Garcia v. State

JOSE RAMIREZ GARCIA A/K/A JOSE GARCIA RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-19-00040-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

July 9, 2020

On appeal from the 107th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Perkes, and Tijerina

Memorandum Opinion by Justice Tijerina

Appellant Jose Ramirez Garcia a/k/a Jose Garcia Ramirez appeals his convictions of one count of continuous sexual abuse of a child under fourteen years of age, a first-degree felony, two counts of indecency with a child by contact, second-degree felonies, and two counts of indecency with a child by exposure, third-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02, .11. Appellant received a sentence of fifty years' incarceration for continuous sexual abuse of a child under fourteen years of age, ten years' incarceration for each count of indecency with a child by contact, and five years' incarceration for each count of indecency with a child by exposure. The continuous sexual abuse of a child and indecency with a child by contact punishments will run consecutively and the indecency with a child by exposure punishments will run concurrently. By seven issues, which we have renumbered and reorganized, appellant contends that: the evidence is legally insufficient to support a conviction of continuous sexual abuse of a child (first issue); and the trial court erred by denying his motion for continuance (second issue), denying his motion to sever (third issue), improperly allowing "outcry evidence" (fourth issue), qualifying a child witness in the jury's presence (fifth issue), allowing the State to question him about his post-arrest silence (sixth issue), and including an improper instruction in the punishment charge (seventh issue). We affirm.

I. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant contends we should reverse his conviction of continuous sexual abuse of a child because there is no evidence that the acts of sexual abuse occurred during a period that is thirty or more days. See id. § 21.02(b).

A. Standard of Review and Applicable Law

In determining the sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim.App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the judgment. Id.

Sufficiency of the evidence 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); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "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 theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.

A person commits the offense of continuous sexual abuse of a child if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

TEX. PENAL CODE ANN. § 21.02(b). An "act of sexual abuse" is an act that violates one or more specified penal laws, among them indecency with a child by contact, aggravated sexual assault of a child, sexual assault of a child, and sexual performance by a child. Id. § 21.02(c).

B. A Duration of Thirty Days or More

Appellant asserts there is no evidence that the sexual abuse occurred for a duration of thirty days or more.¹ See id. § 21.02(b). The jury was instructed to findappellant guilty of continuous sexual abuse of a child if, among other things, the evidence showed that, during a period that was thirty days or more, he committed two or more acts of sexual abuse against V.J. and/or J.J., when either child was under fourteen years of age.² See id.

In a video admitted into evidence, J.J. said that when she was eight, appellant put his penis in her "butt" on three occasions, and he put his penis in her vagina on another three occasions. J.J. stated that the sexual abuse started in September and ended in November. V.J. testified that the sexual abuse occurred "[b]etween one and two years, because [appellant] came and lived with [her family] while he was trying to look for a job." According to V.J., among other things, appellant touched her "private" with his hand and touched her butt with his penis. Each child testified that the sexual abuse occurred for a duration of thirty days or more. See id. (requiring two acts of sexual abuse to occur within a period of thirty days or more). Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that the duration of the sexual abuse committed by appellant occurred during a period that was thirty days or more beyond a reasonable doubt based on the evidence presented and reasonable inferences from that evidence. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898-99. We overrule appellant's first issue.³

II. MOTIONS FOR CONTINUANCE

By his second issue, appellant contends that the trial court erred by denying two of his motions for continuance. First, appellant argues that the trial court should have granted an oral motion for continuance made by his court appointed attorney (appointed counsel). Next, appellant argues that the trial court improperly denied a motion for continuance filed by his subsequently retained counsel (retained counsel).

A. oral Motion for continuance

"A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown[.]" TEX. CODE CRIM. PROC. ANN. art. 29.03 (emphasis added); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). Thus, to preserve an argument that the trial court improperly denied a motion for continuance, the complaining party must have filed a sworn written motion. Anderson, 301 S.W.3d at 280. A party who makes an unsworn oral motion for continuance forfeits a complaint on appeal about the trial court's denial. Id.

During a pre-trial hearing, appellant's appointed counsel orally requested a continuance claiming he needed more time to prepare because the State informed him of additional discovery. The trial court denied the oral motion for continuance. Appellant did not file a sworn written motion and relied solely on his unsworn oral motion. Thus, appellant forfeited his right to complain of the trial court's denial of his oral motion on appeal. See id.

B. Motion for continuance Filed by Retained counsel

Next, appellant argues that the trial court abused its discretion by denying his retained counsel's motion for continuance because his retained counsel "needed more time . . . to be prepared."

1. Standard of Review and Applicable Law

We review a trial court's decision denying a motion for continuance under an abuse of discretion standard. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The defendant establishes that the trial court abused its discretion by showing that he was actually prejudiced by the denial of his motion. Gallo v State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). "To find an abuse of discretion in refusing to grant a motion for continuance, there must be a showing that the defendant was prejudiced by his counsel's inadequate preparation time." Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Ordinarily, a motion for new trial hearing is a proper place for the development of evidence showing how a defendant was harmed by the trial court's denial of a requested continuance. Gonzales v. State, 304 S.W.3d 838, 842-43 (Tex. Crim. App. 2010).

2. Discussion

Appointed counsel began representing appellant on April 17, 2018. On December 3, 2018, the date that appellant's trial began, during a pre-trial hearing, appellant informed the trial court that he had hired his retained counsel. Appellant's appointed counsel and retained counsel were both present at this hearing.

Appellant's retained counsel referenced a written motion for continuance, wherein he sought a continuance on the basis that he had "recently been retained and [would] need additional time to review the case." Appellant's retained counsel did not state any other basis to support his assertion that he needed a continuance. The trial court deniedthe motion for continuance stating that appellant's appointed counsel had been on the case "for a long time already" and "this [motion for continuance] is at the last minute." Appellant's retained counsel replied that he would serve as co-counsel to appellant's appointed counsel. The trial court agreed stating, "Yes, you will be his co-counsel." Appellant's appointed counsel then asked to withdraw from the case on the basis that appellant could now afford to hire an attorney. Appellant's retained counsel disagreed stating, "Under the circumstances, I can co-counsel with [appointed counsel], Your Honor, again, because you denied my Motion for Continuance . . . ." The trial court denied appointed counsel's motion to withdraw, and both appellant's appointed counsel and retained counsel represented him during the trial court proceedings.

Appellant did not file a ...