## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00165

- CR

CHARLES GARTON , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F0532

- 102

Befor e Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION

On May 22, 2019 , a Bowie County jury convicted Charles Garton of two counts of aggravated sexual assault of a child , Susan, 1 who was under four teen

. See T EX

. P ENAL C ODE
A NN

. § 22.02 1

. At punishment, the jury assessed a sentence of eighty years’ imprisonmen t for
each count , with the sentences to run consecutively

. On appeal, Garton raises two bases for reversal: (1) his trial cou nsel was inef fecti ve , and (2) the trial court erred by denying his motion for new trial. Upon review, we find that Garton was not prejudiced by any alleged ineffective assistance and that the trial court did not abuse its
discretion by denying Garton’s moti on for new trial. As a result , we affirm.
I. Factual Background
A. Investigation of Littleton 2 and Garton
The Texas Department of Public Safety (DPS) began investigating Garton as a part of a larger investigation against another in dividual, John Littleton. Gar ton and Li tt leton lived together in New Boston, Texas , at 102 Meadow Drive from June 2017 until April 2018

. Prior to
June 2017, they had lived together in different locations for approximately thirteen years. Of ficer Br iscoe Davis of the DPS testi fied a t Garton’s trial regarding the investigati on: Well, in 2017 I was asked to help with the investigation of John Littleton and another person. And I began looking into them having sexually assaulted young gir l s from the age of 11 up, and it just progr essed from there. As I started doing surveillan ce on a house where I knew that they were going and where they met several of the victims and had sex with some of the victims [,]

1 W e use pseudonyms to protect the identity of “any pe rson who was a minor at the time the offense was committed.” T EX

. R. A PP

. P. 9.10 (a)(3).

2 Littleton died after cha rge s were brought against him.3 I started becomi ng aware of Mr. G art on being over there as well. And he came o n the radar as I was watching Littleton.
B. Ga rton’s Interviews
As a result of his association with Littleton , the DPS became interested in Garton and
noticed that he had a close relationship w it h a mi nor living with him : Well, he wasn’t on the r adar a t fir st, so then I started seeing [Garton] was
. . . spending time with the 11

- year old. I actually saw him come out, they stood around the car and chatted a whole bunch. She pretended to drive hi s truc k . . . he actually got in the truck, put her in his lap and let her drive his vehicle . . .

. I ju st did

- - did not seem at all right or normal with a 39

- year old and a 11

- year old. Based upon their interest in Garto n, the DP S investigated him i n 2017 and 2018 and
interviewed him four times as a part of the ir investigation

. The third and four th interviews were
recorded.
On April 24, 2018, the DPS followed Garton to the Pitt Grill restaurant in New B o ston , and Garton consent ed to an interview. During that interview, Garton dis cussed sisters , Susan

an d Sa rah , who lived with him

. Garton st ated that the sister s moved into his and Littleton’s house “because basically their guard ians couldn’t take care of them.”
Garton chara cte rized his relationship with the girls as being a “father relationship”
wherein “ [ h ] e took care of them, clothed them, bought t h em their cell phones, and stuff like
that.” The girls had a bedroom, but Garton stated Susan , the younger of the two sis ters at twelve years old , “ most often” slept in his room and no t her own room. After a n ho ur or so, the initial
interview was terminat ed, and the DPS started the second interview of Garton. Th e second
interview lasted an additional three hours and th irteen minutes

. During that longer interview ,4

which was n ot recorde d, Garton confes sed t o pen etrating Susan’s vagina f or “about fiv e minutes

. ” Later that day, and to follow up on G arton’s statements, the DPS interviewed Garton a third time at his home

. Th at inter view w as recorded , and the recor ding was admitted into
evidence during Garton’ s tria l

. T h at recording captures the DPS officers reading Garton his
Miranda 3 rights. A low

- spea king Garton then explained his conduct , which he characterized as
“embarrassin g ” ; stated that he did not “ want to go to jail or prison ” ; an d s tated that “ the o n ly thing [ he ] did wa s touch [] [Susa n ] one time.” During th at “one

- time” inciden t, Garton admitted to penetrating S usan’s va gina with his middle finger. Garton stated that the incident happen ed two to three weeks prior to the
interview

. Gart on said th e sexual contact with Sus an began because he “ had asked to see her
boo b s ” re pe atedly, and she finally agreed

. He admitted that he “touch ed [Susan’s breasts] a little
bit

. ” He also added tha t he “cared a lot about her” and wanted to be clear th at he ens ur e d she

was c omfortab le with the conta c t. He stated in the recording that he felt “ashamed” about it
because he felt “ like a child molester

. ” He also admitted that he knew Susan was twelve years
old at t he tim e of that interview

. 4 By the end of the rec o rde d interview, Garton was worr ied
about whe n the DPS would arrest him.

3 Miranda v. Arizona , 384 U.S. 43 6 (1966)

.
4 By the time of trial, Susan was thirteen years old.5

After the rec orded interview ended, Garton also admitted to conducting ora l sex on Sus an
. The exchange at tr ial between the Bowie Co unty prosecutor and the DPS officer detailed
tha t ad mi ssi on as follows:

Q

. Does [Garton] make any other admissions of any other types of sexual assaults during this interview?
A

. Yes, he di d. Q

. What was that?
A

. He con ducted oral sex. Q

. Did we hear on the video that we just heard him s ay th at he put his mouth on her vagina?
A

. No. Q

. Do you know why that portion of the interview is not on the recording?
A

. Because n ow I know y ou need to put your phone in a irplane mode when you set it on video camera, and I was getting calls an d te xt s d uring this investigation so it interrupted me. Q

. But after

- - a fter what we just viewed in time after that, at the end of that vi de o, Mr. G arton did indicate that he put his mouth on [Susa n’s] vagina?
A

. Yes. The next day , on April 25, 201 8 , the DPS arrested Garton and transported him to be
interviewed for a fourth time. Davi s conducted the fourth interview , and it lasted “45 or 43
minutes ” in total. Davis read Garton his Miranda rights prior to that fo urth interview. The St ate
admit ted a recording of th at interview during the trial.6

In th at i nterview, Garton explained his sexu al con tact with Susan. He “ started out ma ybe just kissing her

. ” Then, the rela tionship advanced t o where he “touched her boobs , ” and that

e ven tually l e ad to him “ touching her down there .” G arton stated that his sexual relationsh ip with
Susan had been ongoing for thr ee weeks and that Susan had slept in the bed with him “ maybe a

max of 7

– 8 time s
. ” Garton sai d that , despite Susan sleeping in bed with hi m , ther e we re onl y “two times of sexual contact ” wit h Susan

. During one instance, Garton “ performed oral sex on [ Susan ]

. ” In the other, Garton “ put his finger in [ Susan’s ] vagin a. ”
C. Susan’s Int erviews
On A p ril 24, 2018 , the same day Garton was interv i e w ed ini tial ly , Susan was interviewed

two times and examined once

. Susan was initially interviewed at the Children’s Adv ocacy Center at around 10:00 a.m. for appr oximately forty

- five minutes. T hereaft er, Sus an was interviewed at CAC around 3:00 p.m. for a n addit iona l twenty

- five minutes. F inally, Susan was
examined and interviewed by S exual A ssault N urse E xaminer (SAN E) Kathy Lach

. Durin g her first two interviews, Susan denie d Garton h ad inappropriately touched her.
Susan testified at trial that she d eni ed bein g touched at those first two interviews because she had made a “pinky promise ” to Garton that she would not tell anyone.
A fter she was interviewed twi ce at CAC , Lach spok e with Susan as a part of the SAN E
examination

. During that examination , Sus an admi tted to Lach that Garton touch ed her vagina:

Q

. Okay. What statements did she make abou t sexual abuse?
A

. She told me that three weeks ago [Garton] put his f inger in m y va
jj at his

- - at home in his room. And then she

- - we always

- - b e cau se we w rite whatever the patient tells us, we use an anatomical drawing of the

- - of a fema le and a male . And we will

- - if they say anything that we’re not sure wh at they7

mean by , I’ll say can you tell me what area you’re talking about. So, she i n d ica ted it was the female vagina and I labeled that on the anatomical drawing.
D. Trial Proceedings
Susa n and Garton both testified at trial. Bo th of Garton’s recorded interview s were also admitted during the trial. Susan testified that Garton tou c he d her b reas ts “[a] lot of times.”
Susan also testif

ied about the incident where in Gar ton touched h er va gina: “H e put his hands down my pa nts, and, like he just put his fi ngers in my vag ina.” Susan said Garton then “pulled [her] pants down and put his m out h dow n th ere.” Ac cording to Susan, Garton tried to have sex with he r , but she “said no.” Thereafter, she left Garton’s room.
Garton testified at trial

. During his te stimony , Garton recanted his earlier statements and
denied t ouching Susan inappropr iat ely

. Wh en Garton was a sked if he “ ever touch [ed] [Susan] inappropriately , ” he replied , “ N o, sir.” Garton testified that he admitted to touching her inappropria tely in the prior interviews with law enforcement because he “felt nervous.” He
described t he pres sure from law enforc ement durin g his testimony: “I kind of felt like if I didn’t

s ay something then I wasn’t going to be able to go home or b ecause basicall y they done told me what John [Littleton] had been doing. He was

- - he was in quite a bit of trou ble and then I was going to be, too .” Be cause of that pressure, he claims , he “[ t ]o ld them what they wanted to
hear.”
II. Analysis
A. Ga rton Was Not Prejudic ed by His Trial Counsel ’s Repr esentation Garton raises fifteen specific instances of inef fective ass istance of counsel

. B ecause we find no prejudice under Strickland , we find n o b asis for reversal on this issue

.8 1. St andard for Ineff ective Assistance
Pu rsuant to the Sixth Amendment, an accused is guaranteed the right to effective
assista nce o f couns el. U.S. C ONST

. amend. VI

. The standard for assessing an ineffective
assistance of counsel claim is Strickland v. Washington , 466 U.S. 668 (1984), and the s ame standard applies to ineffe ctive assistance of counsel claims in Texas. See Hernan dez v . State , 72 6 S.W.2d 53, 55 (Te x. Crim. App. 1986).
Under Strickland , to prove his couns e l was ineffective, Garton must mak e two showings: (1) that his trial counsel’s p erformance was deficient and ( 2) that he was prejudiced as a result of his counsel’s p erfor ma nce. See McFarland v. State , 928 S. W.2d 4 82, 500 (Tex. Crim. App. 1996) (per cu ri am) , over ru led on other grounds by Mosley v. State , 98 3 S. W.2d 249 (Tex. Crim. App. 1 998). To show deficient perfor mance, he must prove his counsel’s actions fell “be low the

pro fession al norm for reasonablenes s.” I d. To show prejudice, he must show “ tha t there is a reasonable probability that [ , ] but for co unsel’ s [ errors, ] the result of the trial would have been
differe nt. ” Id.
2. Alleged Errors by Garton’s Trial Cou nsel
G arto n claims that hi s trial counsel was i neffec tive in the following fifteen ways: (1) by
fai ling to object to the State’s comment duri ng voir dire a bout his right to rema in silent , (2) by failing to object to the State’s comment about sentencing d uring v oir dire , (3) by fai ling to object
to the pseud onym of “Child Victim #3 , ” (4) by f ailing to ob

ject to the State’s s tatem ent , during openin g, about “ t hree a ctors ” who were non

- parties , (5) by failing to object to the State’s witness’s suggestion t hat Garton m ig ht h ave t ested p ositiv e for drug use durin g his probatio n ,9

(6) by failing to o bje ct to the Stat e’s questioning regarding an investigation of two other
individuals who were n on
- parties , (7) by failing to object to the State’s reference to a non
- p arty

as “ th eir other co

- defendant , ” (8) b y failing to objec t t o the S tate’s c o mments d ire ct ly to Garton , (9) b y failing to object to the State’s questioning of its witness as to a “ r ing ” or conspiracy involving Garton and others , (10) by failing to object to ques tion ing of Garton’s sister i mply ing

a n i mpr oper r elationship , (11) by fai ling to o bject t o the State’s c losing a rgument i mplying

m ultiple v ictims , (12) b y failing to object to the State’s c omment ab out l iving in t hat

e nvironment , (13) b y not challen g i ng fo r ca use Venire person 1 duri ng voir dire , (14) by not objecting to the Stat e’s witn ess’s t estimony as to “ two victims , ” and (15) b y failing to request a jury instructi on under Article s 38.21 and 3 8.22 , Section 6 , of the Texas Code of Criminal
Procedu re
. B ased up on our revie w of t h ese claims, w e a ssume without deciding that the first pr ong of Strickland has been satisfied and will only consider the secon d prong of Stri ckland , wheth er Garton was prejudiced as a result of the error we assume. Because we find tha t he was not prejudi ced, w e affirm.

3. Prej udice Analysis
Garton must “ affir matively prove prejudice from” his “counsel’s deficient performance.”
Mi tchell v. State , 9 89 S.W.2d 7 47 , 748 (Tex. Crim. App. 1999). There are three exceptions to
th is requ irem ent of a ffirmative p roof, a nd prejudice is presumed if (1) “the complet e denia l of
counsel” occurs “at a critical stage” of trial , ( 2 ) “counsel entir ely fai ls to subject the

pros ecution’s case to meaningful adversarial testing , ” United States v. Cronic , 46 6 U.S. 648, 65910

(1 984 ) , a nd (3) circumstances at trial we re such that, althoug h counsel was available to assist the defendant during trial, “ the like liho od that any lawyer, even a fully competent one , could provide
effective assi stance is so sma ll that a p resumption of prej udice i s appropriate without inquiry in to
the actual conduct of the trial , ” i d. at 659

– 60 (citing Powell v. Alabama , 287 U.S. 45 ( 1932 ))

. Here, Garton does not claim , and we do not find, that prejudice should be presumed
unde r Croni c. Accordingly, we co nsider w hether he has affirmatively establi shed prej udice. To affirmatively establish prejudice, Garton must show the following: “ th ere is a reasonable probabili ty th at, but for counsel’s unprofessional errors, the result of the pro ceed ing would have
been differ e nt.” Her

nandez , 726 S.W.2 d at 55 ( quoting Strickla nd , 466 U.S. at 694) )

. According to Strickland , “ [ a ] reasonable proba bili ty is a probability sufficient to undermine

con fidence in the outcome.” Strickland , 466 U.S. at 694

. In this case, Garto n has n ot mad e the requisite showing of prejudice. The Sta te
introduced two different recordings of Garton admitting to t he t wo counts of sexual assault that the State charged in the in dictment. Th ose recordings are consis te nt with eac h other and detail
his abuse of Susa n. They ar e also credible and reflect his remorse and his f eeling of being
“ashamed.” Susa n h er self testified at trial, and her testimony was consistent with Garton’s
conf essions. Her testimony alone as a c hild vi ctim under seventeen years of age is suf ficient to support this conviction. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.07(a ) , (b) ( recogni zi ng a conviction under Section 22.0 2 1 of the Texas Penal Code “ is supportabl e on the uncorroborated testimony o f the vic tim of the sexual offense” even w hen the victim did not “ inform another11

person” w i thin one ye ar after the date of the offense w here the victim is “ [ seventeen ] years of

age or younger ” ). Although Garton later c laimed at trial that his confessions we re co erce d, a jury reasonably could ha ve conc luded that h is p rior confessions were vali d and that he only retra cted
those statement s to avoid the pen a lty of his actions. In both recordings , Garton speaks freely , in
a relaxed mann er, and gives no indicat ion of bein g pr essured. The strength of this evid enc e under m ines any claim Garton has of prejudice. See Strickland , 466 U.S. at 696 (recognizin g “a
verdic t or conclusion only weakly supported by the record is more likely to have b een affected by errors t han one wit h ov erwhelming record support”). As a result , w e fin d Garton has not
demonstr ated that , “ but for [ his ] counsel’ s unprofessional errors, the re sult of the pr oceeding would have been different” under the second prong of Strickland

. Id. at 69 4.
B. Tri al C ourt Did Not Abuse Its Discr etion

— Motion for New T rial
G arto n tim ely filed a motion for new trial. In his m otion, Garton argued the foll ow ing: The Defendant in this case should be granted a new trial in this case because the actions of a thi rd part y, n amely John Littleton, were introduced in an effort to ta r nish the case against the defendant and prejudice th e jury against him. There wa s no evidence of the Defendant’s participation in, or promotion of human trafficking, howev er the State urg ed and argu ed that the Defendant was part and parcel of that crimi n a l en terprise because of his mere presence in the hou sehold of John Littleton. St at ements used during closing argument claiming that the Defendant is the last of a ring of criminals, etc. amounti ng t o prosecutorial misconduct

. There w as no h earing on this motion for ne w trial, and it was overruled a s a matter of la w. See
T EX

. R. A PP

. P. 21.8(c).12

We review the trial court’s ruling on a motion for new trial under a n abuse

- of

- discr etion

s tand ard. See Smi th v. State , 286 S.W.3d 333, 339 (T ex . Crim

. App. 2009) (citing W allace v.
State , 106 S.W.3d 103 , 106 (Tex. Crim . App. 2003))

. Based upon the recor d, we cannot find that the trial court abused its discretion in denying G arton’s mot ion for new trial. As stated previously, on the issue of Garton’ s guilt o r innocence, th e State included two recordings of
Garton ’s confession an d a dmitted Susan’s testimony. This “reasonable view of the record

. . . support [ s ] the trial court’s r uling. ” Web b v. S tate , 232 S.W.3d 109, 112 (Tex

. Crim. App. 2007) (recognizing a “tr ial court abu ses its discretion in denying a motion for new trial only when no

reason able vi ew of t h e record cou ld support the trial court’s ruling )

. Accordingly , we affirm.
I II
. Co ncl usion We affirm the trial court’s judgment.

Scott E. St evens C hief Justice
Dat e Submitted: December 27 , 202 3 Date Decided: Feb ruary 23 , 202 4
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