### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00781- CR

Alejandro John Garc ia, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 11- 216- K3 68, H ONO RAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found Alejandr o J ohn Gar cia g uilty of indece ncy with a child by contac t and assessed a sentenc e of ten y ear s in prison. Gar cia contends that the trial court abused its discretion by excluding his expert’s testimony , that the trial court abused its discr etion by ref using to include the words “intentional and knowing ” in the application para g raph of the jury instruct i o n , and that the evidenc e is insuff icient to sustain the conviction for indece ncy by contac t. We w ill af firm the judg ment.

BACK GR OUND

Gar cia’ s nine-y ear -old daug hter went for an overnig ht visit to the apar tment Gar cia share d with his g irlfriend and their four- y ear -old son. She watche d a movie with her brother in her brother’ s room while Gar cia watche d a m o v i e i n t h e living room with the g irl’s uncle, smoking marijuana

. Gar cia’ s g irlfriend was at work t h at evening

. Gar cia’ s daug hter testified that sheordinarily

slept on the couc h during her visit s and that, afte r t he movi es finis hed, Ga rcia fix ed the couch as her bed that night. They watche d some television and, at around 9:36 p.m., she fell aslee p

on the couch. She said that Gar cia also fell aslee p on the couch, which was unusual. She woke up later when Gar cia touched her, unbuckled his belt, then did “something rea lly g ross.” She testified, “He pulled down my pants and stuck his middle part into my bottom. And then he put his hands on my front part.” She testified that he put his “middle part inside my butt. ” S h e t es t i fied that afte r doing those things “he woke up, and he said, ‘Oh, my God.’ And then he started wiping my butt and pulled up my

pants. And then he went and thr ew the pa per towe l away

. . . . [H] e told me to take a shower, but I didn’t.” She said that Gar cia said, “What the F? ” and “Why did I do that? ” to himself. She testified that he did not tell he r to ke ep quiet, did not threa ten her , did not try to bribe her, and did not blame her. She said that she knew Gar cia was aslee p when these events occur red “bec ause he wouldn’t have done tha t if he wa s awa ke.” The g irl’s g randpa

rents came and picked her up later that night and delivere d her to her mother, who then immediately took the child to the hospital for a chec kup. Be cause of the nature of the a ctions repor

ted to hospital personnel, Austin Police wer e notified. Austin police office r Gre g ory Whit e testified that Gar cia admitted that he touched his penis to his daug hter’s anus, but Garci a cl ai m ed he did not penetr ate her. Whit e testified that Gar cia “ac tually

said that he wa sn’t sleepwa lking, but wa s just ti red. H e wa s try ing to de scribe it. He was just tired.

. . . He offe red that he was drinking and smoking wee d but didn’t offe r any other explanation as to what would explain an altere d mental state.” Whit e said that Gar cia repor ted being fatig ued from having wo rk ed long hours. Whit e also testified, “I n this case he was offe ring the explanation that he [m istook] his daug hter [] for his g irlfriend [].”

2The child’s mother testified that her daug hter text ed her upset, but would not spe ak

to her whe n she picke d her up later that night. The mother said that Gar cia de nied doing any thing to their daug hter. The child started shaking at the hospital and ref used to allow a g enital exam. The mother testified that she continues to take her daug hter to counseling even though her daug hter say s she does not know why she has to g o and the counselor thinks they have nothing further to discuss.

The Depa rtment of Public Safety fore nsic examiner testified that tests of the child’s panties indicated the prese nce of semen in a stained are a, though beca use no sperm wer e found the substance could have been something else. The examiner tested the stain for DNA, compar ed it to Gar cia’ s DN A, co n cl uded that Gar cia could not be excluded as a contributor, and stated that the probability of choosing another unrela ted contributor was one in 436.6 milli on for Hispanic persons.

Ba sed on the S tate’s objection, the t rial court excluded Gar cia’ s propo s ed witness, Dr. Michel Bor

nemann, a self-de scribed “s l eep phy sician.” Dr. Bor nemann testified during a

v o i r d i re ex amination and a bill of exception. He would have testified to the jury about th e possibili ty of Gar cia acting sexually while essentially aslee p. He said he re viewed a police repor t,

re v i ew ed t h e hospital’s repor t on the examination of the victim, listened to Gar cia’ s interview with Austin police, int ervie wed Garc ia, an d talked to Gar cia’ s g irlfriend. Dr. Borne mann di d not phy sically examine Gar cia, nor did he test him for whether he was a sleepwa lker. He testified that such t es t s ca n show whether someone sleepwalks during that test and whether the person has any underlying condition t h at could acc ount for sleepwa lking, but not whether a person might have sleepwa lked on a pa

rticular pr evious occ asion. The jury found Garcia n o t gu i l ty of agg ravated s exual assault of a child, but found him guilty

of indec ency

with a child by

contac t.

3DISCUSSIO N Gar cia challeng es the trial court’s exclusion of Dr. Bor nemann’ s testimony , its jury instruction, and the suff

iciency of the e vidence to support the conviction.

The court did n ot er r by excluding th e proff ere d expert t estim ony . Gar cia contends that the trial court err ed by s u s t ai n i n g the State’s objection to his expert, Dr. Bor

nemann. Gar cia contends that the trial court wrong ly excluded the testimony beca use it did not l ike the wa

y in which Dr. B ornema

nn rea ched his c onclusion. We revie w trial-court ruling s on the admissibili ty of evidenc e under an abuse of discretion standard. Gree n v. State , 934 S.W .2d 92, 101-02 (Tex. Crim. App. 1996). A trial court abuses its discretion when it acts without ref ere nce to any g uidi n g p ri n ci p l es, and we reve rse the judgme nt when that abuse harms the defe ndant. Ex parte Ramey , 382 S.W .3d 396, 401 (Tex. Crim. App. 2012). A party proff ering expert testimony must show that the scientific evidenc e is r eliable throug h clea

r and convincing evidenc e showing the following : (1) the underly ing scientific theory is valid, (2) the technique apply ing the theory is valid, and (3) the t echnique was properly applied

on the occa sion in question. Sexton v. State , 93 S.W .3d 96, 100 (Tex. Crim. App. 2002) (citing Kelly v. State , 824 S.W .2d 568, 572 (Tex. Crim. App. 1992)).

When Gar cia called Dr. Bo rn em ann, the State reque sted and obtained a hear ing

conce rning the underlying fac ts or data on which his opinion was based. See Tex. R. Evid. 705(b). Throug h Dr. Bor

nemann, Gar cia soug ht to offe r evidenc e that he was essentially sleepwa lking when he touched his daug hter and, there fore , that he lacke d the requisite intent or voluntariness to commit the crime. At the close of the voir dire examinat i on, the State objected to the testimony , arg uing

4that it was based on a novel and unreliable scientific theory that could mislead the jurors. The State

contende d that the theory lacke d diag nostic criter ia and support in the medical community and, further

more, that Dr. Bor

nemann did not “appr opriatel y diag nose this defe ndant as having any disorder.” We will focus on the third of the fac tors set out in Sexton

. Dr. Bor nemann stated that he did not examine Gar cia phy sically , althoug h they conver sed by telephone, and he did not rely on any examination of Garc ia re g arding sleep disorde rs. Dr. B ornema nn testified as follows:

Clini cally , in order to make a clinical diag nosis, y ou need l o ng itudinal assessment of the individual to confirm that it is a rec urre nt problem that is of signific ant health or safe ty conseque nces to the individual and/or individuals t h at wer e with him. I can only g uess what the situation would be with Mr. Gar cia. B ut without having a longitudinal assessment as a phy sician and continuity of car e, I can’ t with confide nce state that he ha s a spec ific disorder

. Thus, despite his conclusions reg arding Gar cia’ s actions, Dr. Bor nem ann essentially testified that diag nostic techniques are require d to find a disorder and that he did not apply those techniques to Gar cia. We cannot say that the trial court abused its discretion by ex cluding Dr. Bor nemann’ s testimony beca

use Gar cia failed to show by clea r and convincing evidenc e that a valid technique for diag nosing pa

rasomnia wa s proper ly

applied to him. See Se

xton , 93 S.W .3d at 100. The jury instruction on i ndecency was n ot er roneous.

Gar cia contends that the trial court err ed by ref using to include th e wo rds “intentionally or knowing ly ” in the application para g raph of the indece ncy char g e. The char g e g iven

was as follows, and Gar cia reque sted that the terms “intentionally or knowing ly ” be included wher e we ha ve inserte d asterisks inside of br acke ts:

5Now b ea ri n g i n mind the fore g oing instructions, if y ou believe from the evidenc e

bey ond a rea sonabl e doubt that the defe ndant, AL EJ ANDRO J OHN GARCI A, on or about Dec ember 24, 2010, in Wil liamson County , Texas, [***] eng ag ed in sexual contac t with a child y oung er than 17 y ear s of ag e, namely , any touching by the defe ndant, including touching throug h clothing, of any part of the g enitals of [KG] , with intent to arouse or g ratify the def endant’ s sexual desire, then y ou will f ind the defe ndant guilty of t he offense of I ndece ncy wi th a C hild by Contact, as allege d in Count Two of the indictment, and so say by y our ver dict.

Gar cia contends that, without the reque sted words, the char ge i m proper ly instructed the jury to convict him be cause he eng ag ed in prohibited contac t, even if he was unawa re he was doing it a

nd had no intention of doing it.

The jury char g e must contain an acc urate statement of the l aw an d must set out all of the essenti al el em en t s o f the offe nse. Vasquez v. State , 389 S.W .3d 361, 366 (Tex. Crim. App. 2012). I n examining the char g e for possible err or, we must view the char g e as a whole instead of as a series of isolated and unre lated stateme nts. Id. The applicable statute prohibits persons from eng ag ing in sexual contac t with a child. S ee T ex . P en al Code § 21.11(a)

. Sex ual contac t occur s when a person acting with the intent to

arouse or g ratify the sexual desire of any person either touches cer tain parts of a child’s body o r touches any part of a child’s body with cer tain parts of the toucher ’s body

. Id. § 21.11(c)

. The statute does not include “knowing ” as a culpable mental state for this offe nse, see id. , so the court’s exclusion of that word was proper . Contrary to Gar cia’ s arg ument, the char g e g iven did not cre ate

a “strict liability ” offe nse based mere ly on contac t b ec au se it instructs that, to be g uilty of the offe nse, the defe ndant must have committed the requisite touching intendi n g to arouse or g ratify someone’s se x ual desire

. Courts have held that including the words “intentionally or knowing ly ”

as Gar cia reque sted in an indece ncy char g e would be er ro r. S ee Bazanes v. State , 310 S.W .3d

632, 36-37 (Tex. App.—For t Worth 2010, pet. ref

’d); Jones v. State , 229 S.W .3d 489, 492 (Tex. App.—Texarkana 2007, no pet.). The trial court did not abuse its discretion by excluding the terms “intentionally or knowing ly ” wher e Gar cia reque sted they be included beca use his reque sted instruction would not have acc urate ly descr ibed the offe nse as define d by the lang uag e of the statute.

The evidence was su ff

icient to support the fin din g of gu ilt. Gar cia contends that the rec ord lacks evidenc e to support the finding that he had the requisite intent when having sexual contac t with his daug hter. He contends that there is no evidenc e that he acte d intentionally or knowing ly

. A conviction on the offe nse of indece ncy with a child require s a finding that the offe nder had sexual contac t with the child intending to g ratify the sexual desire of any person. S

ee T ex. Penal Code § 21.11. Whil e the offe nse of indece ncy by contac t require s a finding that the offe nsive contac t wa s comm itted with the specific intent to arouse or g ratify someone’s sexual desire and a more basic finding that the contac t was committed voluntarily , see id. § 6.01(a) , the offe nse does not re quire a ny other finding of knowledg e or intent. When revie wing t h e sufficie ncy of the evidenc e to support a verdic t, an appellate court must view the evidenc e in the light most favora ble to the ver dict and dete rmine whe ther a ny rational trier of fac t could have found eac h essential eleme n t of the offe nse bey ond a rea sonable doubt. Jack

son v. Virginia , 443 U.S. 307, 320 (1979); Brooks v. S tate , 323 S.W .3d 893, 896 (Tex. Crim. App. 2010). The revie wing court must defe r to the jury ’s deter mination of weig ht and

cr ed i b i l i ty ; the jury is the sole judge of the witnesses’ cre dibilit y and the weig ht to be g iven th ei r testimony

. Brooks , 323 S.W .3d at 899. The fac t finder is enti t l ed t o judge the cre dibilit y of the witnesses and can believe all, some, or n o n e o f t h e testimony prese nted. Chambers v. State ,

7805 S.W .2d 459, 461 (T ex . Crim. App. 1991). When the rec ord contains evidenc e supporting

conflicting infere nces, the appellate court must presume that the jury resolved any conflicts in favor of its verdic t. Rabb v. State , 434 S.W .3d 613, 622 (Tex. Crim. App. 2014). I ntent may be inferr ed from acts, words, and conduct of the acc used. Hernande z v. State , 819 S.W .2d 806, 810 (Tex. Crim. App. 1991). Gar cia doe s not dispute that he made the requisite contac t w ith his daug hter or tha t she was a child within the statutory definition, but contends t h at h e did not act with the requisite intent or voluntariness. See Tex. Penal Code §§ 6.01(a) (voluntariness) , 21.11(c) (sexual contac t). He points to his daug hter’s testimony that h e was aslee p when he touched his daug hter and that he “woke up, and he said, ‘Oh, my God.’” He contra sts his behavior with that of other perso ns convic t ed o f sexual crimes. He cites a case in which the Texarkana court of appea ls reve rsed a conviction for ag g rava

ted sexual assault of a child based on the S t at e’ s fa i l ure to prove that an

acc used acte d voluntarily when touching his da ug hter beca

use the State provided no evidenc e that the d ef endant was awa

ke or that a sleeping person could not eng ag e in the offe nsive conduct. W hatley v. State , 415 S.W .3d 530, 548 (Tex. A pp.—Texarkana 2013), reve rsed , No. PD-1627-13, 2014 Tex. Crim . App. L EXI S 1511 (Tex. C rim. App. Oct. 8, 2014).

Since Gar cia filed his supplemental b ri ef based on the Texarkana court’s opinion, howeve r, the court of criminal appea ls has reve rsed that decision, reinstating the jury ’s verdic t of g uilt. 2014 Tex. Crim. App. L EXI S 1511. Although the child in tha t c ase told investigators when she was el ev en y ears old that Whatley was aslee p during the event beca use his ey es wer e closed

an d h e was snoring , she acknow ledg ed during her testimony when she was eig hteen that she had been unable to see Whatley ’s fac e whe n t h ey we re in bed beca use he was behind her. Id. at *14.

8The court of criminal appea ls found evidenc e from which the jury could have inferr ed that the child

had mistaken Whatley ’s closed ey es and heavy brea thing for sleep. Id

. at *15. That court wrote that the jury could have conclude d that the child repor ted that Whatley was aslee p to rec oncile her love for him with the abuse by asser ting that he must have been unawa re o f his actions. Id. at *14. Although the child had theorized that W h at l ey m i ght have sleepily mistaken her for her mother, her mother testified that, in the five y ear s she had share d a bed with Whatley , he only once rea ched for he r in his sleep, and on tha t occa sion he did not touch or pene trate he r vag ina. Id. at *14-15. 1 As Gar cia arg ued, the t estimony in this case is somewhat simil ar to that in W hatley —a rec ord that the court of criminal appea ls has conclude d supports the j u ry ’s verdic t and the implicit finding that Whatley ’s ac t i o ns wer e voluntary

. See id. at *16-17. There is some evidenc e on which the jury could have relied to find that Gar cia’ s actions wer e volun t ar y and committed w ith the requisite intent. The presumptive prese nce of semen on the child’s clothing is clea r evidenc e that Gar cia’ s sexual desires wer e arous ed and g ratified by the contac t. Although Gar cia ’s d au gh t er testified that her fathe r was aslee p during this event, the jury was entitled to disreg ard this aspe ct of he r testimony and appare ntly did so. The jurors were entitled to and must have chosen instead to cre dit Gar cia’ s statement to police that he was not sleepwa lking when it

occur red. The y

may have cre dited his state ment that he believed he was touching his girlf riend a s

This testimony conflicte d with the mother’s repor t to police investigators that Whatley 1 had sever al times initiated sexual contac t while aslee p and claimed not to reme mber doing so. See W hatley v. State , 415 S.W .3d 530, 546 (Tex. App.—Texarkana 2013), reve rsed , No. PD-1627-13, 2014 Tex. Crim. App. L EXI S 1511 (Tex. Crim. App. Oct. 8, 2014). Although the court of criminal appea ls did not ref

ere nce this conflicting ev idence in its opinion, it could have conclude d that the jury was e ntitled to resolve the conf lict in favor of

the mother’s tria l testimony

. 9showing that he was awa ke enoug h to re co g nize that he was contac ting someone in a sexual

manner —demonstrating that his actions wer e voluntary —but disb el i ev ed his asser tion that he thought he was touching his g irlfriend. The standard of revie w does not p er m i t u s to reve rse the conviction on this recor d.

CONCLUSION

Finding no reve rsible er

ror pr esente d, we a ffirm the c onviction.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: De cembe r 11, 2014 Do Not Publish

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