Johnny Gerald Minks v. State

• Court: Court of Appeals of Texas
• Decided: August 11, 2009
• Docket: 14-08-00813-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 11, 2009

Affirmed and Memorandum Opinion filed August 11, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00806-CR

NO. 14-08-00813-CR

NO. 14-08-00814-CR

JOHNNY GERALD MINKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 46,666; 46,667; and 48,490

M E M O R A N D U M   O P I N I O N

Appellant Johnny Gerald Minks pleaded guilty, without an agreed recommendation on punishment, to two counts of aggravated sexual assault of a child and one count of indecency with a child by sexual contact.  After a punishment hearing, the trial court sentenced appellant to twenty years= confinement for each count of aggravated sexual assault and ten years= confinement for indecency with a child.  On appeal, he challenges the legal and factual sufficiency of the evidence to support his convictions and contends the trial court erroneously stacked the sentences for the sexual-assault and indecency convictions.  We affirm.

I.  Background

On March 18, 2008, appellant pleaded guilty to two counts of aggravated sexual assault of a child and one count of indecency with a child by sexual conduct.  Specifically, he signed written stipulations and judicial confessions in which he admitted he:

(a)       intentionally and knowingly caused the penetration of the female sexual organ of B.M., a child younger than fourteen years of age, who was not his spouse, by the use of his finger;^[1]

(b)       intentionally and knowingly caused the sexual organ of B.M., a child younger than fourteen years of age, who was not his spouse, to contact his mouth;^[2] and

(c)       intentionally and knowingly engaged in sexual contact with A.K., a child younger than seventeen years of age and not his spouse, by causing contact between A.K.=s hand and his genitals, with the intent to arouse and gratify his sexual desire.^[3] 

On this same date, appellant signed waivers in each case, in which he stated that he Awaived [his] right to appeal the guilt/innocence phase because [he had] pled guilty but reserve[d] the right to appeal the sentence.@  The trial court signed certifications of his right to appeal in which it noted that appellant had waived his right to appeal as to the guilt/innocence phase.  After accepting appellant=s plea, the trial court continued the proceedings so a pre-sentence investigation could be conducted.

In June 2008, the trial court conducted a punishment hearing on all three counts.  B.M., who is appellant=s granddaughter, B.M.=s mother and father, A.K.=s mother, and several others testified at this hearing.  In addition, appellant testified and acknowledged that he had pleaded guilty to the offenses.  On June 30, 2008, the trial court sentenced appellant to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division, for each count of aggravated sexual assault of a child, to run concurrently.  The trial court further sentenced appellant to ten years= confinement for the count of indecency with a child, to run consecutively with the sentences for the other charges.  Appellant did not object to the sentences.  The trial court signed a second set of certifications of appellant=s right to appeal on July 1, 2008, indicating that these were not plea-bargain cases and appellant had the right to appeal.  Appellant timely filed his notices of appeal.

II.  Issues and Analysis

A.        Sufficiency of the Evidence

In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions.  The State argues that appellant waived his right to appeal from the guilt-innocence phase of his trial.  See Monreal v. State, 99 S.W.3d 615, 616B19, 623 (Tex. Crim. App. 2003) (en banc) (affirming appellate court=s dismissal of appeal because appellant had validly waived his right of appeal).  But because the most recent set of certifications by the trial court indicate that appellant retained the right to appeal these cases, we address his challenges.

A person commits the offense of aggravated sexual assault of a child if, as is relevant here, he (a) causes the sexual organ of a child under fourteen to contact his mouth or (b) causes the penetration of such a child=s sexual organ by any means.  See Tex. Penal Code Ann. '22.021 (Vernon Supp. 2008).  Additionally, a person commits the offense of indecency with a child if he causes a child under seventeen to engage in sexual contact.  See id. ' 21.11 (Vernon 2003).  As noted above, in his judicial confessions and stipulations, appellant confessed to all the elements of these offenses.  He further stipulated in writing that Athe evidence and testimony would prove beyond a reasonable doubt that [the] acts and allegations in the indictment[s] . . . are true and correct.@  Finally, he acknowledged at the punishment hearing that he had pleaded guilty to the charges against him.

The familiar legal^[4] and factual^[5] sufficiency standards do not apply when a defendant has pleaded guilty to an offense.  See Keller v. State, 125 S.W.3d 600, 604B05 (Tex. App.CHouston [1st Dist.] 2003), pet. dism=d, improvidently granted, 146 S.W.3d 677 (Tex. Crim. 2004) (per curiam); see also Allen v. State, Nos. 14-08-0048-CR, 14-08-0049-CR and 2008 WL 5352013, at *3 (Tex. App.CHouston [14th Dist.] Dec. 16, 2008) (mem. op., not designated for publication).  Instead, sufficiency of the evidence following a guilty plea is reviewed under article 1.15 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).  The State must Aintroduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.@  Id.  A judicial confession alone is sufficient to support a guilty plea.  Breaux v. State, 16 S.W.3d 854, 856 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). 

Further, where, as here, a defendant enters a valid guilty plea,^[6] he waives all non‑jurisdictional defenses, including challenges to the legal or factual sufficiency of the evidence.  See McGill v. State, 200 S.W.3d 325, 331 (Tex. App.CDallas 2006, no pet.); Keller, 125 S.W.3d at 604B05; see also Saleh v. State, No. 14-05-01148-CR, 2007 WL 1892262, at *2 (Tex. App.CHouston [14th Dist.] July 3, 2007, pet ref=d) (mem. op., not designated for publication).  Under these circumstances, we overrule appellant=s legal and factual sufficiency challenges to the evidence supporting his convictions.

B.        Cumulation of Sentences

Appellant asserts in his third issue that the trial court abused its discretion in cumulating his sentence for the indecency-with-a-child conviction with the sentences for his convictions for aggravated sexual assault.  He complains that the trial court lacked authority to cumulate his sentences because the State failed to file a notice of consolidation as required by the Texas Penal Code.  See Tex. Penal Code Ann. ' 3.02(b) (Vernon 2003) (AWhen a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.@).  But as noted above, appellant did not object to the trial court=s sentence on this basis or otherwise complain about the lack of notice.  To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating specific grounds for the ruling desired.  Tex. R. App. P. 33.1; see also LaPorte v. State, 840 S.W.2d 412, 414B16 (Tex. Crim. App. 1992) (en banc) (stating that if notice is not given under Penal Code section 3.02(b), a defendant may Awaive the notice . . . by not objecting to the lack of notice@).

Further, even if appellant had preserved this issue for our review, we review the trial court=s decision whether to cumulate or stack sentences for an abuse of discretion.  See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006).  When the law authorizes the imposition of cumulative sentences, a trial court has absolute discretion to stack sentences.  Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

Here, as noted above, appellant was charged with two counts of aggravated sexual assault of his granddaughter, B.M., and one count of indecency with a child, A.K.  The Texas Penal Code explicitly permits the trial court to order sentences arising from these offenses to run either consecutively or concurrently.  See Tex. Penal Code Ann. ' 3.03(b) (Vernon Supp. 2008).

Thus, we cannot say the trial court abused its discretion in ordering appellant=s sentences to run consecutively.  We overrule his third issue.

III.  Conclusion

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Trial Court Cause No. 46,666.

^[2]  Trial Court Cause No. 46,667.

^[3]  Trial Court Cause No. 48,490.

^[4]  See Jackson v. Virginia, 443 U.S. 307, 318B19 (1979) (establishing standard of review for legal sufficiency of evidence).

^[5]  See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (reciting standard of review for factual sufficiency of evidence).

^[6]  Appellant has not challenged the validity of his written stipulations and judicial confessions.