Garza v. State
| Decision Date | 06 August 2021 |
| Docket Number | 06-20-00125-CR |
| Parties | ERIK GARZA, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
Date Submitted: July 12, 2021
On Appeal from the 85th District Court Brazos County, Texas Trial Court No. 19-03324-CRF-85 Ct 2
Before Morriss, C.J., Burgess and Stevens, JJ.
A Brazos County jury convicted Erik Garza of indecency with Jamie, [1] a child, by contact. After a punishment trial to the bench in which the trial court found the State's enhancement allegation true, Garza was sentenced to thirty years' imprisonment. On appeal, Garza argues that the evidence is legally insufficient to support the jury's verdict of guilt, Jamie was legally incompetent to testify, and the trial court erred in admitting hearsay evidence.[2]
We find that (1) legally sufficient evidence supported the jury's verdict of guilt, (2) finding that Jamie was competent to testify was not an abuse of discretion, and (3) any error in admitting hearsay was rendered harmless by substantially similar testimony admitted without objection. As a result, we affirm the trial court's judgment.
(1) Legally Sufficient Evidence Supported the Jury's Verdict of Guilt
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury 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 theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
Here, Garza was convicted of the lesser-included offense of indecency with a child by contact. "A person commits an offense if, with a child younger than 17 years of age, . . . the person . . . engages in sexual contact with the child or causes the child to engage in sexual contact." TEX. PENAL CODE ANN. § 21.11(a)1). "'[S]exual contact' means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: . . . any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child." TEX. PENAL CODE ANN. § 21.11(c)(1). The State alleged that Garza, with intent to arouse or gratify his sexual desire, touched the genitals of Jamie, a child younger than seventeen.[3]
At trial, the evidence showed that Jamie was fourteen at the time of the alleged touching and that she was mentally delayed. Robert Casey, the assistant principal at Jamie's school, testified that Jamie was in special education, was intellectually disabled with an intelligence quotient under seventy, and had a speech impairment. Casey said, "If someone were to come up to [Jamie] and tell her a story . . . her ability to discern whether it's fact or fiction, that could be trying for her." Jamie's godmother, Alice, testified that Jamie was "like a baby in her mind."
Jamie's brother, Emilio, who was nine at trial, also said that Jamie was a special needs child. Emilio testified that he was in the courtroom because Garza "was touching [Jamie] under the blanket" while Jamie was sitting on a couch. Emilio, who was on another couch, testified that he could not see what was happening under the blanket but saw the blanket moving because Garza's hands were in Jamie's lap. Emilio demonstrated for the jury what Garza's hands were doing under the blanket and showed the jury that Garza's elbow was moving back and forth. Emilio said that he was the first person to tell his mother that Garza was touching Jamie because he knew Garza "did something bad" and that his mother was mad and made Emilio promise to tell the truth.
Jane Riley, a pediatric nurse practitioner, testified that she conducted a sexual assault examination of Jamie at Scotty's House, a Child Advocacy Center (CAC). Riley's report, which was admitted without objection, contained statements made by Jamie to Riley, including that Garza "squeezed" Jamie's breast, making her feel bad, and touched her genital area. Jamie clarified that Garza touched her genitals under her clothing with "one finger" on the "inside" and that there was blood on her panties. Jamie also said that Garza took photos of her in the shower and had put his mouth on her mouth. According to Riley, Jamie reported pain with urination, vaginal discharge, and bleeding.[4]
Jamie was next to testify and told the jury that she was "[s]cared to talk" about "[s]tuff that[] happened."
When asked what her job was, Jamie responded that it was to "[t]ell the truth." Jamie testified that her "girl parts" included her chest and the area between her legs and that Garza had touched both "girl parts" underneath her clothing. Jamie clarified that Garza touched the inside of her female private and demonstrated the motion for the jury by placing her finger inside of a tissue box opening. Jamie said that she had kept quiet about the incidents because she did not want to get in trouble. She said that her mother, Sara, became aware of the touching because of Emilio's report.
Alice testified that she went to Jamie's home after Sara "was kind of breaking down" and saw Sara crying. Alice testified that Jamie seemed nervous, was crying, and looked as if she believed she was in trouble. According to Alice, while in an emotional state, Jamie said that Garza "touched her in her middle part." During cross-examination, Alice testified that Jamie said Garza had also kissed her.
Sara testified that Emilio told her that Garza was touching Jamie on her private parts. According to Sara, Jamie initially said the allegation was untrue but, after Alice came over, said Garza had touched her breast and vagina. Sara said Jamie pointed to her "middle part," said "[Garza had] touched [her] down there," and said that the touching was both on the outside and inside of her vagina. Patricia Matush, a detective with the College Station Police Department, testified that she opened an investigation for sexual assault of a child after speaking with Sara. Matush arrested Garza after Emilio said Garza had touched Jamie inappropriately.
Cameron Hines, a forensic interviewer with the CAC, testified that she was tipped off to Jamie's developmental delays when Jamie had difficulty stating her birthday and understanding certain words.[5] Mary Watkins, an investigator for Child Protective Services, testified that she did not believe that Jamie knew the difference between the truth and a lie based on her answers to Watkins's questions on an unrelated matter. Even so, when asked what the term "truth meant," Jamie later said it meant "being honest."
Garza argues that the lack of physical evidence demonstrates that the evidence is legally insufficient to show that he touched Jamie with the intent to arouse or gratify his sexual desire. In a sufficiency analysis, the question "is not what evidence there isn't, it's what evidence there is." Carmona v. State, 610 S.W.3d 611, 615 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (quoting Acosta v. State, 429 S.W.3d 621, 630 (Tex. Crim. App. 2014)). "Circumstantial evidence alone can be sufficient to establish guilt." Id. (citing Acosta, 429 S.W.3d at 625). "In such cases, it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances." Id. (citing Acosta, 429 S.W.3d at 625). Garza also argues that the State's trial witnesses were not credible, but credibility was an issue for the jury to determine. Also, "[t]he jury may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence." Id. (citing Acosta, 429 S.W.3d at 625).
Here Jamie's testimony established that Garza touched her vagina underneath her clothing. "The testimony of a child victim alone is sufficient to support a conviction for . . . indecency with a child." Glockzin v. State, 220 S.W.3d 140, 147 (Tex. App.-Waco 2007, pet. ref'd) (quoting Perez v. State, 113 S.W.3d 819, 838 (Tex. App.-Austin 2003, pet. ref'd), overruled on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008)). Also, sexual contact of Jamie's vagina by Garza was established by Emilio's demonstration of how Garza touched Jamie under the blanket, Riley's testimony that Jamie said Garza touched her on the inside of her private with one finger, Alice's testimony that Jamie said Garza "touched her in her middle part," and Sara's testimony that Jamie said Garza touched the outside and inside of her vagina. Evidence that Garza also...
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