Garcia v. State, NUMBER 13-11 -00016-CR

CourtCourt of Appeals of Texas
Writing for the CourtROGELIO VALDEZ
PartiesARNULFO GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNUMBER 13-11 -00016-CR
Decision Date31 May 2012


NUMBER 13-11 -00016-CR


May 31, 2012

On appeal from the 36th District Court
of San Patricio County, Texas.


Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Chief Justice Valdez

Following a jury trial, appellant, Arnulfo Garcia, was convicted of two counts of aggravated sexual assault of a child, a first-degree felony, for which he was sentenced to twenty years of imprisonment and fined $10,000, and one count of indecency with a child, a third-degree felony, for which he was sentenced to five years of imprisonment and fined $10,000. See TEX. PEN. CODE ANN. § 22.021 (West Supp. 2011) (aggravated

Page 2

sexual assault); id. § 21.11 (West 2011) (indecency with a child). He appeals his convictions by two issues, asserting that he received ineffective assistance of counsel and that the evidence supporting the verdict was insufficient. We affirm.


Appellant is the step-grandfather of the child complainant, A.S., who was eleven years old at the time of trial. Bobbi Garcia ("Garcia"), the complainant's grandmother, was married to appellant at the time of the alleged incidents. Both appellant and Garcia worked for the State of Texas as correctional officers for a prison facility in Beeville, Texas. Garcia was a lieutenant in the maximum security area, and appellant was a captain of the laundry division.

A.S. visited her grandmother and appellant at their home for extended visits on more than twenty occasions. During a visit in 2009 when A.S. was ten years old, she told Garcia that appellant had touched her on the inside of her "private parts" and "butt" when she was five years old. Garcia confronted appellant and left, taking A.S. to Garcia's father's house. At her father's house, Garcia again questioned A.S. regarding these issues in front of her father, A.S.'s great-grandfather. During this series of questions, A.S. stated that appellant touched her "private parts" and "butt" when she was five years old and then again when she was eight years old, and she further stated that appellant exposed his penis to her while they were watching television. Garcia then took A.S. to her son's ex-girlfriend's house, where she again questioned A.S. Garcia subsequently informed her son, A.S.'s father, who questioned A.S. regarding her statements. The following day, A.S.'s mother, Jessica, and her stepfather took A.S. to the San Patricio County sheriff's office. Garcia also took A.S. to Driscoll Children's

Page 3

Hospital where she was interviewed and examined. The examination showed no signs of sexual abuse; however, Carol McLaughlin, the sexual assault nurse examiner, testified that the lack of physical evidence did not indicate that an assault had not occurred. Garcia also took A.S. to the Child Advocacy Center, where A.S. made a video-taped statement in which she said that appellant assaulted her each time that she visited Garcia and appellant.

In its case-in-chief, the State offered the testimony of Garcia, A.S., and McLaughlin. At trial, A.S. testified that appellant sexually abused her when she was five and eight. She further testified that appellant exposed his penis to her on more than ten occasions while they were watching television together. Defense counsel presented testimony from appellant and ten additional witnesses. Appellant denied that he touched A.S. and stated that she may have accidentally seen his penis on one occasion when his pajama pants were unbuttoned. While Garcia had previously testified that their marriage was "average," appellant testified that they had separated on two different occasions and fought frequently. Appellant recounted that he had filed criminal charges against Garcia because she had assaulted him; however, he later dropped the charges. Appellant further testified that, immediately before A.S.'s visit when she made the outcry, he had informed Garcia that their marriage was over. The ten additional witnesses called by appellant testified regarding appellant's good reputation for truthfulness.

As will be discussed more fully herein, appellant's defensive theories at trial concerned his estrangement from Garcia; Garcia's credibility as an outcry witness;

Page 4

A.S.'s credibility as a complainant based on inconsistencies in A.S.'s various statements; and appellant's reputation for truthfulness.


In his first issue, appellant argues that the trial court erred in overruling his motion for new trial "because he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution in that trial counsel failed to investigate the law and facts necessary to present a defense to the offense of aggravated sexual assault of a child."


We review the denial of a motion for new trial under an abuse of discretion standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by TEX. R. APP. P. 21.8(b); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Cueva v. State, 339 S.W.3d 839, 856-58 (Tex. App.—Corpus Christi 2011, pet. ref'd); Shanklin v. State, 190 S.W.3d 154, 158 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd, 211 S.W.3d 315 (Tex. Crim. App. 2007); State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref'd). A trial court abuses its discretion by denying a motion for new trial only when its decision is arbitrary or unreasonable, or when no reasonable view of the record could support the trial court's ruling. Charles, 146 S.W.3d at 208; Cueva, 339 S.W.3d at 856-58; Escobar v. State, 227 S.W.3d 123, 126 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). The ruling of the trial court is presumed to be correct, and it is the appellant's burden to establish the contrary. Jensen v. State, 66 S.W.3d 528, 545 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd); State v. Read, 965 S.W.2d 74, 77 (Tex. App.—Austin 1998, no pet.).

Page 5

The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, and "the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse." State v. Herndon, 215 S.W.3d 901, 907-08 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). We do not substitute our judgment for that of the trial court. Charles, 146 S.W.3d at 208.

Moreover, when the trial court files findings of fact, as in this case, "[a]n appellate court should defer to the trial court's findings of facts regarding the credibility and demeanor of the witnesses, viewing the evidence in the light most favorable to the trial judge's rulings." Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009); Cueva, 339 S.W.3d at 857; My Thi Tieu v. State, 299 S.W.3d 216, 233 (Tex. App.— Houston [14th Dist.] 2009, pet. ref'd); Shanklin, 190 S.W.3d at 158-59; see also TEX. R. APP. P. 21.8. Because the trial judge is the sole judge of the credibility of the witnesses, a trial court does not abuse its discretion by denying a motion for new trial based on conflicting evidence. See Lewis, 911 S.W.2d at 7. And we "presume that all reasonable factual findings that could have been made against the losing party were made against that losing party." Charles, 146 S.W.3d at 208; see Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978) (noting that the trial judge has the right to accept or reject any part of a witness's testimony at a hearing on a motion for new trial).

Appellant contends that this Court should make a de novo determination of whether trial counsel's performance was deficient since there were no disputed facts and the only issue is whether the trial court properly applied Strickland. See Strickland v. Washington, 466 U.S. 668, 686 (1984) (stating the legal standard for the

Page 6

determination of claims concerning ineffective assistance of counsel). However, under well-established precedent, we perform our Strickland v. Washington analysis through an abuse of discretion standard of review, reversing only if the trial court's decision to deny the motion for new trial is arbitrary or unreasonable. See Charles, 146 S.W.3d at 208; Cueva, 339 S.W.3d at 856; My Thi Tieu, 299 S.W.3d at 223; Shanklin, 190 S.W.3d at 158; State, 967 S.W.2d at 542; see also Mendoza v. State, Nos. 14-06-01015-CR & 14-06-01016-CR, 2008 Tex. App. LEXIS 4324, at **6-7 (Tex. App.—Houston [14th Dist.] June 12, 2008, pet. ref'd). Therefore, we do not apply a de novo standard of review in conducting the Strickland test.


The United States Constitution, the Texas Constitution, and article 1.051 of the Code of Criminal Procedure guarantee an accused the right to reasonably effective assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2011); see Strickland, 466 U.S. at 686; Ex parte Gonzales, 945...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT