Tracy Franklin, Sr. v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-164 CR NO. 09-06-165 CR ______________________ TRACY FRANKLIN, SR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause Nos. 91799 and 91802

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  MEMORANDUM OPINION

Tracy Franklin, Sr. was indicted for two offenses of aggravated sexual assault of a child. He pled no contest without a plea bargain to each offense. There is no stipulation of evidence or confession of guilt in the record. The trial court heard evidence, found the evidence substantiated his guilt, ordered a PSI report, deferred adjudication of guilt, and placed Franklin on unadjudicated community supervision for ten years in each case. ⁽¹⁾

On appeal, Franklin argues the evidence is legally and factually insufficient to support the trial court's finding that the evidence established his guilt. When a defendant is charged with a felony offense, he may not be convicted, or, as in this case, given deferred adjudication, on his plea of guilty or no contest alone; the State must introduce sufficient evidence to support the plea. Guiterrez v. State, 176 S.W.3d 394, 396 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). The evidence is sufficient under article 1.15 if the evidence embraces every essential element of the offense charged and establishes the defendant's guilt. Breaux v. State, 16 S.W.3d 854, 857 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).

A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the female sexual organ of a child by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2006). S.D. testified to digital penetration. Franklin complains the evidence is insufficient to show digital penetration and there is a lack of medical corroboration of penetration. No corroboration is required; the thirteen-year-old victim's testimony alone is sufficient. See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (Vernon 2005); see Tear v. State, 74 S.W.3d 555, 560 (Tex. App.--Dallas 2002, pet. ref'd). The fact-finder heard the testimony of S.D., as well as the nurse examiner. The presence of an external tear on the genitalia does not make S.D.'s testimony regarding penetration insufficient. Nothing in the nurse examiner's testimony shows S.D. testified falsely. Franklin pleaded "no contest" to the offenses.

The evidence is legally and factually sufficient. Issues one and two are overruled. The trial court's judgments in trial cause numbers 91799 and 91802 are affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on April 9, 2007

Opinion Delivered April 25, 2007

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. The trial court also assessed a $2,000 fine.