                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-10-00368-CR

DANIEL RIVERA GARCIA,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                             From the 18th District Court
                               Johnson County, Texas
                                Trial Court No. F43408


                            MEMORANDUM OPINION


          The jury convicted Daniel Rivera Garcia of two counts of sexual assault of a

child. TEX. PENAL CODE ANN. 22.011(a) (2) (West 2011). The jury assessed punishment

at 20 years confinement and a $10,000 fine for each count. The jury also convicted

Garcia of indecency with a child and assessed his punishment at 20 years confinement

and a $10,000 fine for that offense. TEX. PENAL CODE ANN. 21.11(a) (1) (West 2011). We

affirm.
                                   Background Facts

        A.M. stayed the night at the home of Garcia and his wife, Melissa, in order to

babysit the following morning. A.M.’s cousin also stayed the night. A.M. testified that

she slept on a mattress in the living room floor and that she woke up around 8:00 a.m.

Melissa and Garcia left for work, and Melissa took A.M.’s cousin home.

        A.M. testified that Garcia returned to the house around ten minutes later. She

was lying on the mattress in the living room, and the children were still asleep in their

rooms. A.M. said that Garcia approached her and said, “Can I smack that [a - -]?” A.M.

said no and pulled the covers over her. Garcia took the covers off of A.M. and tried to

pull down her shorts. A.M. told Garcia to stop. Garcia slid his hand underneath A.M.’s

shorts and touched her “private.” A.M. testified that Garcia lifted up her shirt and bra

and put his mouth on her breast while rubbing her “private.” Garcia took off A.M.’s

shorts and pulled down his pants. He then put his male sex organ inside of her female

sex organ.

        After Garcia left, A.M. testified that she called her mom and asked if she could

leave rather than staying the whole week to babysit as planned, and her mother agreed.

A.M. stayed at the house until Melissa returned home from work that day. A.M.’s sister

then picked her up, and A.M went home and got into the bathtub. A.M. stayed in the

bathtub for several hours crying before telling her sister what had happened and then

her sister told their parents.

        A.M.’s sister, mother, and brother went to Garcia’s house to confront him about

the allegations. A.M.’s sister testified that Garcia initially denied the allegations, but

Garcia v. State                                                                     Page 2
then apologized and said A.M. told him to “put it in her.” A.M.’s father called the

police, and A.M. was later taken to the hospital for an examination.

        Connie Housley testified that she is a registered nurse and that she performed a

sexual assault examination of A.M. Housley stated that A.M. had skin tears on the

inside of her genitalia. A.M. also had redness on her genitalia and the area was painful

to the touch. Housley testified that the findings were consistent with the history that

A.M. had given of penetration with a finger and the male sex organ.

                                  Admission of Evidence

        In the sole issue on appeal, Garcia complains that the trial court erred in refusing

to admit evidence of specific instances of A.M.’s past sexual conduct. We review a trial

court's decision to admit or exclude evidence for an abuse of discretion. McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).        "Under an abuse of discretion

standard, an appellate court should not disturb the trial court's decision if the ruling

was within the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008).

        Garcia sought to admit Melissa’s testimony concerning sexual conduct between

A.M. and her cousin. TEX. R. EVID. 412 (b) (1) (A) provides that in a prosecution for

sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior

is not admissible unless it is necessary to rebut or explain scientific or medical evidence

offered by the State.

        The trial court held a hearing prior to trial concerning the evidence of prior

sexual conduct. Melissa testified at the hearing that on the night A.M. and her cousin,

Garcia v. State                                                                       Page 3
Tina, stayed in her home, she woke up to go to the restroom. Melissa heard moaning

sounds coming from the living room. Melissa said that she looked into the living room

and saw A.M.’s legs up in the air, and Tina had her head between A.M.’s legs. Melissa

testified that A.M. was moaning and caressing herself and that she was naked. Melissa

did not confront A.M., but decided to talk to her about it in the morning. On cross-

examination, Melissa stated that she could not see Tina’s head underneath the blanket.

She never saw Tina make contact with A.M.’s vaginal area or insert anything into

A.M.’s vaginal area.

        Housley testified that A.M. had tearing and redness in her vaginal area. Housley

stated that the injuries were consistent with penetration by a finger or male sex organ.

Melissa’s testimony does not rebut the medical evidence. Although Housley stated that

the injuries could be caused by consensual sex, Melissa did not see any sexual contact

between A.M. and Tina. Melissa could not testify that Tina penetrated A.M.’s vaginal

area. The trial court did not err in refusing to admit the testimony. We overrule the

sole issue on appeal.

                                       Conclusion

        We affirm the trial court’s judgment.




                                                AL SCOGGINS
                                                Justice




Garcia v. State                                                                   Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CR25]




Garcia v. State                                  Page 5
