Parrish v. State

485 S.W.3d 86, 2015 Tex. App. LEXIS 12412, 2015 WL 8272872
CourtCourt of Appeals of Texas
DecidedDecember 8, 2015
DocketNO. 14-14-00828-CR
StatusPublished
Cited by6 cases

This text of 485 S.W.3d 86 (Parrish v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parrish v. State, 485 S.W.3d 86, 2015 Tex. App. LEXIS 12412, 2015 WL 8272872 (Tex. Ct. App. 2015).

Opinion

OPINION

Martha Hill Jamison, Justice

Appellant Desergio Geterus Parrish appeals from his felony conviction for engaging in an improper relationship between educator and student. A jury found appellant guilty and assessed his punishment at 15 years’ imprisonment. In two issues, appellant contends that (1) the judgment of conviction is void because the trial court lost jurisdiction to enter a judgment when appellant removed the case to federal court and (2) the evidence was insufficient to support the conviction because the State failed to offer evidence corroborating the appellant’s extrajudicial statement, thus failing to satisfy the “corpus delicti” rule. We affirm.

Background

The State alleged in the indictment that on or about January 9, 2012, while appellant was an employee of a public secondary school, he intentionally or knowingly engaged in sexual contact with the complainant, who was enrolled in the school where appellant worked. It was established and uncontested at trial that appellant was a history teacher at Jack Yates High School while complainant was a student at the school.1

Officer Staniesha Jones of the Houston Independent School District Police Department testified that she viewed a videotape showing appellant interacting with a female student on school grounds after regular school hours. Based on what she observed on the videotape, Jones referred the issue to another officer for further investigation. The videotape in • question was played for the jury. In it, appellant can be seen talking for several minutes with a female identified as a 16-year-old student, who was not the complainant in this case. Jones stated that she found- the activity in the video suspicious because “there was no reason for [the-student] to come back to the school” .at that time. As the. investigation progressed, the focus shifted to appellant’s interaction with the complainant and not the student seen in the video.

Complainant’s mother explained that her daughter was on the school track team and appellant was a coach of the boy’s track [88]*88team. Appellant would sometimes drive the complainant home from track practices. At one point, appellant told complainant’s mother that “there were some rumors going around” about appellant and complainant but “they weren’t true,” Complainant’s mother said that she was reassured at . that time that nothing improper had taken place between them. Then, in December 2013, school officials informed complainant’s mother about the investigation. When she spoke to complainant about- the matter, complainant “burst into tears” and “became a brick wall,” refusing to discuss-, the matter. Complainant’s mother acknowledged that complainant “wants nothing to do with this proceeding.”

Officer George Garcia with the Houston Police Department’s Juvenile Sex Crimes Unit testified that after speaking with complainant, he concluded that sexual relations had occurred between appellant and complainant, Garcia stated, that complainant “made a disclosure” and Garcia “accepted her. interview.” He further stated that both appellant and complainant “disclosed that it happened,” apparently referring to sexual relations between them. ■ He acknowledged, however, that it was possible the complainant could have made a false allegation.

On December' 18,2013, Garcia conducted a recorded interview with appellant after requesting appellant make a voluntary statement. An audio recording of appellant’s conversation with investigating officers Garcia and Mary Gonzales was played for the jury.. In the recording, appellant admits that complainant performed oral sex on him on one occasion and they engaged in sexual intercourse on another occasion. He further acknowledged that he was complainant’s teacher at one time but said he was not her teacher at the time of their sexual contact.

Officer Gonzales testified that she was the lead investigator in the case. She confirmed that complainant acknowledged a sexual relationship had existed between herself and appellant. “[She] told me herself,” Gonzales said.

In his testimony, appellant claimed that he lied to the officers in the interview because he felt confused, disrespected, and frustrated, by the allegations, and after initially denying, the fact of the relationship, he decided to “play [their] game” so that he could “get out of’ there. He said that he thought a thorough' investigation would follow the interview and exonerate him. Appellant additionally "called a former student to the stand, who testified that rumors had circulated regarding herself and appellant but the rumors were unfourided.

On October 3,2014, the day the jury was selected for trial; appellant filed a notice of removal to federal court. After the jury convicted appellant and assessed his punishment at 15 years in prison, the trial judge entered final judgment on October 9, 2014. A federal district court then issued an order of remand on October 24, 2014.

Removal to Federal Court

In his first issue, appellant contends that the judgment of conviction is void because- the trial court lost jurisdiction to issue a judgment when appellant removed the’ case to federal court under 28 U.S.C. § 1455. Section 1455 authorizes a defendant in a state court criminal proceeding to file a-notice of removal in federal district court. 28 U.S.C. § 1455(a). The filing of the notice of removal does not prevent the state court from continuing its proceedings, “except that a judgment of conviction shall not be entered unless the prosecution is first remanded” by the federal court. Id. § 1455(b)(3).

[89]*89Here, as stated above, appellant filed a notice of removal on October 3, 2014, the state trial court issued its judgment on October 9, 2014, find the federal district court issued a remand order on October 24, 2014.2 Because the state trial court issued its final judgment before the federal district court issued its remand order, appellant contends that the judgment of conviction is void. The question then becomes whether the mere filing of appellant’s notice of removal, irrespective of its timeliness, was sufficient to deprive the state court of jurisdiction to enter its judgment.

To be timely, a notice of removal of a criminal case must be filed “not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier,” except upon a showing of “good cause.” 28 U.S.C. § 1455(b)(1). The federal district court held that appellant’s notice of rerpoval was filed “contemporaneously” with the start of trial in the state trial court, and thus, it was “defective on its face.” Parrish v. State of Texas, No. H-14-2811, slip op. at 1 (S.D.Tex. Oct. 23, 2014). Further, it held appellant offered no excuse for the delay.. See id.

No Texas state court has considered whether, the mere- filing of an untimely notice-of removal of a criminal prosecution deprives the state court of jurisdiction to enter a judgment.under section 1455.3. A few federal and state courts in other states have answered similar questions. See Seaton v. Jabe, 992 F.2d 79

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Cite This Page — Counsel Stack

Bluebook (online)
485 S.W.3d 86, 2015 Tex. App. LEXIS 12412, 2015 WL 8272872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parrish-v-state-texapp-2015.