              PD-0354-15
                                                       March 31, 2015
                 NO._________________

                         IN THE

            COURT OF CRIMINAL APPEALS

                        OF TEXAS



           JIMMY BERNARD BILLINGSLEY
                    Petitioner

                            v.

                 THE STATE OF TEXAS
                      Respondent



          Petition is in Cause No. 1235745D from
Criminal District Court No. Three of Tarrant County, Texas,
           and Cause No. 01-13-00052-CR in the
    Court of Appeals for the Eleventh District of Texas



      PETITION FOR DISCRETIONARY REVIEW


                                 Abe Factor
                                 TBN: 06768500
                                 Factor, Campbell & Collins
                                 Attorneys at Law
                                 5719 Airport Freeway
                                 Phone: (817) 222-3333
                                 Fax: (817) 222-3330
                                 Email: lawfactor@yahoo.com
                                 Attorneys for Petitioner
                                 Jimmy Bernard Billingley
              IDENTITY OF PARTIES AND COUNSEL

       The following is a complete list of all parties to the trial court’s
final judgment, as well as the names and addresses of all trial and
appellate counsel.

Petitioner:                       Jimmy Bernard Billingley

Petitioner’s Trial Counsel:       Hon. Abe Factor
                                  TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Petitioner’s Counsel              Hon. Abe Factor
on Appeal:                        TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117
                                  Phone: (817) 222-3333

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Hon.Rebecca McIntire
                                  TBN: 00789254
                                  Hon. Joshua Ross
                                  TBN: 24046760
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196

Appellee’s Counsel                Hon. Charles Mallin
on Appeal:                        TBN: 12867400
                                  Hon. Andy Porter
                                  TBN: 24007857
                                  District Attorney’s Office
                                  401 W. Belknap Street
                                  Fort Worth, Texas 76196

                                    ii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

I.       The Court of Appeals erred when it held that Petitioner’s
         guilty plea was not void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         C.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

         D.        Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



                                                       iii
                          INDEX OF AUTHORITIES

Cases                                                                           page

Billingsly v. State,
       11-13-00052-CR, 2015 WL xxxxx (Tex. App.–
               Eastland, February 27, 2015, no. pet. h.)
                     (mem. op., not designated for publication). . .1-2, 3

Degrate v. State,
      No. 05–04–00218–CR, 2005 WL 165182, (Tex. App.–
             Dallas Jan. 26, 2005, no pet.)
                   (mem. op., not designated for publication). . . . . . 6

Jackson v. Virginia,
       443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). . . . . . . . . . . 4

Ex parte Martin,
      747 S.W.2d 789 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . 4, 5

Mathonican v. State,
     194 S.W.3d 59, 69–71 (Tex. App.–Texarkana 2006, no pet.). . . . 6

Menefee v. State,
      287 S.W.3d 9 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . 5

Najera v. State,
      955 S.W.2d 698 (Tex. App.–Austin 1997, no pet.). . . . . . . . . . . . .6

Stone v. State,
       919 S.W.2d 424 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . 5

Weeks v. State,
      834 S.W.2d 559, 561–65 (Tex. App.–Eastland 1992, pet. ref’d). .6

Statutes

Tex. Crim. Proc. Code Ann. art. 1.15 (West 2005). . . . . . . . . . . . . . . . 3-4


                                           iv
Tex. Gov’t Code Ann. § 73.001 (West 2013). . . . . . . . . . . . . . . . . . . . . . .6

Tex. Penal Code Ann. § 1.07(a)(46) (West Supp. 2014). . . . . . . . . .5-6, 7




                                          v
        STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                   STATEMENT OF THE CASE

      Petitioner Jimmy Bernard Billingsley (“Petitioner” or “Mr.

Billingsley”) was charged in Count Four of a four-count indictment of

intentionally or knowingly causing serious bodily injury to Quonta

Shaw by transmitting the Human Immunodeficiency Virus (HIV) to

Ms. Shaw through sexual intercourse. (C.R. 7-8). Appellant pled guilty

to Aggravated Assault Causing Serious Bodily Injury on December 28,

2012.(C.R. 167-171); (III R.R. 4). Appellant entered an open plea of

guilty to the Court and was sentenced to 15 years confinement in the

Texas Department of Criminal Justice. (C.R. 187). Appellant filed a

timely Notice of Appeal on December 28, 2012.(CR191).

           STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Eleventh Court of Appeals Affirming Mr.

Billingsly’s judgment was handed down on February 27, 2015. See

Billingsly v. State, 11-13-00052-CR, 2015 WL xxxxx (Tex. App.–Eastland,

February 27, 2015, no. pet. h.) (mem. op., not designated for

                                   1
publication). This timely Petition for Discretionary review ensued.

                      GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.     The Court of Appeals erred when it held that Petitioner’s
       guilty plea was not void.

                      REASONS FOR REVIEW

1.     The decision by the Eleventh Court of Appeals has decided an

important question of state law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals.

2.     The Eleventh Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.

                             ARGUMENT

               GROUND FOR REVIEW ONE (Restated)

I.     The Court of Appeals erred when it held that Petitioner’s
       guilty plea was not void.

       Because this petition is predicated upon error by the Eleventh

Court of Appeals in its review of Mr. Billingsley’s complaint on appeal,

a review of the evidence presented and events which transpired below

is in order.

                                    2
      A.     Facts

      Appellant Jimmy Billingsley and the complainant Quonta Shaw

had a sexual relationship. (IV R.R. 27). Prior to having sex with Ms.

Shaw, Mr. Billingsley was HIV positive. (IV R.R. 27). During this sexual

relationship Ms. Shaw contracted HIV from Mr. Billingsley. Mr.

Billingsley did not tell Ms. Shaw he was HIV positive prior to their

sexual relationship. (IV R.R. 27) Mr. Billingsley was indicted by a four-

count indictment of knowingly transmitting HIV to Ms. Shaw. (CR 7-8).

Appellant pled guilty to aggravated assault causing serious bodily

injury and went open to the judge for punishment. (C.R. 167-171) (IV

R.R. 4). After a trial on punishment before the trial court, Appellant

was sentenced to 15 years confinement in the Texas Department of

Criminal Justice. (CR 187).

      B.     Opinion Below

      Mr. Billingsley argued below that his plea of guilty was void

because the State failed to present any evidence to support his plea as

required by Article 1.15 of the Texas Code of Criminal Procedure. See

Billingsly, 2015 WL xxxxx at *1 (citing Tex. Crim. Proc. Code Ann. art.




                                    3
1.15).1 In its Opinion, the Eleventh Court of Appeals simply held that

Mr. Billingsley’s judicial confession was sufficient to meet the

requirements of Article 1.15. Id.

       C.     Controlling Law

       When a criminal defendant knowingly, intelligently, and

voluntarily pleads guilty, he waives his right to challenge the

sufficiency of the evidence under the traditional standard set out in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). Ex

parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988). However,

when a defendant pleads guilty before the trial court to a noncapital

felony offense, a conviction is not authorized under Article 1.15 unless


1

 No person can be convicted of a felony except upon the verdict of a jury
duly rendered and recorded, unless the defendant, upon entering a plea,
has in open court in person waived his right of trial by jury in writing in
accordance with Articles 1.13 and 1.14; provided, however, that it shall be
necessary for the state to introduce evidence into the record showing the
guilt of the defendant and said evidence shall be accepted by the court as
the basis for its judgment and in no event shall a person charged be
convicted upon his plea without sufficient evidence to support the same.
The evidence may be stipulated if the defendant in such case consents in
writing, in open court, to waive the appearance, confrontation, and
cross-examination of witnesses, and further consents either to an oral
stipulation of the evidence and testimony or to the introduction of
testimony by affidavits, written statements of witnesses, and any other
documentary evidence in support of the judgment of the court. Such
waiver and consent must be approved by the court in writing, and be filed
in the file of the papers of the cause. Tex. Crim. Proc. Code Ann. art. 1.15).

                                      4
there is evidence offered to support the guilty plea. Menefee v. State, 287

S.W.3d 9, 13 (Tex. Crim. App. 2009). When the defendant enters a

guilty plea, 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. Rather, in reviewing the sufficiency of the State’s

evidence, a reviewing court will affirm the trial court’s judgment if the

evidence embraces every essential element of the offense charged. Stone

v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). A conviction

rendered without sufficient evidence to support a guilty plea

constitutes trial error. Menefee, 287 S.W.3d at 14.

      D.     Discussion

      The indictment here alleged that Mr. Billingsley did

then and there intentionally or knowingly cause serious bodily injury
to [Q.S.]. . .by penetrating the female sexual organ, anus, or mouth of
[Q.S.] with the [appellant's penis, thereby causing [Q.S.] to contract the
human immunodeficiency virus (HIV). . .against the peace and dignity
of the State.

(C.R. 7-9). “Serious bodily injury” means “bodily injury that creates a

substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any

bodily member or organ.” Tex. Penal Code Ann. § 1.07(a)(46) (West



                                     5
Supp. 2014). Although Mr. Billingsley pled guilty to “each and every

act” alleged in the indictment, the court of appeals apparently operated

under the assumption that contracting HIV is per se “serious bodily

injury,” as the indictment contains no further elaboration regarding any

connection between HIV and “serious bodily injury.” Neither the Fort

Worth Court of Appeals2 nor the Court of Criminal Appeals have held

that contracting HIV is “serious bodily injury.” 3 The lack of any

principled connection to the essential element of “serious bodily

injury” can be illustrated here by substituting the word “flu” for

2

 Originally appealed to the Second Court of Appeals in Fort Worth, this
case was transferred to the Eleventh Court of Appeals in Eastland by the
Texas Supreme Court pursuant to its docket equalization efforts. See Tex.
Gov’t Code Ann. § 73.001 (West 2013). The Eleventh Court of Appeals by
rule was required to follow the precedent of the Second Court of Appeals
in deciding this case. See Tex. R. App. P. 41.3.
3

But see generally Mathonican v. State, 194 S.W.3d 59, 69–71 (Tex.
App.–Texarkana 2006, no pet.) (finding defendant’s HIV-positive seminal
fluid was capable of causing death or serious bodily injury); Degrate v.
State, No. 05–04–00218–CR, 2005 WL 165182, at *2, 2005 Tex. App. LEXIS
547, at *4–8 (Tex. App.–Dallas Jan.26, 2005, no pet.) (mem. op., not
designated for publication) (finding legally and factually sufficient
evidence that the mouth of an HIV-positive defendant was a deadly
weapon when defendant bit the complainant); Najera v. State, 955 S.W.2d
698, 700–01 (Tex. App.–Austin 1997, no pet.) (finding legally and factually
sufficient evidence that defendant’s penis and seminal fluids were capable
of causing death); Weeks v. State, 834 S.W.2d 559, 561–65 (Tex.
App.–Eastland 1992, pet. ref’d) (finding evidence was sufficient to sustain
HIV-positive defendant’s attempted murder conviction for spitting at
complainant).

                                     6
“human immunodeficiency virus,” as nowhere in the record is it shown

that “human immunodeficiency virus” is any more likely than the

common flu to cause “bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or

organ.” See Tex. Penal Code Ann. § 1.07(a)(46).

      As such, the court of appeals should not have held that sufficient

evidence was admitted to support Mr. Billingsley’s plea, as the

essential element of “serious bodily injury” is not supported.

                       PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

Appeals, and that upon reviewing the judgment entered below, that

this Court reverse the opinion of the Eleventh Court of Appeals and

reverse the conviction entered below.

                                        Respectfully submitted,

                                        /s/Abe Factor
                                        Abe Factor
                                        TBN: 06768500
                                        Factor, Campbell & Collins


                                   7
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorneys for Petitioner
                                        Jimmy Bernard Billingley

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,124.

                                        /s/Abe Factor
                                        Abe Factor


                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 30th
day of March , 2015.

                                        /s/Abe Factor
                                        Abe Factor




                                    8
                          APPENDIX

1.   Opinion of the Eleventh Court of Appeals.




                               9
Opinion filed February 27, 2015




                                         In The


        Eleventh Court of Appeals
                                       __________

                                  No. 11-13-00052-CR
                                       __________

             JIMMY BERNARD BILLINGSLEY, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


               On Appeal from the Criminal District Court No. 3
                                  Tarrant County, Texas
                         Trial Court Cause No. 1235745D


                     MEMORANDUM OPINION
      Jimmy Bernard Billingsley entered an open plea of guilty to the offense of
aggravated assault. Upon accepting his plea, the trial court found him guilty of the
offense and assessed his punishment at confinement in the Institutional Division of
the Texas Department of Criminal Justice for a term of fifteen years. In a single
issue, Appellant challenges his conviction by arguing that the evidence in support
of his guilty plea was insufficient under TEX. CODE CRIM. PROC. ANN. art. 1.15
(West 2005). We affirm.
                                         Background
       Appellant was charged in a four-count indictment with committing various
forms of assault by transmitting the human immunodeficiency virus (HIV) to Q.S.
Appellant pleaded guilty to Count Four of the indictment.1 Count Four alleged that
Appellant intentionally or knowingly committed assault by causing serious bodily
injury to Q.S. by causing her to contract HIV. Appellant executed a “Judicial
Confession” whereupon he swore under oath that he had read the indictment “filed
in this case and [he] committed each and every act alleged therein, except those
acts waived by the State.” At the plea hearing, Appellant testified that he was
pleading guilty because he was guilty “and for no other reason.”
                                            Analysis
       Appellant contends that his guilty plea was void because the State did not
present sufficient evidence under Article 1.15 that he caused serious bodily injury
by the transmission of HIV. In support of his argument, Appellant cites various
publications that were not presented to the trial court; he asserts that the
transmission of HIV should not be considered per se serious bodily injury today
because of medical advancements in the treatment of the disease and the stigma
presented by such a characterization.              The State responds by arguing that
Appellant’s judicial confession alone satisfied the requirements of Article 1.15.
We agree with the State’s contention.
       When a criminal defendant knowingly, intelligently, and voluntarily pleads
guilty, he waives his right to challenge the sufficiency of the evidence under the
traditional standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Ex parte
       1
        At the plea hearing, the trial court stated that Appellant pleaded guilty to “Count Five.”
Appellant acknowledges in his brief, however, that he actually pleaded guilty to Count Four in the
indictment.
Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988).              However, when a
defendant pleads guilty before the trial court to a noncapital felony offense, a
conviction is not authorized under Article 1.15 unless there is evidence offered to
support the guilty plea. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App.
2009). When the defendant enters a guilty plea, 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; Staggs v. State, 314 S.W.3d 155, 159 (Tex.
App.—Houston [1st Dist.] 2010, no pet.); McGill v. State, 200 S.W.3d 325, 330
(Tex. App.—Dallas 2006, no pet.). Rather, in reviewing the sufficiency of the
State’s evidence, we will affirm the trial court’s judgment if the evidence embraces
every essential element of the offense charged. Stone v. State, 919 S.W.2d 424,
427 (Tex. Crim. App. 1996). A conviction rendered without sufficient evidence to
support a guilty plea constitutes trial error. Menefee, 287 S.W.3d at 14.
      A person commits aggravated assault by committing an assault that causes
serious bodily injury to another. TEX. PENAL CODE ANN. § 22.02(a)(1) (West
2011). “‘Serious bodily injury’ means bodily injury that creates a substantial risk
of death or that causes death, serious permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46)
(West Supp. 2014). The indictment alleged in Count Four that Appellant “caused
serious bodily injury to [Q.S.]” by “causing [Q.S.] to contract human
immunodeficiency virus (HIV).”       Appellant contends that the State failed to
present evidence that he caused serious bodily injury by transmitting HIV to Q.S.
However, Appellant judicially confessed to this element of the offense by
confessing to “each and every act alleged” in the indictment. A judicial confession
will suffice to support a guilty plea as long as the confession covers all of the
elements of the charged offense. Menefee, 287 S.W.3d at 13. We conclude that
Appellant’s judicial confession covered all of the elements of the charged offense,
including the element challenged by Appellant on appeal.          We overrule
Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 27, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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   Rejection Information
   Rejection
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                        The petition for discretionary review does not contain the identity of Judge,
             03/31/2015 Parties and Counsel in compliance with [Rule 68.4(a)]; it is missing the identity of
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   Documents
   Lead Document                                 Billingsley PDR.pdf                                            [Original]


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