State of Louisiana v. Jason Garcia

Judgment rendered September 27, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,268-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

JASON GARCIA Appellant

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 222,290

Honorable Douglas Stinson, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Douglas Lee Harville

JASON GARCIA Pro Se

J. SCHUYLER MARVIN Counsel for Appellee
District Attorney

RICHARD RUSSELL RAY
JOSEPH CHANCELLOR NERREN
Assistant District Attorneys

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Before PITMAN, COX, and HUNTER, JJ.

COX, J.

This case arises out of the Twenty-Sixth Judicial District Court,

Bossier Parish, Louisiana. The defendant, Jason Garcia, was convicted by a

unanimous jury of violating La. R.S. 14:42(A)(4), first degree rape when the

victim is under the age of 13. Garcia now appeals his conviction. For the

following reasons, Garcia’s conviction and sentence are affirmed.

FACTS

On July 6, 2020, a grand jury indicted Garcia for the first degree rape

of J.H., who was born February 10, 2007. J.H. is the stepdaughter of Garcia.

The trial was held on May 10 and 11, 2022. Debra McKay, a Bossier

Parish Sheriff’s Office Detective, testified that she was called to Haughton

Middle School on February 13, 2020, when it was reported that J.H. had

been sexually abused. She stated that the abuse began when J.H. was four or

five years old and the last date of abuse was February 7, 2020, when J.H.

was 12 years old. Det. McKay testified that based on J.H.’s allegations, she

interviewed Garcia.

Alex Person, the Director of Education and a forensic interviewer at

the Gingerbread House Children’s Advocacy Center, was accepted as an

expert in child sexual abuse and forensic interviewing. Mrs. Person testified

that she interviewed J.H., as well as her siblings, A.H., J.G., and M.G.

During Mrs. Person’s testimony, J.H.’s Gingerbread House interview was

entered into evidence and played for the jury. Mrs. Person stated that J.H.

was considered an active disclosure because she was ready to talk about

what happened to her and the last abuse was recent. She testified that J.H.

gave detailed information regarding the abuse.

Mrs. Person stated that after interviewing J.H., she interviewed J.H.’s

brother, A.H. A.H.’s Gingerbread House video was played for the jury.

Mrs. Person testified that A.H.’s interview corroborated J.H.’s statement that

Garcia would call J.H. into his bedroom in the mornings before school. Mrs.

Person stated that during his interview, A.H. told her that Garcia would call

J.H. into his room to “hug” her and the other children were not called into

the room.

Mrs. Person testified that she interviewed J.H.’s brother, J.G., and his

Gingerbread House video was played for the jury. Mrs. Person stated that

J.G. also corroborated that Garcia would “hug” J.H. in the mornings before

school. Mrs. Person testified that J.G. stated he heard J.H. telling their

mother what happened.

Mrs. Person stated that she interviewed J.H.’s sister, M.G., and

M.G.’s Gingerbread House video was played for the jury. Mrs. Person

testified that M.G.’s interview stood out because she “placed J.H. and herself

in the room with their dad talking about hugging or cuddling or staying

warm.”

Jennifer Rodriguez, a child abuse pediatrician at the CARA Center1

and Ochsner LSU Hospital, was called to testify. She stated that she has

been doing evaluations of abused children for 23 years. Dr. Rodriguez was

accepted as an expert in pediatrics with a specialty in child sexual abuse and

medical forensic examinations. Dr. Rodriguez testified that she examined

J.H. on February 14, 2020. She testified that when she was visiting with

1
The CARA Center is a children’s advocacy center where children are brought
for a physical examination when there is suspected abuse or neglect, including emotional
abuse, physical abuse, and sexual abuse.
2

J.H., she asked her what three wishes she would make if she could; J.H. told

Dr. Rodriguez that she would ask for a new house, her family not to worry

about money, and for her stepfather to move out. Dr. Rodriguez stated that

she inquired why J.H. wanted her stepfather to move out, and J.H. told her

because of the things that he had done to her—the things she talked about at

the Gingerbread House. She testified that when speaking with J.H., J.H. told

her that she had experienced some bleeding, pain, and painful urination after

her stepfather abused her.

Dr. Rodriguez testified that she was limited while performing the

physical exam of J.H. because J.H. was anxious, which is not uncommon in

children who have been through abuse. She stated that she did not find any

redness, bleeding, bruising, or trauma while performing J.H.’s pelvic exam.

She testified that those findings do not show whether J.H. was abused

because the majority of children who have been sexually abused have

normal exams.

J.H.’s mother, Carmen Herrera, testified that she and Garcia had been

in a relationship since J.H. was one year old, and they have two children

together. She stated that in early 2020, she would leave for work around

4:30 a.m. She testified that J.H. was not a bad child and did not get in

trouble a lot. Ms. Herrera stated that J.H. told her that Garcia touched her

legs, but Garcia denied touching J.H. when Ms. Herrera confronted him.

J.H.’s younger sister, M.G., who was ten years old at the time of trial,

testified that J.H. and her father would spend time alone in his room in the

mornings before school. She stated that this would occur a couple of times a

week and sometimes the door would be closed.

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J.H.’s younger brother, A.H., who was 14 years old at the time of trial,

testified that Garcia is his stepfather. He testified that J.H. would be in

Garcia’s room every morning when his mother was not home. He stated that

sometimes the door would be open, but if the door was closed and he tried to

go in the room, Garcia would tell him to leave and close the door. He

testified that if he ever questioned what was going on in the room, Garcia

would say that “he was giving her hugs.” A.H. stated that if he opened the

door, he would see J.H. and Garcia in the bed and Garcia would be hugging

J.H. from behind.

J.H.’s younger brother, J.G., who was 12 years old at the time of the

trial, testified that Garcia is his father. He testified that J.H. would go into

his father’s room almost every morning when his mother was gone. He

stated that the lights were turned off, the door was closed, and if he tried to

enter the room, Garcia would tell him to leave. J.G. testified that he heard

J.H. crying and telling their mother that Garcia was “touching her in places

she didn’t like.” He stated that J.H. looked upset when she left Garcia’s

room.

J.H. testified that Garcia is her stepfather. She stated that Garcia

began touching her inappropriately when she was four or five years old

when they were “supposedly cuddling,” and the last time he inappropriately

touched her was a week before she turned 13 years old. She testified that

when Garcia wanted her to come into his room, he called her on her phone.

She stated that he would do this at four or five in the morning before

everyone started waking up for school. J.H. testified that Garcia would ask

her if she had her school clothes on because he usually would not touch her

if she had them on; but on at least one occasion, he had her remove her
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school clothes. She stated that once she arrived in his room, he would have

her close the door and he would already be in the bed.

J.H. testified that she would have to lay in the bed with Garcia. She

stated that Garcia would put his hand between her legs and rub her inner legs

up to her vagina, put his body against hers, and put his penis inside her

vagina, which she recalled as happening “a few times.” She testified that

Garcia would get his phone out, turn the flash on, and then start recording

while he was touching her. She stated that he would tell her that he was

going to upload the videos to Facebook. J.H. testified that Garcia threatened

her to perform as he requested and not tell anyone by placing his hands on

her throat once and told her “it would not end up good at all.” She testified

that she was afraid and scared.

J.H. testified that on the day she disclosed the abuse, her friend asked

her what was wrong with her, and she told her friend that she was tired of

what her stepfather was doing to her. Her friend notified the school

counselor, who called the police. J.H. stated that she tried writing a letter to

the school counselor once about what was happening to her, but Garcia

found the letter in her bedroom table and tore it up. She confirmed that all

of the abuse occurred while she was 12 years old and younger. She testified

that she never spoke out about it until she could not imagine going through it

any longer.

Garcia testified that J.H. has been a part of his life since she was one

year old and he loves her. He stated that he would take his wife to work and

call J.H. to wake up her siblings. He testified that because there was only

one bathroom and the boys took showers in the mornings, the girls would

come to his room to visit or lay on the bed and sleep a little longer. He
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stated that sometimes both girls would be in there together or J.G. would

come in there while A.H. was in the shower. He stated that A.H. did not

come in his room much because he would just stay asleep longer or look at

his phone.

Garcia stated that he worked in medical transportation and would

usually be home until the kids left for school and would not get back home

from work until after 5 p.m. He testified that he had a good relationship

with J.H., but she would get upset when he discussed her grades with her

and tell her she needed to pay closer attention at school. Garcia testified that

J.H. was in special education classes at school and needed assistance with

reading and comprehension. He stated that when J.H. told her mother that

he was inappropriately touching her, it was after she had been grounded for

breaking rules. He stated that he addressed it with J.H., asked J.H. if

someone from school or the neighborhood had been touching her, and told

her not to say things that were not true because it “can cause a lot of

problems.”

Garcia testified that the door to his bedroom was broken, did not have

a lock, and only had to be pushed to open. He stated that the other bedrooms

in the house only had curtains for a door. He testified that when J.H. would

come in his room in the mornings, he would tell her to close the door so the

light would not come in. Garcia denied making J.H. come in his room or

touching her inappropriately.

Garcia testified that this whole situation has been a “nightmare” and

makes him sad. He stated that it breaks his heart that he has not seen his

children since this started. When asked if he had anything else he would like

to say, he stated:
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I try to be a good husband and a … and a good father to all my
kids and to my wife. You know, they’re – they’re my whole
life. I would never do anything to hurt any of them. I did
discipline them because I didn’t want them to grow up, you
know, ending up in jail or – or, you know, in trouble all the
time causing problems. But I never hurt them. I never tried to
– to, you know, to traumatize them or nothing like that. I never
did anything sexual [to] either one of my daughters or my sons.
I would never do that. That’s not me. I wouldn’t do that.

On cross-examination, Garcia denied telling the boys that they could

not come in the room while J.H. was in there. Garcia stated that J.G. and

A.H. were mistaken when they testified that Garcia would get mad when

they walked in and Garcia was laying in the bed with J.H. He testified that

J.H. made up all of the allegations against him. When asked why J.H. would

make this up, he stated that she could have made it up when he grounded

her, which was right before she told her mom. Garcia stated that she could

have made it up when she told her friend because she was mad she would

not be able to go to a school dance. He stated that she could not go to the

dance because he could not take her. On cross-examination, he was asked

whether he believed J.H., who is in special education classes, made up all

the details of this story and stuck to them for two years. Garcia stated,

“Yeah. I mean, that’s what [J.H.] did[.]”

The jury returned a unanimous guilty verdict. The jury was polled

and polling slips verify that the verdict was unanimous.

On July 28, 2022, the sentencing hearing was held. The trial court

stated that the only mitigating factor was that Garcia is a first-time felony

offender. The trial court sentenced Garcia to life imprisonment without the

benefit of probation, parole, or suspension of sentence. Garcia filed a

motion to reconsider his sentence on the basis that it is unduly harsh and

excessive. The trial court denied his motion. Garcia now appeals.

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DISCUSSION

Garcia argues that there was insufficient evidence to prove that he was

guilty beyond a reasonable doubt. He asserts that J.H.’s testimony, while

serious, fails to provide details and reliability sufficient to justify a

conviction that carries a mandatory life sentence. The State argues that there

was sufficient evidence to find Garcia guilty beyond a reasonable doubt of

first degree rape. The State asserts that the jury clearly found J.H. and the

other witnesses to be credible.

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the case in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658

(La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,

158 L. Ed. 2d 248 (2004); State v. Steines, 51,698 (La. App. 2 Cir.

11/15/17), 245 So. 3d 224. This standard, now legislatively embodied in La.

C. Cr. P. art. 821, does not provide the appellate court with a vehicle to

substitute its own appreciation of the evidence for that of the fact finder.

Steines, supra.

The appellate court does not assess the credibility of witnesses or

reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d

442; Steines, supra. A reviewing court affords great deference to a trial

court’s decision to accept or reject the testimony of a witness in whole or in

part. Steines, supra.

It is the province of the fact finder to resolve conflicting inferences

from the evidence. In the absence of internal contradiction or irreconcilable
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conflict with physical evidence, the testimony of one witness—if believed

by the trier of fact—is sufficient to support the requisite factual conclusion.

Such testimony alone is sufficient even where the state does not introduce

medical, scientific, or physical evidence. This is equally applicable to the

testimony of sexual assault victims. State v. Brooks, 52,249 (La. App. 2 Cir.

9/26/18), 256 So. 3d 524; Steines, supra.

La. R.S. 14:42 provides, in pertinent part:

A. First degree rape is a rape committed upon a person sixty-
five years of age or older or where the anal, oral, or vaginal
sexual intercourse is deemed to be without lawful consent of
the victim because it is committed under any one or more of the
following circumstances:

(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim’s age shall not be a defense.

We find there was sufficient evidence to convict Garcia of first degree

rape. J.H. testified that Garcia called her into his room from the time she

was four or five years old until she was 12 years old. She stated that Garcia

would rub between her legs up to her vagina, put his body against hers, and

put his penis inside her vagina. M.G. confirmed that J.H. and Garcia would

spend time alone in his room and sometimes the door would be closed. A.H.

testified that J.H. would be in Garcia’s room in the mornings, and if the door

was closed and he tried to enter, Garcia would tell him to leave. A.H. stated

that he saw J.H. and Garcia in the bed together and Garcia was hugging J.H.

from behind. J.G. testified that when J.H. was in Garcia’s room, the lights

would be off, the door closed, and if he tried to enter, Garcia would tell him

to leave. J.G. also stated that he heard J.H. report what was happening to

their mother. Based on this testimony and the Gingerbread House

interviews, the guilty verdict was reasonable.

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Although Garcia testified that he did not inappropriately touch J.H.

and the children were mistaken in their recount of their mornings, the jury

listened to each person testify, and because there was no physical evidence,

they made their decision based on who they found to be a more credible

witness. As the jury’s decision was reasonably based on a credibility call,

we will not disturb Garcia’s conviction on appeal. This assignment is

without merit.

ERRORS PATENT

The following errors were noted during our errors patent review.

First, the trial court failed to order that Garcia’s sentence be served at hard

labor as required by La. R.S. 14:42. While the minutes reflect that the

sentence is to be served at hard labor, the transcript of the sentencing hearing

indicates that the trial court did not specify that the sentence was to be

served at hard labor. Where there is a discrepancy between the minute entry

and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732

(La. 1983). The sentence for first degree rape is necessarily punishable at

hard labor. See La. R.S. 14:42(D). The trial court’s oversight to state on the

record that the sentence is to be served at hard labor renders the sentence

illegally lenient. However, because first degree rape requires the sentence to

be served at hard labor, the error is self-correcting. State v. Burns, 53,250

(La. App. 2 Cir. 1/15/20), 290 So. 3d 721; State v. Thomas, 52,617 (La. App.

2 Cir. 5/22/19), 272 So. 3d 999, writ denied, 19-01045 (La. 2/10/20), 292

So. 3d 61.

Second, the trial court failed to properly advise Garcia of the time

limits to file for post-conviction relief. La. C. Cr. P. art. 930.8(C) provides

that at the time of sentencing, the trial court shall inform the defendant of the
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prescriptive period for post-conviction relief, either verbally or in writing.

Accordingly, we advise Garcia that no application for post-conviction relief

shall be considered if it is filed more than two years after the judgment of

conviction and sentence has become final under the provisions of La. C. Cr.

P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, Garcia’s conviction and sentence are

affirmed.

AFFIRMED.

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