AFFIRMED as MODIFIED and Op inion Filed December 19, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00476-CR JIMMY JONES, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1615371-R MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Goldstein Jimmy Jones appeals the trial court’ s order deferring his adjudication on a charge of aggravated sexual assault of a ch ild younger than fourteen. After Jones’ bench trial on a plea of no contest, the tr ial court deferred adj udication of his guilt and placed him on deferred adjudication comm unity supervision for ten years. In five issues in his original brief, Jones argues:
1. The evidence was insufficient to pr ove that Appellant sexually abused complainant.
2. The evidence was insufficient to support Appellant’s plea of “no contest” admitting that he sexually abused complainant.–2– 3. The trial court violated Appellant’s right to due process and statutory rights by placing the burden on Appella nt to disprove the offense by establishing that complain ant had a motive for falsity.
4. The trial court violated Appellant’s statutory and due process rights to enter a voluntary plea by accepting Appe llant’s “no contest” plea when the trial court misinformed Appellant he was not eligible for probation from a jury, misinformed Appellant that his plea of no contest was not an admission and failed to explain th at an admission would be required on probation.
5. The trial court violated Appellant’s statutory and due process rights voluntarily waive his right to a ju ry trial by accepting Appellant’s waiver when the trial court misinfor med Appellant he was not eligible for probation from a jury, misinforme d Appellant that his plea of no contest was not an admission and failed to explain that an admission would be required on probation. Jones’ supplemental brief raises three issues:
1. The trial court lacked jurisdiction due to the absence of impracticability findings in the juvenile court certification order.
2. If there was a waiver of the jurisdic tional claim Appellant is entitled to relief based on his right to have th e effective assistance of counsel.
3. Trial counsel’s failure to inform Appe llant about the lack of jurisdiction combined with the mistaken and in complete information from the trial court to render Appellant ’s no contest plea and jury waiver involuntary.
In a single cross-issue, the State argues the order of deferred adjudication should be modified to omit the references to a plea bargain. As modified, we affirm the trial court’s judgment.
BACKGROUND–3– The record shows that the complainan t, A.R., was born in May 1997. A.R.’s mother testified that Jones is Mother’s cousin and is “eight or nine years” older than A.R. Jones sometimes looked after A.R. In 2014, when A.R. was seventeen years old, A.R. told Mother that Jones had mole sted him. On April 1, 2014, A.R. gave a forensic interview at the Irving Family Advocacy Center. A.R. was sixteen years old at the time of the forensic interview. Jones was sixteen years old on June 16, 2006, the date of th e alleged assault. 1 Therefore, the State filed in juvenile court a petition for disc retionary transfer pursuant to section 54.02(j) on April 13, 2016. The petition alleged that there was probable cause to believe Jones committed th e charged offense a nd that, because of the seriousness of the offense, the welf are of the community required that the juvenile court waive jurisdic tion and have Jones transfe rred to a Criminal District Court. The petition further alleged, among other things, that for a reason beyond the control of the State it was not practicable to proceed in juvenile court before Jones’ eighteenth birthday and/or after exercising due diligence, it was not practicable to proceed before Jones’ eighteenth birthday because Jones could not be found and/or the State did not have probable cause to pr oceed in juvenile court and new evidence had been found since Jones’ eighteenth bi rthday. The petition requested that the

1 Jones was originally charged with two felony offen ses of aggravated sexual assault of a child. After trial and imposition of deferred adj udication in this cause, the State moved to dismiss, and the court dismissed F16-15370 on March 13, 2020. The dismissed cause is not befo re us; therefore, we proceed solely on this cause.–4– juvenile court find probable cause that Jones committed the alleged offense and order that Jones be transferred to the pr oper Criminal District Court for criminal proceedings. In June 2016, Jones entere d a written stipulation of evidence stipulating, in pertinent part, that (1) Jones was sixteen y ears old at the time of the alleged offense and twenty-six years old at the present ti me; (2) no adjudication hearing had been conducted concerning the alleged acts; and (3) Jones and his a ttorney waived a discretionary transfer hearing and agreed to the existence of the elements and consideration in favor of transfer to crim inal court for prosecution of Jones as an adult for the offense alleged in the petition for discretionary transfer. On June 28, 2016, the juvenile cour t conducted a hearing on the State’s petition for discretionary transfer . Jones and his attorney were present at the hearing. Among other things, the court read the char ges against Jones and advised him of his right to remain silent and ca ll witnesses to testify on his behalf. Jones stated he did not have any questions regarding the proc eedings; he intended to waive the hearing and presentment of the State’s evidence and waive calling witn esses on his behalf; he understood that, by waiving this hearing, the court would transfer his case to an adult criminal district court; and he wished to proceed. That same day, the juvenile–5– court signed an order waiving jurisdicti on and transferring the case to Criminal District Court. 2 In December 2016, Jones was charged by indictment with the offense of aggravated sexual assault of a child, A.R ., younger than fourteen years old. The indictment stated Jones’ birthdate was in August 1989 and allege d that, on or about June 16, 2006, Jones caused the contact and penetration of A.R.’s anus with Jones’ sexual organ. Thus, Jones wa s sixteen years old at the tim e of the assault and twentysix years old at the time he was indicted. At a trial before the court on Novemb er 26, 2019, Jones waived a jury and entered a plea of no contest. That same day, Jones and his de fense counsel signed a written jury waiver, and the trial court signe d the waiver and approved it. The trial court admonished Jones as follows: I want you to know that when you plead No Contest I do not believe that’s an admission of guilt. As fa r as I’m concerned when you say No Contest you’re saying Not Guilty and the State has to prove your case beyond a reasonable doubt. If they can’t I find you not guilty. If they can I have an option that a jury woul d not have. I coul d defer a finding of guilt and place you on probation for up to 10 years or I could find you guilty and send you to prison. At the trial that followed, A.R. tes tified that, on an occasion when he was seven years old and Jones wa s watching A.R. at A.R.’s house while Mother was at work, A.R. and Jones were on top of A.R.’s bed, A.R. was lying on his stomach, and

2 The juvenile court found that Jones was of sufficien t sophistication and maturity to be tried as an adult and aid an attorney in his defense. Jones and his a ttorney also stipulated to these factual findings.–6– Jones’ “penis was between like [A.R.’s] scrotum and like [his] thighs, from the back.” A.R. testified Jones’ penis touched his “butt” and touched “on or around the area where [A,R.’s] anus is.” A.R. testified he did not think Jones put his penis in A.R.’s “butt.” Jones moved for a directed verdict on the ground the State failed to prove, as charged in the indictment, “contact and penetr ation” of A.R.’s anus by Jones’ penis. The trial court agreed that there was “ no evidence of penetration.” The State responded that we can do ”and” during the indi ctment portion, but during the charging portion at trial it’s ”or,” so penetrate or contact, it’s how it would be created in a jury charge. So the jury or the judge can consider either one.
The trial court agreed with th e State and denied Jones’ mo tion for directed verdict. Following closing arguments, the trial court st ated that A.R. said there was contact between Jones’ penis and A.R.’s anus, and the trial court found this testimony “credible.” At the sentencing hearing on Ma rch 9, 2020, the trial court placed Jones on deferred adjudication community supervis ion for ten years, with an Order of Deferred Adjudication filed am ong the papers of the court. This appeal followed.
ANALYSIS

A. Original Brief: Issues 1 a nd 2 - Insufficient Evidence–7– In his first and second issues in his original brief, Jones argues the evidence was insufficient to prove he sexually a bused A.R. and to support his plea of no contest admitting he sexually abused A.R. 3 A plea of nolo contendere has the sa me legal effect as a guilty plea for purposes of the criminal prosecution. T EX

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. A NN . art. 27.02(5);
Gomez v. State , 399 S.W.3d 604, 606 (Tex. App.—Da llas 2013, pet. ref’d). When a defendant waives a jury trial and enters a no contes t plea on a non-capital offense, the proper procedure is to conduct a unitary trial. Gomez , 399 S.W.3d at 606. In a unitary trial, there is no “bifurcation” (where the guilt/inno cence and punishment stages are conducted separately), even wh en the trial court employs procedures characteristic of bifurcation. Id. Rather, such a procedure remains a unitary trial “punctuated by a recess in the middle.” Id. The evidence is admitted at the unitary proceeding both to substantiate the defendan t’s plea and to allow the trial court to determine an appropriate sentence. Flores-Alonzo v. State , 460 S.W.3d 197, 203 (Tex. App.—Texarka na 2015, no pet.). The entry of a valid guilty plea has the effect of admitting all material facts alleged in the formal criminal charge. Id. With one exception not applicable here, a plea of nolo contendere or “no contest” has the same lega l effect as a guilty plea. Id. Nevertheless, article 1.15 of the Texa s Code of Criminal Procedure permits the

3 We note that the record is devoid of any evidence that the court treated the no contest plea as an admission of sexual abuse, and Jones has identified none.–8– court to render a conviction only after the admission of su fficient evidence establishing a defendant’s guilt, even if he has entered a plea of guilty or no contest.
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. A NN . art. 1.15; Menefee v. State , 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). However, wh en a defendant waives his right to a jury trial and enters a plea of guilty or no contest, the St ate is not required to prove the defendant’s guilt beyond a reasonable doubt. Flores-Alonzo , 460 S.W.3d at 203. Rather, article 1.15 only requires substa ntiation of the plea. Id. By its plain terms, it requires evidence in addition to, and independent of, the plea itself to establish the defendant’s guilt. Id. We are therefore required to determine whether the evidence embraces each essential elemen t of the offense charged. Id. If the State fails to introduce sufficient evidence under Article 1.15’s standard , the trial court is not authorized to convict. Id. A conviction rendered wit hout sufficient evidence to support the no contest or guilty plea cons titutes non-constitutional trial error. Id. As in Gomez , we recognize that in the tr ial proceedings here, although appellant pleaded nolo contendere, the partie s treated this case in some respects as a “not guilty” plea, and it is clear appellant was contesting his guilt. See Gomez , 399 S.W.3d at 606. Despite a ppellant’s nolo contendere pl ea, appellant was given many of the benefits of a “not guilty” plea. See id. For example, the trial court permitted appellant to contest his guilt and stated it was holding the State to the constitutional “beyond a reasonable doubt” burden of proof. See id. On appeal, appellant now seeks to avoid the effect of his plea and seek s review as if he had pleaded not guilty.–9– See id. Although it does not bind the State to a higher burden of proof on appeal, the trial court essentially required the State to present more evidence than was legally required to satisfy it that J ones was, in fact, guilty. See Flores-Alonzo , 460 S.W.3d
at 202 n.2. Because Jones entered a no-contest plea, “[t]he State ... [was] not required to prove the defendant’s gui lt beyond a reasonable doubt; the supporting evidence must simply embrac e every essential element of the charged offense.” Id. (quoting Staggs v. State , 314 S.W.3d 155, 159 (Tex. A pp.—Houston [1st Dist.] 2010, no pet.)). The indictment alleged Jones intenti onally and knowingly caused the contact and penetration of the anus of A.R ., a child younger than fourteen. See T EX

. P ENAL C ODE A NN . § 22.021(a)(1)(B)(i), (a)(1)(B)(iv), (a)(2)(B). A. R. testified that, when A.R. was seven, Jones got on top of him, and Jones’ penis touched his “butt” and touched “on or around the area where [A,R.’s] anus is.” The trial court found “credible” A.R.’s statement th at there was contact betwee n Jones’ penis and A.R.’s anus. A conviction under se ction 22.021 is supportable on the uncorroborated testimony of the victim of the sexual offens e if the victim was seventeen years of age or younger. T EX

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. A NN . art. 38.07. We conclude A.R.’s testimony embraced each essential element of the charged offe nse of aggravated sexual assault of a child. See Flores-Alonzo , 460 S.W.3d at 203. This evidence was sufficient to prove Jones sexually abused A. R. and to support Jones’ plea of no

contest. See id. We overrule Jones’ fi rst and second issues in his original brief.–10– B. Original Brief: Issue 3: Improper Burden on Motive In his third issue in his original brief, Jones argues the “trial court violated [his] right to due process and statutor y rights by placing the burden on [him] to disprove the offense by establishing that complainant had a motive for falsity.” The trial court, sitting without a jury, is presumed to have used the correct standard of proof absent a showing to the contrary. Freeman v. State , 525 S.W.3d 755, 757–58 (Tex. App.—Austin 2017, pet. ref’d) (quoting In re D.E.W. , 654 S.W.2d 33, 36 (Tex. App.—Fort Worth 1983, wr it ref’d n.r.e.)) The burden is on appellant to show that the prope r standard was not applied. Id. Jones’ argument at trial was that A. R. got caught with pornographic images of himself and, when confronted by his mother, A.R. decided “the easiest explanation was to say my cousin, who comes from a homosexual household performed something homosexually on him.” After the parties’ closing arguments, the trial judge stated the following: Mr. Jones, your lawyer makes some good arguments and she’s absolutely right. A lot of these cases boil down to he said/ she said or he said/he said. I watched the complainant when he tes tified. He appeared troubled at times. He very easily could have sa id, “Yes, I was penetrated,” but he didn’t. He said that –- But he di d say that he felt you thrusting between his legs and it felt like penetration but it wasn’t penetration. Now, he might have thought it was penetration at the time and as he got older maybe he realized it wasn’t, but eith er way he did say that there was contact between his penis –- excuse me –- your penis and his anus. [Jones’ counsel] is right. She does not have to prove a motive, but I always look for a motive or lack of a motive. And I cannot find any–11– motive for him to lie. This is not an accidental disclosure, but the disclosure was not made to get you in trouble. It wasn’t made to get him out of trouble. It was made for him to try to explain to himself as well as his mother why maybe his actions were not what she considered normal. I believe he was credible . And I believe based on the credible evidence it did happen and I’m going to find that the evidence proves your guilt. I’m not finding you guilty, Jimmy. I don’t know what I’m gonna do. I’m gonna continue you on bond right now. I want a Pre- Sentence Report. I want to find out a little b it more about you a nd then I’ll make a decision. But at this point in time you are free to leave the courthouse. You will have to come back for a Pre-Sentence Report with the probation department. Jones argues these statements show the trial court placed the burden on him to “disprove the complainant had a motive for falsity.” We disagree. This record reflects that, the trial court was merely commenting on the due consideration given to the theory argued by Jones’ counsel a nd the trial court’s conclusion that the complainant was “credible.” Nothing in the trial court’ s comments indicates that any additional burden of proof was placed on Jones or that the trial court did anything more than consider the evidence pr esented by both sides. Under these circumstances, we conclude Jones has not met his burden to show that the proper standard of proof was not applied. See Freeman , 525 S.W.3d at 757–58. We overrule Jones’ third issue in his original brief. C. Original Brief: Issues 4 and 5 – Vi olation of Right to a Jury Trial In his fourth and fifth issues in his original brief, which he argues together, Jones complains that the trial court violat ed his statutory and due process rights to–12– enter a voluntary plea and voluntarily waive his right to a jury trial when the trial court (1) misinformed Jones that he was not eligible for probation from a jury, (2) misinformed Jones that his plea of no co ntest was not an admission, and (3) failed to explain that an admission w ould be required on probation. A guilty plea, to be consistent with due process of law, must be entered knowingly, intelligently, and voluntarily. Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). To be “voluntary,” a gu ilty plea must be the expression of the defendant’s own free w ill and must not be induced by th reats, misrepresentations, or improper promises. Id. An accused who attests that he understands the nature of his guilty plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Jones v. State , 600 S.W.3d 94, 99 (Tex. App.—Dallas 2020, pet. ref’d). A trial court is not required to admonish the defendant that a plea of no contest has the same legal effect as a plea of guilty. See T EX

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. A NN . art. 26.13 (identifying admonishments that must be given to defendants pleading nolo contendere); Flores-Alonzo , 460 S.W.3d at 201. Article 26.13 also does not require that a defendant pleading nolo contendere be admonished that an admission of guilt would be required while on community supervision. See T EX

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. A NN . art. 26.13. Substantial compliance by the court is su fficient to satisfy the statute, unless the defendant affirmat ively shows he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment the–13– court gave. Id. art. 26.13(c); Luckett v. State , 394 S.W.3d 577, 580 (Tex. App.— Dallas 2012, no pet.). While the State concedes the trial court inaccurately stated that Jones was not eligible to receive community supervision fr om a jury, the record reflects that the judge advised that If those 12 people find you guilty you can either have them set punishment or you can have the j udge set punishment but you would not be eligible for probation. The law says that if you're found guilty of this type of case you cannot get probation. Appellant did not object to the trial court’s admonishment . The record shows that, immediately after the trial court admonished Jones, the trial court asked Jones, “I have been told that you do not want to ha ve a jury trial; is that correct?” Jones answered, “Yes, sir.” The trial court asked, “I unders tand that you’re willing to waive or give up your right to a jury trial and have me hear the evidence to determine your guilt or innocence; is that true?” Again, Jones answered, “Yes, sir.” The voluntary waiver was memoria lized in writing, signed by Jones, his defense counsel, the district attorney and approved by th e trial court upon finding the waiver was made in person and in open court. A defendant has an absolute right to a jury trial. Hobbs v. State , 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). As a matter of federal constitutional law, the State must establish, on the record , a defendant’s express, know ing, and intelligent waiver of jury trial. Id. ; see also Rios v State , 2022 WL 17481021 (Tex. Crim. App.–14– December 7, 2022)(defendant did not knowi ngly and intelligently waive his right to a jury trial and as a matter of first impression a violation of the right to a jury trial is structural error). 4 On this record, we conclude Jones ha s not met the heavy burden on appeal to show that his plea was involuntary. See Jones , 600 S.W.3d at 99. The record reflects a written waiver as well as on e made in open court. Jone s has failed to affirmatively show he was not aware of th e consequences of his plea and that he was misled or harmed by the admonishment the court gave. See T EX

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. A NN . art. 26.13(c); Luckett , 394 S.W.3d at 580. Finally, consistent with the admonishment, the record reflects that, at the time of sentencing, although the court found the evidence proved guilt, instead of findi ng Jones guilty, the court deferred the adjudication of guilt and placed him on deferred adjudication probation. 5 We overrule Jones’ fourth and fifth issues in his original brief. D. Supplemental Brief – Issue 1 – Juven ile Transfer Jurisdictional Issue In Jones’ first issue in his supplementa l brief, he argues the failure of the juvenile court to comply with the provisions of the transfer statute deprived the juvenile court of its authority to transfer the case and, as a resu lt, the district court

4 Critically distinguishable from the facts before us, in Rios, the defendant pled not guilty, never signed a written waiver, was not admonished about his ri ght to a jury trial and the right was never discussed in open court. Id

. 5 At the March sentencing hearing, the court, referenc ing the November trial, reiterated that appellant entered a plea of no contest, waived his right to a jury, and “did not admit guilt whosoever [sic].”–15– never acquired jurisdiction. Specifica lly, Jones complains that the juvenile certification order did not find it was imprac ticable to bring proceedings in juvenile court before his eighteenth birthday. 6 However, the requirement of case-specific fact-findings to support the transfer order are not required by the text of the statute or constitutional precedent. Ex parte Thomas , 623 S.W.3d 370, 381 (Tex. Crim. App. 2021) (overruling Moon v. State , 451 S.W.3d 28 (Tex. Crim. App. 2014)). It is the hearing itself that prevents the tran sfer process from being arbitrary; the casespecific fact-findings are not necessary to pr otect a fundamental constitutional right. Id. Thus, we conclude the absence of a finding of impracticability was not required and did not deprive the juvenile court of its authority to transfer the case or prevent the district from acquiring jurisdiction. See id. We overrule Jones’ first issue in his supplemental brief.
E. Supplemental Brief: Issue 2: In effective Assistance of Counsel In his second issue in his supplemental brief, Jones asserts that, if there was waiver of the jurisdictional claim raised in his first issue, then he received ineffective assistance of counsel. As a threshold ma tter, “a reviewing court on direct appeal will rarely be able to fairly evaluate th e merits of an ineff ective-assistance claim because the record on direct appeal is usually undeveloped and inadequately

6 The undisputed and stipulated record reflects that Jones was 16 at the time of the alleged offense and 26 at the time of the hearing to transfer based upon the complaining witness’ outcry to his mother not made until well after Jones’ eighteenth birthday.–16– reflective of the reasons for defens e counsel’s actions at trial.” Mata v. State , 226 S.W.3d 425, 430 (Tex. Crim. A pp. 2007). However, b ecause we find no waiver related to Jones’ jurisdicti onal claim, we need not furt her address his second issue in his supplemental brief. F. Supplemental Brief: Issue 3: Revisi t Voluntariness of No Contest Plea and Jury Waiver In his third issue in his supplemental brief, Jones argues th at trial counsel’s failure to inform him about the “lack of jurisdiction” combined with the “mistaken and incomplete information from the trial c ourt” render his no c ontest plea and jury waiver involuntary. In making this argument, Jones revisits his arguments raised in his fourth and fifth issues in his original brief and “now asks th is Court to consider the impact of counsel’s failure to request the dismissal of the indictment on the voluntariness of [Jones’] waivers in combin ation with the mistaken and incomplete information as provided by the trial cour t.” Specifically, Jones complains that “[f]ailure by counsel to adeq uately explain [Jones’] right to challenge jurisdiction was thus an additional factor that rende red [Jones’] decisions involuntary regarding waivers of his rights and his plea.” We ha ve already addressed and rejected Jones’ arguments raised in his fourth and fifth i ssues in his original brief, and we have discussed the reasons a finding of imprac ticability in the transfer order was not required. To the extent Jones endeavors to also challenge the in effective assistance of counsel, the record before us on direct appeal is undeveloped to fairly evaluate–17– the merits of any alleged claim. See Mata , 226 S.W.3d at 430. Further, because Jones’ challenges all fail, we find no errors or failures on the part of counsel to address in the context of an ineffective a ssistance of counsel clai m on direct appeal. Id. We overrule Jones’ third is sue in his supplemental brief.
G . State’s Cross Point In a single cross-point, the State re quests that the order of deferred adjudication community supervision be modi fied to omit the reference to a plea bargain in the section entitled “Terms of Plea Bargain.” This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data a nd information to do so, or make any appropriate order as the law and th e nature of the case may require. Asberry v. State , 813 S.W.2d 526, 529 (Tex. A pp.—Dallas 1991, pet. ref’d). Jones declined the State’s plea bargain offer and instead entered a plea of no contest. Accordingly, we delete the phrase “10 YE ARS DEFERRED PROBATION” from the section entitled “Terms of Plea Bargain” and substitute “N/A” in that section in the order of deferred adjudication community supervision. We sustain the State’s cross-point. As modified, we affirm th e trial court’s judgment.

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200476F.U05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–18– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT JIMMY JONES, Appellant

No. 05-20-00476-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 265th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1615371-R. Opinion delivered by Justice Goldstein. Justices Myers and Carlyle participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: in the order of deferred adjudi cation community supervision, the phrase “10 YEARS DEFERRED PROBATION” is deleted from the section entitled “Terms of Plea Bargain” and “N/A ” is substituted in that section. As REFORMED , the judgment is AFFIRMED

. Judgment entered December 19, 2022