Michael Anthony Garza v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00078-CR

Michael Anthony GARZA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-0182-A

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

A jury found defendant, Michael Anthony Garza, guilty of aggravated sexual assault and aggravated kidnaping, and assessed punishment at twenty-five years' and twenty years' confinement, to be served concurrently, and a fine of $5000 for each conviction. On appeal, defendant challenges the sufficiency of the evidence and the trial court's ruling on his challenge for cause. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his second issue, defendant asserts the evidence is legally and factually insufficient to support his conviction for aggravated kidnaping. In his third issue, defendant asserts the evidence is factually insufficient to support his conviction for aggravated sexual assault.

Defendant contends there is no evidence he intentionally or knowingly abducted the complainant, Vanessa Garcia, with the intent to inflict bodily injury on her or violate or abuse her sexually or terrorize her. See Tex. Pen. Code Ann. 20.04(a) (Vernon 2003). He also contends the evidence is insufficient to support a finding that he caused the penetration of Garcia's sexual organ without her consent, by acts or words that placed her in fear that death or serious bodily injury would be imminently inflicted. See id. 22.021(a).

The evidence establishes that, at about 5:00 a.m. one morning, Garcia was standing by the side of a road waiting for her boyfriend, Anthony Neaves, when defendant and another male stopped their car and forced her into the backseat. Garcia testified she screamed and yelled, and continued to fight after she was pushed into the car. Defendant hit her in the eye. Garcia attempted to get out of the car, but was unable to do so because, she thought, the car had child safety locks. Garcia said she repeatedly told the men to leave her alone and she just wanted to go home. Garcia thought the men would kill her because they yelled at her and told her to shut up.

The men eventually stopped the car in a dark area near a pond, and told Garcia to get out of the car. Garcia said defendant forced her to have vaginal intercourse with him, and the other man forced her to perform oral sex on him. She said she struggled with defendant, and he bit her. She said that during the rape, she cried and begged defendant to stop. Eventually, the two men took Garcia to within a few blocks of her home, which she shares with her parents. The men told Garcia they would kill her if she told anyone what happened.

When she saw Neaves, at about 7:30 a.m. that morning, she initially told him a woman had given her a ride home. Because her room was still dark, Neaves did not see any bruises. He spoke briefly with Garcia and then left. Several hours later, Neaves went back to Garcia's home, and he saw her black eye. Garcia said she finally told Neaves what happened because her eye had started to "show." Because Garcia could not admit to her parents what had happened, Neaves told her father, who in turn, told her mother.

We conclude this evidence is sufficient to support defendant's convictions.

In his first issue, defendant asserts the trial court erred in denying his challenge for cause of venireperson number 28. To preserve error on a denied challenge for cause, an appellant must demonstrate on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Although defendant challenged the prospective juror for cause, the record reflects defendant failed to establish that he used a peremptory challenge on the complained-of venireperson and that all his peremptory challenges were exhausted. The defendant did not ask for additional strikes. Therefore, defendant's issue is not preserved for our review.

CONCLUSION

We overrule defendant's issues on appeal, and we affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH