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                                       MEMORANDUM OPINION

                                                No. 04-08-00700-CR

                                                Juan Jose GARCIA,
                                                     Appellant

                                                            v.

                                               The STATE of Texas,
                                                     Appellee

                          From the 290th Judicial District Court, Bexar County, Texas
                                       Trial Court No. 2007-CR-10329
                                    Honorable Pat Priest, Judge Presiding1

Opinion by:           Catherine Stone, Chief Justice

Sitting:              Catherine Stone, Chief Justice
                      Phylis J. Speedlin, Justice
                      Steven C. Hilbig, Justice

Delivered and Filed: September 2, 2009

AFFIRMED AS REFORMED

           Juan Garcia appeals his convictions by a jury for one count of indecency with a child by

contact and one count of aggravated sexual assault of a child. The jury assessed Garcia’s punishment

at 3 years confinement for his indecency with a child conviction and 10 years confinement for his

aggravated sexual assault conviction. On appeal, Garcia claims: (1) the evidence is insufficient to



           1
               … Sitting for the Honorable Sharon MacRae.
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support his conviction for aggravated sexual assault of a child because there is no evidence he

contacted the victim’s sexual organ with his penis; (2) the trial court erred in denying his motion for

directed verdict because there is no evidence he contacted the victim’s sexual organ with his penis;

(3) the trial court erred when it allowed the State to engage in improper bolstering of the complainant

at trial; and (4) his rights under the Double Jeopardy Clause were violated when the jury was allowed

to convict him of two offenses relating to the same fact scenario. We agree that Garcia’s two

convictions constitute unauthorized multiple punishments for the same offense. Therefore, we

vacate Garcia’s conviction for indecency with a child by contact and reform the trial court’s

judgment to reflect our decision. We affirm the judgment as reformed.

                                                    BACKGROUND

         The complainant, L.G., lived with her three brothers, mother, Lydia G. (“Lydia”), and

mother’s boyfriend, Garcia, at the time she made her outcry of abuse.2 L.G. made her outcry to her

maternal grandmother, Theresa P. (“Theresa”), after Theresa asked L.G. whether anyone had ever

touched her inappropriately. L.G. “backed off” in response to Theresa’s question and began crying.

Theresa asked L.G. what was wrong and L.G. revealed to her that Garcia had sexually abused her.

L.G. told Theresa that Garcia had taken out his “wee wee” one night and placed L.G. on top of him.

L.G. subsequently underwent a sexual assault examination by Dr. Nancy Kellogg, and reported to

Dr. Kellogg that Garcia had placed his private parts onto her private parts. L.G. indicated Garcia had

placed her on top of him so that his private parts were touching her private parts. Garcia was later

indicted for committing indecency with a child by contact and aggravated sexual assault of a child.



         … To protect the privacy of the parties in this case, we identify the child by her initials and the child’s mother
         2

and grandmother by their first names only.

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       Garcia pleaded not guilty to the charges against him and proceeded to a jury trial. The jury

heard the testimony of several witnesses during trial, including Dr. Kellogg, Lydia, L.G., and Garcia.

Dr. Kellogg testified about the physical examination she performed on L.G. following her outcry.

Although Dr. Kellogg found no evidence of physical trauma, she explained the absence of medical

evidence in examinations of sexually abused child victims is common. Dr. Kellogg also testified

about the statements L.G. had made to her in connection with her examination. According to Dr.

Kellogg, L.G. reported that Garcia had awakened her from her sleep one night and got her out of bed.

Garcia then took her to another bedroom, where he pulled L.G.’s shorts down and “stuck his private

parts down there.” L.G. described the act that occurred as Garcia putting his private parts onto her

private parts. Dr. Kellogg further testified L.G. had reported that Garcia positioned himself on his

back and put her on top of him so that his private parts were touching her private parts.

       L.G. testified Garcia took her into her brother’s bedroom one night, placed her on top of him,

and stuck out “his middle part.” According to L.G., she was wearing her pajamas at the time Garcia

stuck out “his middle part,” which he did by pulling down his pants and underwear a “little bit.”

L.G. testified Garcia held onto her tightly and would not release her. Although L.G. had previously

reported to Dr. Kellogg that Garcia had touched her private area with his penis, L.G. recanted her

prior statement during trial and testified Garcia had only touched her leg with his penis over her

pajamas.

       Lydia testified she began noticing L.G.’s relationship with Garcia had changed even before

her daughter made her outcry against Garcia. She stated she noticed L.G. seemed depressed and

cried a lot. Lydia testified L.G. no longer wanted to be around Garcia and wanted him to leave the

house. Lydia further testified that when she confronted Garcia about abusing her daughter, Garcia


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apologized for his conduct. Garcia explained that he was drunk when it happened and begged Lydia

to take him back.

       Lastly, the jury heard Garcia testify in his own defense. Garcia denied having any

inappropriate sexual contact with L.G. and stated he never admitted any wrongdoing to Lydia.

Garcia testified he recalled an occasion where L.G. had fallen asleep with her brothers and wet the

bed. Rather than making L.G. sleep in a wet bed, he moved L.G. to another bedroom. Garcia

testified at no time did he place L.G. on top of him, touch L.G.’s genitals, or show L.G. his penis.

       Following the testimony presented, the jury found Garcia guilty of indecency with a child by

contact and aggravated sexual assault of a child. The jury assessed punishment at 3 years

confinement for the indecency count and 10 years confinement for the aggravated sexual assault

count. The trial court ordered Garcia’s sentences to run concurrently, and this appeal followed.

                                 SUFFICIENCY OF THE EVIDENCE

       Garcia challenges the legal and factual sufficiency of the evidence supporting his conviction

for aggravated sexual assault. See TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(iii), (2)(B) (Vernon

2003) (providing a person commits aggravated sexual assault of a child if he intentionally or

knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ

of another person, including the actor, and the child is younger than fourteen years of age). Garcia

also claims the trial court erred in denying his motion for directed verdict because there is no

evidence he contacted L.G.’s sexual organ with his penis. A complaint about a trial court’s failure

to grant a motion for directed verdict is a challenge to the legal sufficiency of the evidence, Canales

v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); therefore, we review Garcia’s challenges to

the sufficiency of the evidence and the denial of his motion for directed verdict together.


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       When reviewing the legal sufficiency of the evidence, we consider whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “This standard accounts

for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Clayton, 235 S.W.3d at 778 (quoting

Jackson, 443 U.S. at 319). Thus, “in analyzing legal sufficiency, we ‘determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.’” Id. An appellate court’s “review

of ‘all of the evidence’ includes evidence that was properly and improperly admitted.” Id.

       When considering a factual sufficiency challenge, we look at the evidence in a neutral light

giving almost complete deference to the jury’s determinations of credibility. Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict

is so weak that the verdict seems clearly wrong and manifestly unjust or if the evidence supporting

the verdict is outweighed by the great weight and preponderance of the available evidence. Watson

v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

       According to Garcia, the jury’s aggravated assault verdict is not supported by the evidence

due to L.G.’s recantation of the statements she previously made to Dr. Kellogg accusing him of

having “genital to genital contact” with her. Garcia asserts L.G. persuasively testified at trial that

she had no “genital to genital contact” with him. Because of L.G.’s recantation of her prior

allegations of genital to genital contact with Garcia, Garcia contends Dr. Kellogg’s testimony about

L.G.’s prior out-of-court statements is insufficient to support the jury’s guilty verdict. We disagree.


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        In the instant case, L.G., in connection with her medical examination, told Dr. Kellogg that

Garcia had “stuck his private parts down there” and placed her on top of him so that his private parts

were touching her private parts. Upon being called as a witness at trial, L.G. essentially recanted the

statement she had previously given to Dr. Kellogg alleging that genital to genital contact had

occurred with Garcia. Although L.G.’s trial testimony conflicted with her earlier statements, the

jury, as factfinder, was free to disbelieve L.G.’s trial recantation. See Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991) (holding factfinder free to disbelieve complainant’s trial

recantation of earlier statements and that earlier statements were sufficient to support guilty verdict).

The jury apparently disbelieved L.G.’s recantation of her prior statements concerning Garcia’s

“genital to genital contact,” and we must defer to the jury’s resolution of this matter. Because the

jury found Dr. Kellogg’s testimony about L.G.’s out-of-court statements concerning Garcia’s

“genital to genital contact” persuasive, we must reject Garcia’s challenges to the sufficiency of the

evidence. In sum, after reviewing all the evidence in the light most favorable to the prosecution, we

conclude a rational jury could have found beyond a reasonable doubt that Garcia committed

aggravated sexual assault against L.G. Moreover, when all of the evidence is viewed in a neutral

light, we cannot say the jury’s finding is clearly wrong or manifestly unjust, or that it is against the

great weight and preponderance of the evidence.

                                BOLSTERING OF THE COMPLAINANT

        Garcia asserts the trial court allowed the State to engage in improper bolstering of the

complainant at trial. He provides several record citations to support his argument. Garcia’s first

citation is to his motion in limine. However, a motion in limine, whether granted or denied,

preserves nothing for appellate review. Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex. Crim. App.


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2007). The remaining record references cited by Garcia relate to the State’s examination of Dr.

Kellogg. No “bolstering” objection is made by defense counsel on any of the pages of the record

cited by Garcia.

       To preserve error for appellate review, an appellant must make a timely, specific objection

and obtain an adverse ruling. TEX . R. APP . P. 33.1(a); Harrison v. State, 187 S.W.3d 429, 433 (Tex.

Crim. App. 2005). Additionally, an appellant’s complaint on appeal must comport with the

objection made at trial; otherwise, the appellant has preserved nothing for review. Resendiz v. State,

112 S.W.3d 541, 547 (Tex. Crim. App. 2003). The record shows that after Dr. Kellogg explained

that the absence of physical trauma in sexually abused child victims is common, the State asked

Kellogg: “So the ultimate finding . . . is this child had a normal examination on April the 11th of

2007. And yet in her statement of her experience she related genital to genital contact. The

perpetrator’s privates touching her privates. Yesterday on the witness stand the . . . witness did not

say that –.” Before Dr. Kellogg could answer, the court sustained the following objection from

Garcia: “I’m going to object to the question because he’s putting in evidence testimony of other

witnesses, exact testimony.” Garcia’s objection was simply not an objection to bolstering and is

thus insufficient to preserve his complaint for our review. See id.

       Nevertheless, even if we were to construe Garcia’s objection to the prosecutor’s question as

an objection to bolstering, Garcia’s bolstering complaint is still not preserved for appellate review.

The record shows Garcia neither asked for a curative jury instruction to disregard the allegedly

improper question nor sought a mistrial from the trial court. If the trial court sustains an appellant’s

objection to a prosecutor’s question, and if the appellant requests no further relief, no error is

presented because the appellant did not obtain an adverse ruling. Paloma v. State, 656 S.W.2d 229,


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232 (Tex. App.—Austin 1983, no pet.). Because Garcia did not obtain an adverse ruling, the matter

is not preserved for review.

       Finally, Garcia focuses on portions of the record where the prosecution asks Dr. Kellogg

whether she “consider[ed] embarrassment and sadness to be the equivalent of reticence or

reluctance.” Garcia lodged the following objection before Dr. Kellogg could answer: “Your Honor,

I’m going to have to object to this. There could be a variety of reasons why the child might have

been embarrassed. And now we’re calling for some . . . speculative response.” This court has

previously recognized that an objection on the basis of “speculation” does not preserve a complaint

as to bolstering for appellate review. Maes v. State, 275 S.W.3d 68, 72 (Tex. App.—San Antonio

2008, no pet.). Garcia’s objection on the ground of “speculative” thus did not preserve his bolstering

complaint for our review. See id.

                                        DOUBLE JEOPARDY

       Lastly, Garcia argues his rights under the Double Jeopardy Clause were violated when the

jury was allowed to convict him of two offenses relating to the same fact scenario. The State

concedes that under the circumstances of this case, Garcia’s convictions for indecency with a child

by contact and aggravated sexual assault of a child constitute unauthorized multiple punishments for

the same offense. See, e.g., Evans v. State, No. 04-08-00076-CR, 2008 WL 4862551, *2-3 (Tex.

App.—San Antonio 2008, pet. granted) (mem. op., not designated for publication). We agree there

is evidence of only one sexual act committed by Garcia and hold that Garcia’s rights under the

Double Jeopardy Clause were violated in this instance. Generally, when a defendant is convicted

of multiple offenses that are the “same” for double jeopardy purposes, the conviction for the “most

serious” offense should be retained and the other conviction should be set aside. Ex parte Cavazos,


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203 S.W.3d 333, 337 (Tex. Crim. App. 2006). We therefore conclude Garcia’s conviction for

aggravated sexual assault of a child should be retained while his conviction for indecency with a

child by contact should be vacated.

                                          CONCLUSION

       Based on the foregoing, we must vacate Garcia’s conviction for indecency with a child by

contact and retain his conviction for aggravated sexual assault of a child. We therefore vacate

Garcia’s conviction for indecency with a child by contact and reform the trial court’s judgment to

reflect our decision. We affirm the judgment as reformed.



                                                     Catherine Stone, Chief Justice



DO NOT PUBLISH




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