Appeal from the 149th District Court Brazoria County, Texas
Trial Court Case No. 83463-CR
consists of Justices Keyes, Kelly, and Goodman.
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.
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
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.
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.
testified at trial. He denied that he was guilty as to count
eleven. The following exchange occurred between him and the
Q. And in front of this jury and the judge you stood up and
pled guilty to touching on the breasts for your sexual
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?
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?
Q. Do you remember pleading guilty to it?
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
A. Because all the questions that are-that are right there
have something to do because they say that there were sexual
Q. No. That count says that you touched her breasts for
sexual purposes. So did you touch her for sexual purposes?
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.
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
Q. But that's not what you said in the past. I mean
you said not guilty in the past. Would that be fair?
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.
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.
jury found Mendoza guilty on all counts. As to count eleven,
the verdict form signed by the foreperson read that, Mendoza