Dennis Garza v. State

NUMBER 13-09-00549-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DENNIS GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez

Appellant, Dennis Garza, was convicted of three counts of indecency with a child

by contact, three counts of sexual assault of a child, and two counts of aggravated

sexual assault of a disabled person. See TEX. PENAL CODE ANN. §§ 21.11, 22.011

(West 2011), 22.021 (West Supp. 2011). Garza was sentenced to thirty-five years’

confinement for each count of aggravated sexual assault and for one count of sexual
assault of a child. For two additional counts of sexual assault of a child, Garza received

two thirteen-year sentences; and for two counts of indecency with a child, Garza

received two eight-year sentences. For the final count of indecency with a child, Garza

was sentenced to seven years’ confinement. The sentences were ordered to run

concurrently. By eight issues, Garza contends that: (1) the trial court reversibly erred in

ruling that lost exhibits have been accurately duplicated and that documents that were

not duplicated were not necessary to the resolution of this appeal; (2) the trial court

reversibly erred by instructing the jury in its charge that the alleged victim was disabled;

(3) the trial court reversibly erred by admitting irrelevant and unfairly prejudicial

evidence of extraneous conduct; (4) the evidence was insufficient to support the

convictions; (5) the trial court reversibly erred “by enhancing Garza’s punishment on all

counts because there was insufficient evidence to support the enhanced punishment

range”; (6) the indictments in counts one and two were defective; (7) the trial court

reversibly erred by failing to instruct the jury on an essential element of aggravated

sexual assault; and (8) trial counsel rendered ineffective assistance. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

The evidence at trial showed that Garza and his girlfriend, Blanca Virgil, moved

into a home occupied by Virgil’s sister, S.B., and S.B.’s fifteen-year-old daughter,

Elizabeth.1 At some point, S.B. claimed that she walked into the living room of the

home and saw Garza and Elizabeth engaged in a sexual act. The next day, S.B. told

her niece, Elise Virgil, what she had witnessed, and the police were contacted.

1
Elizabeth is a pseudonym used in the trial court to protect the alleged victim’s identity.

2
 Garza was arrested and tried. The jury found Garza guilty of two counts of

aggravated sexual assault, three counts of sexual assault of a child, and three counts of

indecency with a child by contact.

Garza was sentenced on June 1, 2009, and he filed a motion for new trial on

June 23, 2009, which the trial court denied. Garza filed a notice of appeal on August

12, 2009. On March 4, 2010, Sheila Heinz, the court reporter who recorded Garza’s

trial proceedings, filed the reporter’s record including, among other things, an “Exhibit

Index” listing the exhibits admitted at trial and a document stating that Heinz “certif[ies]

that the exhibits that should be attached hereto have been misplaced and are not part of

this record.” Heinz further stated that she had called Garza’s appellate and trial counsel

and that they had informed her that they did not have the missing exhibits. Heinz

assured that she would “continue to make every effort to locate [the] exhibits.” On April

27, 2010, Heinz filed, with this Court, the following exhibits: (1) State’s Exhibit 1, a copy

of a Sexual Assault Nurse Examiner’s (“SANE”) report; (2) State’s Exhibit 9, an article

entitled, “Anogenital Trauma in Sexually Abused Children”; and (3) Defendant’s Exhibit

1, a copy of a handwritten letter from S.B. apologizing to Garza for believing Elizabeth’s

accusations of sexual abuse.2

Garza filed a brief in this case on November 2, 2010 complaining that the trial

exhibits had been lost. The State filed a motion requesting that this Court abate the

appeal and remand the case to the trial court for a hearing on the issue of the lost

exhibits. On December 2, 2010, we abated the case and remanded it to the trial court

2
The official court reporter certified that the exhibits constituted “true and correct duplicates of the
original exhibits, excluding physical evidence, offered into evidence during the trial proceedings. . . ."

3
to conduct a hearing pursuant to Texas Rule of Appellate Procedure 34.6. See TEX. R.

APP. P. 34.6.

The trial court held a hearing regarding the lost exhibits on February 14–15,

20113 to determine: (1) whether Garza had timely requested the reporter’s record; (2)

if, without the fault of Garza, a significant exhibit or a significant portion of the court

reporter’s notes and records had been lost or destroyed; (3) if the lost or destroyed

exhibits were necessary to the appeal’s resolution; and (4) if the lost or destroyed

exhibits cannot be replaced by agreement of the parties or with a copy determined by

the trial court to accurately duplicate with reasonable certainty the original document.

See id. After hearing evidence concerning the lost or destroyed exhibits, the trial court

made the following findings:

A. The Court finds that the exhibits that were offered and admitted into
evidence with the Trial Court are lost or misplaced and that Ms.
Sheila Heinz has exercised reasonable efforts and diligence in
searching for the lost or misplaced exhibits, and in spite of Ms.
Heinz’s diligent efforts to do so, has been unable to find them.

B. The court finds that the record that Ms. Sheila Heinz filed with the
Court of Appeals on March 1, 2010 is complete, except for the
missing exhibits.

C. The Court finds from the testimony of the witnesses that the record
prepared and filed by Ms. Sheila Heinz contains testimony from the
trial witnesses that describe the missing exhibits.

D. The Court finds that the exhibits were not lost or misplaced by fault
of either [Garza] or [the State] in this case.

E. The Court finds that [Garza’s] request for an appellate record
included copies of the trial exhibits.

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The hearing to determine whether Garza was entitled to a new trial due to the lost exhibits was
held in the 332nd District Court with the Honorable Mario E. Ramirez presiding. Garza’s trial was held in
the 206th District Court with the Honorable Rose Guerra Reyna presiding.

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F. The Court finds that [Garza] and [the State] are not in agreement as
to substitution of copies of lost or misplaced exhibits.

G. The Court finds that the exhibits offered and admitted during the
hearing are copies that accurately duplicate with reasonable
certainty the original exhibits.

H. In particular, the Court further finds that the following exhibits
offered and admitted by the Court accurately duplicate with
reasonable certainty the original exhibit, as follows:

i. State’s Exhibit 1/B—Sexual Assault Nurse Examiner
(Estrella’s House)

ii. State’s Exhibit 2/C—Notice of Filing and attached
Medical Records

iii. Defendant’s Exhibit 1/State’s Exhibit D—Letter dated
1/7/09

iv. State’s Exhibit 9/E—Peer Review Article (Anogenital
Trauma in Sexually Abused Children)

v. State’s Exhibit 12/F—Pen Packet (Affidavit of
Vanessa Jones with attached records)

I. The Court further finds that the photograph’s [sic] marked, offered
and admitted as State Trial Court Exhibit’s [sic] 3, 4, 5, 6, and 7,
were not found and copies were not available to accurately
duplicate with reasonable certainty the original exhibit, but are
described in the transcript prepared by Ms. Sheila Heinz, and are
not necessary to the appeal’s resolution.

J. The Court further finds that licensure credentials pertaining to
Johnsett Cavazos Reyna marked, offered, and admitted as State
Trial Court Exhibits 10, 11, and Defendant’s Trial Court Exhibit #2,
were not found and copies were not available to accurately
duplicate with reasonable certainty the original exhibits, but are
described in the transcript prepared by Ms. Sheila Heinz, and are
not necessary to the appeal’s resolution.

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On March 17, 2011, Regina Vasquez, the court reporter who recorded the rule 34.6

hearing, filed a reporter’s record of the February 14–15 proceeding along with the

duplicate exhibits referenced above in the trial court’s findings.

II. MISSING EXHIBITS

By his first issue, Garza contends that the trial court committed reversible error

by determining that certain lost exhibits have been accurately duplicated with

reasonably certainty and that the exhibits that were not duplicated were not necessary

to a resolution of this appeal. Garza alleges that loss of the exhibits requires automatic

reversal of his conviction and remand for a new trial.

A. Applicable Law

An appellant is entitled to a new trial due to a missing record when: (1) the

appellant has timely requested the reporter’s record; (2) a significant exhibit or a

significant portion of the court reporter’s notes and records has been lost or

destroyed without the appellant’s fault; (3) the lost or destroyed portion of the reporter’s

record or exhibit is necessary to the appeal’s resolution; and (4) “the lost [or]

destroyed . . . portion of the reporter’s record cannot be replaced by agreement of the

parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the

parties or with a copy determined by the trial court to accurately duplicate with

reasonable certainty the original exhibit.” TEX. R. APP. P. 34.6(f).

If the appellant fails to show that the missing exhibits are necessary to resolve

the appeal, a new trial is not required. Routier v. State, 112 S.W.3d 554, 571–72 (Tex.

Crim. App. 2003); Issac v. State, 989 S.W.2d 754, 756–57 (Tex. Crim. App. 1999).

Essentially, our determination of whether the exhibit is necessary to the appeal’s

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resolution is a harm analysis. Routier, 112 S.W.3d at 571–72; Issac, 989 S.W.2d at

757. If the missing exhibit is not necessary for the resolution of the appeal, then the

loss of that exhibit is harmless and a new trial is not required. Routier, 112 S.W.3d at

571–72; Issac, 989 S.W.2d at 757.

B. The February 14–15 Hearing

At the February 14–15 hearing, the State presented testimony from the following

witnesses: (1) Heinz; (2) Erick Palomares, the administrator and custodian of medical

records of Family Practice Center; (3) Elvia Mungia, the SANE, who conducted the

sexual abuse examination of Elizabeth; (4) Carlos Ortegon, Garza’s trial defense

attorney; and (5) Marian Swanberg, an assistant district attorney with the Hidalgo

County District Attorney’s Office. The defense presented testimony from Regina

Richardson, Garza’s co-counsel at trial.

Heinz testified that she was the official court reporter who recorded Garza’s trial

in May 2009. Heinz recalled that during Garza’s trial, various exhibits had been

admitted into evidence, that she took charge of those exhibits, and stored them in her

office. Heinz stated that at the close of the guilt/innocence phase of Garza’s trial, she

provided the exhibits admitted at trial to the jury. She also provided the exhibits to the

jury at the punishment phase of Garza’s trial. Heinz recalled collecting and receiving

the exhibits from the jury at the conclusion of the trial and that she stored the exhibits on

her desk in her office. Heinz did not review the exhibits after putting them on her desk.

Heinz was unable to locate the following State’s exhibits admitted at trial: (1) the

SANE exam report (State’s exhibit 1); (2) Elizabeth’s medical records from 2005 to 2009

(State’s exhibit 2); (3) pictures of different parts of the house where Elizabeth lived

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(State’s exhibits 3–7); (4) a peer review article (State’s exhibit 9); (5) Garza’s pen

packet (State’s exhibit 12); and (6) information regarding defense witness Johnsett

Cavazos Reyna’s New York and Texas nursing licenses (State’s exhibits 10–11). A

demonstrative exhibit used by the State and not admitted into evidence at trial was also

missing. Defense exhibits were also missing, including S.B.’s letter and Reyna’s

temporary license. Heinz explained her efforts in locating the missing exhibits as

follows:

Well, I looked through my entire office here at the courthouse, all the
drawers, all the boxes, through other files that were in my office. I looked
in the storage room that I have here on the second floor. I pulled the
docket of the week that I realized that I needed them, and I looked through
several civil files as well as criminal of everything that I worked on that
week, as it was a very busy week so I had a lot going on. I also looked
through my vehicle. I looked through my house.

According to Heinz, she has continued to look for the missing exhibits, and she has

attempted to replace the missing exhibits by speaking with Ortegon, Richardson, and

Assistant District Attorneys Theodore C. Hake and Swanberg.

Heinz testified that she eventually received the SANE examination report, the

peer review article, and pen packet from Swanberg. Heinz received Defense exhibit 1

(S.B.’s letter) and Elizabeth’s medical records from Ortegon. Heinz understood that the

copies provided to her were fair and accurate duplicates of the exhibits admitted at trial.

Heinz agreed that Garza was not at fault for the loss of the exhibits.

Heinz explained that in her normal procedures, she files copies of the original

exhibits with the court of appeals and she makes two copies of the record. The original

is sent to the court of appeals, and the copy goes to the District Clerk’s office. Heinz

stated that when she filed a supplemental reporter’s record containing copies of the

8
exhibits she acquired from Swanberg and Ortegon with the court of appeals, she

certified that the exhibits attached to the record were true and accurate copies.

On cross-examination, Heinz agreed that she could not independently say that

the copies of the exhibits she filed were not missing any pages or if they were accurate.

When asked if she was able to state whether the copies of the missing exhibits were

accurate or accurately reflected what was introduced at trial, Heinz stated, “No, sir.”

Heinz agreed that Swanberg told her that the documents she provided were duplicates

of the originals and that she based her certification that the copies filed with the court of

appeals were accurate copies of the originals on what Swanberg and Ortegon told her.

Heinz testified that no one has been able to provide copies of: (1) State’s exhibits 3–7,

the pictures of the house; (2) State’s exhibit 8, a demonstrative exhibit not admitted,

which was a picture of a bottle of lubricant; and (3) Reyna’s licenses—State’s exhibits

10–11 and Defense exhibit 2. Heinz stated that no one told her where they acquired the

copies of the exhibits they provided to her.

On re-direct examination, Heinz stated that she made a reporter’s record of the

proceedings in Garza’s trial and that it contains a complete record of the testimony and

of descriptions of the exhibits admitted at trial. She agreed that the record contains the

witnesses’ description of exhibits. On re-cross examination, Heinz again stated that she

had not received Elizabeth’s medical records from Swanberg, but had received them

from Ortegon.

Palomares testified that he received a subpoena in April 2009 regarding

Elizabeth’s medical records and, upon receiving the subpoena, prepared a business

record affidavit, and attached the requested records. Upon request, Palomares brought

9
those records with him to the February 14–15 hearing. After reviewing State’s exhibit 2,

Palomares stated that the documents were copies that he had reviewed and filed in the

trial court and that they fairly and accurately represented the contents of the original file

of those records. Palomares did not testify at Garza’s trial.

On cross-examination, Palomares testified that Elizabeth’s medical records that

he brought with him contained more information because she had continued seeking

medical treatment after Garza’s trial. However, Palomares stated that all of the medical

records that were requested and that he provided for Garza’s trial were included.

Palomares agreed that he could not determine what was actually given to the jury

during Garza’s trial, but Palomares stated, “[T]hat affidavit is the copy that I provided

Ms. Swanberg for—for the case. . . . I just know that there is a mark that—numbers that

go there that are concise [sic] with the number and the sequence of my records. That’s

all I can say.” Palomares agreed that “[a]ll [he] could really testify to is what is in State’s

exhibit 2 is what [he] gave to Ms. Swanberg before the trial of this case . . . .”

Palomares testified that he compared State’s exhibit 2 with his own records before the

hearing.

Mungia testified that she was a witness for the State at Garza’s trial. Mungia was

the SANE at Estrella’s House who conducted an examination of Elizabeth and who

prepared a sexual assault medical record pursuant to that examination. Mungia

recalled that her report had been admitted into evidence at Garza’s trial and that State’s

exhibit 1 appeared to be the same document that was admitted at trial. Mungia recalled

testifying about the findings of her examination and the protocol used to make the

examination. Mungia also testified regarding Elizabeth’s medical records that were

10
offered and admitted into evidence. Mungia had reviewed copies of those medical

records before the hearing and agreed the copies appeared to be the same records that

she reviewed during her testimony. Mungia stated that the copy of her report did not

have any changes, discrepancies, or edits. Mungia agreed that during Garza’s trial, she

testified about her findings and her conclusions.

On cross-examination, Mungia testified that she brought her file to the hearing.

Mungia did not conduct any cultures or lab work in this case. Mungia was certain that

she had not done the cultures or lab work in this case because Elizabeth told her she

had already been to the doctor; therefore, there was no reason to repeat those tests.

According to Mungia, Elizabeth could only answer some questions and was unable to

answer many of her questions. Mungia agreed that Elizabeth had difficulty explaining

her medical history and her symptoms. When asked if Elizabeth could have been

mistaken that she had other lab work done, Mungia replied, “No. She could tell me

what had happened. She couldn’t tell me dates. She couldn’t tell me things like that,

names of the doctor maybe, but she could tell me blood was drawn, urine was obtained,

[and] that she was taking medicine. Things like that she could tell me. It was when I

asked dates and things like that that she could not tell me.” Mungia did not

independently obtain the records of those tests before Garza’s trial. However, before

she testified at Garza’s trial, those records were presented to her so that she could

review them. Mungia clarified that she reviewed Elizabeth’s medical records for the

trial. Mungia testified that Elizabeth’s prior medical history was not important for her

examination, findings, and conclusions. Mungia did not count the number of pages in

Elizabeth’s medical records but recalled that there were a lot of pages. Mungia

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reviewed Elizabeth’s records from 2005 until 2009 and “looked at all the different labs

that had been done.” Mungia agreed that she could not state that all of the pages of her

report were admitted at trial. She was only able to state that she has provided exact

copies of the report that was in her file. Mungia could not testify that her report or

Elizabeth’s medical records had not been redacted.

Ortegon stated that he was appointed to represent Garza in this case and acted

as lead counsel. The trial was held in May 2009. Richardson was Ortegon’s co-

counsel. Ortegon testified that he was very familiar with Defense exhibit 1, a letter

written by S.B. Ortegon received the letter from a bondsman, and he showed it to

Garza. The letter was admitted into evidence at trial. When asked if the copy of the

letter given to Heinz appeared to be any different than the letter admitted at trial,

Ortegon responded, “No, none whatsoever. . . . This—this letter is—is exactly what I

remember reading and seeing at the time. . . . And the reason I do is because of the—

the way it is written and its handwriting.” Ortegon stated that the letter he provided is a

duplicate of the original letter admitted into evidence. Ortegon recalled that he cross-

examined S.B. concerning the letter and asked her about the nature and circumstances

in which the exhibit was created.

Ortegon testified that Heinz contacted him some time after Garza’s trial stating

that some of the exhibits were missing from the record. Ortegon stated that Heinz

asked him if he had copies of the exhibits that were admitted at trial, and he made

copies of what he had and provided them to Heinz. Although Ortegon could not

specifically recall whether he gave Heinz copies of Elizabeth’s medical records, he

thought he may have because he had copies of them. Ortegon stated that he acquired

12
copies of Elizabeth’s medical records from the trial court’s file and that those medical

records were in the court’s and district clerk’s files, making them open records. Ortegon

made copies of Elizabeth’s medical records because he wanted the defense expert to

review them. Ortegon did not object to admission of Elizabeth’s medical records.

Ortegon recalled that Mungia provided testimony regarding Elizabeth’s medical records.

Ortegon called Reyna, a nurse, to testify as an expert witness on behalf of the

defense. Ortegon did not proffer Reyna’s testimony because according to Ortegon,

Garza “had issues” with him and “was attacking him.” Richardson proffered Reyna’s

testimony. Regarding Reyna’s testimony, Ortegon stated, “[W]e did proffer was she a

licensed nurse in the State of Texas, and then there was some issues of the timing. But

that was resolved, where she worked, kind of her biographical information as a

registered nurse.” According to Ortegon, Reyna had a temporary license “because she

was licensed in New York and she was going through—at the time of the testimony, she

was going through the process of becoming licensed in the State of Texas.” Ortegon

did not have copies of Reyna’s credentials.

On cross-examination, Ortegon stated that in Garza’s case, there were no pages

taken out of the exhibits and no redactions. Ortegon explained that the medical records

and SANE report were all admitted and that he has never “seen [a trial] where anything

was [redacted] in [his] 16 trials that [he has] had.” Ortegon testified that specifically in

this case, there were no redactions. Ortegon could not state how many pages of

Elizabeth’s medical records were admitted at trial.

Ortegon recalled that pictures of the rooms of the house were admitted at

Garza’s trial, but he did not object because in his “legal opinion [he did not] think those

13
pictures offered any[thing] highly prejudicial . . . [he] didn’t think the pictures were

prejudicial that would, you know, hurt [Garza’s] defense. It was a picture of the house

and rooms.” Ortegon believed the pictures were relevant because the alleged crimes

were committed in the house.

On re-direct examination, Ortegon recalled that a pen packet was admitted at

Garza’s trial. Ortegon explained that a pen packet is “where the —somebody comes in

from the Texas Department of Corrections and that they identify that it is, in fact, the

same person who has been in jail.” The State showed Ortegon State’s exhibit 12,

Garza’s pen packet, and Ortegon stated, “This is basically where it shows a picture of,

at one time, when Mr. Garza was a young man and then the judgment, what was the

plea, the years of confinement and the formal language that’s in the Code of Criminal

Procedure that—that is here, part of the conviction and sentence that is signed by the

judge.” Ortegon said that the picture included in the pen pack was of Garza. Ortegon

testified that the pen packet was an exact duplicate of the original admitted at trial.

Ortegon recalled that Garza pleaded “true” to the State’s enhancement allegation.

Swanberg testified that she was the lead prosecutor in Garza’s case. Swanberg

recalled that sometime after Garza’s trial, Heinz notified her that exhibits were missing

from the record and requested Swanberg’s assistance in duplicating those exhibits.

About a year after the trial, Swanberg provided to Heinz duplicate copies of the SANE

report and a duplicate copy of a peer review article. Swanberg testified that the peer

review article, marked State’s exhibit 9, considered a learned treatise, was a “duplicate,

accurate—exact duplicate of what was offered and admitted into evidence during the

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trial.” Swanberg stated, “The purpose of this document was to make the jury aware of

anal trauma and the recovery process of having experienced anal trauma.”

Swanberg testified that she subpoenaed and received Elizabeth’s medical

records and those records were filed with the District Clerk on May 4, 2009. Heinz

informed Swanberg that all of the exhibits had been lost, including Elizabeth’s medical

records. Swanberg stated that the copy of Elizabeth’s medical records provided to

Heinz was a “fair and accurate copy” of the records admitted at trial. When asked if she

had a “reasonable certainty” that the SANE report provided to Heinz was a duplicate of

the original that was admitted at Garza’s trial, Swanberg said, “Yes. This is an accurate

duplicate of the original.” Swanberg remembered that Garza’s pen packet was admitted

into evidence. She reviewed Garza’s pen packet and agreed that it appeared to be a

duplicate of the same exhibit that was admitted into evidence. Swanberg identified

Garza as the person depicted in the picture located in the pen packet. Swanberg

testified that Defense exhibit 1, S.B.’s letter, was admitted at trial, and she agreed that

there was a “reasonable certainty that these duplicate those original exhibits.”

Swanberg stated that none of the exhibits were redacted at trial. According to

Swanberg, any redactions in the evidence would have been documented in the

reporter’s transcript of the trial.

Swanberg took photographs of the interior of Elizabeth’s residence before

Garza’s trial began. Swanberg recalled that two of the photographs were of the living

room, one picture of the kitchen, a picture of the bathroom, and a picture of the

bedroom Elizabeth shared with S.B. Swanberg took the pictures “sometime after the

criminal investigation was completed.” Swanberg had printed the pictures at a local

15
drugstore and had deleted them after the trial. Swanberg did not have copies or

duplicates of the pictures, which had been stored on electronic digital media. Swanberg

stated that the pictures were “used just to show the jury . . . where this had taken place

so they’d have an idea.” When asked if the pictures were “for demonstrative and

illustration purposes”, Swanberg replied, “Primarily, yes.” Swanberg recalled that

Elizabeth and S.B. had described the rooms when they testified.

Swanberg recalled that Mungia testified regarding her examination of Elizabeth

and referred to and described notes or conclusions she made in her SANE report.

Swanberg was unable to locate Reyna’s licensing information admitted at trial.

Regarding the exhibit that was used for demonstrative purposes, Swanberg stated:

That exhibit was of a—the victim, [Elizabeth], had described to me
that [Garza], the defendant, would put white medicine on her. And she
had pointed to a Germ-X bottle in my—my office saying that this was the
white medicine—it looked like that white medicine.

So I did—I did a search trying to find—I—based upon what she had
told me when I went to her home to take those photographs, I asked her
where this white medicine was. She said that [Garza] still had it, he took
it—he would always hold—have it in his pocket.

And it was so big (indicating). It was kind of small and it would—
was blue—had a blue top, and it would open from the top and that there
was a woman’s face on the—on the bottle. She had orange hair and
some other colored hair. And it said raspberry or strawberry. So based
upon what she had told me, it was lubrication.

....

So I had gone to several different places and looked and looked
and I couldn’t find it. Finally, I was able to find it on drugstore.com, printed
it out, and I used that.

And what—she had not seen it before trial. When she was on the
stand, I used that as demonstrative evidence, and she was able to identify
that that was the white medicine that the defendant would put on her.

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According to Swanberg, Elizabeth described the product to the jury before she showed

it for demonstrative purposes.

On cross-examination, Swanberg stated that she did not proffer the picture of the

lubricant as evidence because it was used to “demonstrate to the jury that this thing—

that the defendant obviously used lubrication.” Swanberg said that Elizabeth was able

to describe the lubricant “very clearly.” Swanberg testified that the pictures of the

residence were merely admitted to show the jury where the alleged offenses occurred.

Swanberg explained, “I think they were used for illustrative purposes, so they—you can

just—the jury could see where this had taken place, not necessarily to corroborate or

substantiate her testimony. She was clearly able to testify to all of that without the use

of the—the pictures of the bottle or that of the picture of the—of the house.”

Swanberg acquired the pen packet from the Texas Department of Criminal

Justice, and she did not have a copy of it in her file. Swanberg stated, “[I]t is an

accurate duplicate of what was offered and admitted into evidence back in the trial—

during the trial.” Swanberg did not make a copy of the pen packet when she originally

offered it into evidence during Garza’s trial. When asked if she could be sure that the

pen packet was exactly what the jury saw, Swanberg said, “I know it is because it’s the

same thing received from TDCJ.” Swanberg stated that she recognized “everything”

included in the pen packet. Swanberg recalled that the offense Garza had been

convicted of committing was possession of a controlled substance in Cameron County,

Texas. However, Swanberg could not recall the trial court’s cause number or the exact

number of pages included in the original exhibit. Swanberg insisted that the copy was

17
the “same thing” she previously received from TDCJ “[b]ecause the TDCJ, when we

requested Pen Packets, they always contain the—the exact same thing. The only thing

that was in addition to that, that was stapled separately, once I received it recently, was

his latest conviction.”

Richardson testified that she was present for Garza’s entire trial. Richardson

recalled that the SANE report and Elizabeth’s medical records were admitted at trial.

However, Richardson could not recall whether there were any redactions made or how

many pages were admitted. On cross-examination, Richardson stated that discussions

at trial regarding redactions would be on the record but outside the presence of the jury.

Richardson did not recall whether any discussions concerning redactions occurred.

Richardson recalled that an article had been admitted into evidence, but she could not

remember the name of the article or who had written it. Richardson believed it was

possible that some of the pages had been redacted, but she did not recall. Richardson

stated that the pictures of the residence were significant to proving the case against

Garza and were “instrumental in the deliberations.”

Richardson recalled that the State objected to Reyna’s qualifications.

Richardson explained:

It was a highly contested issue that, in my opinion, caused some
confusion with the jury. There was an issue about the—the transfer and, I
guess, interim licensing before final licensing in another state when you
are properly licensed in one. And I believed at the time the State
continuously affirmatively stated that she was not licensed, she was
practicing without a license in the State of Texas. And that was repeated
time and time again, same question, and it was answered the same way,
and the way that we were able to establish that she, in fact, was licensed
was by producing—I—I want to say it was her certificate or—we were able
to obtain a copy of—of something that substantiated that she was licensed
in the State of Texas.

18
Richardson testified that Defense exhibit 2, Reyna’s temporary license, was important in

order to establish Reyna’s credibility.

C. Copies of Lost Exhibits

After the February 14–15 hearing, the trial court determined that several of the

lost exhibits were replaced by copies that accurately duplicated with reasonable

certainty the original exhibits. See TEX. R. APP. P. 34.6(f). Those exhibits included: (1)

the SANE report; (2) Elizabeth’s medical records; (3) the peer review article offered by

the State; (4) Garza’s pen packet; and (5) S.B.’s letter to Garza. Garza first complains

that the trial court erred in making its determination that those copies accurately

duplicated with reasonable certainty the original exhibits. Garza generally complains

that the duplicate exhibits are not accurate; however, Garza does not provide specific

examples of any inaccuracies in those exhibits. See Routier, 112 S.W.3d at 569 (“A

global complaint that the entire record is inaccurate, in light of the procedures used in

the profession and in the absence of any specific examples of inaccuracies, is not

sufficient for us to conclude that the record is inaccurate.”).

Moreover, Texas Rule of Appellate Procedure 34.6(f) gives the trial court

discretion to determine that lost exhibits may be replaced with copies if it determines

that the copies accurately duplicate with reasonable certainty the original exhibits. See

TEX. R. APP. P. 34.6(f). As the Texas Court of Criminal Appeals explained:

[I]n Broussard v. State, 471 S.W.2d 48 (Tex. Cr[im]. App. 1971), the
[Texas] Court [Criminal Appeals] . . . approved the substitution of a lost
portion of a record. After the defendant had been convicted and
punishment assessed, the State pointed out to the trial court that the
original indictment had been lost. In response, the trial court issued an
order declaring that the original indictment had been lost or misplaced and

19
 ordered that another be substituted for it in the record. The only difference
between the two indictments, according to the [trial] court’s order, was that
the substituted indictment did not contain the signature of the grand jury
foreman. On appeal, the defendant in Broussard contended that the
appellate record did not contain either “an indictment nor a legally
substituted copy of the indictment. . . .” Id. at 49.

Recognizing the applicability of both Article 40.09(7), [], and Article 44.11,
[], the [court of criminal appeals] rejected the appellant’s contention that
the record was incomplete. The Court stated: “[u]nder 44.11, the trial
court may make substitutions for lost or destroyed documents, and under
40.09, Sec. 7, his findings, if supported by evidence at the hearing, are
final.” Id. at 50.

Harris v. State, 790 S.W.2d 568, 576 (Tex. Crim. App. 1989), disavowed on other

grounds, Snowden v. State, No. PD-1524-10, 2011 Tex. Crim. App. LEXIS 1321, at *17

(Tex. Crim. App. Sept. 28, 2011); see Routier, 112 S.W.3d at 570 (“We have noted

before that the cases under former versions, including Article 40.09 of the Code of

Criminal Procedure, are still helpful and that the principles underlying these former

versions apply to the newer rules.”). In Harris, the court of criminal appeals stated that

a trial court has the responsibility to make the record speak the truth and is authorized

by the rules of appellate procedure to make a substitution for a lost portion of the

record. Harris, 790 S.W.2d at 576. The Harris court then overruled the appellant’s

challenge to the trial court’s substituting a lost jury charge with a replacement that was

“substantially the same as that given the jury.” Id. The court rejected the appellant’s

argument that the charge as substituted must be in the exact language of the lost

charge and concluded that “the law requires no more than that the charge be

substantially the same as the instruction shown to be lost.” Id.

In this case, we are not faced with replacements of the original exhibits that are

merely substantially similar. Instead, the trial court heard evidence, as set out above,

20
that the copies of the SANE report, Elizabeth’s medical records, the peer review article,

Garza’s pen packet, and S.B.’s letter provided to Heinz were exact duplicates of the

original exhibits admitted at trial. It also heard evidence that there were no redactions

made at Garza’s trial to any of the evidence. Therefore, because the trial court’s

determination is supported by the evidence presented at the February 14–15 hearing,

we cannot conclude that it abused its discretion in determining that the copies of the

SANE report, Elizabeth’s medical records, the peer review article, Garza’s pen packet,

and S.B.’s letter provided to Heinz accurately duplicated with reasonable certainty the

original exhibits. See TEX. R. APP. P. 34.6(f); Routier, 112 S.W.3d at 568 (concluding

that the evidence supported the trial court’s finding that tapes used to replace the

missing portions of the record were accurate and acknowledging that the trial court’s

findings are entitled to deference). We overrule Garza’s first issue as to those exhibits.

D. Missing Exhibits

Next, Garza argues that the trial court erred in finding that the exhibits that are

still missing from the record are unnecessary to a resolution of this appeal. Specifically,

Garza complains that this Court is unable to review the pictures of Elizabeth’s

residence, the picture of the lubricant, and the documents relating to Reyna’s license in

order to conduct a sufficiency review and that “appellate counsel is unable to determine

if an objection should have been lodged [by trial] counsel that would have shown

ineffective assistance of counsel.”

Our sufficiency review, which we will conduct infra section III, requires us to view

the evidence in the light most favorable to the prosecution and determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

21
reasonable doubt.4 Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010)

(plurality op.) (explaining that under the Jackson standard, we consider “all of the

evidence in the light most favorable to the verdict,” and determine whether the jury was

rationally justified in finding guilt beyond a reasonable doubt); see Jackson v. Virginia,

443 U.S. 307, 319 (1979). Therefore, the lost exhibits would be relevant to our review

only if they supported one of the elements of the charged offense. See Brooks, 323

S.W.3d at 898–99. However, as set out below in part III, we conclude that, even without

the missing exhibits, the evidence is sufficient to support the jury’s verdict. Thus, the

missing exhibits are unnecessary for our sufficiency review.

Next, Garza generally complains that the missing exhibits are needed in order to

determine whether his trial counsel provided ineffective assistance by not objecting to

those exhibits. Garza’s trial counsel offered Reyna’s temporary license; therefore, there

would have been no objection from Garza’s trial counsel regarding that exhibit. And,

Garza’s trial counsel did object to the State’s introduction of information regarding

Reyna’s license in New York and in Texas and to the State’s use of the picture of the

lubricant for demonstrative purposes. Therefore, there would be no reason for this

Court to determine that trial counsel was ineffective in failing to object to the admission

of that evidence.

Regarding the pictures of the rooms in Elizabeth’s house, the trial court heard

testimony from Ortegon that he believed they were admissible and from Swanberg that

4
A factual sufficiency review required examining all of the evidence, both for and against the
finding, in a neutral light, and determining whether the jury's verdict is either “clearly wrong and manifestly
unjust” or “against the great weight and preponderance of the [conflicting] evidence.” Brooks v. State,
323 S.W.3d 893, 899 n.12 (Tex. Crim. App. 2010) (plurality op.). However, we no longer engage in a
factual sufficiency review and must only conduct a legal sufficiency review. See id.

22
she utilized the pictures to show the jury where the events allegedly occurred. As the

trier of fact, the trial court was free to believe this testimony. A photograph is admissible

if a verbal description of what is depicted in the photograph is also admissible. Lewis v.

State, 676 S.W.2d 136, 140 (Tex. Crim. App. 1984) (citing Harris v. State, 661 S.W.2d

106 (Tex. Crim. App. 1983)). Garza points to no rule, and we find none, that would

have rendered testimony describing the rooms of the home inadmissible. Furthermore,

given Elizabeth’s detailed description of the sex acts, Mungia’s testimony that Elizabeth

had been vaginally penetrated, and S.B.’s testimony that she witnessed Garza having

anal sex with Elizabeth, we cannot conclude that Garza was harmed by the trial court’s

determination that the pictures of the house were unnecessary to the resolution of this

appeal. See Routier, 112 S.W.3d at 571–72; Issac, 989 S.W.2d at 757 (stating that our

determination of whether the exhibit is necessary to the appeal’s resolution is basically

a harm analysis). We overrule Garza’s first issue.

III. SUFFICIENCY OF THE EVIDENCE

By his fourth issue, Garza generally states that he is challenging the sufficiency

of the evidence on all eight counts. However, Garza only specifically attacks the

sufficiency of the evidence supporting counts one and two (aggravated sexual assault of

a disabled individual), counts five and seven (sexual assault of a child), and count

sixteen (indecency with a child by touching). Garza challenges the evidence supporting

the findings that: (1) Elizabeth was a disabled individual; (2) he penetrated Elizabeth’s

sexual organ with his sexual organ; (3) the penetration occurred without Elizabeth’s

consent; and (4) he penetrated Elizabeth’s anus with his sexual organ. Garza also

specifically challenges the sufficiency of the evidence to show that he contacted

23
Elizabeth’s sexual organ with his mouth. Garza does not specifically challenge any of

the other elements of the various offenses. Therefore, to the extent that Garza attempts

to challenge the other elements of the offenses, we conclude that he has not adequately

briefed those issues for our review, and we will not address them. See TEX. R. APP. P.

38.1(i).

A. Standard of Review and Applicable Law

In a sufficiency review, we examine the evidence in the light most favorable to

the verdict to determine whether any rational fact-finder could have found the essential

elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks,

323 S.W.3d at 898–99. The fact-finder is the exclusive judge of the facts, the credibility

of witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We

must resolve any evidentiary inconsistencies in favor of the judgment. Id.

We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). Under a hypothetically correct jury charge, in order to

convict Garza of aggravated sexual assault of a disabled individual as charged in the

indictment, the State must have proven beyond a reasonable doubt that Garza: (1)

intentionally or knowingly; (2) caused the penetration of the sexual organ and anus of

Elizabeth with his sexual organ; (3) without her consent; and (4) Elizabeth was a

disabled individual. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(c). To prove

that Garza committed the offense of sexual assault of a child, as charged in the

indictment, the State had to prove beyond a reasonable doubt that Garza intentionally

24
or knowingly caused the penetration of the anus of Elizabeth by his sexual organ;

caused the penetration of the mouth of Elizabeth by the sexual organ of Garza; and

caused the sexual organ of Elizabeth to contact the mouth of Garza. See id. §

22.011(a)(2).5

B. Disabled Individual

Because the State charged Garza with aggravated sexual assault, it had to prove

beyond a reasonable doubt the aggravating factor—that Elizabeth was a disabled

individual. A disabled individual “means a person older than 14 years of age who by

reason of age or physical or mental disease, defect, or injury is substantially unable to

protect himself from harm or to provide food, shelter, or medical care for himself.” Id. §

22.04(c) (4) (West Supp. 2011); see id. § 22.021(b)(2).

Laura Cura, the educational diagnostician at Elizabeth’s school, testified that

Elizabeth qualified for special education classes because she is mentally retarded.

Cura explained that people who are mentally retarded are not able to function as an

average person because it affects knowledge, perception, decision making, and

judgment. Cura stated that people with this disability are easily persuaded, “may be a

little gullible,” and are infantile. According to Cura, Elizabeth suffers from mild mental

retardation which causes her to have difficulty learning to read and write. Cura

described Elizabeth as infantile with the mind of a younger child and not able to make

logical decisions. Cura explained that due to her disability, Elizabeth may not make

5
Although Garza generally alleges that he is challenging his conviction on count sixteen,
indecency with a child by contact, he does not provide any argument or citation to authority regarding that
count. Therefore, to the extent that he attempts to challenge that conviction, we will not address that
issue. See TEX. R. APP. P. 38.1(i).

25
appropriate decisions and may just follow someone else’s lead. Cura agreed that

Elizabeth was unable to protect herself from harm due to her disability. According to

Cura, it is difficult for Elizabeth to take care of herself, feed herself, and make decisions

on a daily basis. Cura stated that Elizabeth would need services from agencies to help

her with job skills and that she would need to find a job, such as constructing pizza

boxes or sorting clothes, suited to her disability. Cura did not believe that Elizabeth was

sophisticated. Viewing the evidence in the light most favorable to the prosecution, we

conclude that Cura’s testimony supports a finding that Elizabeth was a disabled

individual.

B. Penetration

Any penetration, no matter how slight, is sufficient to satisfy the requirements of

the aggravated sexual assault statute. Cowan v. State, 562 S.W.2d 236, 238 (Tex.

Crim. App. 1978); Murphy v. State, 4 S.W.3d 926, 929 (Tex. App.—Waco 1999, pet.

ref’d); see also Vernon v. State, 841 S.W.2d 407, 408–10 (Tex. Crim. App. 1992).

Penetration may be proved by circumstantial evidence. Villalon v. State, 791 S.W.2d

130, 133–34 (Tex. Crim. App. 1990); Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim.

App. 1972). Contact with the female sexual organ in a manner a reasonable person

would consider more intrusive than contact with the outer vaginal lips constitutes

penetration. Vernon, 841 S.W.2d at 409. Penetration of the vaginal canal is not

required. See id.

Here, Elizabeth testified that Garza told her to lie down on the floor and pick up

her legs. Elizabeth said that Garza then took off her pants and his pants and “almost

put his thing on my pussy.” She was not asked to clarify what she meant by this

26
testimony. While testifying, Elizabeth repeatedly stated that Garza put his thing “on” her

butt; however, when asked to clarify, Elizabeth explained that Garza’s penis was in her

butt where she goes “poo poo” and that it hurt.

S.B. testified that on one occasion, she saw Garza putting “the thing where he

pees” in Elizabeth’s “bottom.” According to S.B., Garza and Elizabeth then pulled up

their pants and looked surprised.

Mungia testified that Elizabeth told her that she had never had “voluntary sexual

intercourse.”6 When Mungia asked Elizabeth if there was a history of sexual abuse,

Elizabeth said, “[Y]es with Dennis.” Mungia stated that Elizabeth told her that Garza

had penetrated her butt; however, Mungia concluded that “because of her mental

condition,” Elizabeth “did not know where she had been penetrated.” Mungia

elaborated: “Because of [Elizabeth’s] mental capacity, I don’t believe that she knew

where she was being penetrated. Maybe she was being penetrated anally but I couldn’t

tell. That’s where she said she was being penetrated. What I could tell is that she had

some penetration in her vaginal area.” Mungia testified that Elizabeth did not know

what a vagina was and that it was possible that she mistakenly believed Garza was

inserting his penis into her anus every time he assaulted her because he was “coming

from behind her.” On cross-examination, Mungia stated that “it surprised [her] that

[Elizabeth] didn’t tell [her] there was vaginal intercourse when [she] had a finding in the

vagina.”

6
On cross-examination, Mungia clarified that she asked, “[H]ave you ever had sex with anybody
willingly,” and Elizabeth replied, “[N]o.”

27
 Mungia saw injury to Elizabeth’s hymen. She stated, “There was a place which

at one time or another had torn and had healed but it didn’t heal back together, it was

separate.” Mungia said that in her professional opinion, the injury to Elizabeth’s hymen

indicated that penetration had occurred. Mungia stated that the tear to Elizabeth’s

hymen was consistent with a penis penetrating Elizabeth’s vagina from behind her.

Mungia explained that the hymen is beyond the labia major or outer lips of the vagina.

Mungia stated that after reviewing Elizabeth’s medical records, she noticed that

Elizabeth had suffered from a urinary tract infection on April 18, 29, and May 20, 2008.

Mungia explained that if Elizabeth had been anally penetrated, the bacteria located

there could have caused the urinary tract infections if Garza either “rubbed or

introduced his—his penis into the vagina. . . .” Mungia stated that in order to cause the

urinary tract infection, the penis would have first penetrated the anus and then must

have gone “through the vaginal area.” Mungia opined that Elizabeth’s urinary tract

infections were not due to sanitary issues.

Mungia testified that Elizabeth told her that Garza “makes her kiss his thing and

that he puts his thing into her back.” Mungia stated that Elizabeth claimed that it

happened “many times.” However, Elizabeth was unable to tell Mungia when these

events occurred. On cross-examination, Mungia testified that Elizabeth told her she

had been “anally abused” and penetrated.

Viewing the forgoing evidence in the light most favorable to the verdict, we

conclude that a rational fact-finder could have found beyond a reasonable doubt that

Garza penetrated Elizabeth’s anus and vagina with his sexual organ. Jackson, 443

U.S. at 319; see Brooks, 323 S.W.3d at 898–99.

28
C. Without Consent

The State charged Garza with aggravated sexual assault on counts one and two.

Therefore, it had to prove beyond a reasonable doubt that the acts occurred without

Elizabeth’s consent. See TEX. PENAL CODE ANN. § 22.021. A sexual assault is without

the person’s consent if “the actor knows that as a result of mental disease or defect the

other person is at the time of the sexual assault incapable either of appraising the

nature of the act or of resisting it.” See id. § 22.011(b)(4).

According to the testimony at trial, Garza lived with Elizabeth and took a

substantial interest in Elizabeth’s education. Amy Joe Gallegos, Elizabeth’s “contact

special education teacher,” testified that she met Garza when she gave Elizabeth a ride

home. Gallegos stated that Garza asked her a lot of questions concerning Elizabeth’s

classes and that he was “a little upset because she was in some regular classes. . . .”

According to Gallegos, Garza stated that Elizabeth was “slow” and “expressed to [her]

that [Elizabeth] needed to be in a resource science class” and not in a regular education

biology class. Gallegos explained to Garza that resource teachers were no longer

utilized at the high school and assured Garza that a special education teacher would

“go into those [regular] education classes and help her there so that she would be

getting all the needs . . . all the educational needs that she would have, somebody

would go in to her instead of her coming to us.” Gallegos indicated that Garza did most

of the talking and that S.B. merely sat and listened.

Many of the witnesses testified that Elizabeth was slow and did not understand

big words. Mungia testified that Elizabeth did not know what her vagina was. Cura and

Gallegos stated that Elizabeth is mentally retarded.

29
 Furthermore, during her testimony, Elizabeth had difficulty describing the parts of

the body and the sexual acts Garza performed. Mungia testified that Elizabeth did not

know what body part Garza penetrated because he was behind her, and Elizabeth just

assumed he was penetrating her anus on every occasion he initiated the sexual

encounters. Although she was fifteen at the time of Garza’s trial, Elizabeth did not know

the proper terms for the penis and the vagina. Elizabeth referred to Garza’s penis as

his “thing,” and she called her vagina her “pussy” because that is what Garza told her it

was. When describing how Garza’s “thing” appeared, Elizabeth said it looked like a

worm and was hairy like a peach. Elizabeth said she believed Garza when he told her

that medicine came out of his penis that would make her skinny. Elizabeth stated that

when Garza put his penis in her mouth, the medicine would come out. Elizabeth said

she would feel the medicine “like squirting, like water.”

Elizabeth explained that before Garza put his “thing” in her mouth, it was “melted”

and then when he put it in her mouth, it was “strong.” According to Elizabeth, Garza

told her to “[l]ay down as a dog and he puts [sic] his thing on [her] butt . . . so [she] can

get money for the yearbook.” Elizabeth testified that Garza also told her to “lay down

like a dog for [she] can go to [her] friend’s house.” Elizabeth stated that when she

asked Garza for a magazine at a convenience store, he told her “[t]hat if [she] want[ed]

the magazine, [she] have to lay down as a dog and he put his thing on [her] butt.”

When asked what Garza said about telling her mother what they were doing,

Elizabeth replied, “That don’t tell her what I was doing.” Garza also told Elizabeth not to

tell anyone what was occurring. Elizabeth testified that Garza told her that her father

killed her dog “Dotty” with poison. When asked what Garza told her she had to do in

30
order to see Dotty again, Elizabeth responded, “To go—go take a shower one of the

dogs. I go to the rest room and—and let—he puts some pillows on the floor and I do

like a dog and he put the medicine on—on his—no, he didn’t put his medicine on. And

he put it on my butt to make Dotty come to life.” Elizabeth affirmed that she believed

that if she complied with Garza’s instructions, Dotty would come back to life.

Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational fact-finder could have found beyond a reasonable doubt Garza knew that as a

result of mental disease or defect, Elizabeth at the time of the sexual assault was

incapable either of appraising the nature of the act or of resisting it.7 See id. Thus, the

evidence showed that the sexual contact occurred without Elizabeth’s consent.

D. Contact with Mouth

When asked what else Garza did to her “pussy,” Elizabeth replied that “he licks

it.” Garza argues that Elizabeth did not “describe what she meant by licking that would

be specific enough to state what it was with” and that even assuming she meant he

used his tongue, “the statute and the indictment require it be with his ‘mouth’ and that

term was not defined for the jury.” We disagree. A “mouth” is “the cavity bounded

externally by the lips and internally by the pharynx that encloses in the typical vertebrate

the tongue, gums, and teeth.” Johnson v. State, 882 S.W.2d 39, 41 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d); Montoya v. State, 841 S.W.2d 419, 422 (Tex.

App.—Dallas 1992), rev’d on other grounds, 906 S.W.2d 528 (Tex. Crim. App. 1995)

(concluding that the mouth includes the tongue); see also Smith v. State, No. 08-03-

00384-CR, 2005 Tex. App. LEXIS 4203, at *27 (Tex. App.—El Paso 2005, pet. ref’d)

7
We also note that Elizabeth told Mungia she had never engaged in consensual sex with anyone.

31
(mem. op., not designated for publication) (“[C]ommon sense requires that the word

‘mouth’ as used in Section 22.021(a)(1)(B)(iii) must be read to include its parts such as

the tongue.”). Therefore, a reasonable jury could have relied on Elizabeth’s testimony

to find that Garza caused Elizabeth’s sexual organ to contact his mouth.

Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational fact-finder could have found beyond a reasonable doubt that Garza contacted

Elizabeth’s sexual organ with his mouth. See TEX. PENAL CODE ANN. §

22.021(a)(1)(B)(iii).

Having concluded that the evidence is sufficient as to each of the challenged

elements of the respective offenses, we overrule Garza’s fourth issue.

IV. JURY CHARGE ERROR

By his second issue, Garza contends that the trial court erroneously instructed

the jury that Elizabeth was disabled in counts one and two.

Garza complains of the following instruction:

Now if you find from the evidence beyond a reasonable doubt that on or
about DECEMBER 11, 2008, in Hidalgo County, Texas, the Defendant,
DENNIS GARZA, did then and there intentionally or knowingly cause the
penetration of the sexual organ of ELIZABETH, a disabled individual, by
Defendant’s sexual organ, without the consent of the said ELIZABETH,
then you will find the Defendant guilty of the offense of AGGRAVATED
SEXUAL ASSAULT, as charged in the indictment.

According to Garza, this instruction relieved the State of its burden of proving that

Elizabeth was disabled.

By his seventh issue, Garza contends that the trial court reversibly erred by

failing to provide the statutory definition of “without the consent of the other person” in

32
the jury charge for counts one and two. Garza claims that this failure deprived him of

his right to a unanimous verdict causing him egregious harm.

A. Standard of Review and Applicable Law

An appellate court's “first duty” in analyzing a jury charge issue is “to decide

whether error exists.” Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If

error is found, the degree of harm necessary for reversal depends on whether the

appellant preserved the error by objecting to the complained-of instruction. Olivas v.

State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); see Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g). If the defendant properly objected to

the erroneous jury charge instruction, reversal is required if we find “some harm” to the

defendant’s rights. Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743; Almanza, 686

S.W.2d at 171. However, if the defendant did not object, we may only reverse if the

record shows egregious harm to the defendant. Olivas, 202 S.W.3d at 144; Ngo, 175

S.W.3d at 743–44; Almanza, 686 S.W.2d at 171.

In making our determination, “the actual degree of harm must be assayed in light

of the entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at

171; see Garrett v. State, 159 S.W.3d 717, 719–21 (Tex. App.—Fort Worth 2005), aff’d,

220 S.W.3d 926 (Tex. Crim. App. 2007). Jury charge error causes egregious harm to

the defendant if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996) (plurality opinion).

33
B. Discussion

1. Comment on the Weight of the Evidence

The jury is the trier of fact, and the judge is the trier of law who must instruct the

jury as to the law. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). The

jury must then apply the law to the facts. Id. The trial court must deliver to the jury a

written charge “not expressing any opinion as to the weight of the evidence, not

summing up the testimony [or] discussing the facts.” TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007). “A charge that assumes the truth of a controverted issue is a

comment on the weight of the evidence and is erroneous.” Whaley, 717 S.W.2d at 32.

Garza did not object at trial to the instruction, therefore, assuming, without

deciding that the complained-of instruction is error, we must determine whether Garza

suffered egregious harm from the alleged error. Almanza, 686 S.W.2d at 171; see

Garrett, 159 S.W.3d at 719–21. We first consider the alleged error in light of the totality

of the charge. See Almanza, 686 S.W.2d at 171. In this case, the charge made it clear

to the jury that they had to unanimously find that Garza committed aggravated sexual

assault and that a person cannot be convicted of an offense unless each element of the

offense is proved beyond a reasonable doubt. The charge further instructed that the

prosecution has the burden of proving each and every element of the offense charged

beyond a reasonable doubt and that if it failed to do so, acquittal was required. Finally,

the charge accurately described the relevant law and identified the following elements of

aggravated sexual assault, including that the victim must be a disabled individual:

a person commits the offense of Aggravated Sexual Assault if the person
intentionally or knowingly (1) causes the penetration of the anus or female
sexual organ of another person by any means, without that person’s

34
 consent; or (2) causes the penetration of the mouth of another person by
the sexual organ of the actor, without that person’s consent; or (3) causes
the sexual organ of another person, without that person’s consent, to
contact or penetrate the mouth anus, or sexual organ of another person,
including the actor, and the victim is a disabled individual.

The charge as a whole placed the burden on the State and stated that the jury had to

unanimously find the elements of an offense beyond a reasonable doubt. Moreover, the

jury was told that the elements of aggravated sexual assault include proof that the victim

is a disabled individual.

Next, we must consider the state of the evidence and determine whether the

alleged jury charge error related to a contested issue. See Hutch, 922 S.W.2d at 173;

Almanza, 686 S.W.2d at 171. Cura testified that Elizabeth qualified under mental

retardation for special education classes. Cura explained that people who are mentally

retarded are not able to function as an average person because it affects knowledge,

perception, decision making, and judgment. Cura stated that people with this disability

are easily persuaded, “may be a little gullible,” and are infantile. According to Cura,

Elizabeth suffers from mild mental retardation which causes her to have difficulty

learning to read and write. Cura described Elizabeth as infantile with the mind of a

younger child and not able to make logical decisions. Cura explained that due to her

disability, Elizabeth may not make appropriate decisions and may just follow someone

else. Cura agreed that Elizabeth was unable to protect herself from harm due to her

disability. According to Cura, it is difficult for Elizabeth to take care of herself, feed

herself, and make decisions on a daily basis. Cura stated that Elizabeth would need

services from agencies to help her with job skills and that she would need to find a job,

35
such as constructing pizza boxes or sorting clothes, suitable to her disability. Cura did

not believe that Elizabeth was sophisticated.

The State therefore presented probative evidence to the jury that Elizabeth is a

disabled individual. No evidence to the contrary was presented. Moreover, we have

concluded that the evidence is legally sufficient to support the jury’s finding beyond a

reasonable doubt that Elizabeth was a disabled individual.

Next, though Garza challenges the disability finding on appeal, the record and

the statements of trial counsel did not indicate that the status of Elizabeth as a disabled

individual was a contested issue at trial. See Garrett, 159 S.W.3d at 719–21 (finding no

egregious harm in jury charge because “the record and statements of counsel [did] not

indicate that [defendant’s] awareness that Complainant was a firefighter was a

contested issue”). The State did not convey to the jury that it did not have to determine

that Elizabeth was a disabled individual. And Garza did not contest that Elizabeth was

disabled or present any evidence to the contrary at trial. Garza’s theory of the case was

that he did not commit any of the alleged acts. He did not argue at trial that Elizabeth

was not disabled.

Finally, we review counsel’s closing arguments. Regarding the element of

disabled individual, the prosecutor stated, “There’s two here, aggravated sexual assault

of a disabled individual. And I know that you heard it happened more than one time.

So if you believe it happened twice, if you believe that the aggravated sexual assault of

a—of a disabled individual happened more or it happened twice, then that’s why there’s

two separate counts on aggravated sexual assault.” By her statement, the prosecutor

implied that the jury was required to find that two instances of aggravated sexual assault

36
occurred and that the victim was a disabled individual. During his closing argument,

defense counsel stated that Elizabeth and S.B. were “not the most sophisticated people,

they’re a little slow and stuff like that.” Defense counsel did not contest that Elizabeth is

a disabled individual. Instead, defense counsel focused on Elizabeth’s credibility and

whether the acts could have been committed in a small house with various inhabitants

and visitors present during the day.

Although the trial court’s charge included the complained-of instruction, it

properly instructed that the State had the burden of proving beyond a reasonable doubt

all of the elements of the offense and that one of the necessary elements included that

the victim was a disabled individual. The evidence undisputedly showed that Elizabeth

is a disabled individual as defined in the charge. See Garrett, 159 S.W.3d at 719–21.

Therefore, based on the jury charge as a whole and the entire record in this case, we

conclude the record does not show egregious harm. See Olivas, 202 S.W.3d at 144.

The charge error, if any, did not affect the very foundation or basis of his case, deprive

him of a valuable right, or significantly affect his defensive theory that he did not

sexually assault Elizabeth. See Hutch, 922 S.W.2d at 171. We overrule Garza’s

second issue.

2. Statutory Definition of Consent

A trial court must charge the jury on the “law applicable to the case.” TEX. CODE

CRIM. PROC. ANN. art. 36.14. If a phrase, term, or word is statutorily defined, the trial

court must submit the statutory definition to the jury. Alexander v. State, 906 S.W.2d

107, 111 (Tex. App.—Dallas 1995, no pet.); Willis v. State, 802 S.W.2d 337, 342 (Tex.

App.—Dallas 1990, pet. ref’d); see Moore v. State, 82 S.W.3d 399, 408 (Tex. App.—

37
Austin 2002, pet. ref’d). Section 22.011(b) of the Texas Penal Code provides the

statutory definitions establishing when a sexual assault is without consent. See TEX.

PENAL CODE ANN. § 22.011(b).

Because Garza did not object to the charge on the basis that it omitted the

statutory definition of “without consent,” we may only reverse if he suffered egregious

harm from the error. Almanza, 686 S.W.2d at 171. The charge in this case required

that the jury find that Garza committed the offense only if he committed the acts without

Elizabeth’s consent. The charge, however, did omit the statutory definition of “without

consent.” This was error. The statutory definition applicable here is that the contact is

without the victim’s consent if the “actor knows that as a result of mental disease or

defect the other person is at the time of the sexual assault incapable either of appraising

the nature of the act or of resisting it.” See TEX. PENAL CODE ANN. § 22.011.

The theory of Garza’s case was that he did not engage in the sexual acts

alleged, not that Elizabeth consented to those acts. See Hutch, 922 S.W.2d at 171.

Therefore, the omission of the definition of without consent did not significantly affect his

defensive theory. The issue of whether Garza was aware of Elizabeth’s mental defect

was not contested at trial. During closing argument, neither side addressed the issue of

whether Garza was aware of Elizabeth’s mental defect. We have already concluded

that the evidence was sufficient to prove that the sexual acts occurred without

Elizabeth’s consent. Moreover, Mungia testified that Elizabeth said she had not had

consensual sex with anybody. Therefore, based on the jury charge as a whole and the

entire record in this case, we cannot conclude that Garza suffered egregious harm from

38
the omission of the definition of “without consent.” Accordingly, we overrule Garza’s

seventh issue.

V. ADMISSION OF EXTRANEOUS CONDUCT EVIDENCE

By his third issue, Garza contends that the trial court committed reversible error

by admitting unfairly prejudicial evidence of extraneous conduct unrelated to the

charged offenses. Garza states that, pursuant to rules of evidence 403 and 404(b), the

trial court improperly allowed testimony concerning: (1) his texting “sexually suggestive

messages and a photograph to another adult woman”; (2) his demeanor, cursing, and

suspected drug use; and (3) sexual advances he allegedly made toward S.B. See TEX.

R. EVID. 403 (establishing that relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, considerations of undue delay, or needless presentation of

cumulative evidence), 404(b) (setting out that character evidence is generally not

admissible to prove conduct).

The State counters that Garza’s brief is multifarious and that this Court should

overrule his issue on that basis alone. We agree with the State that Garza’s issue is

multifarious. As such, we may refuse to review Garza’s multifarious issue or we may

elect to consider the issue if we are able to determine, with reasonable certainty, the

alleged error about which the complaint is made. Stults v. State, 23 S.W.3d 198, 205

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Shull v. United Parcel Serv., 4

S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). Therefore, we will only

address the alleged errors that we are able to determine with reasonable certainty. See

Stults, 23 S.W.3d at 205; Shull, 4 S.W.3d at 51.

39
 First, regarding the alleged sexually suggestive text messages, Gallegos testified

that Garza called and asked her if she could receive text messages; she told him she

did. According to Gallegos, she then received several text messages from Garza,

which were mostly jokes. Gallegos stated that Garza then sent her a text that he would

be sending her a picture of his sister’s Halloween costume, and she then received a

picture from him. Gallegos did not see the picture; however, the next day, Elizabeth

brought a letter to Gallegos. The State asked Gallegos what was in the letter. Garza

objected on the basis of hearsay. Garza did not object to the testimony on any other

grounds. After the trial court overruled Garza’s hearsay objection, Gallegos stated that

the letter was an apology for any inappropriate pictures that she may or may not have

received from Garza.

To preserve error for appellate review, the point of error on appeal must comport

with the objection at trial. Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Here, Garza did

not object to Gallegos’s complained-of testimony based on rules 403 and 404(b)—the

grounds he urges on appeal—rendered the testimony inadmissible. Therefore, Garza

has not preserved error on those grounds.

Next, Garza complains that the trial court erroneously admitted inadmissible

evidence pursuant to rules 403 and 404(b) during S.B.’s testimony. Garza points to the

following portion of S.B.’s testimony:

[The State]: Okay. Now, was there at any point that [Garza] propositioned you
or discussed something sexual with you?

[S.B.]: Yes.

40
 Q. Okay. What was that?

A. Well, he just got that thing out to suck it.

Q. Did he show it to you?

A. Yes.

Q. And he told you to do what?

A. That I would suck it.

Q. Okay. And what did you do?

A. Well, I would tell him no since he was [my] sister’s boyfriend.

Q. And what would—would he get upset with you when you declined.

A. (Spanish.)

Mr. Ortegon: My objection is the State is leading the witness.

Ortegon did not object to this testimony on the basis that it was inadmissible

pursuant to rules 403 and 404(b). Therefore, the issues brought by Garza on appeal do

not comport with his objection at trial. Accordingly, he has not preserved error. See

Lovill, 319 S.W.3d at 691–92; Pena, 285 S.W.3d at 464.

Regarding evidence of “[his] demeanor, cursing, and suspicions of drug use,”

Garza generally points to multiple pages in the record of testimony from Gallegos,

Martha Robison, a supervisor with Abundant Home Health Care, and Juana Maria

Delaney, S.B.’s former home care provider.8 Citing rules 403 and 404(b), Garza claims

that the trial court improperly admitted evidence; however, he does not specify which

8
In one sentence in his brief, Garza mentions that testimony regarding “[his] demeanor, cursing,
and suspicions of drug use” was improperly admitted. Garza does not specifically state that he is
claiming that the evidence was inadmissible pursuant to rule 403 or rule 404(b) and why. See TEX. R.
APP. P. 38.1(i).

41
evidence, if any, was evidence of extraneous conduct or how it was prejudicial. Garza

also fails to argue how the probative value of any of the complained-of evidence is

substantially outweighed by any unfair prejudice. We are unable to determine the

specific testimony Garza complains of on appeal. Moreover, Garza provides no

discussion or analysis of relevant authorities or the record to support his argument that

in the pages he cites the trial court admitted evidence in contravention of rules 403 and

404(b). Therefore, he has not provided a clear and concise argument concerning his

evidentiary complaints. Accordingly, we conclude Garza’s third issue is inadequately

briefed and, as such, is waived. See TEX. R. APP. P. 38.1(i); see also Colman v. State,

No. 05-04-00146, 2005 Tex. App. LEXIS 10343, at *2 (Tex. App.—Dallas Dec. 13,

2005, pet. ref’d) (not designated for publication) (finding that the appellant’s issue

complaining of rulings on hearsay objections to at least five different statements is

multifarious and presents nothing for review). We overrule Garza’s third issue.

VI. ENHANCEMENT ALLEGATION

By his fifth issue, Garza contends that the evidence at his punishment hearing

was insufficient to support the repeat offender enhancement allegations. The State

counters that Garza pleaded “true” to the enhancement allegations.

The [S]tate has the burden of proof to show the prior conviction was
a final conviction under the law and that appellant was the person
previously convicted of that offense. Augusta v. State, 639 S.W.2d 481,
484 (Tex.[ ]Cr[im.][ ]App. 1982); Harvey v. State, 611 S.W.2d 108, 111
(Tex.[ ]Cr[im].[ ]App. 1981). If, however, a defendant pleads “true” to the
enhancement paragraph the State’s burden of proof is satisfied. The plea
of “true” is sufficient proof. Harvey, supra; Dinn v. State, 570 S.W.2d 910,
915 (Tex.[ ]Cr[im].[ ]App. 1978).

42
Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984) (en banc); see Ex parte

Sewell, 742 S.W.2d 393, 396 (Tex. Crim. App. 1987); Harvey, 611 S.W.2d at 111; Dinn,

570 S.W.2d at 915 (when a defendant pleads “true” to the enhancement paragraph, the

State’s burden of proof is satisfied as the plea of “true” is sufficient proof). In addition, a

defendant who enters a plea of “true” to an enhancement paragraph cannot complain

on appeal that the evidence was insufficient to support the enhancement allegation.

Harvey, 611 S.W.2d at 111. If, however, the record affirmatively reflects that the

enhancement allegation was not true, such as affirmatively reflecting that the judgment

for the enhancement was not final, then a sufficiency of the evidence point can be

raised. Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006).

The State read the following enhancement allegations into the record:

It is further presented in and to said court that prior to the commission of
the aforesaid offense on the 20th day of October 1991 on Cause Number
91-CR-1157-B, in the 138th District Court of Cameron County, Texas, the
Defendant [Garza] was convicted of the felony offense of possession of
controlled substance. And this paragraph, enhancement paragraph, is
assigned to each Cause Number or count, I’m sorry, count number—
Count One, Count Two, Count Five, Count Seven.

....

Count Six, Count Seven, Count Twelve, Count Fourteen and Count
Sixteen.

The trial court asked Garza to enter his plea to the enhancement allegations, and Garza

said, “True.” Here, Garza pleaded “true” to the enhancement paragraph. Thus, the

State met its burden, and Garza cannot now complain that the evidence was insufficient

to support the enhancement allegation. See Wilson, 671 S.W.2d at 525.

43
 Garza argues, however, that there is no evidence that he pleaded “true” to a

“final offense that could be used for enhancement purposes.” Garza further argues,

citing section 12.42(e) of the penal code, there is nothing in the record indicating that his

prior conviction was not a state jail felony, under which no enhancement is allowed.

See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2011). In this case, the record does

not affirmatively reflect that the judgment for the enhancement was not final; therefore,

even under the exception to the general rule, Garza may not raise a sufficiency of the

evidence challenge to the enhancement allegations because he pleaded “true.” See Ex

parte Rich, 194 S.W.3d at 513. Furthermore, the pen packet admitted at the

punishment phase of Garza’s trial states that Garza received a seven-year sentence for

his possession of a controlled substance conviction. The punishment range for a State

jail felony conviction is not more than two years, see TEX. PENAL CODE ANN. § 12.35(a)

(West Supp. 2011); therefore, because Garza received a sentence of seven years’

confinement, the record does not affirmatively reflect that Garza was previously

convicted of a state jail felony.9 See Ex parte Rich, 194 S.W.3d at 513. We overrule

Garza’s fifth issue.

VII. DEFECTIVE INDICTMENT

By his sixth issue, Garza contends that the indictment in this case was defective

because it failed to state an element of the offense. Specifically, Garza argues that due

9
We note that in the pen packet of Garza’s prior conviction of possession of a controlled
substance, there was no deadly weapon finding or a finding that Garza had previously been finally
convicted of any felony “under Section 20A.03 or 21.02 or listed in Section 3g(a)(1), Article 42.12, Code
of Criminal Procedure;” or . . . “for which the judgment contains an affirmative finding under Section
3g(a)(2), Article 42.12, Code of Criminal Procedure.” See TEX. PENAL CODE ANN. § 12.35(c) (West Supp.
2011) (allowing person convicted of a State jail felony to be punished for a third degree felony).

44
to the failure to include the statutory language defining “without consent,” he was

“deprived of his right to a grand jury indictment and due process under both the federal

and [S]tate constitutions because the State was not required to prove all elements

beyond a reasonable doubt.” Garza further argues, without citation to authority, that he

suffered egregious harm due to this omission and that we must reverse his convictions

for counts one and two.

A defendant waives any defect of form or substance in an indictment if an

objection is not made before the date trial commences. See TEX. CODE CRIM. PROC.

ANN. art. 1.14(b) (West 2005); Smith v. State, 309 S.W.3d 10, 18 (Tex. Crim. App.

2010). The failure to recite an element of the offense is a defect of substance. Smith,

309 S.W.3d at 17–18. Therefore, by failing to object before trial on the basis that the

indictment failed to recite an element of the offense, Garza has waived error, if any.

See TEX. CODE CRIM. PROC. ANN. art. 1.14(b); Smith, 309 S.W.3d at 18; Studer v. State,

799 S.W.2d 263, 271 (Tex. Crim. App. 1990); see also Teal v. State, 230 S.W.3d 172,

177 (Tex. Crim. App. 2007) (focusing on whether alleged defect was brought to trial

court’s attention). We overrule Garza’s sixth issue.

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

By his eighth issue, Garza contends that his counsel rendered ineffective

assistance. Specifically, Garza contends that his trial attorneys were ineffective

because they: (1) “fail[ed] to investigate facts and present a plausible defense”; (2)

failed to object to a witness’s statement that allegedly implied that Garza had committed

another offense, to S.B.’s testimony, to Elizabeth’s testimony that he showed her “nasty

pictures,” to admission of the peer review article, and to Elizabeth’s medical records; (3)

45
allowed leading questions during Elizabeth’s testimony10; (4) failed to attack Elizabeth’s

credibility; (5) failed to effectively cross-examine Mungia; (6) failed to request a

competency hearing for Elizabeth; (7) failed to object to the defective indictment; and (8)

allowed the State to attack Garza’s character during the punishment phase of trial.

A. Standard of Review and Applicable Law

Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington. See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999). The Strickland test requires the appellant to show that counsel’s

performance was deficient, or in other words, that counsel’s assistance fell below an

objective standard of reasonableness. Thompson, 9 S.W.3d at 812; see Strickland, 466

U.S. at 687. The appellant must also show that there is a reasonable probability that,

but for counsel’s errors, the result would have been different. Thompson, 9 S.W.3d at

812; see Strickland, 466 U.S. at 694. In determining the validity of appellant’s claim of

ineffective assistance of counsel, “any judicial review must be highly deferential to trial

counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813.

The burden is on the appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Id. Appellant must overcome the strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance

and that his actions could be considered sound trial strategy. See Strickland, 466 U.S.

10
We note that defense counsel objected to the prosecution’s leading questions during
Elizabeth’s testimony and asked for a running objection.

46
at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no

pet.). A reviewing court will not second-guess legitimate tactical decisions made by trial

counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there

is a record sufficient to demonstrate that counsel’s conduct was not the product of a

strategic or tactical decision, a reviewing court should presume that trial counsel's

performance was constitutionally adequate . . . .”). Counsel’s effectiveness is judged by

the totality of the representation, not by isolated acts or omissions. Thompson, 9

S.W.3d at 813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814

(setting out that “in the vast majority of cases, the undeveloped record on direct appeal

will be insufficient for an appellant to satisfy the dual prongs of Strickland”); see Jackson

v. State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994) (en banc) (stating that “we

must presume that counsel is better positioned than the appellate court to judge the

pragmatism of the particular case, and that he made all significant decisions in the

exercise of reasonable professional judgment” and that “[d]ue to the lack of evidence in

the record concerning trial counsel’s reasons” for the alleged ineffectiveness, the court

was “unable to conclude that appellant’s trial counsel’s performance was deficient”)

(internal quotations omitted).

B. Discussion

The record is silent regarding Garza’s trial counsels’ reasons for their acts or

omissions. We conclude that Garza has failed to overcome the strong presumption that

47
trial counsel rendered effective assistance. See Ex parte Martinez, 330 S.W.3d at 901;

Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 814; see also Jackson, 877 S.W.2d at

771–72. Furthermore, although Garza generally claims that trial counsel was

ineffective, he does not provide any argument, with citation to appropriate authority, that

there is a reasonable probability that the result of his trial would have been different but

for trial counsels’ alleged errors. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S.

at 694.11 Garza must make such a showing under the second prong of Strickland. See

466 U.S. at 687. Accordingly, we overrule Garza’s eighth issue.12 See Thompson, 9

S.W.3d at 813 (providing that the burden is on the appellant to prove ineffective

11
Regarding trial counsel’s alleged failure to investigate the facts, Garza cites Lindstadt v. Kean,
239 F.3d 191 (2d Cir. 2001). In that case, the court found that the cumulative errors of defense counsel
caused the appellant to receive ineffective assistance. Id. at 194. The Lindstadt Court determined that
trial counsel had: (1) failed to notice a one-year error in the date of the alleged abuse; (2) made no
effective challenge to the only physical evidence of sexual abuse; (3) “announced in his opening that,
after the close of the state’s case, [the appellant] and counsel would decide ‘whether [the prosecutors]
have proven their case,’ and only ‘if they have made their case’ would [the appellant] testify. [The
appellant’s] testimony in his own defense therefore became an implicit concession that the prosecutor
had ‘made [its] case’”; and (4) allowed exclusion of testimony concerning his defensive theory. Id. Garza
does not allege that any of the above-mentioned acts occurred in this case. Therefore, this case is not
relevant to our analysis.

Garza also cites Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001). In Pavel, the court again
determined that the cumulative effect of trial counsel’s errors caused the appellant to be deprived of
effective assistance. Id. at 216. In that case, at a habeas corpus hearing, the defense counsel stated
that he chose not to present any defense “solely because he was confident that, at the close of the
prosecution’s presentation of its evidence, the trial judge would grant [defense counsel’s] motion to
dismiss the government’s charges against Pavel.” Id. The court further found that the defense counsel
failed to call a medical expert to testify as to the significance of the physical evidence presented by the
prosecution and failed “to introduce any evidence from a disinterested source in support of the theory that
Ms. Pavel was manipulating the boys [accusing Pavel of sexual abuse] was a substantial gap in the
defense’s presentation.” Id. The court concluded that “In light of the cumulative weight of the three
serious flaws in [trial counsel’s] representation of Pavel described above, we hold that [trial counsel’s]
representation did not fall within the Sixth Amendment’s ‘wide range’ of adequate assistance.” Id. Again,
this case is irrelevant to our analysis because Garza does not contend, nor does the record reflect, that
his trial counsel failed to present any defense because they believed the trial court would dismiss the
charges against Garza.
12
We note that Garza does not provide any other authority in support of his argument that the
objections he claims trial counsel should have made would have been meritorious. See Melonson v.
State, 942 S.W.2d 777, 782 (Tex. App.—Beaumont 1997, no pet.).

48
assistance of counsel by a preponderance of the evidence); Bessey v. State, 199

S.W.3d 546, 555 (Tex. App.—Texarkana 2006) (finding briefing waiver where appellant

made no effort to show how record demonstrated prejudice under Strickland’s second

prong), aff’d, 239 S.W.3d 809 (Tex. Crim. App. 2007); Peake v. State, 133 S.W.3d 332,

334 (Tex. App.—Amarillo 2004, no pet.) (overruling the appellant’s ineffective

assistance of counsel claim due to inadequate briefing and noting that the appellate

court has “no duty to unilaterally fill the void appellant left” by his briefing).

IX. CONCLUSION

We affirm the judgment.

_________________
ROGELIO VALDEZ
Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
15th day of March, 2012.

49