Garcia v. State

CARLOS GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-17-00218-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 28, 2019

On appeal from the 428th District Court of Hays County, Texas.

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Rodriguez¹

Memorandum Opinion by Justice Rodriguez²

Appellant Carlos Garcia appeals from his convictions of one count of aggravated sexual assault of a child and five counts of indecency with a child. See TEX. PENAL CODE ANN. §§ 21.11, 22.021(a)(1)(B) (West, Westlaw through 2017 1st C.S.). By ten issues, Garcia contends that the trial court (1) improperly denied his motion for severance (issue one), (2) allowed improper outcry witness testimony (issues two and three), (3) violated the confrontation clause (issue four), (4) admitted inadmissible evidence and excluded admissible evidence (issues five, six, seven, and eight), (5) failed to declare a mistrial (issue nine), and (6) committed cumulative error (issue ten).³ We affirm.

I. BACKGROUND

The State charged Garcia with one count of continuous sexual abuse of a child (count one), three counts of indecency with a child by sexual contact (counts two, three, and four), and two counts of indecency with a child by exposure (counts five and six). See id. § 21.02 (West, Westlaw through 2017 1st C.S.), § 21.11. The jury found Garcia guilty of the lesser-included offense of aggravated sexual assault of a child on count one and guilty of counts two through six. See id. §§ 21.11, 22.021. Garcia received a thirty-five-year sentence for count one, a fifteen-year sentence for count two, a ten-year sentence for count three, a two-year sentence for count four, and a five-year sentence for count five. For count six, Garcia received a ten-year suspended sentence and was placed on community supervision. The trial court ordered counts one, two, five, and six to run concurrently and counts three and four to run consecutively. This appeal followed.

II. SEVERANCE

By his first issue, Garcia contends that the trial court erred by denying his motionto sever counts one through four from counts five and six. Specifically, Garcia argues that severance was required because counts one through four involved Y.G. while count five involved D.C. and count six involved M.C.⁴

A. Standard of Review and Applicable Law

We review a trial court's denial of a motion to sever under an abuse of discretion standard of review. Hodge v. State, 500 S.W.3d 612, 621 (Tex. App.—Austin 2016, no pet.). A trial court abuses its discretion if its ruling is clearly wrong, lies outside the zone of reasonable disagreement, or is arbitrary or unreasonable. Hodge, 500 S.W.3d at 612.

If all offenses arise out of the same criminal episode, a defendant may be prosecuted in a single trial. TEX. PENAL CODE ANN. § 3.02(a) (West, Westlaw through 2017 1st C.S.). A "criminal episode" occurs when the defendant commits two or more offenses even if the harm is directed toward or inflicted upon more than one person when the offenses are the repeated commission of the same or similar offenses. Id. § 3.01 (West, Westlaw through 2017 1st C.S.). Although a defendant usually has an absolute right to severance of most charges that do not arise from the same criminal episode, there are several exceptions. Werner v. State, 412 S.W.3d 542, 546 (Tex. Crim. App. 2013); see TEX. PENAL CODE ANN. § 3.04(c) (West, Westlaw through 2017 1st C.S.). For example, the right to severance in cases that do not arise from the same criminal episode does not automatically apply to the prosecution of offenses described in section 3.03(b) of the Texas Penal Code. TEX. PENAL CODE ANN. § 3.04(c). Offenses listed in section 3.03(b) include, among others, continuous sexual abuse of a child, aggravated sexualassault of a child, and indecency with a child. Id. § 3.03(b) (West, Westlaw through 2017 1st C.S.); see also Minor v. State, No. 05-15-01060-CR, 2017 WL 462342, at *1 (Tex. App.—Dallas Feb. 3, 2017, no pet.) (mem. op., not designated for publication). When these offenses are charged, the trial court will sever the causes only if it "determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses. . . ." TEX. PENAL CODE ANN. § 3.04(c). "For these types of offenses, there is no presumption that the joinder of cases with different child victims is unfairly prejudicial, and the defendant bears the burden of showing how he would be unfairly prejudiced through consolidation." Hodge, 500 S.W.3d at 621 (internal citations omitted).

B. Discussion

The conduct alleged in the indictments specified that Garcia exposed a part of his genitals to D.C. and M.C., and he contacted Y.G.'s sexual organ with his sexual organ. From this the trial court could have reasonably concluded that the conduct fell within the definition of a "criminal episode" because it involves the repeated commission of similar offenses in that he exposed his genitals to all three children. See id.; Waddell v. State, 456 S.W.3d 366, 370 (Tex. App.—Corpus Christi 2015, no pet.) (explaining "it need only be shown that the offenses for which a defendant was charged and convicted were the repeated commission of the same or similar offense" and does not require proof that offenses were committed in same or similar fashion).

Moreover, in cases "involving multiple felony counts of alleged sex offenses against children, the legislature has balanced competing interests and has determined that the defendant is entitled to sever only if he can show 'unfair' prejudice—i.e., some type of prejudice beyond that which he would automatically face in any case in whichfelony counts are joined." Hodge, 500 S.W.3d at 622. Here, Garcia did not identify anything that would result in prejudice beyond what would be inherent in the joinder of felony offenses at trial. See id. Garcia argued that there were different victims and the crimes were not the same or similar. However, we have already determined that the trial court did not abuse its discretion by concluding that the offenses were similar, and we cannot conclude that the trial court abused its discretion by determining that there would be no unfair prejudice by allowing joinder of the causes. See id.

Finally, section 2 of article 38.37 of the Texas Code of Criminal Procedure provides that evidence that the defendant committed a separate offense of indecency with a child, continuous sexual abuse of a child, sexual assault of a child, or aggravated sexual assault of a child is admissible "for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." TEX. CODE CRIM. PROC. art. 38.37 (West, Westlaw through 2017 1st C.S.). Thus, even if the trial court had granted Garcia's motion to sever, it is likely that the evidence from the severed causes would have been admissible. See id.; Hodge, 500 S.W.3d at 623. For these reasons, we cannot conclude that the trial court abused its discretion by determining that Garcia failed to meet his burden of showing that joinder of the causes was unfairly prejudicial. Accordingly, we conclude that the trial court did not abuse its discretion by denying Garcia's motion to sever. We overrule Garcia's first issue.

III. OUTCRY WITNESSES

By his second and third issues, Garcia contends that the trial court failed to comply with the outcry statute by designating the wrong outcry witnesses for D.C. and Y.G.because the evidence showed that the children made their outcries to other people.⁵

A. Standard of Review and Applicable Law

The trial court has broad discretion to determine which of several witnesses is an outcry witness. Chapman v. State, 150 S.W.3d 809, 812-13 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). We will not disturb the trial court's ruling absent a clear abuse of discretion. Zarco v. State, 210 S.W.3d 816, 830 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The outcry witness must be the first person who is eighteen years' or older "to whom the child makes a statement that in some discernible manner described the alleged offense" and provides more than "a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see TEX. CODE CRIM. PROC. ANN. art. 38.072 (West, Westlaw through 2017 1st C.S.); Chapman, 150 S.W.3d at 812.

B. D.C.

The trial court designated M.C. and D.C.'s stepmother as their outcry witness. Garcia objected, arguing that D.C. made her first outcry to her mother. Garcia presented a police report that states that D.C. "said the first person she told about [Garcia] was her mom, then her step-mom" and when D.C. told her mom, "her mom said [that Garcia] was just playing around and he would stop when she talked to him about it."

At the outcry hearing, D.C.'s stepmother testified that M.C. and D.C. first told herabout Garcia's conduct on May 15, 2015 when the family left a local restaurant.⁶ D.C.'s stepmother stated that M.C. told her that Garcia walked around the house naked and asked if he could touch M.C.'s private parts. D.C.'s stepmother testified that M.C. told her that Garcia said he wanted to give M.C. money for touching her private parts like he did with D.C. According to D.C.'s stepmother, D.C. began crying. One of the children told her that on one occasion, when Garcia was sitting naked on the couch, he asked the child to sit next to him, she did, and he "took his part and he was moving it, you know and he was shaking it like if it was a tongue."⁷ On cross-examination, D.C.'s stepmother denied that D.C. and M.C. had stated that they told their mother about Garcia walking around naked. Garcia's trial counsel asked if D.C.'s stepmother was aware that the children had told their mother about the accusations a year prior to telling her. D.C.'s stepmother replied, "That's not—they didn't say anything to their mom." D.C.'s stepmother...