ALLEN CHARLES LAMB, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed October 22, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00248-CR
No. 05-07-00249-CR
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ALLEN CHARLES LAMB, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F02-74028-NV, F02-74029-NV
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OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Allen Charles Lamb pleaded nolo contendere without a plea bargain to two charges of aggravated sexual assault of a child under fourteen years of age. The trial court found the evidence supported finding appellant guilty of the lesser included offense of sexual assault. In cause number F02-74028-NV, the trial court deferred adjudication of appellant's guilt and placed him on community supervision for ten years. In cause number F02-74029-NV, the court found appellant guilty and sentenced him to six years' imprisonment. Appellant brings five issues contending (a) the evidence is legally and factually insufficient to sustain appellant's conviction in cause number F02-74029-NV, (b) the evidence is factually insufficient to support appellant's conviction in cause number F02-74028-NV, and (c) appellant's convictions are void under the federal and state constitutions because the trial court reviewed appellant's pre-sentence investigation report before formally entering a finding of guilt. The State brings a cross point requesting that we reform the judgments. We affirm the trial court's judgments as reformed.
EVIDENTIARY SUFFICIENCY
        In his first, second, and third issues, appellant contends the evidence is legally and factually insufficient to support his convictions. Appellant asserts that the standards of review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency), and Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency), apply in this case. The appellate standards of review for legal and factual sufficiency do not apply to felony cases where the defendant enters a plea of guilty or nolo contendere. Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988); Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986); O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.); see also McGill v. State, 200 S.W.3d 325, 329-31 (Tex. App.-Dallas 2006, no pet.). These standards apply only where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. See Williams, 703 S.W.2d at 682; O'Brien, 154 S.W.3d at 910. When the defendant waives his right to a jury trial and pleads guilty or nolo contendere, the State must introduce sufficient evidence to support the plea and establish the defendant's guilt. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). There is no requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt. Ex parte Martin, 747 S.W.2d at 792-93. Under article 1.15, the evidence is sufficient to support a plea of nolo contendere if it embraces every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
        In cause number F02-74028-NV, the indictment alleged appellant caused “the sexual organ of [complainant], a child, who was not then the spouse of [appellant], to contact the mouth” of appellant. In cause number F02-74029-NV, the indictment charged appellant caused “the contact and penetration of the female sexual organ of [complainant], a child, who was not then the spouse of [appellant], by an object, to-wit: the sexual organ of [appellant] . . . .” Both indictments also alleged complainant was less than fourteen years of age.
        Complainant testified that when she was fourteen years old, appellant, on several occasions, performed oral sex on her, with his mouth making contact with her vagina. Complainant also testified that on more than one occasion, appellant's penis “would touch my outer labia or lips or the spot right in between my thigh and my lips.” After hearing the evidence, the trial court found appellant not guilty of aggravated sexual assault because complainant was not under fourteen years of age, and the court found the evidence sufficient to support appellant's plea for the lesser included offense of sexual assault.
        Appellant argues the evidence is insufficient in cause number F02-74029-NV because there was no evidence appellant penetrated complainant's sexual organ with his sexual organ. The State is allowed to plead alternative theories of manner and means of committing the offense, and proof of any one theory will suffice for conviction. Lawton v. State, 913 S.W.2d 542, 551 (Tex. Crim. App. 1995), disavowed on other grounds by Moseley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); Gandy v. State, 222 S.W.3d 525, 528-29 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). The indictment alleged both “contact and penetration.” Complainant's testimony that appellant's penis “would touch my outer labia or lips or the spot right in between my thigh and my lips” is sufficient to establish appellant's guilt of causing contact between his sexual organ and complainant's sexual organ. Having presented evidence of contact, the State was not required to present evidence of penetration.
        Appellant also asserts the evidence is insufficient in both cases because, as appellant states in his brief, “[t]he record is rife with evidence of complainant's motive to fabricate these allegations and also reflects her recantation.” The evidence of recantation to which appellant refers is the testimony of appellant's niece, who stated she asked complainant if complainant was telling the truth and complainant said she was not telling the truth. Complainant testified she did not make that statement to appellant's niece. Appellant asserts in his brief that complainant fabricated the allegations because she “sought to escape the confines of a restrictive parental environment and to live instead with [her] more libertine [friend].” In reviewing the sufficiency of the evidence to sustain a plea of guilty or nolo contendere, the court is concerned with the existence of evidence supporting the plea, not its veracity. Appellant's argument does not demonstrate a lack of evidence establishing appellant's guilt of sexual assault.
        Appellant has not shown the evidence is insufficient to support his pleas of nolo contendere. We overrule appellant's first, second, and third issues.
PRE-SENTENCE INVESTIGATION
        In his fourth and fifth issues, appellant contends his convictions are void under the state and federal constitutions because the trial court reviewed appellant's pre-sentence investigation report before formally entering a finding of guilt. In State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983) (per curiam), the court of criminal appeals stated that a trial court's review of a pre-sentence investigation report “prior to determinations of guilt” violates due process under the federal and state constitutions. See also Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). The court required there be “determinations of guilt,” not a formal entry of a finding of guilt, before the trial court could review the report. See McDonald, 662 S.W.2d at 7.
        In this case, on April 20, 2006, after hearing the evidence of appellant's guilt, the trial court stated, “I am finding the evidence proves that you are guilty of the lesser included offense of Sexual Assault.” The court then ordered the preparation of a pre-sentence investigation report, which was prepared on May 8, 2006. At the punishment hearing on June 13, 2006, the trial court told appellant that at the previous hearing, “I found that the evidence proved you guilty of a second degree felony in each case, and then passed it to get a Pre-Sentence Report.” The court then stated, “I have reviewed the Pre-Sentence Report, your lawyer's reviewed it, the State's reviewed it, and you're here for me to set punishment in each of these two cases.”
        The record shows the pre-sentence investigation report, prepared on May 8, 2006, did not exist when the trial court determined appellant's guilt on April 20, 2006. Contrary to appellant's assertion, the record does not show the trial court reviewed the pre-sentence investigation report before determining appellant's guilt. We overrule appellant's fourth and fifth issues.
MODIFICATION OF THE JUDGMENTS
        In a cross point, the State asks that we modify the judgments to reflect that sexual assault was the offense of which appellant was convicted in one case and had adjudication of his guilt deferred in the other. The State alleged in the indictments charging appellant with aggravated sexual assault that complainant was younger than fourteen years of age at the time of the offenses. The complainant testified she was fourteen at the time of the offenses. At the conclusion of the hearing on appellant's nolo contendere pleas, the trial court stated,
 
        Mr. Lamb, I do find that the evidence proves your guilt. I do not believe the evidence proves that the child was under fourteen, but I do believe the evidence proves your guilt of sexual assault, a second degree felony.
 
 
 
        I told you before this started that you were charged with two first degree felonies. I told you the punishment range was five to ninety-nine years or life. I do find you not guilty of Aggravated Sexual Assault of a Child in each case, but I am finding the evidence proves that you are guilty of the lesser included offense of Sexual Assault.
 
At the punishment hearing, the trial court referred to the previous hearing, stating, “After I heard the evidence I found that you were guilty of the lesser included offense of Sexual Assault, a second degree felony. That was not based on the actions performed but based on the age of the victim at the time these allegations occurred.”
        The written judgments, however, state appellant was convicted of “Aggravated Sexual Assault, Child Under 14.” The State asks that we reform the judgments to reflect that appellant was convicted of sexual assault. Besides this error, the judgments also incorrectly state the degree of offense and the applicable punishment range. The judgments also contain an incorrect finding of the age of the victim.
        We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Accordingly, we modify the judgments to reflect that the offense is Sexual Assault, the degree of offense is second degree felony, the applicable punishment range is two to twenty years and a fine not to exceed $10,000, and the age of the victim at the time of the offense was fourteen years old.
        We affirm the trial court's judgments as modified.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070248F.U05