Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR46871
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
Midland County jury convicted Appellant, Simon Madrid Garcia
Jr., of one count of aggravated sexual assault of a child and
one count of indecency with a child by contact. The jury
assessed a punishment of imprisonment in the Institutional
Division of the Texas Department of Criminal Justice for
forty years and ten years, respectively. The trial court
sentenced Appellant accordingly. Appellant raises five issues
on appeal, which concern the jury charge, the sufficiency of
the evidence, Appellant's motion for new trial, and
spoliation of evidence. We affirm.
N.D. was eight years old, he lived in Midland with his
mother, brother, and sister. N.D.'s mother and Appellant
were friends. In February 2016, N.D. complained to his mother
and grandmother that Appellant had touched N.D.'s private
area and that Appellant had also put his penis in N.D.'s
mouth. Appellant was charged by indictment with aggravated
sexual assault in count one and indecency with a child by
contact in count two. Appellant entered a plea of not guilty
and was tried before a jury.
trial, N.D. testified via recorded video. N.D. testified that
the first incident occurred after Appellant had taken N.D. to
get a haircut. After the haircut, Appellant took N.D. to
Appellant's house. While N.D. was in the restroom washing
his hands, Appellant came in, removed N.D.'s pants and
underwear, and used his hand to touch N.D.'s genitals.
Using a drawing of a male child provided by the State, N.D.
also diagrammed where Appellant had touched him, and the
diagram was provided to the jury.
testified that the second incident occurred while Appellant
was looking after N.D. because N.D. was sick. N.D. stated
that Appellant took N.D. to the store for some food. During
their trip back, Appellant stopped in an alley and told N.D.
to get out of the car. Appellant then took N.D. between two
dumpsters and removed N.D.'s pants and underwear. While
again diagramming, N.D. said that Appellant also pulled down
his pants and put Appellant's sexual organ "in
there," referring to N.D.'s "butt." The
second diagram was also published to the jury. N.D. further
testified that Appellant was moving around while Appellant
was touching him.
mother also testified at trial. N.D.'s mother testified
that Appellant often spent time with her family and sometimes
provided financial support. She also said that she considered
Appellant a friend and trusted him to watch her children and
take them to various places in town. N.D.'s mother also
explained that she had waited to report N.D.'s outcry to
the police because she was scared that it would affect her
custody of the children. The jury also heard testimony from
N.D.'s grandmother, who testified as to N.D.'s
behavioral changes before his outcry. N.D.'s brother
testified about times where the children had been left alone
the State called Maura Jarldane, the therapy director for the
Midland Rape Crisis and Children's Advocacy Center, to
testify. She testified as an expert concerning
characteristics of sexually abused children, counseling of
sexually abused children, and delayed outcries. Donna Doyle,
the SANE nurse who examined N.D., testified about N.D.'s
examination. She also explained that N.D.'s exam did not
show any physical trauma but that a lack of physical trauma
is normal for delayed exams. Lastly, the State offered
testimony from David Olvera, the police officer who
investigated the case.
Appellant's defense, multiple witnesses testified as to
Appellant's reputation as a children's athletics
coach. Additionally, Appellant's brother-in-law testified
about how N.D. and his siblings did not act reserved around
Appellant. Perry Marchioni also testified as an expert in the
psychology of children who have been physically or sexually
abused. Marchioni stated that N.D.'s responses should
have been more forthcoming and that N.D. did not display an
increased knowledge about sexual organs as Marchioni would
Appellant testified in his own defense. Throughout his
testimony, Appellant denied ever inappropriately touching
N.D. Appellant urged that he had been alone with N.D. only
once when he took N.D. to the store. Additionally, Appellant
acknowledged taking N.D. to get a haircut but Appellant
stated that they were not alone because N.D.'s brother
was also with them.
on this evidence, the jury found Appellant guilty of both
aggravated sexual assault of a child and indecency with a
child by contact. Appellant was sentenced to imprisonment for
forty years and ten years, respectively.
first two issues concern the jury charge. Appellant first
asserts that the jury charge erroneously lacked a jury
unanimity instruction and, thus, violated his constitutional
right to a unanimous verdict. Specifically, Appellant argues
that there should have been a unanimity instruction as ...