      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00278-CR



                               Carlos Santana Garcia, Appellant

                                                  v.

                                   The State of Texas, Appellee




   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL
DISTRICT, NO. A-03-1086-S, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Carlos Santana Garcia appeals his conviction for aggravated sexual assault of a child,

contending that the evidence was legally and factually insufficient to support the jury’s verdict of

guilt. See Tex. Pen. Code Ann. § 22.021(a)(1) (West Supp. 2005). We will affirm.


                                         BACKGROUND

               Garcia was convicted based on evidence that, on three occasions, he penetrated the

genitals and anus of J.P., a female then ten years of age. J.P. is Garcia’s niece, the daughter of

Garcia’s sister, Gracie Garcia. At the time of the assaults, Garcia was living with Gracie and J.P.

               J.P. testified at trial that on three occasions, Garcia placed a pillow over her head and

sexually assaulted her. On two occasions, Garcia placed J.P. face-down on a bed with her legs

dangling off. J.P recounted that on one of these occasions, she was able to see out from underneath
the pillow and saw Garcia’s “privates.” J.P. testified that Garcia touched her with his “private part”

and that he put it inside her “pee-pee” and “butt” “as far as it would go.”

               J.P. testified that, during the period of abuse, she stayed awake at night, fearing that

Garcia would abuse her again. J.P.’s teacher at that time, Lori Barton, confirmed that J.P. was

having trouble staying awake in class during this period. Y.D. Garcia, a psychologist who

specializes in treating children, testified that a common sign of sexual assault in a child is change

in sleep pattern: difficulty falling asleep and waking up a lot in the middle of the night.

               A videotaped forensic interview of J.P. was also introduced into evidence. It was

largely consistent with J.P.’s testimony, but differing in certain details regarding the time of day at

which the third incident occurred and whether Garcia lubricated “his thing” with baby oil or water.

Y.D. Garcia, the child psychologist, testified that, over time, a child may forget peripheral details of

a sexual assault, such as the time of day the incident occurred.

               J.P.’s mother testified that when J.P. told her about the abuse, J.P. told her that it

“hurt” when appellant stuck his “private part” in her. J.P. also testified that when appellant touched

her it “felt like a finger.” Relying on this evidence, Garcia attempted to cast doubt on J.P.’s account

because, he contended, J.P. would have suffered greater pain and damage from his penetrating her.

In this regard, the jury heard evidence from Garcia’s wife that he is “sexually, at least a normal size

male.” The nurse who examined J.P. testified that J.P.’s vaginal opening, though not specifically

measured, would be between 1 and 2 centimeters in diameter, but that both the vagina and anus of

a child are very elastic. Hence, she explained to the jury, there is often no sign of injury or trauma

to a child who has been sexually assaulted.




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               The jury found Garcia guilty of aggravated sexual assault of a child. Garcia filed a

motion for new trial alleging that, among other things, the evidence was legally and factually

insufficient to sustain his conviction. His motion was overruled by operation of law. See Tex. R.

App. P. 21.8(c). This appeal followed.


                                           DISCUSSION

               Appellant brings a single issue challenging the district court’s denial of his new trial

motion, contending that the evidence was legally and factually insufficient to sustain the jury’s guilty

verdict.


Standard of review

               When there is a challenge to the legal sufficiency of the evidence to sustain a criminal

conviction, we consider whether a rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005). We review all the evidence in the light most favorable to the verdict, assume that the

trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.

Crim. App. 1981). It is not necessary that every fact point directly and independently to the

defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force

of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993). We consider even erroneously admitted evidence. Id. The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d




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642, 647 (Tex. Crim. App. 1996). Reconciliation of any conflicts in the evidence is within the

exclusive province of the jury. Id.

               In a factual sufficiency review, we view the evidence in a neutral light and will set

aside a verdict only if the supporting evidence is so weak that the verdict is clearly wrong or the

contrary evidence is so strong that the jury could not have found all the elements of the crime beyond

a reasonable doubt. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A verdict is

clearly wrong and unjust if the “jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or

‘clearly demonstrates bias.’” Id. (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.

1997)). All the evidence is considered equally, including the testimony of defense witnesses and the

existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992,

no pet.). Although due deference must be accorded the fact-finder’s determinations, particularly

those concerning the weight and credibility of the evidence, the reviewing court may disagree with

the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d at 9. The evidence

will be deemed factually insufficient to sustain the conviction if the proof of guilt is too weak or the

contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga v.

State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004); see Johnson, 23 S.W.3d at 11.

               To our ultimate inquiry—whether the district court erred in permitting Garcia’s new

trial motion to be overruled by operation of law—we apply an abuse of discretion standard. Salazar

v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001).




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Analysis of the evidence

               Garcia asserts six “facts” or claims concerning the evidence that he contends

demonstrate its legal and factual insufficiency:


       !    J.P. did not squarely “‘identify’ CARLOS SANTANA GARCIA when she
            testified in Open Court under oath.”

       !    “There is no medical testimony and/or physical evidence corroborating the
            testimony of the alleged Victim that the alleged Sexual Assault allegedly
            occurred.”

       !    “It would almost be physically impossible” for anyone to have penetrated J.P.’s
            genitals while she was laying on her stomach, as J.P. testified.

       !    There is no credible evidence of penetration, as opposed to mere touching.

       !    Whereas the evidence was that Garcia was a “normal-sized male, sexually,”
            J.P.’s vaginal opening was only the size of a “pen or pencil.” Thus, any
            penetration would not merely have “hurt,” as J.P. testified, but instead “the pain
            would be excruciating.”

       !    “From the Record there is a possibility and/or probability that the alleged ‘sexual
            abuse’ was ‘perceived’ by the alleged Victim.”


Each contention is without merit.

               The gravamen of Garcia’s first contention seems to be that J.P. did not identify him

by his legal name. When describing the abuse episodes at trial, J.P. referred to the man she claimed

abused her as “Uncle Santana” or “Tio” (the Spanish term for uncle). Counsel also repeatedly

referred to “Santana” during J.P.’s testimony, and J.P. never indicated that they were talking about

the wrong person. In a videotaped interview with J.P., which was shown to the jury, J.P. identified

“Santana”, whom she calls “Tio,” as being the perpetrator. Additionally, J.P.’s mother, Gracie



                                                   5
Garcia, testified that J.P. told her that “Tio” was the one who had abused her, and that “Santana” is

the only person J.P. calls “Tio.” When asked who “Santana” was, Gracie testified that it was her

brother. When further prompted to give his full name, she stated “Carlos Santana Garcia” and

identified him in court as being the defendant. The evidence of Garcia’s identity as the perpetrator

is legally and factually sufficient.

                As for Garcia’s second contention that J.P.’s allegations were not corroborated by

physical or medical evidence, the testimony of a sexual abuse victim alone, as Garcia conceded, is

sufficient to support a conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).

Moreover, both a psychologist and the nurse who examined J.P. testified that it is not uncommon

for there to be no corroborating medical or physical evidence of sexual assault. There is, however,

some testimony that J.P. exhibited signs of sexual abuse. J.P.’s teacher testified that J.P. was having

trouble staying awake in class, a symptom the psychologist associated with victims of sexual abuse.

                The remainder of Garcia’s contentions are chiefly attacks on the credibility of J.P.’s

testimony, which we have previously summarized. We emphasize again that the jury is the judge

of the credibility of witnesses and the weight of their testimony. Jones, 944 S.W.2d at 647.

Reconciliation of any conflicts in the evidence is within the exclusive province of the jury. See

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Having heard the evidence, the

jury believed J.P. and disbelieved Garcia. It was within the jury’s province to do so.

                Because the evidence was both legally and factually sufficient to support the jury’s

verdict, we hold that the district court did not abuse its discretion in allowing Garcia’ motion for a

new trial to be overruled by operation of law. We, therefore, overrule Garcia’s issue.



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                                      CONCLUSION

              Having overruled Garcia’s issue on appeal, we affirm the judgment of the district

court.




                                           __________________________________________

                                           Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed:

Do Not Publish




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