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Garcia v. State4/23/2004
." She believes that Cervantez influenced L.C.
Elena never saw appellant follow L.C. into the bathroom. She would have noticed because she could see the bathroom from the kitchen. Also, she would have noticed because appellant always used the bathroom in her bedroom instead of the one in the hall. They never would have been alone because she was not working at the time. Elena never saw any blood or discharge in L.C.'s underwear. He never complained that he hurt when he went to the bathroom. Normally, if L.C. had a pain or a problem he would share that with her. They had a very close relationship - they talked about everything.
Elena admitted that she was still in love with appellant. They had talked about marriage and they were planning a future together. But appellant was not more important to her than her son. L.C.'s well-being took precedence over appellant's.
Kathryn Mattox, an investigator with Child Protective Services, testified that Elena did not cooperate with the investigation. Elena did not seem interested in getting to the truth. Elena was not cooperative in regards to getting L.C. into therapy. Even though they would have made alternate arrangements if there were conflicts, Elena never brought L.C. to any therapy sessions. Elena told Mattox one time that she did believe L.C.'s story, but her actions contradicted that statement.
After a neutral review of all the evidence, both supporting and against the findings, we can say that the jury was rationally justified in finding guilt beyond a reasonable doubt. We hold that the evidence is factually sufficient to support appellant's convictions for both aggravated sexual assault of a child and indecency with a child by contact. We overrule issues three and five.
FAILURE TO RECEIVE A FAIR TRIAL
In his first issue, appellant argues that he was deprived of a fair trial by an impartial jury -- which he claims is fundamental error not requiring an objection -- because of the cumulative effect of (1) the prosecutor's comments during voir dire which sought to circumvent appellant's rights by raising inferences concerning the presumption of innocence and the right to remain silent, and (2) comments made by potential jurors during voir dire that encouraged an inherent bias against appellant and his right to require the state to meet its burden of proof, his right to remain silent and his presumption of innocence. As a general rule, the failure to timely object waives the asserted error. Boyd v. State, 811 S.W.2d 105, 113 (Tex. Crim. App. 1991). However, reversible fundamental error occurs when "the error is so egregious and created such harm that [the defendant] 'has not had a fair and impartial trial . . . .'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
First, appellant complains that the State, under the guise of discussing the burden of proof, questioned a potential juror regarding whether he had ever had occasion to resolve a conflict between two children and what the potential juror did to tell which one was telling the truth. The prosecutor then went on to ask, "Do you have them tell their side of the story?" Appellant argues that this line of questioning was tantamount to a comment on the appellant's right to remain silent. The State contends that it was not a comment on appellant's right to remain silent but, rather, a lead-in to a discussion about people using their common sense to determine who is telling the truth.
In voir dire, if the State has no way of knowing whether the defendant will testify, comments regarding whether or not the defendant will testify are not taken as comments on a subsequent failure of the defendant to testify a
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