      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00781-CR



                               Alejandro John Garcia, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 11-216-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found Alejandro John Garcia guilty of indecency with a child by contact and

assessed a sentence of ten years in prison. Garcia contends that the trial court abused its discretion

by excluding his expert’s testimony, that the trial court abused its discretion by refusing to include

the words “intentional and knowing” in the application paragraph of the jury instruction, and

that the evidence is insufficient to sustain the conviction for indecency by contact. We will affirm

the judgment.


                                         BACKGROUND

                Garcia’s nine-year-old daughter went for an overnight visit to the apartment Garcia

shared with his girlfriend and their four-year-old son. She watched a movie with her brother in her

brother’s room while Garcia watched a movie in the living room with the girl’s uncle, smoking

marijuana. Garcia’s girlfriend was at work that evening. Garcia’s daughter testified that she
ordinarily slept on the couch during her visits and that, after the movies finished, Garcia fixed the

couch as her bed that night. They watched some television and, at around 9:36 p.m., she fell asleep

on the couch. She said that Garcia also fell asleep on the couch, which was unusual. She woke up

later when Garcia touched her, unbuckled his belt, then did “something really gross.” She testified,

“He pulled down my pants and stuck his middle part into my bottom. And then he put his hands on

my front part.” She testified that he put his “middle part inside my butt.” She testified that after

doing those things “he woke up, and he said, ‘Oh, my God.’ And then he started wiping my butt and

pulled up my pants. And then he went and threw the paper towel away. . . . [H]e told me to take a

shower, but I didn’t.” She said that Garcia said, “What the F?” and “Why did I do that?” to himself.

She testified that he did not tell her to keep quiet, did not threaten her, did not try to bribe her, and

did not blame her. She said that she knew Garcia was asleep when these events occurred “because

he wouldn’t have done that if he was awake.”

                The girl’s grandparents came and picked her up later that night and delivered her to

her mother, who then immediately took the child to the hospital for a checkup. Because of the nature

of the actions reported to hospital personnel, Austin Police were notified.

                Austin police officer Gregory White testified that Garcia admitted that he touched his

penis to his daughter’s anus, but Garcia claimed he did not penetrate her. White testified that

Garcia “actually said that he wasn’t sleepwalking, but was just tired. He was trying to describe it.

He was just tired. . . . He offered that he was drinking and smoking weed but didn’t offer any other

explanation as to what would explain an altered mental state.” White said that Garcia reported being

fatigued from having worked long hours. White also testified, “In this case he was offering the

explanation that he [mistook] his daughter [] for his girlfriend [].”

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               The child’s mother testified that her daughter texted her upset, but would not speak

to her when she picked her up later that night. The mother said that Garcia denied doing anything

to their daughter. The child started shaking at the hospital and refused to allow a genital exam. The

mother testified that she continues to take her daughter to counseling even though her daughter says

she does not know why she has to go and the counselor thinks they have nothing further to discuss.

               The Department of Public Safety forensic examiner testified that tests of the child’s

panties indicated the presence of semen in a stained area, though because no sperm were found the

substance could have been something else. The examiner tested the stain for DNA, compared it to

Garcia’s DNA, concluded that Garcia could not be excluded as a contributor, and stated that the

probability of choosing another unrelated contributor was one in 436.6 million for Hispanic persons.

               Based on the State’s objection, the trial court excluded Garcia’s proposed witness,

Dr. Michel Bornemann, a self-described “sleep physician.” Dr. Bornemann testified during a

voir dire examination and a bill of exception. He would have testified to the jury about the

possibility of Garcia acting sexually while essentially asleep. He said he reviewed a police report,

reviewed the hospital’s report on the examination of the victim, listened to Garcia’s interview

with Austin police, interviewed Garcia, and talked to Garcia’s girlfriend. Dr. Bornemann did not

physically examine Garcia, nor did he test him for whether he was a sleepwalker. He testified that

such tests can show whether someone sleepwalks during that test and whether the person has any

underlying condition that could account for sleepwalking, but not whether a person might have

sleepwalked on a particular previous occasion.

               The jury found Garcia not guilty of aggravated sexual assault of a child, but found

him guilty of indecency with a child by contact.

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                                           DISCUSSION

               Garcia challenges the trial court’s exclusion of Dr. Bornemann’s testimony, its jury

instruction, and the sufficiency of the evidence to support the conviction.


The court did not err by excluding the proffered expert testimony.

               Garcia contends that the trial court erred by sustaining the State’s objection to his

expert, Dr. Bornemann. Garcia contends that the trial court wrongly excluded the testimony because

it did not like the way in which Dr. Bornemann reached his conclusion.

               We review trial-court rulings on the admissibility of evidence under an abuse of

discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). A trial court

abuses its discretion when it acts without reference to any guiding principles, and we reverse the

judgment when that abuse harms the defendant. Ex parte Ramey, 382 S.W.3d 396, 401 (Tex. Crim.

App. 2012). A party proffering expert testimony must show that the scientific evidence is reliable

through clear and convincing evidence showing the following: (1) the underlying scientific theory

is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied

on the occasion in question. Sexton v. State, 93 S.W.3d 96, 100 (Tex. Crim. App. 2002) (citing Kelly

v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)).

               When Garcia called Dr. Bornemann, the State requested and obtained a hearing

concerning the underlying facts or data on which his opinion was based. See Tex. R. Evid. 705(b).

Through Dr. Bornemann, Garcia sought to offer evidence that he was essentially sleepwalking when

he touched his daughter and, therefore, that he lacked the requisite intent or voluntariness to commit

the crime. At the close of the voir dire examination, the State objected to the testimony, arguing



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that it was based on a novel and unreliable scientific theory that could mislead the jurors. The State

contended that the theory lacked diagnostic criteria and support in the medical community

and, furthermore, that Dr. Bornemann did not “appropriately diagnose this defendant as having

any disorder.”

                 We will focus on the third of the factors set out in Sexton. Dr. Bornemann stated that

he did not examine Garcia physically, although they conversed by telephone, and he did not rely on

any examination of Garcia regarding sleep disorders. Dr. Bornemann testified as follows:


       Clinically, in order to make a clinical diagnosis, you need longitudinal assessment
       of the individual to confirm that it is a recurrent problem that is of significant health
       or safety consequences to the individual and/or individuals that were with him. I
       can only guess what the situation would be with Mr. Garcia. But without having a
       longitudinal assessment as a physician and continuity of care, I can’t with confidence
       state that he has a specific disorder.


Thus, despite his conclusions regarding Garcia’s actions, Dr. Bornemann essentially testified

that diagnostic techniques are required to find a disorder and that he did not apply those techniques

to Garcia. We cannot say that the trial court abused its discretion by excluding Dr. Bornemann’s

testimony because Garcia failed to show by clear and convincing evidence that a valid technique for

diagnosing parasomnia was properly applied to him. See Sexton, 93 S.W.3d at 100.


The jury instruction on indecency was not erroneous.

                 Garcia contends that the trial court erred by refusing to include the words

“intentionally or knowingly” in the application paragraph of the indecency charge. The charge given

was as follows, and Garcia requested that the terms “intentionally or knowingly” be included where

we have inserted asterisks inside of brackets:

                                                   5
       Now bearing in mind the foregoing instructions, if you believe from the evidence
       beyond a reasonable doubt that the defendant, ALEJANDRO JOHN GARCIA, on
       or about December 24, 2010, in Williamson County, Texas, [***] engaged in sexual
       contact with a child younger than 17 years of age, namely, any touching by the
       defendant, including touching through clothing, of any part of the genitals of [KG],
       with intent to arouse or gratify the defendant’s sexual desire, then you will find the
       defendant guilty of the offense of Indecency with a Child by Contact, as alleged in
       Count Two of the indictment, and so say by your verdict.


Garcia contends that, without the requested words, the charge improperly instructed the jury to

convict him because he engaged in prohibited contact, even if he was unaware he was doing it and

had no intention of doing it.

               The jury charge must contain an accurate statement of the law and must set out

all of the essential elements of the offense. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.

App. 2012). In examining the charge for possible error, we must view the charge as a whole instead

of as a series of isolated and unrelated statements. Id.

               The applicable statute prohibits persons from engaging in sexual contact with a child.

See Tex. Penal Code § 21.11(a). Sexual contact occurs when a person acting with the intent to

arouse or gratify the sexual desire of any person either touches certain parts of a child’s body or

touches any part of a child’s body with certain parts of the toucher’s body. Id. § 21.11(c). The

statute does not include “knowing” as a culpable mental state for this offense, see id., so the court’s

exclusion of that word was proper. Contrary to Garcia’s argument, the charge given did not create

a “strict liability” offense based merely on contact because it instructs that, to be guilty of the

offense, the defendant must have committed the requisite touching intending to arouse or gratify

someone’s sexual desire. Courts have held that including the words “intentionally or knowingly”

as Garcia requested in an indecency charge would be error. See Bazanes v. State, 310 S.W.3d

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32, 36-37 (Tex. App.—Fort Worth 2010, pet. ref’d); Jones v. State, 229 S.W.3d 489, 492

(Tex. App.—Texarkana 2007, no pet.). The trial court did not abuse its discretion by excluding the

terms “intentionally or knowingly” where Garcia requested they be included because his requested

instruction would not have accurately described the offense as defined by the language of the statute.


The evidence was sufficient to support the finding of guilt.

               Garcia contends that the record lacks evidence to support the finding that he had the

requisite intent when having sexual contact with his daughter. He contends that there is no evidence

that he acted intentionally or knowingly. A conviction on the offense of indecency with a child

requires a finding that the offender had sexual contact with the child intending to gratify the sexual

desire of any person. See Tex. Penal Code § 21.11. While the offense of indecency by contact

requires a finding that the offensive contact was committed with the specific intent to arouse or

gratify someone’s sexual desire and a more basic finding that the contact was committed voluntarily,

see id. § 6.01(a), the offense does not require any other finding of knowledge or intent.

               When reviewing the sufficiency of the evidence to support a verdict, an appellate

court must view the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found each essential element of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Brooks v. State, 323 S.W.3d 893, 896

(Tex. Crim. App. 2010). The reviewing court must defer to the jury’s determination of weight and

credibility; the jury is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. Brooks, 323 S.W.3d at 899. The fact finder is entitled to judge the credibility of

the witnesses and can believe all, some, or none of the testimony presented. Chambers v. State,



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805 S.W.2d 459, 461 (Tex. Crim. App. 1991). When the record contains evidence supporting

conflicting inferences, the appellate court must presume that the jury resolved any conflicts in favor

of its verdict. Rabb v. State, 434 S.W.3d 613, 622 (Tex. Crim. App. 2014). Intent may be inferred

from acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.

App. 1991).

               Garcia does not dispute that he made the requisite contact with his daughter or that

she was a child within the statutory definition, but contends that he did not act with the requisite

intent or voluntariness. See Tex. Penal Code §§ 6.01(a) (voluntariness), 21.11(c) (sexual contact).

He points to his daughter’s testimony that he was asleep when he touched his daughter and that

he “woke up, and he said, ‘Oh, my God.’” He contrasts his behavior with that of other persons

convicted of sexual crimes. He cites a case in which the Texarkana court of appeals reversed a

conviction for aggravated sexual assault of a child based on the State’s failure to prove that an

accused acted voluntarily when touching his daughter because the State provided no evidence that

the defendant was awake or that a sleeping person could not engage in the offensive conduct.

Whatley v. State, 415 S.W.3d 530, 548 (Tex. App.—Texarkana 2013), reversed, No. PD-1627-13,

2014 Tex. Crim. App. LEXIS 1511 (Tex. Crim. App. Oct. 8, 2014).

               Since Garcia filed his supplemental brief based on the Texarkana court’s opinion,

however, the court of criminal appeals has reversed that decision, reinstating the jury’s verdict of

guilt. 2014 Tex. Crim. App. LEXIS 1511. Although the child in that case told investigators when

she was eleven years old that Whatley was asleep during the event because his eyes were closed

and he was snoring, she acknowledged during her testimony when she was eighteen that she had

been unable to see Whatley’s face when they were in bed because he was behind her. Id. at *14.

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The court of criminal appeals found evidence from which the jury could have inferred that the child

had mistaken Whatley’s closed eyes and heavy breathing for sleep. Id. at *15. That court wrote that

the jury could have concluded that the child reported that Whatley was asleep to reconcile her love

for him with the abuse by asserting that he must have been unaware of his actions. Id. at *14.

Although the child had theorized that Whatley might have sleepily mistaken her for her mother,

her mother testified that, in the five years she had shared a bed with Whatley, he only once reached

for her in his sleep, and on that occasion he did not touch or penetrate her vagina.1 Id. at *14-15.

               As Garcia argued, the testimony in this case is somewhat similar to that in

Whatley—a record that the court of criminal appeals has concluded supports the jury’s verdict

and the implicit finding that Whatley’s actions were voluntary. See id. at *16-17. There is some

evidence on which the jury could have relied to find that Garcia’s actions were voluntary and

committed with the requisite intent. The presumptive presence of semen on the child’s clothing is

clear evidence that Garcia’s sexual desires were aroused and gratified by the contact. Although

Garcia’s daughter testified that her father was asleep during this event, the jury was entitled to

disregard this aspect of her testimony and apparently did so. The jurors were entitled to and must

have chosen instead to credit Garcia’s statement to police that he was not sleepwalking when it

occurred. They may have credited his statement that he believed he was touching his girlfriend as




       1
          This testimony conflicted with the mother’s report to police investigators that Whatley
had several times initiated sexual contact while asleep and claimed not to remember doing so. See
Whatley v. State, 415 S.W.3d 530, 546 (Tex. App.—Texarkana 2013), reversed, No. PD-1627-13,
2014 Tex. Crim. App. LEXIS 1511 (Tex. Crim. App. Oct. 8, 2014). Although the court of criminal
appeals did not reference this conflicting evidence in its opinion, it could have concluded that the
jury was entitled to resolve the conflict in favor of the mother’s trial testimony.


                                                 9
showing that he was awake enough to recognize that he was contacting someone in a sexual

manner—demonstrating that his actions were voluntary—but disbelieved his assertion that he

thought he was touching his girlfriend. The standard of review does not permit us to reverse the

conviction on this record.


                                        CONCLUSION

               Finding no reversible error presented, we affirm the conviction.




                                             Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: December 11, 2014

Do Not Publish




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