AFFIRM as MODIFIED; Opinion Filed May 6, 2020




                                       In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00999-CR
                               No. 05-19-01001-CR

                  PABLO PACHECO RAMIREZ, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

              On Appeal from the 292nd Judicial District Court
                            Dallas County, Texas
             Trial Court Cause Nos. F17-76295-V & F17-76296-V

                        MEMORANDUM OPINION
                  Before Justices Schenck, Molberg, and Nowell
                            Opinion by Justice Nowell
      The State charged Pablo Pacheco Ramirez with aggravated sexual assault of

a child (trial court cause number F17-76295-V) and indecency with a child (trial

court cause number F17-76296-V). He waived his right to a jury trial and entered a

plea of no contest. After hearing evidence, the trial court found appellant guilty in

both cases. He was sentenced to twelve years’ confinement.

      In three issues, he argues the evidence is insufficient to support both

convictions and his plea of no contest was not entered knowingly, intelligently, and

voluntarily. In his fourth issue, he requests we modify the judgment in trial court
cause number F17-76296-V to delete duplicative court costs. We modify the

judgment in trial court cause number F17-76296-V and affirm as modified. We

affirm the trial court’s judgment in trial court cause number F17-76295-V.

        A. Sufficiency of the Evidence

        1. Legal Standards

        In his first and second issues, appellant argues the evidence is insufficient to

support his convictions.1 We review a challenge to the sufficiency of the evidence

on a criminal offense for which the State has the burden of proof under the single

sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta

v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). Under this standard, the

relevant question is whether, after viewing the evidence in the light most favorable

to the verdict, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2011). This standard accounts for the factfinder’s duty to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences



    1
      Appellant entered a no contest plea, which had the effect of admitting all material facts alleged in the
formal charge and alleviating the State from proving appellant’s guilt beyond a reasonable doubt. See
Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Article 1.15 of the code of criminal procedure
only requires substantiation of a no contest plea. See TEX. CODE CRIM. PROC. art. 1.15; see Menefee, 287
S.W.3d at 13. When reviewing the sufficiency of the evidence on a plea of no contest, we determine
whether the evidence embraces each essential element of the offense charged. See id.
    However, in this case, the record shows the parties and trial court conducted the trial as though appellant
pleaded not guilty and the State was required to prove the essential elements of the offense beyond a
reasonable doubt. In light of that, appellant requests we review the evidence under the standard set forth in
Jackson v. Virginia, and the State agrees. Because the parties agree, we apply the Jackson v. Virginia
sufficiency standard.
                                                     –2–
from basic facts to ultimate facts. Id. Therefore, in analyzing legal sufficiency, we

determine whether the necessary inferences are reasonable based upon the combined

and cumulative force of all the evidence when viewed in the light most favorable to

the verdict. Id.

      We do not resolve conflicts of fact, weigh evidence, or evaluate the credibility

of the witnesses as this is the function of the trier of fact. See Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we determine whether both the

explicit and implicit findings of the trier of fact are rational by viewing all the

evidence admitted at trial in the light most favorable to the adjudication. Adelman

v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). When the record supports

conflicting inferences, we presume the factfinder resolved the conflicts in favor of

the verdict and defer to that determination. Clayton, 235 S.W.3d at 778. The

factfinder is the sole judge of the witnesses’ credibility and their testimony’s weight.

See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).

      As applicable in this case, a person commits the offense of aggravated sexual

assault of a child if the person intentionally or knowingly causes the sexual organ of

the child to contact the sexual organ of the actor and the child is younger than

fourteen years of age at the time of the offense. See TEX. PENAL CODE § 22.021.

Further, as applicable in this case, a person commits the offense of indecency with a

child if a person engaged in sexual contact with a child younger than seventeen years

of age. See id. § 21.11(a)(1).
                                          –3–
         2. Facts Presented to Trial Court

         The complainant, B.P., is appellant’s niece. She was eleven years old at the

time of trial. Appellant lived in B.P.’s grandparents’ house where B.P. regularly

spent the night. B.P. enjoyed going to her grandparents’ house where she played

with appellant’s children, her cousins.

         B.P. testified that one night when she was nine years old and spending the

night at her grandparents’ house, she and her cousins slept in appellant’s room. She

was awakened in the middle of the night when a lamp was turned on; she saw

appellant sitting on the floor and looking at books. When she got out of bed and sat

down next to him, appellant asked whether she knew what sex is and showed her a

book about sex. When he asked whether she wanted him to show her what sex is,

she declined. B.P. testified appellant then went to his daughter2 who was sleeping,

pulled down her pants and his pants, and “began to rape her in front of me.”

Appellant asked B.P. if she wanted to do the same thing and she said no. Appellant

continued asking. She testified: “After that I kept hesitating, but then I gave in and

I was on my back, and he got on top of me, he pulled down my pants and he put the

covers over us and he stuck his penis into me but not all the way.” She explained he

put his penis into her vagina.




   2
       Appellant’s daughter is older than B.P. and has spina bifida.

                                                    –4–
      The next morning appellant called B.P. into his room. He told her if she

rubbed his penis that it would grow bigger and, she testified, “then I don’t remember

the conversation but it ended up me putting my hands inside his pants and rubbing

on his penis.” After she stopped touching his penis, she turned around, took off her

pants and underwear, and he “proceeded to rub his penis on my butt.”

      B.P.’s mother described B.P.’s outcry to her; B.P.’s mother’s testimony about

what B.P. told her mirrors the testimony B.P. provided in the trial court.

      3. Analysis

      B.P. testified about the incidents with which appellant was charged. She

stated appellant put his penis in her vagina and, in a separate incident, rubbed his

penis on her “butt.” This Court previously has held that “[t]he testimony of the child

victim alone is sufficient to support a conviction for sexual assault.” Lee v. State,

186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet ref'd); see TEX. CODE CRIM.

PROC. art. 38.07 (“A conviction under Chapter 21, Section 20A.02(a)(3), (4), (7), or

(8), Section 22.011, or Section 22.021, Penal Code, is supportable on the

uncorroborated testimony of the victim of the sexual offense if the victim informed

any person, other than the defendant, of the alleged offense within one year after the

date on which the offense is alleged to have occurred.”). B.P.’s testimony alone,

which embraces every essential element of the offenses charged, is sufficient to

support the convictions. Additionally, B.P.’s testimony was corroborated by her

mother’s testimony about B.P.’s outcry. Viewing the evidence in the light most
                                         –5–
favorable to the trial court’s findings of guilt, we conclude a rational trier of fact

could have found all the essential elements of the offense beyond a reasonable doubt.

We overrule appellant’s first and second issues.

      B. Plea of No Contest

      In his third issue, appellant asserts his plea of no contest was not entered

knowingly, intelligently, and voluntarily, in violation of his constitutional right to

due process. Appellant argues the record shows he did not understand his plea based

on the fact he “vehemently contest[ed] the accusation.”

      A plea of no contest or guilty must be free and voluntary. See Briggs v. State,

560 S.W.3d 176, 187 (Tex. Crim. App. 2018); see also TEX. CODE CRIM. PROC. art.

26.13(b) (“No plea of guilty or plea of nolo contendere shall be accepted by the court

unless it appears that the defendant is mentally competent and the plea is free and

voluntary.”); Bousley v. United States, 523 U.S. 614, 618 (1998) (“A plea of guilty

is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’”).

“Waivers of constitutional rights not only must be voluntary but must be knowing,

intelligent acts done with sufficient awareness of the relevant circumstances and

likely consequences.” United States v. Brady, 397 U.S. 742, 748 (1970). When a

defendant enters into a plea, attesting he understands the nature of his plea and that

it is being made knowingly and voluntarily, he has the burden on appeal to show his

plea was involuntary. Briggs, 560 S.W.3d at 187.



                                         –6–
       During a pre-trial hearing, the trial court informed appellant that if the State

proved he was guilty, then the trial court was authorized to find appellant guilty; the

trial court informed appellant about the ranges of punishment, including applicable

terms of incarceration. The trial court informed appellant he would be required to

register as a sex offender and, because he was not a citizen of the United States, he

could be denied admission to the country, denied naturalization, or be deported.

Appellant stated he understood each of these statements. The trial court then asked

whether, knowing everything that was explained, did appellant “wish to waive or

give up your right to a jury trial and enter your pleas on [sic] No Contest at this

time?” Appellant replied “Yes, sir.” Appellant’s counsel then informed the trial

court: “Your Honor, I’ve spent many months counseling, advising with Pablo and

I’m convinced that he understands the concept of the Waiver of Jury, the concept of

how any finding of guilty in each of these cases will impact him for immigration

purposes. And he enters respective pleas of No Contest in these cases.” On the day

of trial, the trial court again informed appellant of the charges against him, which he

stated he understood. The trial court again confirmed appellant’s plea of no contest,

and accepted the plea.

        Nothing in this record shows appellant did not enter his plea freely and

voluntarily. Rather, the record shows appellant understood the charges against him,

ranges of punishment, and potential immigration consequences. He then chose to



                                         –7–
plead no contest. Based on this record, we conclude appellant has not met his burden

to show his plea of no contest was involuntary. We overrule appellant’s third issue.

      C. Modification of Judgment

      In his fourth issue, appellant requests we delete duplicative costs from the

judgments in trial court cause number F17-76296-V because the trial court may

assess costs only once against a defendant when disposing of multiple cases in a

single criminal action. The State agrees.

      “In a single criminal action in which the defendant is convicted of two or more

offenses or of multiple counts of the same offense, the court may assess each court

cost or fee only once against the defendant.”         TEX. CODE CRIM. PROC. art.

102.073(a). For purposes of this rule, a person convicted of more than one offense

in the same trial is convicted of those offenses in a “single criminal action.” Burton

v. State, No. 05-18-00608-CR, 2019 WL 3543580, at *3 (Tex. App.—Dallas Aug.

5, 2019, no pet.) (citing Hurlburt v. State, 506 S.W.3d 199, 201–04 (Tex. App.—

Waco 2016, no pet.)). When two or more convictions arise from a single criminal

action, “each court cost or fee the amount of which is determined according to the

category of offense must be assessed using the highest category of offense that is

possible based on the defendant’s convictions.”       TEX. CODE CRIM. PROC. art.

102.073(b).

      It is undisputed that the two cases at issue in this appeal were prosecuted in

the same trial. The record shows $574.00 in court costs were assessed in each case.
                                         –8–
Examining the Criminal Court Fee Docket, it is clear those costs are duplicative.

Because the costs assessed in trial court cause number F17-76296-V are duplicative,

we reform the judgment in that case to delete the improper fees. See Rubio v. State,

No. 05-17-00621-CR, 2018 WL 3424362, at *3 (Tex. App.—Dallas July 6, 2018,

pet. ref'd) (mem. op., not designated for publication). We sustain appellant's fourth

issue.

         D. Conclusion

         We modify the judgment in trial court cause number F17-76296-V and affirm

as modified. We affirm the trial court’s judgment in trial court cause number F17-

76295-V.




                                           /Erin A. Nowell/
                                           ERIN A. NOWELL
                                           JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
190999F.U05




                                        –9–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

PABLO PACHECO RAMIREZ,                        On Appeal from the 292nd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F-1776295-V.
No. 05-19-00999-CR          V.                Opinion delivered by Justice Nowell.
                                              Justices Schenck and Molberg
THE STATE OF TEXAS, Appellee                  participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 6th day of May, 2020.




                                       –10–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

PABLO PACHECO RAMIREZ,                       On Appeal from the 292nd Judicial
Appellant                                    District Court, Dallas County, Texas
                                             Trial Court Cause No. F-1776296-V.
No. 05-19-01001-CR          V.               Opinion delivered by Justice Nowell.
                                             Justices Schenck and Molberg
THE STATE OF TEXAS, Appellee                 participating.

   Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

      We DELETE the court costs of $574.00

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 6th day of May, 2020.




                                      –11–
