                                   NO. 07-00-0116-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                 SEPTEMBER 17, 2002

                          ______________________________


                        FRANCISCO GARCIA, JR., APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B12033-9504; HONORABLE ED SELF, JUDGE

                         _______________________________

Before QUINN and REAVIS, JJ. and BOYD, SJ.1


       Appellant Francisco Garcia, Jr. was convicted of capital murder in the death of his

five-month-old stepdaughter, as well as serious bodily injury to a child with respect to the

same incident. He was sentenced to life imprisonment in the Institutional Division of the

Department of Criminal Justice for the offense in the first count of the indictment and 99


       1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
years confinement for the offense in the second count with the sentences to run

concurrently. He appeals from those convictions in eight issues, in which he challenges

the legal sufficiency of the evidence to sustain the conviction of capital murder in his first

four issues, the factual sufficiency of the evidence to sustain the conviction of capital

murder in his fifth issue, and the factual sufficiency of the evidence to sustain the

punishment imposed in his sixth issue. In his seventh and eighth issues, he complains that

the trial court erred in overruling his motion to find that section 19.03(a)(8) of the Penal

Code is unconstitutional and in declaring Irene Ramos to be a defense witness when called

to testify during the defense’s case-in-chief. Disagreeing with appellant that reversal is

required, we affirm the convictions.


       On April 3, 1995, appellant, who had recently been laid off from his job, was left

alone to care for two of the children of his common-law wife, Irene Ramos, while she was

at work. Those children included 15-month-old Phillip Ramos, whose paternity was listed

on his birth certificate as unknown, and five-month-old Amanda Garcia, whose father was

Raymond Garcia, appellant’s brother.2 The day before, Amanda had been hit in the face

with a toy truck by Phillip and taken to the emergency room, where she was later released.

Amanda did not appear to be suffering any effects from that incident, other than a bruise

on the side of her face, while in appellant’s care the next day. Irene called appellant



       2
        There were also two other children living in the home who were not present on that
particular day. They were six-year-old Angela Garcia, appellant’s daughter, and four-year-
old Ashley Garcia, who was the daughter of Raymond Garcia. Appellant apparently did
not have knowledge that he was not the father of Ashley until after the incident, which
forms the basis of appellant’s convictions.

                                              2
sometime during the day to tell him that she could not take him to Lubbock to obtain a copy

of his birth certificate and social security card because her replacement had not arrived at

work. She told him to call the babysitter to come get the children. Appellant got the

children ready to go to the babysitter when he noticed Amanda was having trouble

breathing. He called his wife at work and told her to come home. Meanwhile, the

babysitter arrived, and he told her to go get Irene. When Irene arrived at the house, she

instructed appellant to call 911. Emergency personnel transported Amanda to the hospital,

where she died several days later from blunt force injuries to the head caused either by

impact or by shaking.


       In his first four issues, appellant challenges the legal sufficiency of the evidence by

claiming his conviction3 (1) is in violation of article 38.03 of the Code of Criminal Procedure

and section 2.01 of the Penal Code, (2) deprives him of due process of law under both the

United States and Texas Constitutions, (3) deprives him of effective assistance of counsel

under both the United States and Texas Constitutions, and (4) deprives him of effective

compulsory process of law under both the United States and Texas Constitutions. In his

fifth issue, appellant challenges the factual sufficiency of the evidence. Appellant argues

his first four issues together, and we will likewise discuss them in the same manner. We

will also discuss appellant’s factual sufficiency challenge at the same time. Further,

appellant does not specifically refer in his argument to the statutory and constitutional

violations he claims in his issues other than to cite that article 38.03 of the Code of Criminal


       3
        Appellant appears to make this argument only with respect to the first count of
capital murder.

                                               3
Procedure and section 2.01 of the Penal Code do not permit a person to be convicted of

an offense unless each element is proved beyond a reasonable doubt. We will therefore

not discuss those statutory and constitutional issues separately and will only address them

as they relate to the standard of review we are required to use in our analysis of appellant’s

issues.


         The standard by which we review the legal sufficiency of the evidence is 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 crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Under a factual sufficiency review, we neutrally examine all of the evidence and determine

whether it is so weak as to be clearly wrong and manifestly unjust or the adverse finding

is against the great weight and preponderance of the evidence. Johnson v. State, 23

S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.

1996).


         With respect to the first count of the indictment, the jury was instructed that, to

convict appellant, they must find that he intentionally or knowingly caused the death of

Amanda Garcia by hitting her with his hand or shaking her. The jury was further instructed

that a person acts intentionally with respect to a result of his conduct when it is his

conscious objective or desire to cause the result and acts knowingly with respect to the

result of his conduct when he is aware that his conduct is reasonably certain to cause the

result. Appellant argues that there is not any evidence to substantiate the allegations with


                                              4
respect to his mental state and his ability to cause the injuries sustained. In support of this

argument, he refers to testimony that he cared for the children, prepared their meals,

washed their clothes, played with them, planned parties for them, and bought them gifts.

He also cites to evidence that he rode with Amanda to the hospital, thereby demonstrating

his concern. Further, he posits, even though a pathologist for the State testified that the

force which caused Amanda’s death could have come from a high fall or from a strong

blow from the hand, there is no evidence concerning such a fall or testimony as to

appellant’s strength.


       However, appellant voluntarily gave a statement4 to police in which he admits he

was frustrated because Amanda was crying and would not take her bottle or pacifier.

Further, he concedes he did not want to pick up Amanda because he was upset that she

was his brother’s child and was mad about seeing pictures of his brother in a photo album

the night before. During times when appellant had been in prison, Irene and his brother

had affairs. Appellant described his actions with respect to Amanda as follows:


                                    *    *   *

       I just stood there in front of Amanda crying and got more mad and the rage
       built up inside of me. I lost control of everything and I slapped Amanda
       across the face with my left hand. I was in so much rage that I dont [sic]
       know how hard I hit her. I hit her right across the bruise that she had where
       Philip had hit her with the toy. Right after this Amanda stopped crying.

                                    *    *   *


       4
        Appellant had given a prior statement in which he did not mention striking Amanda,
but stated only that he had found her gasping for breath after he put her in her crib. He
also described the prior incident in which Phillip struck Amanda with a toy truck.

                                                 5
       Amanda was in the hospital two days before she died there. The doctors
       told us that she had died as a result of the head injury. When the doctors
       told us this I got all scared and thought why had this happened to me. I
       knew that she had died as a result of me hitting her across the face.

       When I hit Amanda across the face that morning I didnt [sic] intend to kill her.
       I guess that when I slapped Amanda that morning I was getting back at my
       brother.
                                       * * *


       There was also evidence that appellant had not wanted to take Amanda to the

hospital for the injury from the toy truck the night before and sat in the car while Irene took

the child into the hospital to be examined. Further, although he admits that after striking

Amanda, she “was just laying there with her eyes open,” he merely placed her in the crib.

When he later discovered that she was gasping for air and non-responsive, he called Irene

to come home, but did not call 911 until after she arrived and told him to call. At the

hospital, he told Irene to stop crying because people would think they had done something

to the child.


       Dr. Jerry Spencer, the Lubbock County Medical Examiner at the time of the death,

stated that Amanda’s injuries were very severe and would require a severe impact or

severe shaking. Further, a child would generally have to fall at least 10 feet to receive the

kind of injuries that Amanda had, and the head was impacted while it was still. Although

the injuries were consistent with being hit with an open hand on the side of the head, they

were not consistent with a 15-month-old child hitting Amanda with a toy truck. Additionally,

Dr. Richard E. George, Jr., the neurosurgeon who operated on Amanda, described the

injuries:


                                              6
      When we have patients who have bleeding over the surface of the brain,
      when we have bleeding into the eyes, that is an injury that is associated with
      severe shaking. It is a forceful event that causes the vessels to hemorrhage
      in the eyes, themselves, and also for the blood vessels over the surface of
      the brain to break and cause bleeding in the brain. It can injure the brain,
      lacerate the brain, or tear the brain. So that was suggestive of a shaking
      injury.

      The blow to the back of the head suggested a significant impact to the back
      of the head. There was also the bruising in the front that suggest [sic] that
      there had been a blow at the front of the head as well.

      When I assessed Amanda, I felt that she had sustained a severe shaking
      injury, with the evidence of trauma to the back of the head that appeared to
      be what we would call a shaken impact syndrome where they’re shaken in
      a forceful blow to the back of the head. And that was our diagnosis at the
      time.


He further opined that for hemorrhaging on the surface of the brain and into the eyes to be

present, forceful shaking and not a single blunt blow to the head was required.


       Mental culpability for murder must generally be inferred by the circumstances under

which the death occurred. Matter of V.M.D., 974 S.W.2d 332, 347 (Tex.App.--San Antonio

1998, no pet.). Intent to kill may be inferred from acts, words, and the conduct of the

accused or from the extent of the injuries and relative size and strength of the parties.

Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106,

116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). Statements by the accused to the effect that he

did not mean to kill may not be sufficient to overcome evidence of intent created by the

circumstances. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000), cert.

denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Motilla v. State, 38 S.W.3d

821, 824-26 (Tex.App.--Houston [14th Dist.] 2001), rev’d on other grounds, No. 598-01, slip


                                            7
op., 2002 WL 1380912 (Tex.Crim.App. June 26, 2002). The same is true of evidence that

the accused had a loving relationship with a child victim. See Robbins v. State, 27 S.W.3d

245, 248-49 (Tex.App.--Beaumont 2000, pet. granted).


       Given the facts that appellant had been alone with the child prior to her experiencing

breathing difficulties, his description of his rage and his admission of having struck her, and

the severity and extent of Amanda’s injuries, the evidence is both legally and factually

sufficient to support the verdict. A violent assault on a child may reasonably be expected

to cause death. Lindsey v. State, 501 S.W.2d 647, 648 (Tex.Crim.App. 1973), cert.

denied, 416 U.S. 944, 94 S.Ct. 1953, 40 L.Ed.2d 296 (1974). Therefore, a jury could have

rationally found that appellant intentionally or knowingly caused the death of Amanda within

the definitions prescribed, and that finding is not clearly wrong or manifestly unjust.

Appellant’s first five issues are overruled.


           In his sixth issue, appellant challenges the factual sufficiency of the evidence to

sustain the punishment assessed. In making his argument, he merely asserts that he was

a relatively young age at the time of the offense 5 and does not have such a criminal history

as to render him unfit for rehabilitation. Further, he states that his acts do not show malice

toward the victim, but show him as a loving and caring parent who changed Amanda’s

diapers, fed her, bathed her, washed her clothes, planned parties for her, and purchased

gifts for her.




       5
           Appellant does not specify his age at the time of the offense in his brief.

                                                8
       Appellant does not specify if he is challenging the punishment assessed for both

convictions. Since he was charged with capital murder and the State sought the death

penalty, the statutorily prescribed punishment was either death or imprisonment in the

Institutional Division for life. Tex. Pen. Code Ann. § 12.31(a) (Vernon 1994). The jury

answered “yes” to the following special issues: (1) whether there is a probability appellant

will commit criminal acts of violence that constitute a continuing threat to society, and (2)

whether there are sufficient mitigating circumstances to warrant life imprisonment rather

than death. Because of the jury’s answer to the second special issue, appellant received

the lesser of the two mandatory punishments for the crime. It has also been held that a

court should not review a factual sufficiency challenge to a finding of probability of future

dangerousness. McGinn v. State, 961 S.W.2d 161, 169 (Tex.Crim.App. 1998). Therefore,

we will assume that appellant is contesting the sufficiency of the evidence to support his

conviction for serious bodily injury to a child in which the jury was given the option of

assessing a punishment of not less than 25 years or more than 99 years imprisonment,

with the jury choosing the maximum punishment.


       The evidence at the punishment hearing showed appellant had been previously

convicted of burglary of a building, for which his probation was revoked. He had also been

convicted of burglary of a habitation and forgery, which were alleged in the indictment for

enhancement purposes. Additionally, Irene testified that appellant assaulted her when she

was four months pregnant with her son Phillip and that two weeks after the birth of her

daughter Ashley, she had left the baby with appellant and when she returned the baby had

a big lump on her head, which appellant claimed not to know about. Ashley was in the

                                             9
hospital two weeks with the injury, even though the investigation of Child Protective

Services was inconclusive.       Further, Irene’s father, Joe Ramos, stated that his

granddaughter Angela once came up to him with blood in her mouth and nose and,

because he believed appellant hit her, he slapped appellant.           Appellant’s mother

Guadalupe Garcia also averred that on one occasion when appellant was angry with Irene,

her other son was trying to calm appellant, she got in the way and was punched in the

nose by appellant.     Multiple law enforcement witnesses additionally testified that

appellant’s reputation for being peaceful and law abiding was bad, although he was

apparently well behaved as a prisoner. Even in light of the evidence pointed out by

appellant in his favor, he had multiple prior criminal convictions and there was evidence of

prior assaults from which the jury could have found that he had a violent nature. Thus, we

cannot find that the evidence was factually insufficient to support a sentence at the

maximum end of the range of punishment allowed by law. Appellant’s sixth issue is

overruled.


       Appellant complains in his seventh issue that section 19.03(a)(8) of the Penal Code,

under which he was prosecuted for capital murder, is unconstitutional. That section

provides that a person commits an offense if he commits murder as defined under section

19.02(b)(1) of the Penal Code and the person murders an individual under six years of age.

Tex. Pen. Code Ann. § 19.03(a)(8) (Vernon 1994). Appellant argues that the statute

violates the equal protection laws of the federal and state constitutions because the

selection of the age of six years is arbitrary and wrongfully discriminates against those

similarly situated because a child who is six years and one day old is not more able to

                                            10
protect himself than a child under six. Further, an elderly handicapped person is not

necessarily more able to protect themselves than a child under the age of six years.

Appellant does not assert that the Texas Constitution provides greater protection than the

United States Constitution, so we will treat those claims as one.


       This issue was addressed in Henderson v. State, 962 S.W.2d 544 (Tex.Crim.App.

1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998),6 in which the

Court of Criminal Appeals found that the State has a legitimate and compelling interest in

protecting the well-being of its children and, in doing so, may designate a sub-class of

young children. Id. at 562. The court then turned to the question of whether section

19.03(a)(8) is rationally related to serve that interest. In doing so, the court noted that for

a child-murderer provision to have clarity, a numerical line must be drawn somewhere. Id.

Further, children under the age of six are usually still living at home, are thus particularly

vulnerable to caregivers and, even though the line could have been drawn at a different

age, that fact does not invalidate the statute. Id. We therefore overrule appellant’s

seventh issue.


       In his eighth and final issue, appellant asserts that the trial court erred in declaring

Irene to be a defense witness when she was recalled by him during his case-in-chief. After

Irene testified for the State, appellant reserved his questions for the witness. When the

State rested and appellant commenced presentation of his case, he called Irene as a

witness. During his examination of Irene, the State objected to appellant leading the

       6
           See also Ripkowski v. State, 61 S.W.3d 378, 392 (Tex.Crim.App. 2001).

                                              11
witness. Appellant responded that it was cross-examination, and he was therefore

authorized to do so. However, the court sustained the objection because appellant had

called the witness. Later, the State again objected to a question as leading, which the

court sustained without further objection from appellant. At the end of Irene’s testimony

during the guilt-innocence phase, appellant voiced his objection “with respect to the

declaration by the Court that Irene Ramos had become a witness for the Defendant,

thereby allowing the State to cross-examine and lead the witness.” The court responded

as follows:


       Well, if you wanted to cross examine the witness, and you wanted to reserve
       your cross examination questions, then you should have recalled that
       witness before the State rested its case. Once the State rested its case,
       then your reservation of cross examination then ended. If you want to call
       her in your case-in-chief, that makes her your witness.


       Generally, leading questions should not be used on direct examination, except as

necessary to develop the testimony, although there is a right to lead a witness on cross-

examination. Tex. R. Evid. 611(c). However, appellant must show an abuse of discretion

by the trial court in permitting the use of leading questions on the part of the State in what

he impliedly argues was redirect examination by showing he was unduly prejudiced by the

questions. Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000). Harm must also be

demonstrated with respect to the trial court’s failure to permit appellant to lead on cross-

examination. See Craig v. State, 594 S.W.2d 91, 96 (Tex.Crim.App. 1980).




                                             12
       No bill of exception was made during trial. Appellant argues in his brief that he was

harmed because he was deprived of “leading the witness to testify concerning certain

matters elicited from her when counsel for Appellant and his investigator traveled some

200 miles to interview her.” Nevertheless, he does not specify what this information was,

other than to state that he sought to explore her feelings that the death penalty should not

be sought. Since appellant was not sentenced to death, he was not harmed by the lack

of this testimony. Appellant asserts that other specific examples “may be ascertained by

re-reading her testimony at trial of the objections of the District Attorney.” It is appellant’s

responsibility to apprise this court of the harm incurred by informing us of the specific

testimony he sought to elicit but was deprived of, citing to those instances in the record,

and providing an explanation as to why the error was prejudicial or harmful. See Alvarado

v. State, 912 S.W.2d 199, 210 (Tex.Crim.App. 1995). This court is not required to search

the record and make speculative assumptions as to any harm appellant may be claiming.

Thus, assuming arguendo, that the trial court erred and that such error was properly

preserved at trial, appellant has failed to demonstrate any harm. We therefore overrule

his eighth issue.


       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.



                                                   John T. Boyd
                                                   Senior Justice
Do not publish.




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