No. 05-10-00861-CR
Opinion Filed October 27, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-1045507-P.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice O'NEILL.
Appellant Augustin Gonzalez a/k/a Augustine Gonzalez pleaded nolo contendere to a charge of aggravated sexual assault of a child younger than fourteen years of age. After receiving evidence of guilt, the trial court found appellant guilty and sentenced him to ten years' confinement. In two issues, he argues the evidence is legally insufficient to support his conviction, and the State failed to offer sufficient evidence to support his conviction as mandated under Texas Code of Criminal Procedure article 1.15. We affirm.
Background
The nine-year-old complainant testified during trial that appellant, whom she called "Boda," and a woman named Mari babysat her and her sister after school until their parents returned from work. Complainant testified while Mari cleaned the house, appellant sat on the couch next to her and watched television. They were both usually covered with a blanket. On one occasion, appellant slid his hand up her pajama pants and into her underwear. Complainant testified he touched her vagina with his hand. She demonstrated on a tissue box how he touched the inside of her vagina. She knew he was inside because she could feel it. Complainant told her younger sister Cassandra about appellant touching her. Cassandra told their mother, who called the police. The police arrested appellant. Jessie Gonzalez, a forensic interviewer with the Dallas Children's Advocacy Center, testified she spoke with complainant regarding the abuse allegations. During the interview, complainant said Cassandra touched her vagina once while she was in the bathroom, and she told her mother. Complainant also said appellant had done a similar act. She described how appellant put his hands inside her pajama pants, including her underwear, and touched her vagina. She described appellant "pushing on it really hard" and that it felt like "a shot." Cassandra testified that she saw complainant and appellant sitting under a blanket on the couch on many occasions. She also saw appellant's hand moving under the blanket. She knew it was his hand because complainant's hands were on top of the blanket. At the conclusion of closing argument, defense counsel said, "So at any rate, the State has put on their case and I would submit to the Court that if the Court has interest in a reasonable doubt, based on the evidence that they presented, then to say not guilty." The trial court then found appellant guilty "based on the evidence and testimony in this case," and sentenced him to ten years' confinement. This appeal followed. Withdrawal of Nolo Contendere Plea
Before addressing appellant's arguments regarding the sufficiency of the evidence, we must first decide the proper standard of review to apply in light of appellant's nolo contendere plea. See McGill v. State, 200 S.W.3d 325, 331 (Tex. App.-Dallas 2006, no pet.) (stating defendant's choice to plead guilty before the trial court conclusively alters the trial court's standard for evaluating the State's case and thereby alters this Court's standard for reviewing the trial court's judgment). Appellant argues he took "affirmative action" during closing argument to change his nolo contendere plea to a not guilty plea. We do not agree. If a guilty-pleading defendant decides mid-trial he wants to compel the trial court to evaluate the evidence under the reasonable doubt standard, he must seek to withdraw the guilty plea. Id. If he fails to do so, he is precluded from having an appellate court review the evidence against him under the traditional sufficiency analysis. Id. The trial court, however, is not required to affirmatively withdraw a defendant's guilty plea before choosing to evaluate the State's evidence under a reasonable doubt standard. Id. at 330. The court may simply proceed as though it has withdrawn the guilty plea and entered a not guilty plea in its place. Id. There is no duty placed upon the trial court to inform the parties of this change. Id. Appellant argues the statement "So at any rate, the State has put on their case and I would submit to the Court that if the Court has interest in a reasonable doubt, based on the evidence that they presented, then to say not guilty," is tantamount to a withdrawal of his plea. We cannot agree that this statement shows an affirmative step to withdraw the plea. Rather, the statement appears to be an invitation to the court, "if the Court has interest," to consider the reasonable doubt standard and not a demand to withdraw his plea. By example, the following two cases illustrate circumstances where this Court has held a defendant took affirmative steps to withdraw a plea. In Brown v. State, counsel argued during closing, "There is no evidence beyond a reasonable doubt. So we are asking you to find her not guilty because the State has not proven their case beyond a reasonable doubt, and not guilty because she didn't do it." Brown v. State, 05-09-01287-CR, 2011 WL382634, at *6 (Tex. App.-Dallas Feb. 8, 2011, no pet.) (mem. op., not designated for publication). After listening to closing argument, the trial court told appellant that, "Based on the evidence I've heard, I find beyond a reasonable doubt that you are guilty as charged. . . ." Id. This Court concluded appellant took affirmative steps to withdraw her plea by arguing the evidence should be evaluated under the reasonable doubt standard and conducted a traditional sufficiency review. Id. In Valadez v. State, defense counsel argued during closing argument that "There is some reasonable doubt on the question of whether the offense of murder was committed, as described in the indictment. And so I would suggest to the Court that a lesser-included offense . . . more appropriately applies to this case." Valadez v. State, 05-09-01238-CR, 2010 WL 4352718, at *1 (Tex. App.-Dallas Nov. 4, 2010), no pet.) (mem. op., not designated for publication). The State agreed the statement might constitute an affirmative action that was tantamount to a withdrawal of the plea. Id. Based on the statement during closing argument and the State's agreement it could be considered a withdrawal, this Court concluded the guilty plea was withdrawn and conducted a traditional sufficiency review of the evidence. Here, while trial counsel mentioned reasonable doubt during his closing argument, he did not argue, as counsel did in Brown and Valadez, that there was no evidence of guilt beyond a reasonable doubt. Nor did counsel argue the State failed to prove its case beyond a reasonable doubt. Another key distinction between Brown and the present facts is the trial court's statements. In Brown, the trial court specifically stated it found the defendant guilty beyond a reasonable doubt based on the evidence. Here, the trial court stated, "Based on the evidence and testimony in this case, I am going to find you guilty." There is no indication in the record the trial court sua sponte withdrew appellant's guilty plea and evaluated the evidence under a reasonable doubt standard. And finally, unlike Valadez, the State disagrees with counsel that the statement was an affirmative action tantamount to withdrawal of the plea. Accordingly, we agree with the State that appellant did not withdraw his guilty plea. Thus, we will review the record to determine if the State presented "sufficient evidence" as mandated by article 1.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.15. (West 2005). Having reached this conclusion, we need not determine whether the evidence is legally sufficient. Sufficiency of Evidence Under Article 1.15
In a guilty plea case where the defendant has waived his right to a jury trial, the State must "introduce evidence into the record showing the guilt of the defendant." Id.; see also McGill, 200 S.W.3d at 330. Under this procedural safeguard, there is no requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt. Ex parte Martin, 747 S.W.2d 789,792 (Tex. Crim. App. 1988). Instead, the supporting evidence must simply embrace every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). Appellant argues the State failed to prove appellant used his finger to penetrate complainant's sexual organ as alleged in the indictment and that at best, the State proved his hand was used in the offense. The State responds that when faced with a variance between the indictment and the proof, only a material variance will render the evidence insufficient. Further, the State argues courts give wide latitude to testimony of child victims of sexual abuse. We agree with the State. Complainant testified several times that appellant touched the inside of her vagina with his hand. When asked to demonstrate with a Kleenex box, she moved her fingers inside the flap of the box. It was reasonable for the court to conclude appellant could not have used his hand without using his fingers. When a child has sufficiently communicated that the touching occurred to a part of the body within the definition of the statute, the evidence will be sufficient to support a conviction regardless of the unsophisticated language the child uses. Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.-Corpus Christi 1996, pet ref'd). Further, courts have concluded fingers are part of the hand. See Jones v. State, 817 S.W.2d 854, 856-57 (Tex. App.-Houston [1st Dist.] 1991, no pet.) (finding evidence sufficient to prove defendant penetrated child's vagina with his finger when she testified he put his hand down her panties and touched her vagina with his whole hand); see also Arredondo v. State, 03-09-00489-CV, 2010 WL 4137425, at *2 (Tex. App.-Austin Oct. 10, 2010, pet. ref'd) (mem. op., not designated for publication) (holding child testimony sufficient to prove penetration with finger as alleged in the indictment when child testified defendant "stuck his hand in there" and touched her "on the inside"). Moreover, the court heard testimony from Jessie Gonzalez, the forensic interviewer. She testified complainant provided sensory details of the experience and stated appellant's hand or finger felt hard and "felt like a shot" because appellant was pushing really hard on her vagina. Based on this evidence, the State provided sufficient evidence to embrace every essential element of the offense as alleged in the indictment to support appellant's plea. We resolve appellant's second issue against him. Conclusion
The judgment of the trial court is affirmed.