Garcia v. State
| Decision Date | 30 July 2020 |
| Docket Number | NUMBER 13-18-00663-CR |
| Parties | BRAULIO ALEJANDRO GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
Appellant Braulio Alejandro Garcia appeals his conviction for aggravated sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B). Appellant presents three issues: the trial court erred when it allowed (1) inadmissible hearsay from an improper outcry witness and (2) two expert witnesses to testify beyond the scope of their expertise; and (3) the evidence is insufficient to support his conviction. We affirm.
In 2017, appellant was indicted for continuous sexual assault of a child younger than fourteen years of age, a first-degree felony. See id. § 21.02. The State alleged the offense occurred in 2007 and that the victim was appellant's daughter, D.G., who was under six years of age at the time of the offense. Appellant pleaded not guilty and proceeded to trial.
At trial, the jury heard testimony from multiple witnesses, including D.G., her mother, family members, law enforcement personnel, a forensic certified sexual assault nurse examiner (SANE), and staff from D.G.'s high school.
D.G.'s mother, M.F., testified that, in 2015, D.G. informed her that appellant had "raped her" when D.G. was a young child. Specifically, M.F. testified that D.G. told her she was asleep in bed when appellant entered the room "and that he went in there and he, you know, did—he penetrated her[; he] had sex with her." According to M.F., D.G. told her the abuse occurred at appellant's mother's house while M.F. was away in the military, which she estimated to be "about 2007." M.F. then contacted the police.
D.G. testified that she was born towards the end of 2001. She testified that the first adult she told about the sexual abuse was her mother, and that she also told her math teacher and softball coach, Joshua Ervin. D.G. explained she had been cutting herself and that Ervin noticed and inquired about her injuries. Eventually, D.G. told Ervin that she "was sexually assaulted when [she] was little" by her "biological father." D.G. testified that "it happened, like, not all the times but sometimes." Ervin referred D.G. to the school'snurse and counselor. D.G. informed both the nurse and counselor of the same. D.G. testified the assault occurred at her paternal grandmother's house when her mom was away in the army.
The case was submitted to the jury only with instructions for the lesser included offense of aggravated sexual assault of a child. See id. § 22.021(a)(1)(B)(iii), (a)(2)(B). Specifically, the charge provided that a "person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact or penetrate the sexual organ of another person, including the actor and the victim is younger than 14 years of age." See id. The jury found appellant guilty and assessed punishment at fifty years' imprisonment in the Texas Department of Criminal Justice. This appeal followed.
By his third issue, which we address first, appellant argues the evidence was insufficient to support the elements of the offense.
Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theory of liability, and adequately describes the particular offense for which the defendant was tried." Id.
In a sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essentialelements of the offense beyond a reasonable doubt. Chambers v. State, 580 S.W.3d 149, 156 (Tex. Crim. App. 2019); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In our analysis, we defer to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record contains conflicting inferences, we presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326).
The uncorroborated testimony of the child is sufficient, standing alone, to support a conviction for aggravated sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07; Prestiano v. State, 581 S.W.3d 935, 941 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd) (op. on reh'g); Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi-Edinburg 2008, no pet.). The child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult witness to prove these facts beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 133-35 (Tex. Crim. App. 1990); Gonzalez Soto, 267 S.W.3d at 332.
Here, a hypothetically correct jury charge would instruct the jury to find appellant guilty if (1) he intentionally or knowingly caused the sexual organ of D.G. to contact or penetrate the sexual organ of another person, including his, when (2) D.G. was younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B);see also Prestiano, 581 S.W.3d at 941. D.G. testified that, when she was five years old, appellant entered her room when she was sleeping, pulled down her underwear, and "raped" her by inserting his penis in her vagina. D.G.'s testimony supports all the elements of the offense. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B). We conclude the evidence is legally sufficient. See Gonzalez Soto, 267 S.W.3d at 332 ().
Appellant also points to conflicting evidence in support of his contention that he did not sexually assault D.G.; however, the jury was free to disregard that evidence and believe the evidence in support of appellant's guilt, and we must defer to that determination.1 See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) () Vasquez v. State, 819 S.W.2d 932, 935 (Tex. App.—Corpus Christi-Edinburg 1991, pet. ref'd) ("It is within the jury's province . . . to judge the credibility of the witnesses."); see also Gonzalez, 522 S.W.3d at 56-57.
We overrule appellant's third issue.
By his first issue, appellant argues the trial court erred when it allowed inadmissible hearsay from M.F. because she was an improper outcry witness.
Hearsay is an out-of-court statement that a party offers in evidence to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Generally, hearsay is not admissible unless provided for by the Rules of Evidence, a statute, or other rule. TEX. R. EVID. 802.
One recognized exception to the general prohibition against hearsay allows, in the prosecution for certain sexual abuse cases involving children, the admission of the child's out-of-court statement concerning the abuse made to an outcry witness. See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Under article 38.072 of the code of criminal procedure, a child complainant's out-of-court statement is admissible if it describes the alleged offense, was made by the child against whom the charged offense was allegedly committed, and was made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072(a); Sanchez, 354 S.W.3d at 484. The child's statement "must be 'more than words which give a general allusion that something in the area of child abuse is going on'; it must be made in some discernable manner and is event-specific rather than person-specific." Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). Hearsay testimony from more than one outcry witness may be admissible under article 38.072 "only if the witnesses testify about different events." Id.
Article 38.072 has procedural requirements, including that the party intending to offer the statement must, on or before the fourteenth day before trial begins, notify the adverse party of its intention to offer the statement, provide the name of the outcrywitness, and provide a written summary of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.072(b)(1); Sanchez, 354 S.W.3d at 484. Outside the presence of the jury, the trial court must conduct a hearing and find that the statement is reliable "based on the time, content, and circumstances of the statement." TEX. CODE CRIM. PROC. ANN. art. 38.072(b)(2); see Sanchez, 354 S.W.3d at 484-85, 488 (). The child complainant must testify or be available to testify at the proceeding in court. TEX. CODE CRIM. PROC....
To continue reading
Request your trial