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MEMORANDUM OPINION
No. 04-08-00860-CR
Ruben GARZA, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 07-12-00157-CRK Honorable Stella Saxon, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice
Delivered and Filed: July 15, 2009
AFFIRMED
After a jury trial, Ruben Garza was found guilty of aggravated sexual assault of a child under
fourteen years of age. The jury sentenced him to thirty years in the Texas Department of Criminal
Justice and fined him $5,000. On appeal, Garza argues that the evidence is insufficient to support
his conviction. We affirm. 04-08-00860-CR
BACKGROUND
The complainant, M.G., was born on February 27, 1997. M.G. is the son of Francisca J.
(“Francisca”) and grandson of Antonia G. (“Antonia”).1 M.G. was approximately five-years-old
when he was first sent to live with his grandmother and his step-grandfather, Ruben Garza (“Garza”).
Antonia and Garza lived together in a small trailer in Kenedy, Texas. Antonia worked the evening
shift from 10:00 p.m. to 6:00 a.m. at a local nursing home and would leave M.G. alone with Garza
while she worked.
M.G. testified that he was sexually assaulted by Garza numerous times, stating Garza would
place his penis into his “back private.” During the assaults, M.G. testified that Garza would tell him
to “open [his] ass” and Garza would then insert his penis in M.G.’s anus. M.G. stated that he never
saw Garza’s penis, but that Garza would take his hand and place it on his penis. M.G. further stated
that Garza would be breathing heavily while the assault was taking place. M.G. would ask Garza
to stop, but Garza disregarded his requests. The assaults often took place in M.G.’s bedroom, but
occurred in the living room of the trailer as well. M.G. stated that after every assault Garza
instructed him to “shower.”
In February 2007, M.G.’s mother became concerned about M.G. when she came home and
found her boyfriend sleeping in M.G.’s bed.2 Francisca asked M.G. if anyone had done anything
inappropriate with him. M.G. told Francisca that Garza had touched his privates and Garza had put
his penis into his anus while his grandmother was at work. Francisca notified the authorities and,
… To protect the privacy of the parties in this case, we identify the child by his initials and his mother and 1
grandmother by their first names only.
2 … Her boyfriend was also suspected of sexually abusing M.G. around the same time Garza allegedly abused the child.
-2- 04-08-00860-CR
after making a statement, took M.G. to Santa Rosa Children’s Hospital in San Antonio, Texas where
the child underwent an examination by a sexual assault nurse examiner, Cynthia Garcia. Due to the
time lapse between the date of the sexual assault and the exam, there was no physical evidence that
Garcia could use to identify Garza as the perpetrator. M.G. was also interviewed by Christi Williams
of the Guadalupe County Children’s Advocacy Center. During the course of these interviews, M.G.
told Williams that Garza had sexually abused him. Subsequently, Garza was indicted by the Karnes
County Grand Jury for aggravated sexual assault of a child.
After a jury trial, Garza was convicted of the charged offense. The jury assessed Garza’s
punishment at thirty years confinement and fined him $5,000. Garza appeals his conviction and
argues that the evidence is factually insufficient to support his conviction.
SUFFICIENCY OF THE EVIDENCE
Garza claims the evidence is factually insufficient to support his conviction for aggravated
sexual assault. See TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(i); (2)(B) (Vernon 2003) (providing
that a person commits the offense of aggravated sexual assault of a child if he intentionally or
knowingly causes the penetration of the anus or sexual organ of a child by any means and the child
is younger than fourteen years of age). 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).
-3- 04-08-00860-CR
Garza claims the evidence is insufficient to support his conviction because the testimony
presented against him is unreliable. According to Garza, the State’s witnesses provided conflicting
testimony about the time line of events surrounding the assault and the definition of the word
“shower.” We disagree.
M.G. testified that Garza made him take a shower after every sexual assault perpetrated by
Garza. However, in later testimony by his grandmother, Antonia, the jury heard that there is no
shower in the trailer where the incidents occurred, only a bathtub. When M.G. was called back to
the stand to respond to this contradiction, he stated that he did not realize there was a difference
between the words “shower” and “bath”; that he used the words interchangeably. The jury
apparently believed M.G.’s testimony; we must defer to this credibility determination by the jury and
reject Garza’s contention. See Lancon, 253 S.W.3d at 705; see also Stogiera v. State, 191 S.W.3d
194, 196 (Tex. App.—San Antonio 2005, no pet.) (recognizing the jury evaluates the credibility and
demeanor of witnesses and determines the weight afforded contradicting testimony).
Garza’s next argument questions the validity of the testimony of Francisca, whose
recollection of the time line of events after the ‘outcry’ statement are in conflict with the testimony
of the other witnesses at trial. Francisca testified that M.G. made his outcry to her on February 28,
2007. She further stated that she immediately took M.G. to Santa Rosa Children’s Hospital (SRCH),
where he underwent an examination to look for signs of sexual abuse. However, the examination
at SRCH actually occurred on March 29, 2007, and M.G.’s interview at the Child Advocacy Center
in Seguin did not happen until April 11, 2007. All of the witnesses were examined by the parties
before the jury, and the jury was free to resolve any conflict in their testimony. See Stogiera, 191
-4- 04-08-00860-CR
S.W.3d at 196. There was ample evidence for the jury to decide this matter as it did; therefore, we
decline to second guess the finding of the jury.
Garza also argues that the outcry statement was prompted by his recent separation from
M.G.’s grandmother, and that M.G.’s accusation that Garza assaulted him was actually a projection
of the abuse he subsequently suffered from Francisca’s boyfriend. Garza maintains the only one who
abused M.G. was Francisca’s boyfriend and corroborates this theory by noting that the examination
by Garcia and the subsequent interview with Williams at the Child Advocacy Center began with
M.G. talking only about Francisca’s boyfriend.
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00860-CR
Ruben GARZA, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 07-12-00157-CRK Honorable Stella Saxon, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice
Delivered and Filed: July 15, 2009
AFFIRMED
After a jury trial, Ruben Garza was found guilty of aggravated sexual assault of a child under
fourteen years of age. The jury sentenced him to thirty years in the Texas Department of Criminal
Justice and fined him $5,000. On appeal, Garza argues that the evidence is insufficient to support
his conviction. We affirm. 04-08-00860-CR
BACKGROUND
The complainant, M.G., was born on February 27, 1997. M.G. is the son of Francisca J.
(“Francisca”) and grandson of Antonia G. (“Antonia”).1 M.G. was approximately five-years-old
when he was first sent to live with his grandmother and his step-grandfather, Ruben Garza (“Garza”).
Antonia and Garza lived together in a small trailer in Kenedy, Texas. Antonia worked the evening
shift from 10:00 p.m. to 6:00 a.m. at a local nursing home and would leave M.G. alone with Garza
while she worked.
M.G. testified that he was sexually assaulted by Garza numerous times, stating Garza would
place his penis into his “back private.” During the assaults, M.G. testified that Garza would tell him
to “open [his] ass” and Garza would then insert his penis in M.G.’s anus. M.G. stated that he never
saw Garza’s penis, but that Garza would take his hand and place it on his penis. M.G. further stated
that Garza would be breathing heavily while the assault was taking place. M.G. would ask Garza
to stop, but Garza disregarded his requests. The assaults often took place in M.G.’s bedroom, but
occurred in the living room of the trailer as well. M.G. stated that after every assault Garza
instructed him to “shower.”
In February 2007, M.G.’s mother became concerned about M.G. when she came home and
found her boyfriend sleeping in M.G.’s bed.2 Francisca asked M.G. if anyone had done anything
inappropriate with him. M.G. told Francisca that Garza had touched his privates and Garza had put
his penis into his anus while his grandmother was at work. Francisca notified the authorities and,
… To protect the privacy of the parties in this case, we identify the child by his initials and his mother and 1
grandmother by their first names only.
2 … Her boyfriend was also suspected of sexually abusing M.G. around the same time Garza allegedly abused the child.
-2- 04-08-00860-CR
after making a statement, took M.G. to Santa Rosa Children’s Hospital in San Antonio, Texas where
the child underwent an examination by a sexual assault nurse examiner, Cynthia Garcia. Due to the
time lapse between the date of the sexual assault and the exam, there was no physical evidence that
Garcia could use to identify Garza as the perpetrator. M.G. was also interviewed by Christi Williams
of the Guadalupe County Children’s Advocacy Center. During the course of these interviews, M.G.
told Williams that Garza had sexually abused him. Subsequently, Garza was indicted by the Karnes
County Grand Jury for aggravated sexual assault of a child.
After a jury trial, Garza was convicted of the charged offense. The jury assessed Garza’s
punishment at thirty years confinement and fined him $5,000. Garza appeals his conviction and
argues that the evidence is factually insufficient to support his conviction.
SUFFICIENCY OF THE EVIDENCE
Garza claims the evidence is factually insufficient to support his conviction for aggravated
sexual assault. See TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(i); (2)(B) (Vernon 2003) (providing
that a person commits the offense of aggravated sexual assault of a child if he intentionally or
knowingly causes the penetration of the anus or sexual organ of a child by any means and the child
is younger than fourteen years of age). 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).
-3- 04-08-00860-CR
Garza claims the evidence is insufficient to support his conviction because the testimony
presented against him is unreliable. According to Garza, the State’s witnesses provided conflicting
testimony about the time line of events surrounding the assault and the definition of the word
“shower.” We disagree.
M.G. testified that Garza made him take a shower after every sexual assault perpetrated by
Garza. However, in later testimony by his grandmother, Antonia, the jury heard that there is no
shower in the trailer where the incidents occurred, only a bathtub. When M.G. was called back to
the stand to respond to this contradiction, he stated that he did not realize there was a difference
between the words “shower” and “bath”; that he used the words interchangeably. The jury
apparently believed M.G.’s testimony; we must defer to this credibility determination by the jury and
reject Garza’s contention. See Lancon, 253 S.W.3d at 705; see also Stogiera v. State, 191 S.W.3d
194, 196 (Tex. App.—San Antonio 2005, no pet.) (recognizing the jury evaluates the credibility and
demeanor of witnesses and determines the weight afforded contradicting testimony).
Garza’s next argument questions the validity of the testimony of Francisca, whose
recollection of the time line of events after the ‘outcry’ statement are in conflict with the testimony
of the other witnesses at trial. Francisca testified that M.G. made his outcry to her on February 28,
2007. She further stated that she immediately took M.G. to Santa Rosa Children’s Hospital (SRCH),
where he underwent an examination to look for signs of sexual abuse. However, the examination
at SRCH actually occurred on March 29, 2007, and M.G.’s interview at the Child Advocacy Center
in Seguin did not happen until April 11, 2007. All of the witnesses were examined by the parties
before the jury, and the jury was free to resolve any conflict in their testimony. See Stogiera, 191
-4- 04-08-00860-CR
S.W.3d at 196. There was ample evidence for the jury to decide this matter as it did; therefore, we
decline to second guess the finding of the jury.
Garza also argues that the outcry statement was prompted by his recent separation from
M.G.’s grandmother, and that M.G.’s accusation that Garza assaulted him was actually a projection
of the abuse he subsequently suffered from Francisca’s boyfriend. Garza maintains the only one who
abused M.G. was Francisca’s boyfriend and corroborates this theory by noting that the examination
by Garcia and the subsequent interview with Williams at the Child Advocacy Center began with
M.G. talking only about Francisca’s boyfriend. It was not until later in the interviews that M.G.
mentioned that Garza had also sexually abused him. Whether M.G. was assaulted by another
individual does not change the fact that the jury heard evidence that M.G. was also abused by Garza
and that he consistently lodged those accusations against him.
Garza finally argues that M.G. never clarified what he meant when he used the terms “back
private” and “front private” during trial and therefore the State failed to connect Garza’s actions with
the prohibited conduct. See Connell v. State, 233 S.W.3d 460 (Tex.App.— Fort Worth 2007, no pet.)
(holding that mere inferences about an alleged second assault while legally sufficient, were not
factually sufficient to sustain the jury’s conviction of a second assault). Garza argues that use of the
terms “back private” and “front private” to describe the way M.G. was abused are only inferences
of abuse, and not factually sufficient to support a verdict of guilty. Because M.G. did not use the
word “anus” in his testimony, Garza argues there was insufficient evidence at trial to infer that “back
private” meant “anus” and not “gluteal fold.”
The record shows M.G. clarified, or sufficiently described, his word choices. During trial
he explained that Garza would instruct him to spread his buttocks during the assault and that Garza
-5- 04-08-00860-CR
“stuck his private in my private.” This testimony indicates M.G. was aware that his anus was
penetrated by Garza. Furthermore, M.G. stated Garza would move back and forth behind him when
the assault was taking place, which indicates that Garza was thrusting in and out of M.G.’s anus.
Thus, M. G.’s reference to his anus as his “back private” or Garza’s penis as a “front private” is
sufficient to establish that M.G. had knowledge of his and Garza’s body parts. See Wallace v. State,
52 S.W.3d 231, 235 (Tex. App.—El Paso 2001, no pet.) (“As a matter of public policy, the appellate
courts of this state do not expect child victims of crime to testify with the same clarity and ability
as is expected of mature and capable adults.”). We conclude the evidence is factually sufficient to
support Garza’s conviction and overrule Garza’s appellate complaints.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
Do Not Publish
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