Garcia v. State

592 S.W.3d 590

Simon Madrid GARCIA Jr., Appellant

v.The STATE of Texas, Appellee

No. 11-17-00318-CR

Court of Appeals of Texas, Eastland.

Opinion filed December 31, 2019

David G. Rogers, Fivecoat & Rogers, P.L.L.C., Midland, for Appellant.

Eric Kalenak, Assistant District Attorney, Laura Nodolf, District Attorney, Midland, for Appellee.

Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.¹

KEITH STRETCHER, JUSTICE

A Midland County jury convicted Appellant, Simon Madrid Garcia Jr., of one count of aggravated sexual assault of a child and one count of indecency with a child by contact. The jury assessed a punishment of imprisonment in the Institutional Division of the Texas Department of Criminal Justice for forty years and ten years, respectively. The trial court sentenced Appellant accordingly. Appellant raises five issues on appeal, which concern the jury charge, the sufficiency of the evidence, Appellant's motion for new trial, and spoliation of evidence. We affirm.

Background

When N.D. was eight years old, he lived in Midland with his mother, brother, and sister. N.D.'s mother and Appellant were friends. In February 2016, N.D. complained to his mother and grandmother that Appellant had touched N.D.'s private area and that Appellant had also put his penis in N.D.'s mouth. Appellant was charged by indictment with aggravated sexual assault in count one and indecency with a child by contact in count two. Appellant entered a plea of not guilty and was tried before a jury.

At trial, N.D. testified via recorded video. N.D. testified that the first incident occurred after Appellant had taken N.D. to get a haircut. After the haircut, Appellant took N.D. to Appellant's house. While N.D. was in the restroom washing his hands, Appellant came in, removed N.D.'s pants and underwear, and used his hand to touch N.D.'s genitals. Using a drawing of a male child provided by the State, N.D. also diagrammed where Appellant had touched him, and the diagram was provided to the jury.

N.D. testified that the second incident occurred while Appellant was looking after N.D. because N.D. was sick. N.D. stated that Appellant took N.D. to the store for some food. During their trip back, Appellant stopped in an alley and told N.D. to get out of the car. Appellant then took N.D. between two dumpsters and removed N.D.'s pants and underwear. While again diagramming, N.D. said that Appellant also pulled down his pants and put Appellant's sexual organ "in there," referring to N.D.'s "butt." The second diagram was also published to the jury. N.D. further testified that Appellant was moving around while Appellant was touching him.

N.D.'s mother also testified at trial. N.D.'s mother testified that Appellant often spent time with her family and sometimes provided financial support. She also said that she considered Appellant a friend and trusted him to watch her children and take them to various places in town. N.D.'s mother also explained that she had waited to report N.D.'s outcry to the police because she was scared that it would affect her custody of the children. The jury also heard testimony from N.D.'s grandmother, who testified as to N.D.'s behavioral changes before his outcry. N.D.'s brother testified about times where the children had been left alone with Appellant.

Next, the State called Maura Jarldane, the therapy director for the Midland Rape Crisis and Children's Advocacy Center, to testify. She testified as an expert concerning characteristics of sexually abused children, counseling of sexually abused children, and delayed outcries. Donna Doyle, the SANE nurse who examined N.D., testified about N.D.'s examination. She also explained that N.D.'s exam did not show any physical trauma but that a lack of physical trauma is normal for delayed exams. Lastly, the State offered testimony from David Olvera, the police officer who investigated the case.

In Appellant's defense, multiple witnesses testified as to Appellant's reputation as a children's athletics coach. Additionally, Appellant's brother-in-law testified about how N.D. and his siblings did not act reserved around Appellant. Perry Marchioni also testified as an expert in the psychology of children who have been physically or sexually abused. Marchioni stated that N.D.'s responses should have been more forthcoming and that N.D. did not display an increased knowledge about sexual organs as Marchioni would expect.

Lastly, Appellant testified in his own defense. Throughout his testimony, Appellant denied ever inappropriately touching N.D. Appellant urged that he had been alone with N.D. only once when he took N.D. to the store. Additionally, Appellant acknowledged taking N.D. to get a haircut but Appellant stated that they were not alone because N.D.'s brother was also with them.

Based on this evidence, the jury found Appellant guilty of both aggravated sexual assault of a child and indecency with a child by contact. Appellant was sentenced to imprisonment for forty years and ten years, respectively.

Analysis

Appellant's first two issues concern the jury charge. Appellant first asserts that the jury charge erroneously lacked a jury unanimity instruction and, thus, violated his constitutional right to a unanimous verdict. Specifically, Appellant argues that there should have been a unanimity instruction as to whether he used his sexual organ to penetrate or to contact the child's anus.

Appellate standards of review for claims of jury charge error are well settled. We must first decide whether error exists in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Id. at 743–44. "The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection." Id. at 743. When the error was not objected to, reversal is proper only if the error caused actual, egregious harm to the defendant. Id. at 743–44 ; Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Actual harm is established when the erroneous jury instruction affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. Ngo , 175 S.W.3d at 750 (citing Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) ). When assessing harm based on the particular facts of a case, we consider the entire jury charge; the state of the evidence, including contested issues and the weight of the probative evidence; the parties' arguments; and all other relevant information in the record. Almanza , 686 S.W.2d at 171.

The Texas Constitution requires jury unanimity in felony cases, and state statutes require jury unanimity in all criminal cases. Ngo , 175 S.W.3d at 745 ; see also TEX. CONST. art. V, § 13 ; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2019), arts. 37.02, 37.03 (West 2006), arts. 45.034–.036 (West 2018). Thus, in Texas, a criminal defendant "has the right to a unanimous jury verdict on each element of the charged offense." French v. State , 563 S.W.3d 228, 233 (Tex. Crim. App. 2018) (citing TEX. CONST. art. V, § 13 and other authorities). Reaching a unanimous verdict means that the jury must "agree upon a single and discrete incident" that constitutes committing the alleged offense. Stuhler v. State , 218 S.W.3d 706, 717 (Tex. Crim. App. 2007). When the State charges different criminal acts, the jury charge must instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one or more of the criminal acts. Ngo , 175 S.W.3d at 744. Authorizing a jury to render a guilty verdict without reaching a unanimous decision as to each element of the charged offense is error. French , 563 S.W.3d at 233 (citing Cosio v. State , 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) ).

Under relevant subsections of Section 22.021 of the Texas Penal Code, a person commits aggravated sexual assault of a child if the person intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child by any means; [or]

....

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor[.]

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iv) (West 2019). The Court of Criminal Appeals has explained that the subsections of Section 22.021(a)(1)(B), which describe different ways of committing aggravated sexual assault of a child, are separate and distinct offenses. French , 563 S.W.3d at 233–34 ; Vick v. State , 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (holding that the different subsections of Section 22.021(a)(1)(B) constitute separate offenses for double jeopardy purposes).

In this case, the application paragraph of the jury charge instructed the jury to convict Appellant if it believed beyond a reasonable doubt that he "intentionally or knowingly cause[d] the contact or penetration of the anus of [N.D.] by the sexual organ of the Defendant" (emphasis added). However, the Court of Criminal Appeals has previously concluded in a similar scenario that, with respect to penile contact versus penile penetration of the same orifice, "there was no lack of jury unanimity" despite the absence of a jury charge on unanimity. Jourdan v. State , 428 S.W.3d 86, 97 (Tex. Crim. App. 2014). The court explained: "In the single transaction presented in this case, the appellant cannot have penetrated [the victim's] sexual organ without having first contacted it." Id. This is because "contact is subsumed by penetration." Id. at 98 ; see French , 563 S.W.3d at 235. Due to the nature of the crime, every juror who found penetration would have also found contact. Thus, there could be no lack of agreement that Appellant at least caused his sexual organ to contact N.D.'s anus. Accordingly, the jury charge in this case did not permit Appellant to be convicted by a nonunanimous verdict. We overrule Appellant's first issue.

In his second issue, Appellant argues...