Mickey Odell Gerald II v. State ( 2015 )


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  • AFFIRM; and Opinion Filed November 18, 2015.
    Court of Appeals
    S     In The
    Fifth District of Texas at Dallas
    No. 05-14–00596-CR
    No. 05-14-00597-CR
    MICKEY ODELL GERALD, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 292nd Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. F07-72502-V and F07-72503-V
    MEMORANDUM OPINION
    Before Justices Lang-Miers, Brown and Schenck
    Opinion by Justice Schenck
    In a trial based on two indictments, one for sexual assault of a child, the other for
    aggravated sexual assault of a child, to which appellant Mickey Odell Gerald pleaded no contest,
    the trial court found appellant guilty of sexual assault and deferred adjudication of the aggravated
    sexual assault count. 1 The court assessed punishment at six-years’ confinement on the sexual
    assault count and placed appellant on community supervision for ten years on the deferred count.
    On appeal, appellant challenges the sufficiency of the evidence to support a finding that the
    alleged offenses occurred and argues the trial court lacked jurisdiction.                                            Because appellant
    consented to the trial court’s jurisdiction and the State presented evidence of appellant’s guilt, we
    1
    On appeal, trial court cause no. F07-72503-V (Sexual Assault of a Child) is assigned appellate cause no. 05-14-00596-CR and trial court
    cause no. F07-72502-V (Aggravated Sexual Assault of a Child) is assigned appellate cause no. 05-14-00597-CR. Appellant addressed the
    Aggravated Sexual Assault case in appellate cause no. 05-14-00596-CR rather than 05-14-00597-CR and addressed the Sexual Assault of a Child
    case in appellate cause no. 05-14-00597-CR rather than 05-14-00596-CR. We will treat appellants’ briefs as if they addressed the assigned cause.
    affirm the trial court’s deferred adjudication order and sexual assault conviction. Because all
    issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
    BACKGROUND
    Appellant was the choir director and youth minister at Community First Baptist Church.
    As such, appellant was often in the company of children. Among them was the victim, S.S.,
    whose family was active in the church. Appellant met S.S. when she was nine years old. He
    was twenty two years old at the time. Appellant was charged with two counts of sexual assault.
    One of the assaults allegedly occurred in May 2004, when S.S was eleven years old, the other in
    June 2007, when S.S. was fourteen years old. The charges against appellant arose after S.S.’s
    dance teacher became suspicious about the relationship between appellant and S.S.               She
    confronted S.S. about same and S.S. admitted that she had engaged in sex with appellant. The
    police were then notified, an investigation ensued and charges were brought against appellant.
    At the pretrial conference, appellant waived his right to trial by jury and entered a plea of
    no contest to both charges. The case then proceeded to trial before the court.
    At trial, S.S. testified about her relationship with appellant. She explained how she knew
    appellant and how sometimes he gave her rides and sometimes she went to his house. She
    explained the events that eventually caused her to tell the authorities about the assaults.
    S.S. recalled that in February 2004, during super bowl weekend, she and her friend
    Brianna, who she knew from Community First Baptist Church, stayed overnight at appellant’s
    house. Appellant’s wife and daughters were there as well. During the super bowl game, S.S.
    fell asleep. She woke to what she perceived to be appellant’s hand touching her bottom. She did
    not say anything and went back to sleep.
    A few months later, in May 2004, appellant offered to drive S.S. home from school. At
    that time he was substitute teaching at S.S.’s elementary school. Rather than go directly to S.S.’s
    –2–
    house, appellant stopped at his apartment first. S.S. went inside the apartment. While there, she
    used the restroom in appellant’s bedroom. When she came out, the bedroom door was closed
    and locked and appellant was sitting on the bed. S.S. tried to leave but appellant would not let
    her go. He laid S.S. on the bed, took off her pants and underwear, pushed his pants and
    underwear down to his ankles, put on a condom, and penetrated S.S.’s vagina with his penis.
    A short time thereafter, S.S. and other children attended a pool party at appellant’s
    apartment complex. S.S., her siblings, her friend Brianna and appellant’s brother spent the night
    at appellant’s apartment. S.S. woke up with her upper and inner thighs hurting. She recalled
    seeing the rim of appellant’s glasses. She did not know if he penetrated her.
    Until this time, S.S. had not told anyone about what happened at appellant’s apartment
    earlier in May because she was scared. After the pool party, S.S. confided in Tanisha, an adult
    friend. Tanisha told S.S.’s grandmother, with whom S.S. was living, about her conversation with
    S.S.   In August 2004, S.S. went to the Dallas Children’s Advocacy Center.             During her
    interview, S.S. did not disclose the fact that appellant had sexually assaulted her because she was
    scared and did not want to get appellant into trouble.
    S.S. and her immediate family then changed churches. S.S. did not see appellant again
    until her great grandmother’s funeral in May 2006. They did not speak at that time.
    In 2007, when S.S. was a freshman in high school, appellant began calling her. Appellant
    brought S.S. lunch a couple of times and gave her money. Sometimes he would give her rides.
    He drove her to dance practice two times. Nothing occurred the first time. The second time,
    which was on June 11, 2007, appellant stopped at his house first. While there, S.S. played with
    appellant’s kids and then took a nap in his bedroom. When she woke, appellant took off her
    pants and underwear, took off his pants, put on a condom, and penetrated her vagina with his
    penis. He then took S.S. to her dance practice. She arrived an hour late and was not her usual
    –3–
    energetic self. Her dance teacher noticed this. When appellant picked her up, S.S. introduced
    him to her dance teacher as her cousin. S.S.’s dance teacher sensed something was not right and
    the inquiry began.
    S.S. told Detective Rodriquez the majority of what had happened. She prepared an
    affidavit for Detective Rodriquez detailing what she recalled. In her affidavit, she reversed the
    order of the pool party and the first sexual assault. At trial, she clarified the sequence of events.
    S.S.’s grandmother gave the police the jeans and shorts that S.S. wore on June 11, 2007 and
    some panties she found in S.S.’s drawer after the pool party in May 2004.
    Forensic analysts tested the items and found blood and seminal fluid on the shorts and
    blood on the panties. The seminal fluid and a buccal swab from appellant were tested and the
    results indicated appellant could not be excluded as a contributor of the seminal fluid found on
    the shorts, meaning the seminal fluid could have come from appellant or anyone in his parental
    lineage, such as his father, grandfather or son.
    At the conclusion of trial, the court found the evidence proved appellant’s guilt on both
    charges. On the charge of aggravated sexual assault of a child, the court placed appellant on
    unadjudicated probation for a period of ten years. On the charge of sexual assault of a child, the
    court set appellant’s punishment at six years’ imprisonment. This appeal followed.
    STANDARD OF REVIEW
    In this case, appellant waived his right to a jury trial and entered a plea of nolo
    contendere to both charges. A plea of nolo contendere has the same legal effect as a guilty plea
    for purposes of the criminal prosecution. TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West
    2006); Fierro v. State, 
    437 S.W.2d 833
    , 834 (Tex. Crim. App. 1969). Where a defendant
    knowingly, intelligently, and voluntarily pleads no contest to a felony, the appellate standards of
    review for legal and factual sufficiency do not apply. See O'Brien v. State, 
    154 S.W.3d 908
    , 910
    –4–
    (Tex. App.—Dallas 2005, no pet.). The State, however, must introduce evidence into the record
    establishing the defendant's guilt. See Tex.Code Crim. Proc. Ann. art. 1.15. But there is no
    requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt.
    See McGill v. State, 
    200 S.W.3d 325
    , 330 (Tex. App.—Dallas 2006, no pet.). Rather, the
    supporting evidence must simply embrace each essential element of the offense charged. Id.
    Our “sufficiency” review on appeal of felony pleas of nolo contendere to the court is
    confined to determining whether sufficient evidence supports the judgment of guilt under article
    1.15 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15. Pursuant to
    article 1.15, we will affirm the trial court's judgment if the State introduced evidence that
    embraces every essential element of the offense charged and that is sufficient to establish the
    defendant's guilt. Wright v. State, 
    930 S.W.2d 131
    , 132 (Tex. App.—Dallas 1996, no pet.). Our
    review of the record to determine whether the State complied with article 1.15 is not a factual
    sufficiency review. McGill, 200 S.W.3d at 330.
    DISCUSSION
    Aggravated Sexual Assault of a Child Charge - May 2004 Offense
    In his first issue concerning the aggravated sexual assault of a child count, appellant
    claims that the evidence is insufficient to prove the offense occurred. This is the count on which
    the trial court entered an order of deferred adjudication.
    Article 44.01(j) of the Texas Code of Criminal Procedure permits defendants to appeal
    from deferred adjudication community supervision. TEX. CODE CRIM. PROC. ANN. art. 44.01(j).
    A defendant placed on deferred adjudication community supervision may raise issues relating to
    evidentiary sufficiency. Manuel v. State, 
    994 S.W.2d 658
    , 661-62 (Tex. Crim. App. 1999).
    Therefore, appellant’s appeal of the order deferring adjudication on sufficiency grounds is
    properly before this Court. As stated above, our “sufficiency” review in this case is limited. We
    –5–
    will affirm the trial court's decision to defer adjudication of the aggravated sexual assault charge
    if the State introduced evidence that embraces every essential element of that offense and that is
    sufficient to establish the defendant's guilt.
    Based on the indictment for aggravated sexual assault, to establish guilt the State had to
    prove that appellant intentionally and knowingly caused the contact and penetration of S.S.'s
    female sexual organ by appellant's sexual organ when S.S. was a child younger than fourteen
    years of age and was not appellant's spouse. See TEX. PENAL CODE ANN. 22.011; Boughton v.
    State, No. 05–13–01243–CR, 
    2015 WL 3456645
     at * 2 (Tex. App.—Dallas June 1, 2015, no
    pet.).
    The State proved S.S. was a child younger than fourteen years of age at the time of the
    alleged May 2004 offense and she was not appellant's spouse. 2 The only remaining element of
    the offense of aggravated sexual assault that the State had to prove was that appellant
    intentionally and knowingly cause his penis to penetrate S.S.’s vagina.
    As proof of appellant’s guilt, the State offered S.S.’s testimony that, while at appellants
    home, appellant laid her on his bed, removed her pants and underwear, removed his pants and
    underwear, and penetrated her vagina with his penis. We conclude the State introduced evidence
    that embraces every essential element of the aggravated sexual assault of a child charge and the
    evidence introduced is sufficient to establish appellant’s guilt. We overrule appellant’s first issue
    as to the aggravated sexual assault charge.
    Sexual Assault of a Child - June 2007 Offense
    In his first issue concerning the sexual assault of a child charge, appellant claims that the
    evidence is insufficient to prove the offense occurred.
    2
    S.S. testified that she was born on September 2, 1992. Therefore, in May 2004, she would have been 11 years old. She also testified that
    she had never been married. In addition, Angela Gerald testified that she was married to appellant at the relevant time.
    –6–
    Based on the indictment for the sexual assault of a child, to establish guilt the State had to
    prove that appellant intentionally and knowingly caused the contact and penetration of the
    female sexual organ of S.S., a child, who was not appellant’s spouse, by appellant's sexual organ.
    See TEX. PENAL CODE ANN. §§ 22.011. A child is a person younger than seventeen years of age.
    Id.
    The evidence established S.S. was younger than seventeen years of age at the time of the
    alleged June 2007 offense and she was not appellant's spouse. The only remaining element of
    the offense of sexual assault that the State had to prove was that appellant intentionally and
    knowingly cause his penis to penetrate S.S.’s vagina.
    As proof of appellant’s guilt, the State offered S.S.’s testimony that on June 11, 2007
    appellant took S.S. to dance practice but first stopped at his house. S.S. took a nap at his house.
    When she woke, appellant took off her pants and underwear, took off his pants, put on a condom,
    and penetrated her with his penis. We conclude the State introduced evidence that embraces
    every essential element of the sexual assault of a child charge and that the evidence introduced is
    sufficient to establish appellant’s guilt. We overrule appellant’s first issue as to the sexual
    assault charge.
    Trial Court’s Jurisdiction
    Relying on the absence of a written transfer order, appellant claims his case was not
    properly transferred from the court that had original jurisdiction of the case upon the presentment
    of his indictment to that court. Therefore, appellant claims the trial court actually hearing his
    case lacked jurisdiction to hear it.
    Appellant has forfeited his complaint about the lack of a written transfer order due to his
    failure to file a plea raising the issue with the trial court. The failure to file a written transfer
    order is a procedural error, not a jurisdictional one. Lamasurier v. State, 
    91 S.W.3d 897
    , 899
    –7–
    (Tex. App.—Fort Worth 2002, pet. ref'd). This procedural error does not render the actions of
    the later court void, but merely makes them subject to a timely plea identifying the issue. Garcia
    v. State, 
    901 S.W.2d 731
    , 732-33 (Tex. Crim. App. 1995). As a result, a defendant who does not
    file a timely plea forfeits any complaint about the lack of a written transfer order. Mills v. State,
    
    742 S.W.2d 831
    , 835 (Tex. App.—Dallas 1987, no pet.).
    Appellant’s indictments for aggravated sexual assault of a child and sexual assault of a
    child were presented to Criminal District Court No. 1. Appellant later appeared in the 292nd
    Judicial District Court for pretrial hearings, he entered a no contest plea to the indictments in that
    court, and he was tried, convicted, and sentenced in that court. Appellant never filed a plea
    concerning the lack of a transfer order to the 292nd Judicial District Court nor in any other way
    challenged the competence of that court. Instead, he submitted to the court’s jurisdiction by
    appearing before it and entering a plea. See, e.g., Garcia, 901 S.W.2d at 733. Accordingly,
    Appellant’s second issues as to jurisdiction over the aggravated sexual assault of a child and
    sexual assault of a child cases are without merit and are overruled.
    CONCLUSION
    Having resolved all of appellant's issues against him, we affirm the trial court’s judgment
    in the sexual assault of a child case and the deferred adjudication order.
    .
    /David J. Schenck/
    DAVID J. SCHENCK
    JUSTICE
    DO NOT PUBLISH
    TEX. R. APP. P. 47
    140596F.U05
    –8–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    MICKEY ODELL GERALD II, Appellant                   On Appeal from the 292nd Judicial District
    Court, Dallas County, Texas
    No. 05-14-00596-CR        V.                        Trial Court Cause No. F-0772503-V.
    Opinion delivered by Justice Schenck.
    THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Brown
    participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 18th day of November, 2015.
    –9–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    MICKEY ODELL GERALD II, Appellant                   On Appeal from the 292nd Judicial District
    Court, Dallas County, Texas
    No. 05-14-00597-CR        V.                        Trial Court Cause No. F-0772502-V.
    Opinion delivered by Justice Schenck.
    THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Brown
    participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 18th day of November, 2015.
    –10–