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Garcia v. State4/23/2004
s butt when appellant was finished. When appellant was laying on top of him, appellant was "still." Before appellant left the bathroom, he told L.C. not to tell anyone and turned off the faucet. When L.C. left the bathroom, his mother's friend Kristi was on the couch taking care of L.C.'s youngest cousin. His mom was still in the kitchen, but she went to her bedroom when the phone rang. Two of his sisters had gone outside to play and one sister was still in her room. There were nine people staying in his apartment when the incident occurred. L.C. did not tell his mom what happened or that he was hurting.
L.C. also recalled that "last night" he and appellant were on the couch in the living room watching T.V. He explained that "last night" is when everyone is getting ready for bed. They were watching a show in which there were two fat girls in swim suits jumping on top of each other. L.C. testified that appellant put a pillow over L.C.'s shorts and put his hand down his underwear and grabbed his private part. Appellant pushed up on his private part and tried to make it big. L.C. was shown a picture of a couch at trial and was asked if that was the couch he and appellant were sitting on when this occurred. L.C. said no, that they were on the big couch.
L.C. denied that appellant was his mom's boyfriend. He was sad when his parents got a divorce and wished that they would get back together. He did not like appellant when he was smoking and drinking and in the kitchen "getting all over my mom." L.C. stated that "[appellant] doesn't kiss [his mom], he just hugs and does some stuff that I don't like and makes me really mad about it." L.C. did not remember coming into the apartment and hitting appellant because his dad told him to. But his dad did not like appellant and Cervantez did tell L.C. to "go get" appellant. He did not tell his mom, sisters or cousins about what appellant was doing to him, but told his dad "because he could take care of everything."
Arlene Cervantez, L.C.'s oldest sister, testified that she had known appellant for several years through her mom's work. Appellant never said anything to her to make her feel uncomfortable, nor did she ever see appellant do anything to L.C. But she admitted she was at her father's house a lot of the time during appellant's visit. L.C. never told her that appellant had hurt him until June 14th, the same day he told his dad and the police. She trusted appellant before she found out about everything. She did not necessarily trust him now, but had some doubts about what took place. However, Arlene did not want appellant to move back in with them. Arlene testified that her mom and dad were not fighting over custody, but her dad did make comments here and there about appellant - he did not care too much for him. When appellant was living with them, he drank only occasionally, and did not smoke as far as she knew.
Elena Cervantez, L.C.'s mother, testified that she and her ex-husband did not have an amicable divorce and that Cervantez blamed appellant for their break-up. Cervantez was not fighting her for custody of the children, and she tried to have a good relationship with him for the kids' sake. But L.C. was very disappointed that his father was not living with them. L.C. never said that he did not like appellant or that he wanted to hurt him. But one day L.C. came in after visiting his father and punched appellant. He would repeat negative things that his dad said about appellant after every visitation. Cervantez had a lot of influence over their son. She did not believe her son's story about appellant because every time she asked him about the incident, he would always start crying and say "Daddy say . . ." or "Well, Daddy . . .
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