Garcia v. State
| Decision Date | 30 April 2014 |
| Docket Number | No. 11-12-00092-CR,No. 11-12-00091-CR,11-12-00091-CR,11-12-00092-CR |
| Parties | ERNESTO DUTCHOVER GARCIA, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
The jury convicted Ernesto Dutchover Garcia in trial court cause no. 13055 of one count of indecency with a child by contact and one count of aggravated sexual assault of a child. The jury assessed his punishment at confinement for five years for the indecency conviction and for twenty years for the aggravated sexual assault conviction. In the same trial, the jury also convicted Appellant of one count of aggravated sexual assault of a child in trial court cause no. 13056. Thejury assessed his punishment at fifteen years for the aggravated sexual assault conviction in trial court cause no. 13056. The trial court ordered that the five-year and twenty-year sentences arising from trial court cause no. 13055 run concurrently. The trial court further ordered that Appellant's fifteen-year sentence arising from trial court cause no. 13056 run consecutively to the two sentences arising from trial court cause no. 13055.
Appellant challenges his two convictions arising from trial court cause no. 13055 in Cause No. 11-12-00091-CR, and he challenges his single conviction arising from trial court cause no. 13056 in Cause No. 11-12-00092-CR. He raises six issues in Cause No. 11-12-00091-CR and five issues in Cause No. 11-12-00092-CR. The first four issues in both appeals are identical and will be discussed together. The remaining two issues in Cause No. 11-12-00091-CR (Issues Nos. Five and Six) challenge the sufficiency of the evidence supporting the two convictions arising from trial court cause no. 13055. The fifth issue in Cause No. 11-12-00092-CR challenges the sufficiency of the evidence supporting the conviction arising from trial court cause no. 13056. We will address the sufficiency issues separately. We affirm.
Background Facts
The victims in this case were Appellant's step-granddaughters. The two older girls, D.R.M. and C.N.M., and their mother, Michelle, lived with Appellant and his wife Aurora for several years. Aurora worked from 2 p.m. until 10 p.m. four days a week and then was off for two days. Michelle and the girls eventually moved into a home nearby, and the two youngest children, A.H. and M.M., often stayed at Appellant's home on Aurora's days off. One Sunday afternoon, A.H. called Michelle crying and said that she wanted to come home and that her "butt" was hurting. Michelle asked whether she had fallen down, and A.H. said, "No, just come get me." Aurora testified that her granddaughter was always so happy butthat A.H. was different that day. When Aurora asked A.H. if she was in trouble with Appellant, A.H. said, "Yeah," but did not say anything else.
Michelle testified that she picked up A.H. and M.M. and took them home to get them ready for school the next day. Michelle started the water in the bathtub, but A.H. did not want to take a bath. A.H. fought as her mother undressed her and put her in the bathtub. Michelle went to the other bathroom to run bathwater for M.M., and when she returned, A.H. was sitting in what Michelle described as a semi-fetal position and holding her knees to her chest. When Michelle had A.H. stand up so that she could wash the rest of her body, Michelle noticed "a mark on her butt" near her tailbone. According to Michelle, the mark looked like A.H. had been pressed against something or had fallen. When Michelle tried to wash between the child's legs, A.H. slapped her hand away and said, Michelle found redness when she looked between the cheeks of A.H.'s buttocks, and she saw irritation and redness around A.H.'s vaginal area as well. When Michelle saw this, she wrapped A.H. in a towel, hugged her, said that everything was going to be okay, and told A.H. to tell her "if somebody had hurt her."
Michelle and A.H. were crying as they went into Michelle's bedroom and sat on the bed where D.R.M. and C.N.M. were watching television. Michelle testified that "it took her a little bit to tell me" but that A.H. eventually said, "Ernie hurt me." "Ernie" was what the girls called Appellant, who was married to their grandmother. A.H. told her mother that Ernie had "put something up her butt," but A.H. did not know what had been inserted. When D.R.M. and C.N.M. heard what Ernie had done to A.H., the two older girls told Michelle that Ernie had done similar things to them when they were younger.
At trial, D.R.M. testified that, when her family lived with Appellant, she and C.N.M. sometimes slept in their grandmother's bed while she was working andthat Appellant would come into the room and touch her "vaginal area" through her pajamas. D.R.M. said that it usually occurred after Appellant had been drinking, that the earliest she could remember it occurring was when she was around six years old, and that it continued for about three years. When Appellant touched D.R.M., C.N.M. was usually asleep beside her in the bed. D.R.M. recalled a time that Appellant walked to the other side of the bed where C.N.M. was sleeping; D.R.M. said that she told Appellant not to touch C.N.M. because "she was too little." D.R.M. did not tell anyone because she was scared and worried that she would get in trouble. D.R.M. also said that she was embarrassed because "[she] probably could have stopped it, but [she] didn't."
C.N.M. testified that Appellant touched her "vaginal area" while she was sleeping in her grandmother's bed with D.R.M. She said that Appellant touched her both over her clothes and under her clothes. When C.N.M. was about six years old, she sometimes saw Appellant touch D.R.M. and would pretend that she was asleep. When asked about other instances, C.N.M. told the jury that Appellant would take her into the garage or to an abandoned house he owned; she said, "He made me bend down, and he covered my eyes and made me suck his penis." She said that sometimes Appellant covered her eyes with a bandana and sometimes he told her to close her eyes. C.N.M. told the jury that she did not tell anyone because she was embarrassed and scared.
Appellant was charged in three separate indictments with offenses committed against the three girls. In the first indictment, Appellant was charged with a single offense of indecency with D.R.M. by sexual contact, and the jury returned a "not guilty" verdict. The second indictment arose from trial court cause no. 13055 wherein Appellant was charged with two offenses committed against C.N.M. The jury found Appellant guilty of both indecency by contact and aggravated sexual assault. The third indictment arose from trial court causeno. 13056 wherein it alleged three offenses committed against A.H. The trial court submitted only counts two and three to the jury, and it returned a "not guilty" verdict as to count two but found Appellant guilty of the aggravated sexual assault of A.H. as charged in count three of the indictment. The three convictions are the subject of these appeals.
Sufficiency of the Evidence
We review a sufficiency of the evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury's role as the sole judge of the witnesses' credibility and the weight their testimony is afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Citing McEntire v. State, 265 S.W.3d 721 (Tex. App.—Texarkana 2008, no pet.), and Sessums v. State, No. 06-02-00149-CR, 2003 WL 21473409 (Tex. App.—Texarkana June 27, 2003) (), vacated and remanded on other grounds, No. 1261-03, 2003 WL 22855433 (Tex. Crim. App. Nov. 26, 2003) (per curiam). Appellant argues in each of his three evidentiarychallenges that there is no evidence that the child "clearly understood the nature of [the offense]" or that the child "understood" and "testified to evidence constituting the offense." Those cases, however, do not provide authority for Appellant's proposition. In McEntire, the court concluded that an outcry statement, in which the defendant was accused of licking the victim's private parts over the course of a summer, was insufficient to support four aggravated sexual assault convictions because the evidence did not show that he had done so on four separate occasions during that period. 265 S.W.3d at 724. In Sessums, the court concluded that the victim's complaint of a "sore bobo" was insufficient to prove the element of penetration without evidence linking the soreness to penetration. 2003 WL 21473409, at *3. McEntire and Sessums do not stand for the proposition that the victim must understand the nature of the offense and of the evidence but, rather, that the child's testimony must be specific enough to permit a rational jury to find each element of the offense beyond a reasonable doubt.
When we assess the sufficiency of the evidence in cases involving child victims, we cannot expect the child...
To continue reading
Request your trial