Thomas Edgar Lee, Jr. v. State ( 2015 )

Opinion filed January 8, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00062-CR
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THOMAS EDGAR LEE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 14980
MEMORANDUM OPINION
Thomas Edgar Lee, Jr. pleaded guilty to aggravated sexual assault of a
child. 1 The trial court found him guilty and assessed punishment at confinement
for ninety-nine years, and it also assessed a $10,000 fine. Appellant challenges the
sufficiency of the evidence to support his conviction, and he also challenges the
trial court’s admission of certain evidence. We affirm.
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See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).
I. The Charged Offense
The grand jury indicted Appellant for aggravated sexual assault of a child,
and the indictment contained the following:
THOMAS EDGAR LEE, JR., hereinafter styled Defendant, on or
about January 22, 2013, and before the presentment of this
indictment, in the County and State aforesaid, did then and there
intentionally or knowingly cause the penetration of the mouth of L.H.,
a child who was then and there younger than 6 years of age, by the
defendant’s sexual organ.
A person commits the offense of aggravated sexual assault of a child when he
“intentionally or knowingly . . . causes the penetration of the mouth of a child by
the sexual organ of the actor” and “the victim is younger than 14 years of age.”
PENAL § 22.021(a)(1)(B)(ii), (a)(2)(B). Aggravated sexual assault of a child is a
first-degree felony. Id. § 22.021(e). The punishment range for a first-degree
felony is imprisonment for life or for any term of not more than ninety-nine years
or less than five years and a fine not to exceed $10,000. Id. § 12.32 (West 2011).
If the victim of aggravated sexual assault of a child “is younger than six years of
age at the time the offense is committed,” then the “minimum term of
imprisonment . . . is increased to 25 years.” Id. § 22.021(f)(1).
II. Evidence at Trial
Prior to trial, Appellant signed a sworn judicial confession or guilty plea
memorandum. In the guilty plea memorandum, Appellant acknowledged, in part,
as follows:
In accordance with Article 1.15, C.C.P., the Defendant now consents,
in writing and 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 affidavits, written statements of witnesses and any other
documentary evidence in support of the judgment of the Court.
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When he executed the memorandum, Appellant admitted that he “committed each
and every element alleged [in the indictment]; and that [he is] guilty of all offenses
charged therein”; he also stipulated to the State’s evidence. Before Appellant
pleaded guilty, the trial court admonished him and informed him of his rights.
Appellant indicated that he understood that he was entitled to a trial on guilt or
innocence where the State would have the burden to prove, beyond a reasonable
doubt, each element of the offense. He answered affirmatively that he understood
that in a trial he could confront and cross-examine witnesses. Appellant said that
he understood the presumption of innocence and that he did not have to prove his
innocence or testify at trial. He also said that he understood that he did not have to
incriminate himself at trial but that a guilty plea “is the ultimate incrimination.”
Appellant then answered affirmatively that he understood that he could not
withdraw his plea if he disagreed with the punishment he received. He indicated
that he understood the charge against him and the range of punishment and that he
also understood that he was not eligible for probation, deferred adjudication, or
early release from prison. Appellant also confirmed that he had read and reviewed
the guilty plea memorandum and discussed its contents with his attorney and that
he did not have any questions about it. Appellant answered affirmatively when
asked whether he signed the guilty plea memorandum freely and voluntarily. He
acknowledged that he signed it without any threats made to him, that no one forced
him to sign it, that he did not sign it because of any promises made to him, and that
he signed it because he was, in fact, guilty. Appellant’s trial counsel stated that he
believed Appellant to be competent to enter a guilty plea.
Appellant then pleaded guilty to the indictment in open court. The State
presented its prima facie case with documents and the testimony of Jeremy
Hampshire, an officer with the Mineral Wells Police Department. Officer
Hampshire read from a transcript of a forensic interview with L.H. in which L.H.
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had said that Appellant was L.H.’s mother’s boyfriend and that he lived at L.H.’s
mother’s house. Officer Hampshire subsequently read that L.H. “stated that
[Appellant] had made him suck his pee-pee. . . . [L.H.] stated [Appellant] asked
him, if he promised not to poo or pee his pants, he would not make him suck his
pee-pee. [L.H.] stated [Appellant] said he wouldn’t give him a spanking for
pooping his pants as long as he sucked his pee-pee.” Officer Hampshire read that
L.H. “described [Appellant’s] penis. . . . He stated [Appellant] had a white boo-
boo on his penis.”
Officer Hampshire testified that he contacted Appellant and took
photographs of Appellant’s penis, and he identified State’s Exhibit Nos. 3 and 4 as
those photographs. Officer Hampshire testified that Appellant had a “white boo-
boo” on his penis as L.H. had described. Officer Hampshire said that he took L.H.,
who was five years old at the time, for a medical exam. Officer Hampshire
subsequently read into evidence the statements that L.H. had made to the nurse
during the medical exam: “[Appellant] told me to suck and kiss on his pee-pee
because I pooped in my pants. I did it because he told me to do it. He took his
pants off and took his pee-pee out. He told me if I tell anybody about that, I’m
going to get a spanking.”
After the presentation of the State’s prima facie case, the trial court found
that Appellant had made his guilty plea knowingly and intelligently and that he
gave it freely and voluntarily; the court then accepted Appellant’s guilty plea and
convicted Appellant of the charged offense.
III. Issues Presented
Appellant presents three issues on appeal. In these issues, Appellant asserts
that the evidence was insufficient to prove his guilt and that the trial court erred
when it erroneously admitted certain evidence during the State’s prima facie case.
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IV. Standard of Review
A trial court can accept and enter a defendant’s guilty plea after the State has
adduced evidence to support the plea and the judgment that the court will enter.
TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005) (“[I]n no event shall a person
charged be convicted upon his plea without sufficient evidence to support the
same.”); Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). A conviction
rendered without sufficient evidence to support a guilty plea constitutes trial error.
Menefee, 287 S.W.3d at 14.
But when a defendant knowingly, intelligently, and voluntarily enters a plea
of guilty, we do not apply the traditional standard of review for sufficiency of the
evidence. Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988). Rather,
we will affirm the trial court’s judgment if the evidence embraces every essential
element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim.
App. 1996); Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.]
2010, no pet.); McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no
pet.). Furthermore, the State’s evidence does not have to show a defendant’s guilt
beyond a reasonable doubt when he enters a guilty plea. Martin, 747 S.W.2d at
792; Staggs, 314 S.W.3d at 159; McGill, 200 S.W.3d at 330.
We review a trial court’s decision to admit evidence over objection under an
abuse of discretion standard and will not reverse that decision absent a clear abuse
of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A
trial court abuses its discretion only when the decision lies outside the zone of
reasonable disagreement. Id.
V. Analysis
A. Issues One and Two: Sufficiency of the evidence
Evidence is sufficient if it “embraces every constituent element of the
charged offense.” Menefee, 287 S.W.3d at 13; see also Ex parte Williams, 703
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S.W.2d 674, 678 (Tex. Crim. App. 1986) (citing Franklin v. State, 144 S.W.2d 581
(Tex. Crim. App. 1940)). Furthermore, “[e]vidence offered in support of a guilty
plea may take many forms.” Menefee, 287 S.W.3d at 13.
A review of the record indicates that the trial court properly admonished
Appellant and that, thereafter, Appellant knowingly, intelligently, and voluntarily
pleaded guilty. See CRIM. PROC. art. 26.13 (West Supp. 2014). Appellant signed a
sworn judicial confession that included each element of the offense and stipulated
to evidence adduced by the State in its prima facie case. Appellant’s judicial
confession alone is enough to support his guilty plea. See Menefee, 287 S.W.3d at
13; see also Rexford v. State, 818 S.W.2d 494, 495 (Tex. App.—Houston [1st
Dist.]), pet. ref’d, 823 S.W.2d 296 (Tex. Crim. App. 1991). Contrary to
Appellant’s assertion, an outcry witness is not “required by law” to testify at trial
in support of a guilty plea.
Moreover, Officer Hampshire testified without objection, and his testimony
included each element as charged in the indictment. Officer Hampshire’s
testimony showed that Appellant intentionally or knowingly caused the penetration
of the mouth of L.H., who was five years old, by Appellant’s sexual organ. The
adduced evidence was sufficient support Appellant’s guilty plea and conviction.
See CRIM. PROC. art. 1.15; Menefee, 287 S.W.3d at 13; Stone, 919 S.W.2d at 427;
Martin, 747 S.W.2d at 791. We overrule Appellant’s first and second issues.
B. Issue Three: Admission of Evidence
Appellant asserts that the trial court erred when it admitted Officer
Hampshire’s testimony when the officer did not have personal knowledge of the
facts of the case and his testimony included inadmissible hearsay. When a party
offers inadmissible evidence, the opposing party must timely object and obtain an
adverse ruling from the trial court in order to preserve the error for appeal. TEX. R.
APP. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (“A
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defendant must make a timely objection in order to preserve an error in the
admission of evidence.”). Appellant did not object to Officer Hampshire’s
testimony at trial. Appellant further stipulated to the evidence adduced by the
State in its case, and as a result, Appellant has waived his complaints. See TEX. R.
APP. P. 33.1; Dinkins, 894 S.W.2d at 355. We overrule Appellant’s final issue.
VI. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
January 8, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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