Opinion filed February 11, 2010




                                                            In The


   Eleventh Court of Appeals
                                                        ___________

                                                No. 11-08-00313-CR
                                                    __________

                                      JESUS GARCIA, JR., Appellant

                                                                V.

                                        STATE OF TEXAS, Appellee



                                    On Appeal from the 104th District Court

                                                  Taylor County, Texas

                                            Trial Court Cause No. 16736B



                                     MEMORANDUM OPINION
       After a bench trial, the trial court convicted appellant, Jesus Garcia, Jr., of indecency with
a child. Based upon the trial court’s affirmative findings on two prior felonies alleged for
enhancement purposes,1 the trial court sentenced appellant to confinement in the Institutional




       1
           The previous convictions were for failure to register as a sex offender and for aggravated sexual assault.
Division of the Texas Department of Criminal Justice for life. Appellant challenges his conviction
in two issues. We affirm.
                                         Background Facts
       The indictment charged appellant with intentionally and knowingly engaging in sexual
contact with K.S., a child younger that seventeen years of age, by touching her genitals with his hand
with the intent to arouse and gratify his sexual desire. K.S. was nine years old at the time of trial.
She testified that appellant touched her “private part” over her clothes with his hand. She also
testified that appellant kissed her on the forehead. Officer Thomas Valdez testified that K.S. made
an outcry statement to him on the morning that the incident took place. K.S. pointed to her vaginal
area and told Officer Valdez that appellant touched her there with his hand. Officer Valdez also
testified that K.S. reported that appellant kissed her.
       Appellant testified on his own behalf during the guilt/innocence phase of the trial. He
admitted to airing up K.S.’s bicycle tire and kissing her on the forehead, but he denied engaging in
sexual contact with K.S.
                                                Issues
       In his first issue, appellant challenges the legal and factual sufficiency of the evidence.
Appellant asserts in his second issue that trial counsel did not provide him with effective assistance
of counsel. He premises both of these issues on the contention that K.S. was not competent to testify
at trial. He contends under his first issue that the evidence supporting his conviction is legally and
factually insufficient because it was based upon K.S.’s purportedly incompetent testimony. He
asserts that trial counsel was ineffective because he failed to object to K.S.’s testimony on
competency grounds.
                                     Sufficiency of the Evidence
       To determine if the evidence is legally sufficient, we must review all of the evidence in the
light most favorable to the verdict and determine whether 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 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17 S.W.3d
664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate
court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.


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App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v.
State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.
Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the
reviewing court determines whether the evidence supporting the verdict is so weak that the verdict
is clearly wrong and manifestly unjust or whether the verdict is against the great weight and
preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at
10-11. The finder of fact is the sole judge of the weight and credibility of the witnesses’ testimony.
TEX . CODE CRIM . PROC. ANN . art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
       Appellant bases his evidentiary challenges on the premise that this court cannot consider
K.S.’s testimony in reviewing the evidence because she was not competent to testify at trial. This
premise is invalid. When conducting a sufficiency review, we consider all the evidence admitted at
trial, including pieces of evidence that may have been improperly admitted. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App.
2001); Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Chambers v. State, 805
S.W.2d 459, 460 (Tex. Crim. App. 1991). Thus, even if the trial court erred in determining that
K.S. was competent to testify, we would still consider her testimony in reviewing the sufficiency of
the evidence.
       K.S. testified that appellant touched her genitals with his hand. Her testimony alone is
sufficient to support a conviction for indecency with a child. See TEX . CODE CRIM . PROC. ANN .
art. 38.07 (Vernon 2005). The fact that appellant denied her allegations in his testimony is of little
consequence because we presume that the factfinder resolved the conflicts in favor of the prosecution
and defer to that determination of the witnesses’ credibility. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. Viewing all of the evidence in the light most favorable to the verdict, we conclude
that any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Viewing all of the evidence in a neutral light, the evidence supporting the
conviction was not so weak to render the verdict clearly wrong and manifestly unjust. Furthermore,
appellant’s conflicting, self-serving testimony does not outweigh the evidence supporting the
conviction to the degree that would cause the verdict to be against the great weight and
preponderance of the evidence. Appellant’s first issue is overruled.


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                                       Ineffective Assistance Claim
        To determine whether appellant’s trial counsel rendered ineffective assistance at trial, we
must first determine whether appellant has shown that counsel’s representation fell below an
objective standard of reasonableness and, if so, then determine whether there is a reasonable
probability that the result would have been different but for counsel’s errors. Wiggins v. Smith, 539
U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98
(Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must
indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and an appellant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S.
at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking
as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain
sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. Id.
        When it is alleged in an ineffective assistance claim that counsel was deficient in failing to
object to the admission of evidence, the defendant must show, as part of his claim, that the evidence
was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Accordingly, we must
determine if the trial court would have committed error in overruling an objection by appellant’s trial
counsel to K.S. testifying at trial.
        A trial court’s determination of whether a child witness is competent to testify and its ruling
on the issue are reviewed under an abuse of discretion standard. Broussard v. State, 910 S.W.2d
952, 960 (Tex. Crim. App. 1995). TEX . R. EVID . 601(a)(2) provides that “[c]hildren or other persons
who, after being examined by the court, appear not to possess sufficient intellect to relate


                                                    4
transactions with respect to which they are interrogated” are incompetent to testify. Once the
competency of a child witness is challenged, the trial court must assure itself that the child has
(1) the ability to intelligently observe the events in question at the time of the occurrence; (2) the
capacity to recollect the events; and (3) the capacity to narrate the events. Torres v. State, 33 S.W.3d
252, 255 (Tex. Crim. App. 2000) (quoting Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App.
1980)). The third element, involving the capacity to narrate, requires that the witness is able to
understand the questions asked, frame intelligent answers to those questions, and understand the
moral responsibility to tell the truth. Watson, 596 S.W.2d at 870.
        After administering the oath to K.S., the trial court asked her a series of questions to
determine her competency to testify at trial. She initially told the court that she did not understand
what it meant to tell the truth or to tell a lie. The trial court later asked her, “What does it mean to
tell the truth?” She replied, “To tell the truth what happened.” K.S. then promised to tell the truth
during her testimony. The trial court permitted the prosecutor to question K.S. after its preliminary
examination. On cross-examination, K.S. testified that her mom told her what to say at trial.
However, on redirect, K.S. stated that her mom did not tell her what to say at trial. K.S. also testified
on redirect that she did not know if she told the truth during her preceding testimony, but then she
subsequently stated that she did not testify as to anything that did not happen.
        K.S.’s responses to the trial court’s qualification questions as well as questions from counsel
regarding her ability to testify truthfully are equivocal regarding her competency to testify. However,
we must review the child’s entire testimony as well as the child’s responses to qualification questions
to determine whether the trial court’s ruling constituted an abuse of discretion. De Los Santos v.
State, 219 S.W.3d 71, 80-81 (Tex. App.—San Antonio 2006, no pet.); Fox v. State, 175 S.W.3d 475,
481 (Tex. App.—Texarkana 2005, pet. ref’d); Woods v. State, 14 S.W.3d 445, 451 (Tex.
App.—Fort Worth 2000, no pet.). Our review of the body of K.S.’s testimony demonstrates that she
was able to observe the events of her encounter with appellant, recollect those events, and then
narrate them at trial. See Watson, 596 S.W.2d at 870. Considering her testimony as a whole, we
conclude that K.S.’s testimony was admissible at trial under the applicable abuse of discretion
standard. Accordingly, the failure of trial counsel to object to her admissible testimony will not
support a claim of ineffective assistance of counsel. Appellant’s second issue is overruled.


                                                   5
                                       This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


February 11, 2010
Do not publish. See TEX . R. APP .P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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