Opinion
No. 05-04-01557-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 4, Dallas County, Texas, Trial Court Cause No. F03-32607-NK. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
Glendon William Zick waived a jury trial and pleaded nolo contendere to aggravated sexual assault of a child younger than fourteen years. The trial court found appellant guilty and sentenced him to five years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support appellant's nolo contendere plea. We affirm the trial court's judgment. Appellant argues the evidence is factually insufficient because (1) there was no physical evidence of penetration of the complainant's female sexual organ, (2) the complainant did not tell anyone about the alleged assault for over a year, (3) the complainant saw appellant numerous times after the alleged sexual assault and never said anything about an assault, and (4) appellant denied there was ever any sexual contact between the complainant and him. The State responds that this Court should not review a claim of factual insufficiency on a nolo contendere plea and, in the alternative, the evidence is factually sufficient to support the verdict. We do not apply the Jackson "rationality" test in reviewing the sufficiency of the evidence when a defendant voluntarily enters a plea of guilty or nolo contendere. See Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988). When a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004-05); see also Ex parte Martin, 747 S.W.2d at 792-93. We will affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Further, there is no federal due process right to a factual sufficiency review of the evidence to support a guilty or nolo contendere plea. See O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2005, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the contact or penetration of the female sexual organ of a child younger than fourteen years of age by appellant's male sexual organ. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004-05). At trial, C.M., the complainant, testified she slept in appellant's king-sized bed one night in March 2002 because her mother did not want C.M. to sleep on the floor and the mother was going to sleep on appellant's couch. Appellant had been visiting with C.M.'s mother and other friends when C.M. went to bed wearing panties, shorts, and a T-shirt. C.M.'s mother told C.M. that appellant would keep pillows between himself and C.M.C.M. testified that when appellant got into the bed, he was only wearing shorts. C.M. testified that appellant pulled her panties and shorts down to her knees, touched her breasts, then got on top of her and inserted his penis into her vagina. C.M. testified she did not tell anyone until one year later because she thought she would be in trouble. C.M.'s testimony embraced every essential element of the offense and was sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004-05); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). We overrule appellant's sole issue on appeal. We affirm the trial court's judgment.