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Garcia v. State4/23/2004
Appellant Cecil Ray Garcia was convicted of Aggravated Sexual Assault of a Child and Indecency with a Child, both enhanced, for which the jury assessed punishment at seventy years in prison for each violation, to run concurrently. In eleven issues, appellant complains of legal and factual insufficiency, failure to receive a fair trial, improper jury argument, improper outcry witness, jury charge error, cruel and unusual punishment, and ineffective assistance of counsel. We affirm the judgment of the trial court.
BACKGROUND
L.C., an eight year old boy, alleged that his mother's boyfriend, who was staying with them for a few weeks, followed him into the bathroom one day and told him to get on his stomach on the floor. Appellant then pulled down his pants and sodomized L.C. L.C. also described an occasion when he and appellant were sitting on the couch and appellant put his hand down L.C.'s pants and grabbed his penis.
SUFFICIENCY OF THE EVIDENCE
In his second, third, fourth and fifth issues, appellant complains that the evidence is neither legally nor factually sufficient to support his convictions. A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means, if the victim is younger than 14 years of age. Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003). A person commits the offense of indecency with a child by contact if, with a child younger than 17 years and not the person's spouse, engages in sexual contact with the child. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon Supp. 2003). "Sexual contact" means any touching of a child's genitals if committed with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(c)(1) (Vernon Supp. 2003).
Legal Sufficiency
The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003).
L.C. testified at trial that he was nine years old and unmarried. On the day in question, L.C. went into the bathroom in his apartment to urinate. He was standing in front of the toilet with his pants and underwear down when appellant entered and closed the door. Appellant turned on the water in the sink and told L.C. to lay down on the floor on his stomach. He then unzipped and unbuttoned his own pants and laid down on top of L.C. According to L.C., appellant then stuck his "pee-pee" or "private" into L.C.'s "bottom" or "butt". . . "really hard." It caused L.C.'s "butt" to hurt and it still hurt when he went to the bathroom later.
Appellant argues that there is no evidence of penetration by appellant's penis. In aggravated sexual assault cases, the testimony of a child victim is sufficient to support a conviction. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2002); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.). The child may testify using language appropriate for his age to describe the sexual assault. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc); Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.-Fort Worth 1992, pet. ref'd). L.C. testified that he heard appellant unzip and unbutton his pants. He felt appellant get on top of him and experienced the pain of something being stuck
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