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).
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[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.
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[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.
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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
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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
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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
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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.
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