                           NUMBER 13-13-00199-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CHAKORE AMIL BLAKELY,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 264th District Court
                          of Bell County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Pursuant to a guilty plea, appellant Chakore Amil Blakely was convicted of

aggravated sexual assault of a child and sentenced to fifteen years' incarceration. See

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2012). By three issues,

which we renumber as one, Blakely challenges his conviction and argues that the trial
court erred in accepting his guilty plea because he effectively withdrew his plea when he

denied a necessary element of the indicted offense. We affirm.

                                          I. Background1

        Blakely was indicted with aggravated sexual assault as follows:

        [Blakely], on or about the 15th day of February A.D. 2012, . . . did then and
        there intentionally or knowingly cause the penetration of the sexual organ of
        [T.B.], a child who was then and there younger than 14 years of age, by
        [Blakely]'s finger.

See id. At a hearing on November 1, 2012, Blakely confessed to all the elements of the

charged offense and pleaded guilty. The trial court found the evidence sufficient but

postponed adjudicating Blakely's guilt until sentencing.

        After his November 2012 hearing, Blakely filed pro se motions to withdraw his

guilty plea and dismiss his counsel. But at the hearing on those motions on January 17,

2013, Blakely informed the trial court that he did not wish to withdraw his plea or dismiss

defense counsel. He also expressly admitted to penetrating the alleged victim.

        At a pretrial hearing on February 4, 2013, Blakely again told the trial court he

wished to plead guilty, and then the following exchange occurred between Blakely and

defense counsel:

        [Defense Counsel]:              All right. And you advised the author, the
                                        person who visited with you and wrote up your
                                        PSI, you said, I put my hands down the pants of
                                        a seven year old?

        [Blakely]:                      Yes, sir.

        [Defense Counsel]:              Do you remember telling her that?

        1
         This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
                                                    2
[Blakely]:           Yes, sir.

[Defense counsel]:   And is that what you did?

[Blakely]:           Yes, sir.

[Defense counsel]:   And you understand that we had a very lengthy
                     discussion and this is where you've gone back
                     and forth that you're charged with the
                     penetration of the privates of a seven-year-old
                     girl.

[Blakely]:           Yes, sir.

[Defense counsel]:   I explained to you that the difference between
                     indecency and the sexual assault that you're
                     accused of?

[Blakely]:           Yes, sir.

[Defense counsel]:   And it's aggravated because of the age of the
                     child.

[Blakely]:           Yes, sir.

[Defense counsel]:   And so I am asking you, are you guilty of
                     penetrating the sexual parts of a seven-year-old
                     girl?

[Blakely]:           I did not penetrate, sir.

[Defense counsel]:   So you're telling the Court that you're not guilty
                     of sexual assault of a child or aggravated sexual
                     assault of a child?

[Blakely]:           Yes, sir.

[Defense counsel]:   And so are you wanting to plead to the sexual
                     assault or aggravated sexual assault of a child
                     even though you're telling the Court you did not
                     penetrate her?

[Blakely]:           Yes, sir.

                                 3
       [Defense counsel]:            And I've gone into great length to explain to you
                                     that even — and I'm sorry to be graphic, but
                                     even the tip of either your finger or whatever
                                     they're saying penetrated her, that would be
                                     penetration, even the very tip?

       [Blakely]:                    Yes, sir.

       [Defense counsel]:            So you're wanting to plead guilty and continue
                                     with your plea of guilty even though you said
                                     different in the past?

       [Blakely]:                    Yes, sir.

       [Defense counsel]:            And even though you deny penetrating her even
                                     this very morning?

       [Blakely]:                    Yes, sir.

After Blakely came down from the stand, the prosecutor made the following remarks to

the trial court, in relevant part:

              The second thing, Your Honor, is we went through a plea of guilty,
       and you're pretty meticulous about going through all the facts. And I've sat
       here in the court and I'm sure the record will support it, that he was fully
       informed and aware of what a plea of guilty was.

               And then the third thing I want to add is a lot of people have difficulty
       with the concept of penetration and they may have an idea of what it is or
       what it is not. And the Court is aware of what the law says, if you get past
       the lips of the female sexual organ, you don't have to get in the vaginal vault
       for penetration and that may be part of the issue.

             We just proffer that. I'm sure the Court heard of it and [is] aware of it
       and the plea of guilty should stand. It was full[y] informed and correctly
       made.

The trial court then determined that Blakely should be permitted to go forward on his guilty

plea, and the sentencing hearing was scheduled.

       At the sentencing hearing on February 19, 2013, Blakely presented five character

witnesses, including his mother, friends of his mother, and members of his church.
                                                 4
Blakely then testified. He admitted to putting his hand down the victim's pants. He

testified that he was high on marijuana at the time and did not remember exactly what

happened. He denied that he put his finger "into [the victim's] vagina," but then testified,

"I mean, like I said, I don't think I did, but there's a chance I might have."

       At the close of the testimony and after argument by the State and defense counsel,

the trial court found Blakely guilty of the charged offense and sentenced him to fifteen

years' imprisonment. This appeal followed.

                      II. Standard of Review and Applicable Law

       The withdrawal of a guilty plea is a matter within the discretion of the trial court.

See Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979) (citations omitted).

In this case, Blakely did not withdraw his guilty plea; Blakely's argument on appeal is that

the trial court had a duty to sua sponte withdraw his plea. To that end, we note that the

trial court is not required to sua sponte withdraw a guilty plea and enter a plea of not guilty

for the defendant so long as the court fulfills its duty to consider the evidence submitted,

even where evidence is adduced that either makes the defendant's innocence evident or

raises an issue as to the defendant's guilt. See Moon v. State, 572 S.W.2d 681, 682

(Tex. Crim. App. 1978) (en banc); see also Aldrich v. State, 104 S.W.3d 890, 894 (Tex.

Crim. App. 2003) (stating that Moon requires nothing more than a decision by the trial

court "that a guilty-pleading defendant was guilty as he pleaded, guilty of a lesser

included offense, or not guilty"); Reyes v. State, No. 03-07-00115-CR, 2008 WL 4603576,

at *3 (Tex. App.—Austin Oct. 16, 2008, no pet.) (mem. op., not designated for publication)

("[I]f a defendant waives trial by jury and pleads guilty to the court, and if evidence is

thereafter adduced raising a question as to the defendant's guilt, the trial court need not
                                               5
withdraw the guilty plea; rather, the court has the duty to consider the evidence and, if

warranted, return a verdict of not guilty or guilty of a lesser included offense.").

                                      III. Discussion

       Having reviewed the entire record, we believe the trial court clearly acted within its

discretion in accepting Blakely's plea and adjudicating his guilt. In his initial plea hearing,

through his judicial confession, Blakely admitted to each element of the charged offense.

Although he later testified that he did not penetrate the victim's vagina, it would have been

reasonable for the trial court to believe either Blakely's earlier confessions to the elements

or that he did not understand the legal definition of penetration. In short, the trial court

acted within its discretion in permitting Blakely to move forward on his guilty plea.

       Blakely makes three arguments on appeal. First, Blakely argues that the trial

court failed to consider all of the evidence before accepting his guilty plea, violating its

duty under Moon. Blakely argues that because the trial court did not make a statement

"indicating that it did, in fact, consider all the evidence concerning penetration in this

case," including Blakely's vacillating and conflicting explanations, the court was not free to

accept the guilty plea. We disagree that the record demonstrates the trial court did not

consider the evidence before it. To the contrary, after it became apparent that Blakely

was unclear about the charges against him, the trial court held multiple hearings before

the sentencing hearing.      Then, at sentencing, the trial court expressly found the

evidence to be sufficient before adjudicating Blakely's guilt. In short, on the record

before us, we cannot conclude that the trial court failed to fulfill its duty under Moon to

consider all the evidence before it. It is apparent from the record that the trial court

considered all the evidence before it and decided that Blakely was guilty as he originally
                                              6
pleaded, which was the only decision required under Moon. See Aldrich, 104 S.W.3d at

894.

       Second, citing Mendez v. State, Blakely argues that he "effectively" withdrew his

plea when he denied penetrating the victim, that this was an "affirmative action to don the

armor again." See 138 S.W.3d 334, 350 (Tex. Crim. App. 2004) (holding that once a trial

court has properly advised a defendant about pleading guilty and accepted the plea, the

defendant is "required to take some affirmative action to don the armor again"). Having

reviewed the testimony, we disagree with Blakely's apparent contention that he

unequivocally denied penetrating the victim. At various points during the course of

proceedings, he admitted to penetration, showed some confusion about the exact nature

of penetration under the law, and denied penetration. At his final sentencing hearing,

Blakely then stated that he "might have" penetrated the victim. But crucially, Blakely

consistently maintained throughout the proceedings that he wished to plead guilty to

aggravated sexual assault, even after the difference between assault and the lesser

offense of indecency with a child, which does not include the element of penetration, was

explained to him. In other words, we disagree that Blakely denied an essential element

of the offense and, thus, "donned the armor again" and are not persuaded by Blakely's

argument in this regard.

       Finally, Blakely argues that, in light of his denial of the penetration element, the

evidence was insufficient to support his conviction.         See TEX. PENAL CODE ANN. §

22.021(a)(1)(B)(i) (providing that a person commits the offense of aggravated sexual

assault if he, in relevant part, "intentionally or knowingly . . . causes the penetration of the

anus or sexual organ of a child [under the age of fourteen] by any means"). "[I]n no event
                                               7
shall a person charged be convicted upon his [guilty] plea without sufficient evidence to

support the same." TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005). But a judicial

confession, standing alone, is sufficient evidence to sustain a conviction upon a guilty

plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1979) (op. on

reh'g). Blakely made just such a confession. Moreover, Blakely expressly admitted to

penetrating the victim at his January 2013 hearing and stated that "there's a chance [he]

might have" penetrated the victim at his February 2013 sentencing hearing. That he

equivocated on the penetration element at certain points during the proceedings was a

matter of credibility for the trial court, as trier of fact, to resolve, and we find no reason to

disturb its resolution on appeal. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The evidence was sufficient to support Blakely's conviction.

       Blakely's issue is overruled.

                                       IV. Conclusion

       We affirm the judgment of the trial court.


                                                                   NELDA V. RODRIGUEZ
                                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 23rd
day of January, 2014.




                                               8
