Mark Anthony Garza v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00599-CR
Mark Anthony GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-0965
Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 24, 2003

AFFIRMED

Mark Anthony Garza was charged with aggravated sexual assault and two counts of indecency with a child for an alleged incident with a five-year-old boy in the boys' bathroom of a little league park. He was convicted of all three charges and sentenced to life in prison for the aggravated sexual assault and ten and twenty years in prison for the two counts of indecency with a child. He brings seven issues on appeal, arguing that 1) the trial court erred in failing to grant the requested relief in Garza's application for a writ of habeas corpus; 2) the trial court abused its discretion in admitting statements Garza made at the hospital; 3) the trial court violated Garza's double jeopardy rights when it entered a judgment convicting Garza for both aggravated sexual assault and the first count of indecency with a child; 4) the trial court abused its discretion in failing to submit indecency with a child as a lesser included offense; 5) the evidence is legally insufficient to support Garza's conviction; 6) the evidence is factually insufficient to support Garza's conviction; and 7) the trial court abused its discretion in failing to grant Garza's motion to photocopy the juror list.

This case has a unique history--it has been tried twice. The first time, Garza was convicted. He filed a motion for new trial, and the trial court granted the motion. The case was tried again, and again Garza was convicted. It is the second case which is on appeal before us. We affirm the judgment of the trial court.

Writ of Habeas Corpus

Before the second trial began, Garza filed a pre-trial application for a writ of habeas corpus, arguing that a second trial was barred by double jeopardy because it was necessitated by prosecutorial misconduct. The trial court granted the writ and, after an evidentiary hearing, denied the requested relief. Garza appealed the trial court's denial. On appeal, we affirmed the judgment of the trial court, holding:

[T]here [was] no evidence the prosecutor either intended to induce a new trial or was aware of but consciously disregarded the risk that his conduct would require Garza to request a new trial. Indeed, the evidence conclusively establishe[d] that the prosecutor believed the information he initially conveyed to Garza's attorney was correct.

Ex parte Garza, No. 04-01-00454-CR, 2001 WL 1479251, at *1 (Tex. App.--San Antonio Nov. 21, 2001) (not designated for publication).

Prior to the second trial, Garza re-urged his application for a writ of habeas corpus. The trial court adopted the motion, evidence, and rulings from the previous hearing on the writ of habeas corpus, denying the requested relief.

Garza argues on appeal that the trial court erred in failing to grant the requested relief in the re-urged writ of habeas corpus. Garza fails to present, however, any new arguments or evidence for this assertion. Accordingly, we follow our opinion in Ex parte Garza and hold that the trial court did not err in failing to grant the requested relief in the writ of habeas corpus. We overrule Garza's first issue.

Admissibility of the Hospital Statements

Officer Kevin Nogle, who transported Garza to the hospital for testing after Garza was arrested, testified that while he and Garza were in the hospital waiting room, Garza got down on his knees and started praying. Officer Nogle testified that Garza said, "Forgive me, God" and "The devil made me do it." He further testified that Garza made these statements to himself and not in response to any questioning by police officers.

In his second issue, Garza contends that the admission of these statements violates Texas Rule of Evidence 403. We review a trial court's ruling on a rule 403 objection under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh'g). We reverse a trial court's decision only if it lies outside the "zone of reasonable disagreement." Salazar, 38 S.W.3d at 151. When determining whether evidence was properly admitted, the question is not whether the evidence is more prejudicial than probative, but rather, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id; see Tex. R. Evid. 403.

Rule 403 presumes the admissibility of all relevant evidence and authorizes a trial judge to exclude this evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value. Mozon v. State, 991 S.W.2d 841, 847-8 (Tex. Crim. App. 1999). The relevant criteria in determining whether the prejudice of admitting evidence outweighs its probative value include the following: 1) how compellingly the evidence makes a fact of consequence more or less probable; 2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; 3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and 4) the proponent's need for the evidence to prove a fact of consequence--that is, whether the proponent has other probative evidence available to help establish this fact and whether this fact relates to an issue in dispute. Id.

Here, the offered evidence is highly probative of the central issue in dispute--that is, whether Garza committed the crimes of aggravated sexual assault and indecency with a child. Additionally, because the State's case relies heavily on victim identification and circumstantial evidence, the State has a strong need for this evidence. Also, the offered evidence would not tend to impress the jury in an irrational way, because it would not be irrational for a jury to conclude, after hearing that Garza made these statements, that Garza is guilty of charged offense. We conclude, therefore, that there is not a clear disparity between the degree of prejudice of the offered evidence and its probative value. See id. at 847-48. Accordingly, we hold that the trial court did not abuse its discretion in admitting the evidence.

Garza also argues that the admission of the statements he made at the hospital violates the Fifth Amendment to the United States Constitution, article I, section 10 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. Specifically, he argues that the "mob," i.e., the citizens at the ballpark, illegally arrested Garza without a warrant. Had he not been illegally arrested by the mob, Garza argues, he never would have made those statements. We find Garza's argument to be without merit.

First, it is not the Fifth Amendment but the Fourth Amendment that applies to illegal arrests. See U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Thus, Garza failed to properly brief this issue. Tex. R. App. P. 38.1(h). Even if Garza had properly briefed this issue, however, the Fourth Amendment does not apply where there is no state action. Burdeau v. McDowell, 256 U.S. 465, 475 (1921); State v. Comeaux, 818 S.W.2d 46, 49 (Tex. Crim. App. 1991); accord Cobb v. State, 85 S.W.3d 258, 270-71 (Tex. Crim. App. 2002), cert. denied, 537 U.S. 1195 (2003). For the Fourth Amendment to apply, there must be state action by officers of the government or those acting at their direction. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 613-14 (1989). Intrusions by a private party are constitutionally prohibited only "if the private party acted as an instrument or agent of the Government." Id. at 614. Here, the ballpark citizens did not act as an instrument or agent of the government. Rather, they acted on their own initiative. Accordingly, the Fourth Amendment does not protect Garza from the admission of statements allegedly resulting from their actions.

Garza next argues that because he was illegally arrested by the "mob," the admission of the statements he made at the hospital violates article 1, section 10 of the Texas Constitution. Again, Garza failed to properly brief this issue. Tex. R. App. P. 38.1(h). It is article 1, section 9, not article 1, section 10 that applies to illegal arrests. See Tex. Const. art. 1, 9 ("The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches"). Even if Garza had properly briefed this issue, however, there must be state action for article 1, section 9 to apply. Comeaux, 818 S.W.2d at 49. As discussed above, there is no state action here. Thus, article 1, section 9 does not protect Garza from the admission of statements allegedly resulting from the actions of the ballpark citizens.

Garza last argues that the admission of his statements violates article 38.23 of the Texas Code of Criminal Procedure. Article 38.23 provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2003) (emphasis added). Garza has failed to show that the statements he made at the hospital were obtained in violation of any constitutional provision or law. Accordingly, we find that the admission of this evidence did not violate article 38.23.

We overrule Garza's second issue.

Double Jeopardy

Garza was convicted of aggravated sexual assault of a child by penetrating the child's anus with his finger, indecency with a child by touching the child's anus or genitals, and indecency with a child by exposing his genitals to the child. In his third issue, Garza argues that the trial court violated Garza's double jeopardy rights by punishing Garza for both aggravated sexual assault and indecency with a child by touching.

Garza failed to raise his double jeopardy claim at the trial court. Generally, a double jeopardy claim must be raised in the trial court to preserve the error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex. Crim. App. 2000); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex. App.--San Antonio 2002, pet. ref'd.). An appellant may raise a double jeopardy claim for the first time on appeal, however, when 1) the undisputed facts show that any double jeopardy violation is clearly apparent from the face of the record; and 2) enforcement of the usual rules of procedural default serves no legitimate purpose. Gonzalez, 8 S.W.3d at 643; Honeycutt, 82 S.W.3d at 547.

Here, a double jeopardy violation is not clearly apparent on the face of the record. A violation of the double jeopardy clause occurs when the evidence establishes the defendant committed only one offense but he is convicted of both indecency with a child and aggravated sexual assault. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). Evidence of separate and distinct acts, even if committed in close temporal proximity, may lawfully give rise to the two convictions. Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.--Austin 1999, pet. ref'd). For example, in Hutchins, the court held that evidence the defendant touched the victim's genitals with his fingers and penetrated the victim's genitals with his penis established separate and distinct acts that would support multiple convictions. Id. at 633.

In this case, the evidence presented by the State establishes separate and distinct acts that support two convictions. The victim testified that the man who assaulted him touched his "back private part" and scratched his "back private part" before sticking his finger in his "back private part." Additionally, the victim testified that the man who assaulted him squeezed his "front private part."

Because the record shows evidence of at least two distinct acts that support the two convictions, no double jeopardy violation is clearly apparent on the face of the record. Thus, Garza cannot raise this claim for the first time on appeal. We overrule Garza's third issue.

Lesser Included Offense

Garza next argues that the trial court erred in failing to submit the first count of indecency with a child as a lesser included offense of aggravated sexual assault. In order to preserve a claim of error for appellate review in a criminal case, the complaining party must make a timely and sufficiently specific objection or request. Tex. R. App. P. 33.1(a)(1)(A). In order to properly object to the court's proposed charge or request that a particular instruction or question be included in the charge, the defendant must make a written objection or request. Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon Supp. 2003); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Here, Garza did not object to the charge or request an instruction at trial. Instead, he raises the issue for the first time on appeal. Because this is insufficient to preserve error, we overrule Garza's fourth issue.

Legal Sufficiency

In his fifth issue, Garza argues that the evidence is legally insufficient to support his conviction. The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson, 443 U.S. at 320; Johnson, 871 S.W.2d at 186.

The jury is the trier of fact and the ultimate authority on the credibility of witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). It is for the jury as trier of fact to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the jury may give no weight to some evidence, and thereby reject part or all of a witness's testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding jury as judge of credibility may "believe all, some, or none of the testimony"). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

Here, in order to prove aggravated sexual assault, the State had to prove that Garza intentionally or knowingly caused the penetration of the anus of D. M., a child under fourteen years of age. Tex. Pen. Code Ann. 22.021(a)(1)(B)(i), 22.021(a)(2)(B) (Vernon Supp. 2003). Additionally, in order to prove two counts of indecency with a child, the State had to prove (a) that Garza engaged in sexual contact with D. M., a child younger than seventeen, by touching D. M.'s anus or genitals; and (b) that Garza did, with intent to arouse and gratify his sexual desire, expose his genitals to D. M., a child under the age of seventeen, knowing D. M. was present. Tex. Pen. Code Ann. 21.01(2), 21.11(a)(1), 21.11(a)(2)(A) (Vernon Supp. 2003).

Here, the alleged incident occurred in the boys' bathroom of a little league baseball park. Officer Salazar, an off-duty police officer who was coaching a little league game at the time, testified that he got involved in the incident when he was notified by people in the stands that there was a large disturbance in the parking lot. He and Officer Ramirez, another off-duty police officer at the game, went to the parking lot to investigate. When they got there, Officer Salazar observed Garza sitting in a pick-up truck. Several men were trying to get Garza out of the truck, and people were yelling that Garza had assaulted a young boy. Officer Salazar approached Garza, who said that he needed to get out of there. Garza was wearing a t-shirt and baseball cap. Garza appeared scared and did not make eye contact with Officer Salazar. Garza was trying to leave, but couldn't because someone had placed a large cement concrete bag behind his truck. Garza's truck was positioned to face directly into the boys' bathroom.

Officer Salazar talked to the victim's father, who told Officer Salazar that Garza had assaulted his son. Officer Salazar and Officer Ramirez then arrested Garza and waited until on-duty officers arrived, at which point they returned to the game.

Officer Van Zabava, who was on duty the night of the incident, testified that when he arrived at the scene, he conferred with the off-duty officers to establish what was going on. He then separated the crowd and placed Garza in the back of his patrol car. Garza was running his hands through his hair constantly when he was in the back of the patrol car. Officer Van Zabava removed Garza from the patrol car, handcuffed him, and placed him back in the car. Officer Van Zabava then noticed that Garza was rubbing his hands against the back of his jeans and the back of the seat. Garza did this many times. According to Officer Van Zabava, Garza was trying to eliminate evidence by rubbing his hands. Officer Van Zabava then talked to D. M., the victim, a five-year-old boy, who told him that a man had stuck his finger up his butt. Officer Van Zabava also talked to the victim's father, who identified Garza as the man who had assaulted his son. Officer Van Zabava testified that when he stood on the driver's side of Garza's truck, he could see directly into the boys' bathroom.

D. M.'s father testified that he and his family were at the little league park to watch his oldest son play in a little league game. He testified that he and his wife were sitting in the stands with D.M., his youngest son, who was five years old at the time. D. M.'s father was keeping score. D. M. was hungry, so his parents got him some nachos. After D. M. finished eating the nachos, his father told him to go wash up. D. M. didn't come back as quickly as he should have, so his father went to go check on him. His father found him coming around the corner from the bathroom. D. M. was crying and the whole front of him was wet. His father thought he had been playing in water and said, "Son, what's the matter with you?" D. M. replied, "A man stuck his finger in my butt." His father knelt down because he wasn't sure he heard what D. M. said. He asked him again, "What, son?" D. M. said, "A man stuck his finger in my butt." His father said, "Show me that man." His father then saw a man walk out of the bathroom. The man was wearing a white baseball cap and a gray t-shirt. D. M. turned around, pointed right at the man, and said, "Right there, Dad. He's the man with the white baseball cap and the gray shirt on." His father said, "Are you sure, son?" D. M. said, "Yes, sir, I'm sure. That's him." The man, whom D. M.'s father identified in court as Garza, was about thirty feet away. D. M.'s father saw no other men leaving the bathroom during this exchange with his son. He then told D. M. to go back to the stands to his mother.

At this point, D. M.'s father set out to catch Garza, who was walking toward the parking lot at a fast pace. There was a wire cable separating the parking lot from the stadium, and D. M.'s father jumped the cable and met Garza at his truck. Garza was trying to get into his truck. D. M.'s father said, "Stop, wait a minute, wait a minute. My son said you did something to him in the bathroom. I want you to wait while I call, I want to call the police and get this straightened out." Garza said, "No, man. No, man. I have to get the f--- out of here. I have got to get the f--- out of here. I'm late." Garza took his cap off and was running his fingers through his hair. His demeanor was excited and antsy. D. M.'s father tried to call 911 on his mobile phone. Garza got into his truck, started it, and put it into gear. To prevent Garza from leaving, D. M.'s father kept the door open and reached into the truck and hit the shift stick out of gear. Garza continued to try to leave, and D. M.'s father repeated, "No, man, you've got to wait. You've got to wait." D. M.'s father then reached into the truck, turned the key, took the key out, and threw the keys to the ground. Garza jumped to the ground and picked up his keys. D. M.'s father wrestled with him, still trying to call the police. Garza got back in his truck, and D. M.'s father continued to try to prevent him from leaving. D. M.'s mother and others then came running. They pulled D. M.'s father and Garza apart. The police arrived, and D. M.'s father identified Garza to the police. D. M.'s father had a clear view into the boys' bathroom from where Garza's truck was parked.

Officer Kevin Nogle testified that when he arrived at the scene, Garza was already in custody. Office Nogle and another officer transported Garza to the police station and then to the hospital. While he and Garza were in the hospital waiting room, and while Garza was still handcuffed, Garza got down on his knees and started praying, saying "The devil made me do it" and "God, forgive me."

D. M. testified that, on the night of the incident, he was at the little league park with his mom and dad watching his brother play in a little league game. He ate some nachos, and then he went to the bathroom to wash his hands. While he was washing his hands, someone walked up behind him and said, "Drink water." The man showed D. M. how to put his hands in a cup. D. M. did as the man asked and began drinking water, and the man touched his "back private part" with his finger. He scratched D. M.'s "back private part" with his finger. He put his finger inside D. M.'s "back private part." He then touched D. M.'s "front private part" with his hand and squeezed it. After he touched D. M.'s "front private part," D. M. looked at him and saw that he was holding his own "private part" with his hands. The man was wearing a white baseball cap, gray shirt, and blue jeans. D. M. then left the bathroom. The man was washing his hands as D. M. left the bathroom.

After D. M. left the bathroom, he ran into his dad. He told his dad that a guy did something bad to him. His dad asked him to show him who the guy was, and D. M. pointed at a man coming out of the bathroom. D. M. testified that he was sure that the man coming out of the bathroom was the same man who assaulted him. He was the same height, same weight, and had on the same clothes. No one told D. M. who to point at.

Laurie Charles, the sexual assault nurse examiner who examined D. M. after the incident, testified that D. M. told her, "A guy was sticking his finger in my hiney, and it hurted [sic] in the bathroom." D. M. told the man, "Stop. No." The man said, "We have to." D. M. told Charles, "He grabbed me, did like this, then he let me go." D. M. demonstrated this action to Charles by grabbing and pulling at his genitals with his right hand. Charles testified that she found three linear abrasions on the shaft of D. M.'s penis, which is consistent with someone grabbing his penis. She also testified that D. M. had redness to his anal fold.

Robert Sailors, a forensic scientist for the Bexar County Crime Lab, testified that he found a significant amount of semen in the underwear Garza was wearing on the evening of the incident. He also found blood in the seat of the underwear D. M. was wearing on the evening of the incident.

Garza argues that this evidence is legally insufficient to uphold his conviction. Specifically, he argues that his presence at the crime scene is not, by itself, enough. Nor, he argues, is his attempted flight, by itself, enough. These arguments, however, do not describe the evidence in this case. Here, there is much more evidence than attempted flight or presence at the scene. There is: 1) D. M.'s father's testimony that D. M. identified Garza as his assailant by pointing to him and saying, "Right there, Dad. He's the man with the white baseball cap and the gray shirt on"; 2) D. M.'s father's testimony that he saw Garza coming out of the boys' bathroom directly after he found his son coming out of the bathroom and crying; 3) Garza's attempt to leave the baseball park, despite D. M.'s father's request that he stay so that the police could investigate the situation; 4) police officers' testimony that Garza was rubbing his hands through his hair, on his jeans, and on the back of the car seat in the patrol unit; 5) police officers' testimony that Garza's truck was positioned in the stadium parking lot with a clear view of the boys' bathroom; 6) Officer Nogle's testimony that Garza got down on his knees in the hospital and prayed, "Forgive me, God" and "The devil made me do it"; 7) the forensic scientist's testimony that there was blood in D. M.'s underwear and semen in Garza's underwear; and 8) D. M.'s own testimony that the man who assaulted him touched and scratched D. M.'s "back private part," put his finger in D. M.'s "back private part," squeezed D. M.'s "front private part," and exposed and held the man's own "private part."

Viewing this evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support Garza's conviction for aggravated sexual assault and two counts of indecency with a child. Accordingly, we overrule Garza's fifth issue.

Factual Sufficiency

Garza also argues that the evidence is factually insufficient to support his conviction. Under a factual sufficiency review, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We must be deferential to the fact finder and careful not to invade the province of the jury to assess the credibility and weight of the evidence. Johnson, 23 S.W.3d at 9.

Here, Officer Salazar testified that, on the evening of the incident, there were five little league games going on and more than two hundred men at the park. He further testified that it would not be unusual for a lot of men to be wearing baseball caps. Additionally, he testified that in the first trial, he described the scene in the parking lot as a "mob scene." He also testified that he did not know what the quality of lighting was in the boys' bathroom on the evening of the incident and that there is not a lot of lighting in the parking lot area. He agreed that the quality of lighting can affect the accuracy of an identification.

Officer Van Zabava testified that because the crowd was very hostile and because D. M. was quickly transported away from the scene, he was not able to ask D. M. to identify Garza by sight. He also testified that he did not have time to interview D. M. to ask him about the details of the incident. He testified that he never went to the bathroom to collect any evidence or see if other individuals were in the bathroom area. He also testified that he never looked around the area to see if anyone else matched the description of what the alleged assailant was wearing. Additionally, he testified that he failed to include the fact that he saw Garza rubbing his hands in his police report.

D. M.'s father admitted on cross-examination that it was possible that someone could have entered the bathroom, assaulted his son, and left without being seen. D. M.'s father also agreed that Garza's back was to him and his son when his son identified Garza.

D. M. testifed that when the police showed him a picture of Garza, D. M. could not tell whether that was the man who assaulted him. D. M. further testified that there was another kid in the bathroom when he was assaulted.

On cross-examination, Laurie Charles, the sexual assault nurse examiner, agreed that other things, such as a difficult bowel movement, can cause redness to the anal fold.

Robert Sailors, the forensic scientist, testified that forensic testing did not establish a direct link between Garza and D. M. He also agreed that washing one's hands or rubbing ones's hands on a car seat would not necessarily remove DNA evidence. He also agreed that because a semen sample stays on clothing until the clothing is washed, the semen found in Garza's underwear was not necessarily a result of the alleged sexual assault.

Garza points to this testimony as proof that the evidence is factually insufficient to support his conviction. We disagree. While this evidence suggests the possibility that Garza was in the wrong place at the wrong time, it does not necessarily lead a rational jury to that conclusion. There is an abundance of evidence pointing to Garza's guilt. The evidence as a whole is not so weak as to undermine confidence in the jury's determination. Viewing all the evidence in a neutral light, we conclude that the evidence is factually sufficient to support Garza's conviction. Accordingly, we overrule Garza's sixth issue.

Motion to Photocopy Juror List

After Garza was sentenced, he brought an amended motion for new trial and a motion to photocopy the jury list, arguing that jury misconduct had occurred. The trial court denied both motions. In his final issue, Garza argues that the trial court erred in denying his motion to photocopy the jury list.

The Code of Criminal Procedure provides: "On a showing of good cause, the court shall permit disclosure of [juror] information sought." Tex. Code Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2003). What constitutes good cause must be based upon more than a mere possibility that jury misconduct might have occurred; it must have a firm foundation. Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.--San Antonio 2000, no pet.).

At the hearing on the motion to photocopy the jury list, Garza's mother testified that one of the jurors is a distant relative of Garza's and that the juror's and Garza's family do not get along. Because the two families do not get along, she testified, the juror is prejudiced against Garza. Additionally, she saw the juror make angry faces at Garza during the trial.

She also testified, however, that she could not remember the juror's first name and does not know how the juror is related to Garza. Additionally, she realized who the juror was only after the trial was over. Furthermore, on cross-examination, she admitted that she has no personal knowledge of the juror's feelings toward Garza.

Garza did not establish good cause. His mother's testimony does not constitute a firm foundation for jury misconduct. Accordingly, we overrule Garza's final issue.

Conclusion

Having considered and overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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