PAUL RALPH SIMONETTI, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 10, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01568-CR
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PAUL RALPH SIMONETTI, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-00615-T
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MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice O'Neill
        Appellant Paul Ralph Simonetti pleaded no contest to sexual assault of a child with no agreement about punishment. The trial court assessed appellant's punishment at thirteen years' confinement. In five issues, appellant generally contends (1) the trial court erred in admitting extraneous offense evidence, (2) the trial court erred in admitting irrelevant evidence about the complainant's mother, (3) the trial court erred in admitting a hypothetical question concerning punishment, and (4) the evidence is legally and factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment.
        The grand jury indicted appellant for sexual assault of a child alleging he knowingly and intentionally caused the penetration of the child's sexual organ with his finger. Appellant pleaded no contest to the allegations in the indictments, with no agreement about punishment. At trial, the State presented the victim's testimony to support appellant's plea. The victim, who was eighteen- years-old at the time of trial, testified appellant married her mother when she was about five-years- old. When she was about eight-years-old, appellant started going into her room at night and in the early mornings. At first, appellant would just rub her back. Eventually, appellant began touching the child's breasts and vagina. Initially, he touched her only over her clothing, but eventually the touching progressed to underneath her clothing. By the time she was ten, appellant began penetrating the child's vagina with his finger. Her mother was often home, but sleeping. The child pretended to be asleep during these assaults because she did not know what to do. She finally told her mother about the abuse after she discovered her mother was divorcing appellant.
        After hearing the evidence, the trial court found the evidence proved appellant's guilt. The court recessed for preparation of a presentence investigation. Later, the trial court heard evidence specifically on punishment, and assessed punishment at thirteen years' confinement. This appeal followed.
        We will begin with appellant's fourth and fifth issues contesting the legal and factually sufficiency of the evidence to support his conviction. In arguing these issues, appellant relies on the standards of review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency), and Clewis v. State, 922 S.W.2d 126, 129 (factual sufficiency). However, 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 no contest. 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.). Rather, 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 no contest, 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. The evidence is sufficient to support a plea of no contest if it embraces every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
        Here, the victim testified that appellant committed each element of the offense as alleged in the indictment. Appellant's only contention is that the victim's testimony is not credible. However, the only question presented is whether the evidence introduced embraced every essential element of the offense. The victim's testimony did so. This is sufficient to support a no contest plea. See Stone, 919 S.W.2d at 427. We resolve the fourth and fifth issues against appellant.
        In his first issue, appellant contends the trial court erred in admitting evidence of extraneous acts. At trial, as the child began describing how the assaults progressed from rubbing her back to the digital penetration alleged in the indictment, appellant objected to “the extraneous offense.” The basis for the objection was that the defense wanted the State to identify the primary offense, so they would know what was extraneous. Appellant asserted the State was required to prove the extraneous offenses beyond a reasonable doubt before they could be considered. The trial court agreed with both contentions. The court nevertheless added the extraneous acts were relevant under article 38.37 of the code of criminal procedure, which allows extraneous offense evidence to be admitted in a sexual assault of a child case to show the previous and subsequent relationship between the child and the defendant. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (Vernon Supp. 2009). On appeal, appellant contends the extraneous acts were not admissible under article 38.37, § 2(b) because there was “no dispute” about the child's relationship to appellant. Appellant did not object on this basis in the trial court. A complaint on appeal must comport with the trial objection. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Thus, he preserves nothing for review.                        
        Regardless, the trial court did not err in admitting the extraneous conduct. We review a trial court's ruling on the admission of evidence for an abuse of discretion. Montgomery v. State, 819 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Appellant argues that the trial court erred in admitting extraneous offense evidence during the “guilt/innocence” portion of the trial. However, when, as here, a defendant waives a jury trial and enters a no contest plea on a non-capital offense, the proper procedure is to conduct a unitary trial.   See Footnote 1  Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.-Austin 2004, no pet.) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001)); Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.-Austin 2002, pet. ref'd) (same). In a unitary trial, there is no “bifurcation” (where the guilt/innocence and punishment stages are conducted separately), even when the trial court employs procedures characteristic of bifurcation. Saldana, 150 S.W.3d at 489. Rather, such a procedure remains a unitary trial “punctuated by a recess in the middle.” Id. Accordingly, in a unitary trial, as in a punishment hearing, the parties may offer any evidence the court deems relevant to sentencing, including unadjudicated extraneous offenses and previous bad acts attributable to the defendant. See Watson v. State, 974 S.W.2d 763, 765 (Tex. App.-San Antonio 1998, pet. ref'd); Pargas v. State, No. 05-04-01682-CR, 2005 WL 2009567, at *5-6 (Tex. App.-Dallas Aug.23, 2005, no pet.) (not designated for publication).
        Here, appellant pleaded no contest before the trial court, rendering the proceeding a unitary one in which all evidence was admitted both to substantiate appellant's plea and to allow the trial court to determine sentencing. See Saldana, 150 S.W.3d at 489. Although the trial court employed procedures characteristic of bifurcation, the proceeding remained unitary. See id. Because both guilt and punishment are at issue in such a proceeding, the trial court did not err by admitting the challenged evidence. We resolve the first issue against appellant.
        In his second issue, appellant contends the trial court erred admitting “extraneous offense evidence” concerning the child's mother. At trial, the child's mother testified that she had been sexually abused as a child. The prosecutor asked mother whether she had discussed the sexual abuse with appellant. Appellant objected “[y]our honor, there is no relevance because he had no knowledge; therefore there is no linking, a nexus that would impute anything to him.” The prosecutor then rephrased and asked mother whether she told appellant she had been sexually abused as a child. Mother said yes, and the trial court overruled appellant's objection. On appeal, appellant asserts mother's alleged history of sexual abuse and her “alleged interactions with the defendant” are not relevant to a proper punishment. In particular, he asserts this constituted improper “victim impact” evidence. However, appellant's trial objection, that the State did not show appellant was aware of the abuse, does not comport with his complaint on appeal. Thus, his objection preserves nothing to review. See Heidelberg, 144 S.W.3d at 537; Wilson, 71 S.W.3d at 349. Moreover, the State cured the only objection appellant did make below by establishing appellant was aware that mother was sexually abused when he assaulted her daughter. We resolve the second issue against appellant.
        In appellant's third issue, he contends the trial court erred in overruling his objection to a hypothetical question. After the trial court concluded the evidence showed appellant's guilt, appellant continued to maintain his innocence and asked the trial court to place him on probation. The prosecutor asked appellant to assume that he did commit the offense as testified to by the complainant. Appellant objected that the hypothetical was improper because he denied commission of the offense. The trial court overruled the objection. The prosecutor then asked appellant what should happen to him if he did commit the offense. Appellant conceded he should go to jail.
        On appeal, appellant complains the prosecutor's hypothetical was improper because a witness cannot recommend a particular punishment. See Satterwhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989). Once again, appellant's complaint on appeal does not comport with the objection he made in the trial court, which complained only that the question assumed his guilt. Nothing in the context of appellant's objection would have alerted the trial court to the complaint he now raises on appeal. We conclude he did not preserve error. See Heidelberg, 144 S.W.3d at 137; Wilson, 71 S.W.3d at 349. We resolve the third issue against appellant.
        We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
181568F.U05        
 
Footnote 1 The legislature has mandated that a trial court may only grant deferred adjudication probation if a defendant pleads guilty or no contest. It is apparent appellant pleaded no contest so that he would be eligible for deferred. Appellant now wishes to treat his plea as a not guilty plea. Appellant cannot have it both ways.