Opinion
Nos. 05-08-00238-CR, 05-08-00239-CR
Opinion Filed December 11, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-37470-V F06-37471-V.
OPINION
Appellant Mark Allen Talley appeals from two orders deferring adjudication of guilt for indecency with a child, each a second degree felony. Appellant was indicted in cause number F06-37470-UV for indecency with L.P. on or about October 1, 2005, and in cause number F06-37471-UV for indecency with L.P. on or about December 1, 2005. Appellant waived a jury and pleaded not guilty before a visiting judge. After almost two days of testimony, appellant, after being admonished by the trial judge, changed his plea to "no contest." After hearing a number of witnesses, including appellant himself, the trial judge found the evidence sufficient beyond a reasonable doubt to establish appellant's guilt; however, the trial judge deferred adjudication of guilt and put appellant on six years' community supervision and assessed a $1500 fine in each case. Appellant now appeals from the orders placing him on deferred adjudication community supervision, contending in each case the evidence is not sufficient to support the trial court's finding the evidence was sufficient beyond a reasonable doubt. Concluding appellant's issues are without merit, we affirm each order. We must first decide the proper standard of review to be applied in these cases based on appellant's pleas of "no contest." Appellant contends that because the "no contest" pleas here were "in name only," the standard of review to be applied is the same as if the pleas were "not guilty." In footnote, appellant states in his brief, "The only purpose for changing the plea to "no contest" was to authorize the possibility of deferred adjudication and "probation." See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3g(a)(1)(C), 5(a) (Vernon Supp. 2008). In support of his contention, appellant cites Burger v. State, 920 S.W.2d 433 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). The issue in Burger was whether a stipulation of what the State's witnesses would testify to, if they were present, was insufficient to support a plea of no contest because it did not confess or admit that the defendant committed the offense to which he pleaded "no contest." See id. at 434-35. In holding that appellant's no contest plea and stipulation to the testimony of the State's witnesses was sufficient evidence to support the adjudication of guilt by the trial court, that court began its discussion by stating, "Based on his plea of nolo contendere, the propriety of appellant's conviction is governed by article 1.15 of the Texas Code of Criminal Procedure. . . ." Id. at 435. The court then quotes article 1.15 of the code of criminal procedure. Id. Burger provides appellant no support. Appellant argues the State acquiesced in trying these cases as if they were on pleas of not guilty, and cannot now urge some lesser standard on appeal. In support, appellant cites two civil cases and Wooley v. State, No. PD-0861-07, 2008 WL 2512843, at *9 (Tex.Crim.App. June 25, 2008) (appellate courts are not free to affirm on any theory they please). The State responds that the Jackson v. Virginia and Watson v. State standards are not applicable here because appellant pleaded nolo contendere, and, further, the fact appellant made no concessions or stipulations regarding the evidence against him, but steadfastly contested the allegations were not true, does not render those standards applicable. We agree with the State that appellant's "no contest" plea, not the "fervor of his contest," determines the appellate standard of review. The legal and factual sufficiency standards of Jackson and Watson do not apply to felony cases where a defendant pleads nolo contendere. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988) (op. on reh'g); Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986); O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2005, no pet.); see also McGill v. State, 200 S.W.3d 325, 329-31 (Tex.App.-Dallas 2006, no pet.). Article 1.15 of the Texas Code of Criminal Procedure governs these appeals. Article 1.15 provides that, upon entry of a "plea," it is necessary for the State to introduce evidence showing the guilt of the accused and that "in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Under article 1.15, when a defendant waives a jury and pleads "no contest" the State must introduce sufficient evidence to support the defendant's plea and to establish the defendant's guilt. Id. The evidence is sufficient to support a "no contest" plea if it embraces every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). There is no requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt. See Ex parte Martin, 747 S.W.2d at 792-93. The Texas Code of Criminal Procedure also provides that the "legal effect of [a plea of nolo contendere] shall be the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). Because appellant freely and voluntarily chose to change his plea from "not guilty" to "no contest," the standard set out in article 1.15 applies to our review of the evidence in these cases.
Appellate cause number 05-08-238-CR.
Appellate cause number 05-08-239-CR.
Appellant refers to his pleas of "no contest" as "hardly typical." Appellant did not make a judicial confession or admission or stipulate what any witness would say. According to appellant, he "strenuously contested" his guilt "at every turn." We note, however, his plea of "no contest," by definition, is that he was not contesting his guilt.
443 U.S. 307, 319 (1979).
204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006).
Factual Background
The testimony at trial was conflicting and sometimes inconsistent. At the time of trial the complainant, L.P., was fourteen years old. L.P. is the daughter of appellant's then girlfriend, Lydia. Appellant was a police detective and Lydia was a police dispatcher for the Irving Police Department. Before appellant and Lydia began living together, Lydia and her two children, L.P. and A.P., would sometimes stay with appellant. Initially, L.P. did not like appellant but they later began to get along. In December 2005 L.P. had a "really bad migraine." Because Lydia could not get off duty, she called and asked appellant if he could pick L.P. up from school. Appellant did. After taking L.P. to get some food, he took L.P. back to his apartment and had her lie down on the couch. Appellant returned to work. L.P. continued to feel bad. Later that day, when Lydia got off work, she took L.P. to a clinic; however, personnel at the clinic would not treat L.P. so Lydia took her to the hospital. L.P. was in so much pain she could not stand, talk, or even see. L.P. felt paralyzed. At the hospital L.P. received various tests, a spinal tap, medication, and a catheter was inserted. The tests and procedures scared L.P. and were painful to her. While L.P.'s mother finalized the paperwork at the hospital, appellant took L.P. to his apartment, although L.P. was crying, upset, and wanted her mother. When L.P. got to appellant's apartment, she was dizzy from the medicine. There was only one bed in appellant's apartment at that time. L.P. laid down on appellant's bed. Because she was in pain, when dressing to leave the hospital, L.P. had not put on her bra and panties when she dressed. She only had on khaki pants and a shirt. Still in her clothes, L.P. got under the covers. The next thing L.P. remembered was feeling someone touching her on her "private part." It lasted only "just a second." L.P. was not sure if the touch was skin-to-skin or over her clothing. When she turned, L.P. saw appellant touching her with his hand. L.P. immediately got out of bed and went into the living room. There she noticed her pants were unzipped. They had been zipped when she went to bed. L.P. was crying when her mother returned from taking A.P. his backpack. L.P. did not tell her mother why she was crying. L.P. also testified about another incident when she was staying at appellant's residence with her mother and brother. She thought she was about eleven or twelve. L.P. and A.P. were lying on the floor. L.P. was under covers, pretending to be asleep. Appellant came in and went into the bathroom where Lydia was about to get into the shower. Although L.P.'s eyes were shut, she felt her shirt being pulled away from her body and she could see appellant holding a flashlight. Appellant was looking down her shirt. L.P. did not let appellant know she was really awake. A.P. was a bed-wetter but L.P. did not remember if A.P. had wet the bed that night. L.P. often had "vivid dreams" and sometimes dreamed of the devil. Apparently the dreams were so real L.P. would sometimes wake up and say she could see and feel actual injuries. When she would have a bad dream she would sometimes get in bed with appellant and Lydia, with Lydia in between L.P. and appellant. L.P. testified the first person she told about appellant having touched her was her aunt, Jennifer. Jennifer confirmed that one night she and L.P. were watching a television show about molestations when L.P. started crying. L.P. then told her aunt appellant had touched her "down there" the night she came home from the hospital. L.P. also told Jennifer about the flashlight incident but no other incidents of touching. Jennifer felt L.P. "got everything off her chest" that night. Afterward, Jennifer called and told L.P.'s mother what L.P. had told her. Apparently, the two sisters had a heated exchange. Jennifer was aware of L.P.'s bad dreams. At some point, L.P.'s mother and paternal grandmother took her to see a person called "Kuka," a spiritual adviser. Jennifer testified L.P. later told her she could have dreamed the incident; however, Jennifer believed L.P.'s doubts were raised after her visit with Kuka. The evidence was conflicting about whether the issue of dreams came up before or after L.P.'s visit to Kuka. Not long after L.P.'s outcry to Jennifer, Child Protective Services (CPS) became involved. After Lydia learned of L.P.'s accusation against appellant, she continued seeing him. This made L.P. mad. Once CPS got involved, L.P. was "a little relieved" she did not have to see appellant anymore. At the time of trial, L.P. said she still thought appellant was a "good guy" and she "forgave him" for touching her. A number of "outcry" witnesses testified, including L.P.'s thirteen-year-old friend E.H. and her cousin, A.C.; a former teacher, Rebecca O'Brien; a school counselor, Peggy Bennett; Gail Inman, a private counselor; and Lindsey Harasta. Lydia testified she became a dispatcher for the Irving Police Department in 2000. Appellant and Lydia began seeing each other. Appellant first met L.P. during one of L.P.'s hospital visits. Initially, L.P. did not like appellant but later they got along fine. Lydia believed she and appellant moved in together in February 2004. Lydia testified L.P. has significant health issues, and Lydia always tried to keep her away from stressful situations. However, she said L.P. was comfortable being around appellant in January, after the December incident. Lydia said L.P. was acting like she usually did when she would awake from a "crazy dream" on the night she came home from the hospital. L.P. did not know if the touching was a dream or not. When L.P. told Lydia about the touching incident Lydia believed L.P. could have been dreaming. L.P. first said it could have been a dream before she began seeing Inman in May 2006. Even during the trial, Lydia still thought L.P.'s account of the touching could have been a dream. L.P. and A.P. usually slept together. L.P. would sometimes get wet when A.P. wet the bed. Appellant treated her children as if they were his own. When appellant came home from a late night shift he would use a flashlight and check on the children, just as he had done with his own children. Concerning the December incident, Lydia said the school nurse first called because L.P. was having a recurrence of headaches and a loss of vision. Because Lydia could not get off duty she called appellant to check on L.P., which he did. After appellant returned to work, he again checked on L.P. around noon. Appellant then called Lydia and told her L.P. was bleeding from the nose and needed to go to the doctor or to the emergency room. At 2:00 p.m., when Lydia got off work, she took L.P. to a clinic but they referred her to the emergency room. Lydia reiterated the action taken at the hospital, including the tests and procedures done. L.P. was traumatized and screamed during some of the tests and procedures. They were at the hospital until about 3:00 a.m. Appellant and L.P. went home first. When Lydia arrived, appellant was watching television and L.P. was asleep on the bed. Disregarding appellant's suggestions to wait until morning to do so, Lydia left the apartment for about twenty minutes to take A.P.'s backpack to his friend's house where A.P. was staying. When Lydia returned, L.P. was in the living room acting just as she had acted previously after having had a bad dream. From the beginning, the question of whether this was a dream was a continuing topic of conversation. Lindsey Harasta, a CPS counselor, testified about her interview of L.P. in which L.P. told her about an incident that happened in the middle of the night while L.P. was in bed with Lydia and appellant. After Lydia got up and went to work early in the morning, L.P. woke up and felt appellant rubbing or touching her. In demonstrating where he was rubbing or touching her, she demonstrated with an open palm over her pubic area. Appellant was touching her over her clothes. This incident was a separate incident from the incident that happened the night she went home from the hospital. L.P. then detailed another incident. The second incident was an occasion when L.P. and A.P. were sleeping under the covers in the living room. Appellant came home from work and came over to her, lifted the covers and shined a flashlight down her shirt. L.P. had on a loose tank top with nothing on underneath the shirt. She demonstrated to Harasta appellant's actions. When asked about L.P.'s demeanor during the interview, Harasta said L.P. was "edgy," and "agitated, nervous, upset, talking very fast." L.P. had been calm at the beginning of the interview. L.P. told Harasta the last time something like that happened was on the day she had to leave school early and go to the hospital. L.P. was eleven years old at the time. Appellant objected to L.P.'s statements about the December incident and the trial court belatedly sustained the objections and disregarded that testimony. Through sponsoring witness Barbara Banda, an investigator for CPS, the State introduced, and the trial judge admitted into evidence, a DVD of her March 6, 2006 forensic interview with L.P. The trial judge viewed the video. After James Sears, an Irving police investigator, testified that during his interview with Lydia in March of 2006, she never mentioned that she thought L.P. had been dreaming, the State rested. Appellant testified in his own behalf. He is divorced and has two biological children and a stepdaughter. At the time of trial, he was self-employed. Previously, he had worked for the Irving Police Department since 1987 where Lydia also worked as a dispatcher. Shortly after appellant and Lydia met around 2003, Lydia and her two children moved in with appellant in his two-bedroom apartment. L.P. was ten years old. At the time, appellant was working extra jobs in addition to his work at the Irving police department. He also helped Lydia with the children. He dropped them off at school and picked them up and took them to events just as if they were his own children. The children called him "Talley-Walley" and they all got along great. He described to the judge how he would check on the children with a flashlight when he came home late at night. When asked if he had done what L.P. described as looking down her shirt with the flashlight, appellant responded that he did not recall that particular instance. He then told of an instance when L.P. had on a top with spaghetti straps. The straps had become tangled around her neck. He said he did "pull her shirt up and pull the undershirt that she had on, like a little bra type things she wore, pull it down and then put her shirt down and covered her back up." He told Lydia not to let her wear that to bed anymore. Appellant admitted that L.P. often would "climb up in bed" with Lydia and him. Appellant denied ever touching L.P. in her vaginal area. He described L.P.'s nightmares and bad dreams. When asked what the recurring dreams were about, appellant answered:A. Oh, many things. She dreamed that the devil was choking her one night. She dreamed that her father had come and got in bed with her, kissed her goodnight and tucked her in. She dreamed that there was a white male wandering around inside the apartment one day while she [w]as watching TV, eating a sandwich. Multiple dreams of everything, all kinds of things.Appellant testified he had "no clue" what L.P. was talking about when she testified about a touching before December of 2005. He then described his version of the events of December 1, 2005. Lydia called appellant and asked if he could pick up L.P. because she was having a severe headache. He said he had done this many times before. He then described the headaches and nosebleeds L.P. would get. On December 1, 2005 when he picked L.P. up, she was in pain. Because he was on duty, he picked her up in the squad car, took her to Sonic to get something to eat and drink, and then took her to his apartment, "because the people that they were living with weren't at home." Appellant put her on his couch, with covers, took her food, and stayed with her for a little bit to be sure she was okay. Appellant then returned to work. Later, he told Lydia to take L.P. to the hospital. When Lydia got off work, she took her to the hospital. Lydia later called appellant at his extra job at Exxon about 9:00 p.m. After getting someone to relieve him, appellant went to the hospital, arriving about 9:30 or 10:00 p.m. He was present for some of the tests on L.P. Around 2:00 a.m. the following morning L.P. was released. Appellant described L.P.'s demeanor as "delirious, in severe pain. She couldn't see real well. Light just killed her." Appellant described the kinds of activities he would do with the children, such as taking them hunting in Colorado. L.P. loved to go hunting. Lydia asked him to take L.P. home while she waited to do paperwork. Although they were not living together at the time, he took her to his apartment. L.P. went into the bedroom and, first, sat on the bed, then laid down on the bed. He would check on her occasionally. About fifteen minutes later, Lydia arrived. They were all exhausted. They all went to bed, with Lydia in the middle of his oversized king-size bed. Appellant described what he was wearing. Appellant had not been drinking; he does not drink while on duty. Lydia then remembered she needed to take A.P. his backpack. Appellant tried to get her to wait until the next morning but she would not. The trip was about a twenty-minute trip. After Lydia left, L.P. was on the edge of the bed. Appellant was against the wall. He was not sound asleep because Lydia woke him up when she left. All of a sudden, L.P. jumped out of bed screaming, "Mommy, Mommy, Mommy, Mommy." Appellant told her, "Mommy will be right back." L.P. went screaming into the living room. He then heard the front door open and Lydia came in. He had not touched L.P. at all that night or ever. Her actions scared him. After Lydia came in, he could hear them talking. Appellant assumed L.P. had a bad dream because she was acting the way she acted when she had a bad dream. Lydia asked appellant if he had touched L.P.'s leg. He said he had not. He assumed she meant had he touched her when he was trying to get back in bed after having gone to the bathroom. He said he had not been out of bed. If he were "the kind of person" to do so he had every opportunity to have taken advantage of her besides the day she was at the hospital. Appellant and Lydia had talked about the incident many times after December 1. Lydia believed L.P. had been dreaming. According to appellant, Lydia "though[t] she had had one of these nightmares or bad dreams, and that's how she treated it. She was the only one, other than my friends at the police department that didn't convict me right off the bat." Jim Sears is not one of his friends at the department. On cross-examination, appellant testified he had been a police officer for nineteen years and had testified many times in court. Appellant "knew the facts that [the prosecutor] had given [his] attorney." Appellant then described in detail the bedroom and its furnishings. When Lydia came in and asked appellant if he had touched L.P.'s leg, they did not discuss it being a dream at that time. They did later, however, "before the allegations come out." Appellant was questioned about State's Exhibit No. 3, a letter Lydia had written supporting him. L.P. slept on the couch after the incident on December 1. Appellant was not sure whether Lydia slept on the couch with her or returned to bed with him. Appellant also testified to times when L.P. had bad dreams. Even after CPS and the police became involved, appellant and Lydia continued a dating, romantic relationship, even though he was ordered not to do so by the police. Appellant also went to New Mexico with Lydia after the allegations were made and after he was fired. Appellant had asked Lydia to marry him but he did not still intend to marry her. L.P. is a "good kid" and nobody, including appellant, has anything bad to say about her. Appellant was also questioned about the several reasons he gave the Grand Jury that L.P. would have said this if it was not true. Finally, when asked whether his testimony at trial was that he had never touched her, appellant replied, "I've touched [L.P.] many times. I've hugged her. I've kissed her on the forehead. I've carried her in my arms. She's been on my shoulders. I have never touched [L.P.] sexually, ever."