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Garcia v. State

Court of Appeals of Texas, Eleventh District

December 31, 2019


          On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CR46871

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]



         A 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.


         When 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.

         At 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.

         N.D. 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.

         N.D.'s 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 with Appellant.

         Next, 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.

         In 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 expect.

         Lastly, 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.

         Based 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.


         Appellant's 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 ...

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