Opinion
No. 01-03-00974-CR
Opinion issued June 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 946083.
Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Robert Kelly Parsons, waived a jury trial and entered a plea of no contest to aggravated sexual assault of a child, without an agreed punishment recommendation. Following a hearing on his pre-sentence investigation ("PSI") report, appellant was found guilty and sentenced to 40 years' confinement in the Texas Department of Criminal Justice-Institutional Division. In his sole point of error, appellant argues that, because the allegations to which he stipulated failed to state a criminal offense, the evidence was legally insufficient to support his conviction under article 1.15 of the Code of Criminal Procedure. We affirm.
Background
The six-year-old complainant was staying with her grandmother, Mary Hoofard, while the complainant's mother, Carolyn Vestal, was hospitalized. On April 8, 2003, Hoofard left the complainant with appellant, the complainant's cousin, while Hoofard visited Vestal in the hospital. Hoofard left the complainant alone with appellant a second time when she picked up Vestal from the hospital. In her report to the Pasadena Police Department, Vestal stated that, on April 10, 2003, the complainant told her that "boys have a long pee-pee and girls don't because theirs are inside." Vestal further explained that the complainant told her that appellant had pulled down her pants, rubbed his penis on her buttocks, and then put his penis between her vagina and buttocks. Vestal also reported that, during a bath the next day, the complainant told her that her vagina hurt. That same day, the complainant was interviewed at the Children's Assessment Center. During the interview, the complainant reported that appellant pulled down her underpants and his shorts. She explained that appellant touched her by "putting his tee-tee against her tee-tee" and that "white stuff came out." Appellant denied having ever assaulted the complainant. The indictment set forth the criminal offense as follows:". . . ROBERT KELLY PARSONS, hereafter styled the Defendant, heretofore on or about March 1, 2003, did then and there unlawfully, intentionally, and knowingly cause the sexual organ of [S.T.], a person younger than fourteen years of age and not the spouse of the Defendant, to CONTACT the SEXUAL ORGAN of [S.T.]."Following the indictment, appellant signed a document entitled "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," which was modified to reflect his no contest plea.
Legal Sufficiency
In his sole point of error, appellant argues that the evidence was legally insufficient to support his conviction under article 1.15 of the Code of Criminal Procedure because the allegations to which he stipulated failed to state a criminal offense.Standard of Review
Reviewing the sufficiency of the evidence to support a judgment under article 1.15 upon a plea of guilty or nolo contest, requires this Court to apply a different standard of review than when we review legal sufficiency under Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979). See Keller v. State, 125 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677 (Tex.Crim.App. 2004) (per curiam). A plea of guilty or no contest, alone, is not sufficient to support a judgment of conviction. Burger v. State, 920 S.W.2d 433, 435 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). The State must introduce sufficient evidence to support the conviction. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Burger, 920 S.W.2d at 435. Article 1.15 of the Code of Criminal Procedure provides in pertinent part that, in order to sustain a conviction of guilty or no contest,it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court.Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Under article 1.15, the evidence will be deemed sufficient if it embraced each essential element of the offense charged and established the defendant's guilt. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The evidence may also be deemed sufficient and the conviction may be affirmed if there is evidence other than a stipulation in the record sufficient to support the plea and show the guilt of the defendant. See Parks v. State, 960 S.W.2d 234, 236-38 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd.) (holding evidence sufficient to support plea where evidence other than stipulation showed guilt).In Parks, the defendant pled guilty to theft and bond jumping and stipulated to evidence of guilt in both cases. Id. at 236. The stipulation, however, was not signed by the trial court, as required by article 1.15, and the defendant was convicted. Id.; see McClain v. State, 730 S.W.2d 739, 742 (Tex.Crim.App. 1987) (holding that the trial court must sign the consent to stipulate in order for the defendant's stipulation of evidence to be effective). Although the defendant's stipulation was insufficient evidence under article 1.15, the court affirmed the conviction because the State presented testimony from the victim of the theft, which supported the defendant's guilty plea. Id. In this case, appellant pled no contest to the offense of aggravated sexual assault of a child. Appellant's modified stipulation provided in part,
The charges against me allege that in Harris County, Texas, Robert Kelly Parsons, hereafter styled the Defendant, heretofore on or about March 1, 2003, did then and there unlawfully, intentionally, and knowingly cause the sexual organ of S.T., a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of S.T. (Emphasis added.) Section 22.021 of the Texas Penal Code requires proof that appellant caused the sexual organ of the complainant to contact the sexual organ of "another person," including the "actor," or, as here, appellant. Appellant's stipulation omitted this particular element. Accordingly, appellant's stipulation alone, is insufficient to support his no contest plea because it did not embrace every element of the offense charged.The trial court, however, did not make a finding of guilt until after the PSI report was received in evidence and considered by the court. The PSI report contained the statements made by the complainant and other witnesses. The trial court can choose to believe or disbelieve the detailed description of the assault, which was provided by the complainant and her mother. The complainant's account was also corroborated by the affidavit of Sheila Pau, a family friend who tape-recorded the complainant's account of the offense. See Stewart v. State, 12 S.W.3d 146, 148-49 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (holding conviction can be affirmed pursuant to article 1.15 if there is evidence other than a stipulation in the record sufficient to support the plea and show the guilt of the defendant). Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction. We overrule appellant's sole point of error.