Garcia-Rodriguez v. State

• Docket Number: 13-22-00145-CR
• Decision Date: 31 August 2023
• Parties: JOSE GUSTAVO GARCIA-RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

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JOSE GUSTAVO GARCIA-RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-22-00145-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 31, 2023

Do not publish.Tex.R.App.P. 47.2 (b).

On appeal from the 40th District Court of Ellis County, Texas.

Before Justices Tijerina, Silva, and Pena

MEMORANDUM OPINION

CLARISSA SILVA JUSTICE

AppellantJose Gustavo Garcia-Rodriguez was convicted of continuous sexual abuse of a young child, a first-degree felony, and was sentenced to twenty-five years' confinement.^[1]SeeTex. Penal Code Ann. § 21.02(b).On appeal, appellant contends that the trial court erred by denying his request for a lesser-included jury charge instruction and by "failing to require the jury to unanimously find that two or more acts of sexual abuse occurred over a period that was thirty days or more days in duration in the jury charge"; and the trial court abused its discretion in admitting medical records over appellant's Confrontation Clause and hearsay objections.We affirm.

I.Background

The indictment alleged that on or about November 1, 2016, through June 1, 2017, appellant committed two or more acts of sexual abuse against Paige,^[2] a child then younger than fourteen years of age.The record reflects that Paige is appellant's niece, and she was in fourth grade, approximately nine years old when the alleged offenses began.

A. Paige

Paige was fifteen years old at trial.Paige testified that in November of 2016, she was living in a trailer with her parents, Frederick and Nadine, and her two siblings, an older sister named Melanie and younger brother named Jonah.Appellant was also living with them, and shared a room with Jonah.At some point during the fall of 2016, Paige had fallen asleep one evening on the couch in the living room.Paige was awoken when she was joined on the couch."I felt someone's hand going on my body," testified Paige."[T]hey were touching my shoulder[;]they started going down my body where my vagina was.That's when the person had put their hand in there and started touching my lips."Paige recalled what she wore that night: a white tank top with leggings decorated with bright rainbow colors and sunflowers.Although Paige never saw appellant, she testified that she was certain it was him.Paige stated she tried to "close [her] legs tighter" to get appellant to stop, but he was undeterred and "kept pushing harder."Paige testified that he persisted for a "few minutes" and then stopped."Months later," Paige was in "the same position" in the living room one evening when appellant arrived home drunk.This time, appellant touched her genitals over and under her clothing, stopping only when Paige's father awoke.

Paige testified to three other incidents, all occurring months after the first incident.Once, when appellant and Paige were eating out together, she caught appellant staring at her breasts with "this weird grin."In another instance, Paige was in the passenger seat while appellant was driving and during a red light, appellant placed his hand on her inner thigh but stopped short of touching her genitals.Paige also testified to another occurrence when she was lying down on her sister's bed after school, and appellant came in and asked her if she wanted to watch videos on his phone.Paige stated appellant then positioned himself behind her and placed his penis "flat on [her] butt" over her clothes.Paige said she felt too embarrassed to turn around, so she focused on the phone in front of her.Several minutes later, Paige heard her parents' vehicle pull up the driveway, and she ran out of the room.On recall, Paige clarified that the first incident, wherein appellant had touched her genitals, occurred at the beginning of the fourth grade, and the last incident transpired between the summer of the fourth and fifth grade.

In 2018, in the beginning of her sixth-grade year, Paige told her then-boyfriend, Jonathan, that appellant had sexually abused her.^[3] In November 2018, Paige outcried to her substitute reading teacher, who then put her in communication with the school counselor, Shea Edmonds."[O]ne day, I just got so mad-[my teacher] pulled me out the hallway and she asked what's going on.That's when I opened up," Paige testified."I felt like it was something that I was hiding for a long time[,] and it was just something I couldn't stand anymore.I couldn't stand seeing [appellant] in that house, just him walking all free, like he never did anything."On the day of her outcry, Paige and her siblings were taken to her aunt's home to stay there.A few days later, Paige was interviewed at the child advocacy center.

Paige testified that any relief she initially felt from speaking out on what had happened to her was quickly overshadowed by her family's reaction following appellant's arrest."They made me feel like it was my fault, that, you know, I was young[,] and I was clueless."Paige testified that she started drinking alcohol, using marijuana, and cutting her wrists and inner thighs.Paige described feeling "disgusted" with her body and "trapped and . . . very alone" given her family's treatment of her."I remember just wanting something to get off my mind or just wanting to feel something-or not feel anything," testified Paige.Paige stated she also felt as if family members "wanted [her] to lie," about what had transpired.

B. Paige's Family

Several family members testified at trial, including Nadine, Melanie, and paternal aunt Amy.

Nadine confirmed that the family wanted Paige to "drop the case" so appellant could be released and "move to Mexico."According to Nadine, in 2016, appellant was working long hours alongside Frederick and residing with them in their trailer.Nadine first learned of the sexual abuse allegations after she was contacted by child protective services following Paige's outcry at school.Nadine testified that she transported Paige to the hospital for an examination, and to-date, she had not been "brave enough" to ask Paige about the details of what had occurred.Nadine said that in retrospect, she had seen a change in her daughter's temperament in the fourth grade, before and after the allegations were said to have occurred.

Melanie testified that she had also noticed a change in her sister's behavior beyond what was to be expected for an adolescent.Melanie testified that when she was between fifteen and seventeen years old, an incident involving appellant occurred.Melanie stated that one evening she was by herself in bed and was woken up by "a touch on [her] thigh" and an aroma of beer.Melanie testified it lasted just a "few seconds" and then appellant walked off.

Amy also testified.Amy stated she and her family used to live "more or less" two hundred feet away from appellant and Paige.Amy testified that throughout the case, appellant has maintained his innocence.When asked what appellant told her had transpired between him and their niece, Amy stated, "No, he didn't tell me that he had done what she says he did, just simply that one day he was tipsy and he sat on the sofa where [Paige] was, and he put his hand like this on [Paige's] leg, and when he wanted to get up, his hand fell between her legs" on top of Paige's vagina.

C.Professional Witnesses

Edmonds testified that she met Paige in 2017, when Paige was in the fifth grade.Paige had been sent to Edmonds' office for counseling preceding the outcry because she had been acting out in class.Edmonds said when Paige finally outcried about the sexual abuse, Paige was "very blunt.""When she was ready to spill what was bothering her, it just came out," testified Edmonds.

Following Paige's outcry, she was interviewed at the Ellis County Children's Advocacy Center and evaluated at Cook Children's Medical Center in Fort Worth.Paige was twelve years old at the time.

Ashley Wiedekher conducted a forensic interview with Paige and testified to Paige's statements regarding each incident of sexual abuse.Wiedekher's testimony was consistent with the testimony Paige provided at trial.Wiedekher further testified that Paige mentioned a second instance wherein appellant had touched her genitals "like the first time," but Paige did not provide any details apart from it occurring a couple of months after the first instance.After it was brought to Wiedekher's attention that Paige's father"had told somebody that she had said that it didn't happen, that that offense had not happened," Paige was interviewed by Wiedekher again on October 25, 2019.Wiedekher testified that Paige denied taking back her initial statement and reiterated the facts of her initial statement.

Kineta Holsworth, a licensed professional counselor and advocacy center supervisor, testified to the normality of delayed outcries."[A]bout 90 percent of kids who are sexually abused are abused by someone they know," testified Holsworth.According to Holsworth, delayed outcries are common when the perpetrator is living in the same home as the victim: "Children have a good concept of family and expectations[,] and they are aware that if they talk about what's going to-or talk about what has happened, then it's going to change things in their families, and children are typically afraid of that," explained Holsworth.Moreover, Holsworth stated that disclosures are "definitely not a one-time event in most cases," and children often "test the waters" to determine whether they will be able to trust the individual that they have chosen to tell.

Teresa Fugate, a forensic nurse, testified that she evaluated Paige at the hospital.At trial, the State sought to admit Paige's medical records as an exhibit.Appellant objected on the basis of "hearsay and bolstering," arguing that ...