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Mendoza v. State

Court of Appeals of Texas, First District

September 26, 2019

CECILIO MENDOZA, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 83463-CR

          Panel consists of Justices Keyes, Kelly, and Goodman.

          OPINION

          Gordon Goodman Justice

         A jury found Cecilio Mendoza guilty of twelve sexual offenses. He challenges his judgment of conviction as to one of these offenses, contending that the trial court erred by refusing to allow him to withdraw his guilty plea to count eleven of the indictment and instructing the jury to find him guilty in conformity with his plea.

         We agree with Mendoza. We reverse his conviction under count eleven of the indictment and remand this cause to the trial court so that he may answer this count. As Mendoza does not challenge his convictions under any of the other counts of the indictment, we otherwise affirm the trial court's judgment.

         BACKGROUND

         A grand jury indicted Mendoza for three counts of aggravated sexual assault of a child, three counts of indecency with a child by sexual contact, one count of sexual assault of a child, and six counts of prohibited sexual conduct, all as part of one criminal episode. See Tex. Penal Code §§ 3.01, 21.11, 22.011, 22.021, 25.02. Each of these counts concerned the same child, Mendoza's daughter.

         Before the reading of the indictment, the state abandoned one count of prohibited sexual conduct. When the indictment was read, Mendoza pleaded not guilty to all but one of the remaining twelve counts in the presence of the jury. He pleaded guilty to count eleven of the indictment, which alleged that he had committed the offense of indecency with a child by sexual conduct, specifically by touching his daughter's breasts.

         Mendoza testified at trial. He denied that he was guilty as to count eleven. The following exchange occurred between him and the prosecutor:

Q. And in front of this jury and the judge you stood up and pled guilty to touching on the breasts for your sexual gratification?

A. No.

Q. Okay. So you don't remember pleading guilty to touching your daughter's breasts?

A. Oh, yes. Yes, I did say that.

Q. Okay. So that count is touching breasts with sexual gratification or desire?

A. No.

Q. So you didn't listen to when the District Attorney read that charge and you pled guilty?

A. Yes, I said yes. But I've never seen her like that in that way.

Q. So you pled guilty to this not understanding it?

A. No. I did understand the question.

Q. Okay. Well, let me read it to you. Hang on. It says on or about the 1st day of January, 2015, and before the presentment of this indictment, in said County and State, did then and there, with the intent to arouse or gratify the sexual desire of said Defendant- that's you-intentionally or knowingly engage in sexual contact with [his daughter], a child younger than 17 years and not the spouse of the Defendant, by touching the breasts of said child. Do you remember that being read to you?
A. Yes.
Q. Do you remember pleading guilty to it?
A. Yes.
Q. Okay. So why don't you tell me about the time that you first touched your daughter's breasts in a sexual manner?
A. I didn't do it like that.
Q. Okay. Tell me how you did it.
A. Playing. Like I said before.
Q. So why did you plead guilty to something you didn't do?
A. Because all the questions that are-that are right there have something to do because they say that there were sexual relations.
Q. No. That count says that you touched her breasts for sexual purposes. So did you touch her for sexual purposes?
A. No.

         Mendoza previously had testified that any physical contact with his daughter was unintentional or non-sexual in nature and occurred in the context of wrestling or other play.

         Subsequently, defense counsel also questioned Mendoza about whether he touched his daughter's breasts. Mendoza again denied doing so as charged:

Q. So I guess just to be clear, I mean today you pled guilty to what is Count Eleven. Did you not hear the intent to arouse or gratify the sexual desire of said Defendant as part of that count?

A. I was just thinking it was touching without any intention.

Q. But that's not what you said in the past. I mean you said not guilty in the past. Would that be fair?

A. Yes.

         Before the jury was charged, Mendoza tried to withdraw his guilty plea to count eleven. Defense counsel argued that Mendoza "essentially retracted that guilty plea in his testimony." The State opposed withdrawal, contending that it would "confuse the jury." The trial court stated that it "already accepted the plea" and denied Mendoza's request.

         In its charge to the jury, the trial court stated that Mendoza "entered a plea of 'Guilty'" to the offense of indecency with a child by sexual contact and "persists in his plea." The trial court thus instructed the jury to find Mendoza guilty of count eleven. The prosecution echoed this instruction in its closing argument, stating that Mendoza had "already pled guilty" to this count, "so you must find him guilty" on this count.

         The jury found Mendoza guilty on all counts. As to count eleven, the verdict form signed by the foreperson read that, Mendoza ...


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