SAM WESLEY DUDLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 12, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01083-CR
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SAM WESLEY DUDLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-74164-Q
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OPINION ON REMAND
Before Justices Morris, O'Neill, and Murphy   See Footnote 1 
Opinion By Justice Morris
        After being indicted for aggravated sexual assault of a child, appellant pleaded no contest to and was placed on deferred adjudication probation for indecency with a child. On original submission, we concluded that indecency with a child was not a lesser-included offense of the charged aggravated sexual assault. We then vacated the trial court's judgment and remanded the cause for further proceedings. See Dudley v. State, No. 05-07-01083-CR, 2008 WL 4868346 (Tex. App.-Dallas 2008). Following the issuance of its opinions in Murray v. State, 302 S.W.3d 875 (Tex. Crim. App. 2009), and Evans v. State, 299 S.W.3d 138 (2009), the Texas Court of Criminal Appeals vacated our judgment and remanded the case for our reconsideration in light of Murray and Evans. See Dudley v. State, 302 S.W.3d 884 (Tex. Crim. App. 2009). Applying the reasoning of those two opinions, we now resolve appellant's issues against him and affirm the trial court's deferred adjudication order.
        In his second and third issues on appeal, appellant contends that indecency with a child is not a lesser-included offense of aggravated sexual assault of a child and therefore the trial court had no jurisdiction to convict him of indecency with a child. In its petition for discretionary review of our initial holding, the State argued that appellant was estopped from challenging the trial court's authority to convict him of indecency with a child because he chose to plead no contest to the offense before the trial court. In Murray, the court of criminal appeals held that the lesser-included- offense analysis of Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), applies to cases involving guilty pleas before the trial court, just as it does in cases involving not-guilty pleas before a jury. Murray, 302 S.W.3d at 878-81. Although this issue was not before us in the original appeal, we nevertheless note that the State now acknowledges that the Hall analysis applies in appellant's case.   See Footnote 2 
        Further, in Evans, the court of criminal appeals held that, under the Hall analysis, indecency with a child is a lesser-included offense of aggravated sexual assault of child when both offenses are predicated on the same act. Evans, 299 S.W.3d at 143. That is the situation here. Accordingly, appellant's second and third issues are without merit. We resolve the issues against appellant.
        In appellant's first issue, he complains the evidence against him is insufficient to support his no contest plea and establish his guilt. The legal effect of a no contest plea is the same as a plea of guilty. See Tex.Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). 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 (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 (Vernon 2005). 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. at 330.         Here, appellant specifically complains the State failed to prove the element of intent to arouse or gratify the sexual desire of any person. The complainant testified at trial that appellant, who is her stepfather's grandfather, touched her breasts, touched her vagina, and tried to kiss her. Appellant told the complainant not to tell his wife about his actions. When the complainant resisted appellant's advances, appellant asked her if she loved him. He told the complainant he did not act this way with his other granddaughters, unlike her, because they were “blood” relatives. Appellant's stepdaughter also testified that during her childhood, appellant fondled her breasts and vagina and had sexual intercourse with her. Intent to arouse or gratify the sexual desire of a person may be inferred from conduct, remarks, and surrounding circumstances. See Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.-Fort Worth 1999, pet. ref'd). The testimony on this matter is sufficient to prove the intent element of the offense. We resolve appellant's first issue against him.
        Having resolved all of appellant's issues against him, we affirm the trial court's order of deferred adjudication in the case.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100801RF.U05
 
Footnote 1 The Honorable Mark Whittington was a member of the original panel and participated in the original decision in this case. Justice Whittington has now retired from the Court and did not participate in the decision on remand. Pursuant to the Court's operating rules, Justice Mary Murphy, as Justice Whittington's successor, participated in the decision on remand. See Tex. R. App. P. 41.1.
Footnote 2 Although both parties were permitted to do so, only the State filed a brief on remand.