Matthew Lane Creamer v. State

In The Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-402 CR ____________________

MATTHEW LANE CREAMER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 87809

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MEMORANDUM OPINION  

Appellant Matthew Lane Creamer waived his right to trial by jury and pled no contest to two counts of indecency with a child. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). ⁽¹⁾ After a hearing before the court, the trial court deferred adjudication of guilt and placed Creamer on community supervision for five years. ⁽²⁾ Creamer appealed. On appeal, Creamer contends that the evidence is legally and factually insufficient to support a finding of guilt beyond a reasonable doubt under the standards of review established by Jackson v. Virginia and Zuniga v. State. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, generally, a plea of no contest has the same legal effect as a plea of guilty, except the plea may not be used against the defendant as an admission in any civil suit growing out of the act upon which the criminal prosecution is based. Tex. Code. Crim. Proc. Ann. art. 27.02 (5) (Vernon 1989). Because Creamer pleaded no contest to the charges contained in the indictment, the standard of review on appeal from a plea of not guilty does not apply. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996) (addressing legal sufficiency); O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.--Dallas 2005, no pet.); Keller v. State, 125 S.W.3d 600, 604-05 (Tex. App.--Houston [1^st Dist.] 2003), pet. dism'd, 146 S.W.3d 677 (2004), cert. denied, __U.S.__, 125 S.Ct. 1603, 161 L. Ed. 2d 280 (2005) (guilty plea to jury); Young v. State, 993 S.W.2d 390, 391 (Tex. App.--Eastland 1999, no pet.). The prosecution need only comply with the State procedural requirement to introduce sufficient evidence to show the defendant is guilty. See Ex parte Martin, 747 S.W.2d 789, 791-92 (Tex. Crim. App. 1988); Stone, 919 S.W.2d at 427. The evidence is sufficient if it embraces every element of the offense charged. Id.

Sexual contact is the only element of the offense challenged on appeal. The indictment in this case alleged intent to arouse or gratify the sexual desire of the appellant. See Tex. Pen. Code Ann. § 21.11(c). Specific intent to gratify sexual desire can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). The complainant child testified to every essential element of the offense charged. That testimony, if believed by the judge in this bench trial, was sufficient evidence to establish the guilt of the appellant. However, appellant says the trial court did not enter a finding of indecency by exposure, and concludes the trial court must have disbelieved significant portions of the child's testimony.

We disagree with the conclusion suggested by the appellant. At the conclusion of the hearing, the trial court found "the evidence shows beyond a reasonable doubt that Mr. Creamer is guilty[,]" but the court deferred a finding of guilt. At the commencement of a hearing conducted after preparation of a pre-sentence investigation report, the prosecutor asked the court "to issue a ruling as to which count the Court found -- because this was a dual count indictment -- as to which count the Court found true. I think you had indicated on the record that the allegation in count one." It appears the prosecutor thought the State could not obtain convictions on both indecency by contact and indecency by exposure, and suggested the court enter a finding on the higher grade offense. Under these circumstances, however, the trial court could have believed the child's entire story but nevertheless acted on the prosecutor's suggestion. Nothing about the evidence offered in support of the indictment is so weak or incredible that the trial court's finding cannot be rationally justified. Creamer's admission is not required for the trial court to find the evidence substantiates his guilt. Stone, 919 S.W.2d at 427. Even when the evidence is viewed in a neutral light, here the complainant testified to sexual contact under circumstances where the appellant's intent to gratify himself sexually could be found by the trial court beyond a reasonable doubt. The evidence was sufficient to embrace every element of the offense. The judgment of the trial court is affirmed.

AFFIRMED.

DAVID GAULTNEY

Justice

Submitted on August 16, 2005

Opinion Delivered October 19, 2005

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.

1. Section 21.11 of the Penal Code provides in part as follows:

(a) A person commits an offense if, with a child younger than 17 years, and not the person's spouse, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact. . . .

Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003).

2. Although the trial court initially ordered community supervision for two years, the community supervision order signed by the trial court establishes a five year period of supervision. Five years is the minimum period of deferred adjudication community supervision permitted for a defendant charged with indecency with a child. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2005). Appellant personally signed the community supervision order and agreed to its terms.