Simmons, Atabrine James v. The State of Texas--Appeal from 24th District Court of Victoria County

Simmons v. SOT NUMBER 13-93-508-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

ATABRINE JAMES SIMMONS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 24th District Court of Victoria County, Texas.
O P I N I O N
Before Chief Justice Seerden and Justices Hinojosa and Chavez
Opinion by Justice Hinojosa

Pursuant to a plea agreement with the State, appellant pleaded nolo contendere to the offense of sexual assault of a child less than seventeen years of age and not the spouse of appellant. The trial court deferred adjudication and placed appellant on probation for ten years. After the State filed a motion to adjudicate, the trial court revoked appellant's probation and assessed punishment at 12 years confinement. By one point of error, appellant contends that the trial court committed reversible error by refusing to permit appellant, on the day of sentencing, to withdraw his plea of nolo contendere. We affirm.

Appellant was charged with the offense of sexual assault of J.O., a 15 year old child. Appellant was also charged with the offense of aggravated sexual assault of his daughter, I.A.S., a four year old child. On April 27, 1990, appellant entered his plea of nolo contendere to the charge of sexual assault of J.O. The trial court accepted appellant's plea and heard the State's recommendation that the court defer any finding of guilt and place appellant on probation for a period of ten years. The companion case (aggravated sexual assault of I.A.S.) was dismissed on the State's motion. The State asked the court to assess a $1,000.00 fine, plus court costs, and to impose 300 hours of community service restitution. As part of the plea bargain, appellant agreed to serve a period of eight months in the county jail, to be satisfied by May 14, 1990. The State asked the court to reset the case for sentencing at that time. The trial court agreed to take the case under advisement and set the case for sentencing on May 14, 1990. The State then proceeded to offer its evidence and agreed stipulations. Appellant did not object, and the trial court admitted the State's evidence and agreed stipulations. Appellant also testified and asked the court to assess a minimum fine as part of his sentence in light of his indigency.

On May 14, 1990, the trial court recalled this case for sentencing. At that time, appellant's counsel informed the court of appellant's desire to withdraw his plea of nolo contendere and to go to trial on the charged offenses. Appellant attempted to present evidence that the 15 year old victim had asked appellant to leave his wife and live with her. Appellant gave the trial court a letter allegedly written by J.O. after appellant's arrest and extradition from California. The court then stated,

I can't consider that because the issue before me is whether or not I can permit you to withdraw your plea. This would be hearing new evidence, so the Court cannot do that. You know, if any of that was a problem to you and available to you prior to entering the plea bargain agreement and that's the only issue I have.

 

The court refused appellant's request to withdraw his plea of nolo contendere and for a trial on the merits, stating,

I think you are too late. We have already gone forward on that, so unless there's some legal reason why the sentence should not be imposed the Court is going to proceed to impose sentence.

 

The court placed appellant on deferred adjudication probation in accordance with the plea bargain.

On April 7, 1993, the State filed a motion to adjudicate guilt alleging that appellant had violated six conditions of probation. After a hearing held on May 14, 1993, the court found the allegations contained in the State's motion to be true, revoked appellant's probation, and assessed punishment at 12 years confinement.

It is a defense to prosecution of sexual assault of a child that the child was at the time of the offense 14 years of age or older and had, prior to the time of the offense engaged promiscuously in conduct described in 22.011(a)(2). Tex. Penal Code Ann. 22.011(d)(1) (Vernon 1989). In order to establish the affirmative defense of promiscuity, the evidence must show that the child was 14 years or older and had engaged promiscuously in sexual activity before, rather than after, the time of the offense. Ramos v. State, 819 S.W.2d 939, 941 (Tex. App.--Corpus Christi 1991, pet. ref'd). "Promiscuity" is not a defense to aggravated sexual assault. Id. at 940; see Tex. Penal Code Ann. 22.021(a)(2) and (d) (Vernon 1989).

Appellant attempted to present evidence that the 15 year old victim had asked appellant to leave his wife and live with her. It appears that appellant may have intended to use this evidence to show that the victim had consented. The victim, however, could not legally consent because she was younger than 17 years and not his spouse. See Tex. Penal Code Ann. 22.011(a)(2) and (c)(1) (Vernon 1989). Consent is irrelevant to statutory rape. Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993)(consent is not an element of a 22.011(a)(2) offense).

A liberal practice prevails in Texas concerning the withdrawal of a guilty plea or plea of nolo contendere. A defendant may withdraw his plea as a matter of right without assigning reason until the judgment has been pronounced or the case has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Hayden v. State, 818 S.W.2d 194, 197 (Tex. App.--Corpus Christi 1990, no pet.); see also Cano v. State, 846 S.W.2d 525, 526 (Tex. App.--Corpus Christi 1993, no pet.). The withdrawal of a plea after the trial judge takes the case under advisement or pronounces judgment is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515; Hayden, 818 S.W.2d at 197. A duty to withdraw a plea arises only if evidence is introduced prior to the adjudication of guilt which indicates the innocence of the accused or which reasonably and fairly raises an issue as to such fact. Sullivan v. State, 573 S.W.2d 1, 3 (Tex. Crim. App. 1978).

The record reflects that the case was reset for May 14, 1990, simply to proceed with sentencing. By May 14, the State had already complied with its part of the plea bargain agreement; it had sought and obtained a dismissal of the companion case against appellant. By May 14, appellant had already served the agreed period of time required by the plea bargain agreement. By the time appellant asked permission of the trial court to withdraw his plea on May 14, the trial court had already had the case under advisement for more than two weeks.

Notwithstanding the delay in sentencing, appellant failed to introduce evidence prior to the adjudication of guilt which indicated his innocence, which established the affirmative defense of promiscuity, or which reasonably and fairly raised an issue as to such fact. Under the facts of this case, we hold that the trial court did not abuse its discretion in refusing to allow appellant to withdraw his plea of nolo contendere. Appellant's sole point of error is overruled.

We affirm the judgment of the trial court.

 

FEDERICO G. HINOJOSA, JR.

Justice

 

Opinion ordered not published.

Tex. R. App. P. 90.

 

Opinion delivered and filed this the

16th day of March, 1995.