                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-12-00112-CR

VICENTE GARCIA,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2010-1458-C2


                           MEMORANDUM OPINION


       Vicente Garcia was convicted of two counts of indecency with a child by contact

and sentenced to 20 years in prison on each count. The victim, D.E., was the 14 year old

daughter of Garcia’s girlfriend. The trial court’s judgment is affirmed as reformed.

       Because the sufficiency of the evidence is not in question in this appeal, we do

not discuss the facts of the case unless necessary in our review of Garcia’s issues.

                          HEARING ON MOTION FOR NEW TRIAL

       In his first issue, Garcia contends the trial court abused its discretion in failing to
conduct a hearing on Garcia’s amended motion for new trial. Garcia alleged in his

amended motion for new trial that trial counsel’s assistance was ineffective because trial

counsel 1) prevented Garcia from testifying, and 2) failed to call witnesses to present

exculpatory evidence.

           The State initially argues that Garcia failed to preserve error, if any, because he

did not request a hearing on his amended motion for new trial. However, Garcia

explicitly requested a hearing in his written prayer for relief. Although a separate

request for a hearing might be helpful, the law does not require it. Hobbs v. State, 298

S.W.3d 193, 201 (Tex. Crim. App. 2009). “A specific written request (or an oral request

made on the record) will suffice.” Id. Thus, Garcia’s issue is preserved.

           The State also argues that Garcia did not establish in his motion the two prongs

of the Strickland standard for proving ineffective assistance of counsel. 1 Before he will

be entitled to a hearing on a motion for new trial alleging ineffective assistance of

counsel, a defendant must allege sufficient facts from which a trial court could

reasonably conclude both that the defendant’s counsel's representation fell below the

standard of professional norms and that there is a reasonable probability that, but for

his counsel's conduct, the result of the proceeding would have been different. Smith v.

State, 286 S.W.3d 333, 340-341 (Tex. Crim. App. 2009); Johnson v. State, 169 S.W.3d 223,

239 (Tex. Crim. App. 2005) (denial of right to testify is still subject to the Strickland


1   See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Garcia v. State                                                                                  Page 2
prejudice analysis).

        Garcia attached a lengthy affidavit to his motion for new trial explaining his side

of the story, focusing on his relationship with D.E.’s mother and the accusation of

Garcia touching D.E.’s breast at the laundromat. Also attached to the motion were

affidavits from relatives of Garcia relating to the behavior of D.E.’s mother, her

statements that she would get even with Garcia for breaking up with her, and the

actions of D.E. after Garcia’s arrest “like nothing ever happened.” As to be expected,

Garcia had a different version of the events at the laundromat; but two uninterested

witnesses also testified that they saw Garcia inappropriately touch D.E. on her breast.

Further, if the testimony from members of Garcia’s family would be admissible, none

contradicted the State’s evidence; it was more addressed to the credibility of D.E. and

her mother.

        But, even if counsel’s actions fell below the standard of professional norms, a

finding we do not make, Garcia did not allege sufficient facts to reasonably conclude

that, but for counsel’s errors in failing to call him as a witness or failing to call other

witnesses, the results of the proceeding would have been different. Thus, the trial court

did not abuse its discretion in failing to hold a hearing on Garcia’s motion for rehearing.

        Garcia’s first issue is overruled.

                                         JURY CHARGE

        In his second issue, Garcia contends that he was egregiously harmed by a jury


Garcia v. State                                                                      Page 3
instruction regarding unanimity of instances of criminal conduct.

        Texas law requires that a jury reach a unanimous verdict about the specific crime

that the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011)

(citing Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008)). This means that

the jury must "agree upon a single and discrete incident that would constitute the

commission of the offense alleged." Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717

(Tex. Crim. App. 2007)).

        Garcia was charged with one count of indecency with a child where the sexual

contact alleged was the touching of D.E.’s breast. There were multiple instances of this

type of contact introduced into evidence. He was also charged with indecency with a

child where the sexual contact alleged was the touching of D.E.’s genitals. Only one

such instance of this type of contact was introduced into evidence. The particular

instruction about which Garcia complains is as follows.

               In this case, you may have heard evidence alleging multiple
        incidents of criminal conduct, if any, which may, individually, form the
        basis of a conviction for the same count. You are instructed that you must
        agree unanimously on which incident, if any, forms the basis for your
        conviction under a particular count as alleged in the indictment.

This instruction was given immediately before Count I which alleged Garcia touched

D.E.’s breast. This is the count for which there was evidence of multiple instances that

would support a conviction. This instruction, however, was not repeated before Count

II which contained the allegation that Garcia touched D.E.’s genitals. This is the count


Garcia v. State                                                                      Page 4
for which there was evidence of only one instance that would support a conviction.

        Garcia focuses his appellate argument on the elements of an egregious error

review. However, we must first decide whether it was "error" for the trial court to give

the particular unanimity instruction before applying Almanza's egregious-harm

standard for unobjected-to jury charge error. See Tolbert v. State, 306 S.W.3d 776, 779

(Tex. Crim. App. 2010); Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998) (Almanza

does not apply unless the appellate court first finds error in the jury charge).

        Though not directly stated in the issue, it appears that Garcia believes the

particular charge was erroneous because it suggested there were multiple instances of

Garcia touching D.E.’s genitals when there was only one such instance and several

instances of Garcia touching D.E.’s buttocks. Garcia, however, provides no authority to

support a finding that the instruction was erroneous. We do not believe the instruction

could fairly be read to imply multiple instances that would support Count II and that

the jury had to agree on one specific instance. His second issue is overruled.

                          INEFFECTIVE ASSISTANCE OF COUNSEL

        By his third issue, Garcia contends his trial counsel was ineffective in failing to

make several objections, those being:

    1. Failing to object to outcry testimony from D.E.’s mother;

    2. Failing to object to outcry testimony from D.E.’s sister;

    3. Failing to object to indirect hearsay and prior consistent statements by the
       supervisor of the child forensic examiner;
Garcia v. State                                                                      Page 5
    4. Failing to object to a diagram with words on it purportedly used by D.E. to
       describe her body parts at the forensic interview;

    5. Failing to object to a jury instruction which allegedly suggested to the jury
       evidence of more than one incident of genital touching; and

    6. Failing to object to a misstatement by the State during its closing argument
       regarding conduct that was not an act of genital touching.

        To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland: that (1)

counsel's representation fell below an objective standard of reasonableness, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless appellant can prove both prongs, an appellate court must not

find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142.

        An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation."          Id.


Garcia v. State                                                                        Page 6
(quoting Bone, 77 S.W.3d at 833 (quoting Thompson v. State, 9 S.W.3d 808, 813-814)).

        In Lopez, an appeal from a conviction for aggravated sexual assault of a child, the

appellant complained about counsel’s failure to object to the testimony of three outcry

witnesses and testimony regarding the credibility of the victim. The Court of Criminal

Appeals held that the record was silent as to why trial counsel failed to make the

objections and reversed the judgment of the court of appeals which had found counsel

ineffective. Id. at 143-144. Like Lopez, here the record is silent as to why Garcia’s trial

counsel failed to raise any of the objections suggested by Garcia. The record could have

been supplemented through a hearing on a motion for new trial, but these alleged

deficiencies were not raised in Garcia’s motion for new trial. Garcia has thus failed to

meet his burden under the first prong of Strickland. We need not address the merits of

the second prong.

        Garcia’s third issue is overruled.

                                  CORRECTED JUDGMENT

        In his fourth and final issue, Garcia asserts that the judgments for Count I and

Count II contain an erroneous statement that should be reformed. The judgments are

titled, “Judgment of Conviction by Court—Waiver of Jury Trial.” Garcia was tried by a

jury. Garcia contends, and the State agrees, that the judgments should be reformed to

be titled, “Judgment of Conviction by Jury.” An appellate court has authority to reform

a judgment to include an affirmative finding to make the record speak the truth when


Garcia v. State                                                                        Page 7
the matter has been called to its attention by any source. French v. State, 830 S.W.2d 607,

609 (Tex. Crim. App. 1992). Garcia’s issue is sustained. The trial court’s judgment as to

Count 1 is reformed to be titled, “Judgment of Conviction by Jury.” The trial court’s

judgment as to Count II is also reformed to be titled, “Judgment of Conviction by Jury.”

                                      CONCLUSION

        Having sustained Garcia’s fourth issue and reformed the judgments and having

overruled each of Garcia’s remaining issues on appeal, we affirm the trial court’s

judgments as reformed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as reformed
Opinion delivered and filed February 14, 2013
Do not publish
[CR25]




Garcia v. State                                                                      Page 8
