficient and overrule Ventura's fifth point of error. We need not discuss Ventura's other points of error in light of our disposition of the first point of error. See Tex.R.App.P. 47.1. We reverse the trial court's judgment and remand for further proceedings.
To protect the child's privacy, we will refer to her by these initials.