Court of Appeals
Tenth Appellate District of Texas
10-25-00035-CR
Maricella Garcia,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2021-1215-C1
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Appellant, Marisela Garcia, guilty of two counts of the
felony offense of injury to a child. The jury assessed Garcia’s punishment at
confinement for life on the first count and twenty years’ confinement on the
second count. The trial court sentenced her accordingly. This appeal ensued.
We affirm the judgment of the trial court in Count I and vacate the judgment
of the trial court in Count II.
A. Background
Garcia is the stepmother of K.V. In 2014, when K.V. was five years old,
she started living with Garcia. Over the next six years, K.V. testified that
Garcia both physically and emotionally abused K.V. in various ways. K.V.
stated that Garcia repeatedly hit K.V. with various objects, leaving scars and
marks on her body and head. Garcia would strike K.V.’s feet with rocks. K.V.
also stated that Garcia would punish her for not working fast enough by hitting
her hands with wood and using pushpins on her hands. Garcia would make
K.V. pick tree branches with spikes to then hit her with them. K.V. testified
that Garcia would also choke her, pull her hair, and tell K.V. to get on the
ground where Garcia would step on her. K.V. stated that she was not allowed
to scream or “it would be worse.” If K.V. screamed, Garcia would place her
foot on K.V.’s throat and tell her to “shut up” and jump on her. K.V. stated
that Garcia had also forced her to eat chilis and that Garcia starved K.V. and
forced her to find food out of the trash. Garcia would also force K.V. to eat her
own feces, as well as dog and cow feces, as punishment. Garcia would also
make K.V. wet her clothes in water and wear them, despite the weather being
cold. In addition to the physical abuse, K.V. testified that Garcia emotionally
abused her. K.V. stated that Garcia isolated her from the rest of the family,
told her that her dad was not her dad, and forced K.V. to call her dad by his
Garcia v. State Page 2 first name. Garcia told K.V. that she would never be part of their family and
that she was an embarrassment. Garcia repeatedly told K.V. to kill herself,
giving her suggestions as to how to do it. K.V. also testified that Garcia often
took pictures of K.V. naked on her phone, and Garcia would threaten to send
the pictures to men for them to come rape K.V. Garcia would also tell K.V.
that she would send people to come kill her, or that Garcia would kill K.V.
herself, if she ever spoke to anyone about what she was going through at home.
K.V.’s school counselor, Anne Trevino, testified that during her fourthgrade year, K.V. would always wear the same clothes to school, even though
the clothes were dirty and too small for her. Trevino stated that on one
occasion, she offered K.V. some clothes from the school’s resources, and K.V.
was very excited about the new clothes. However, K.V. brought the clothes
back the next day and told Trevino that her stepmother would not allow her to
keep the clothes. Trevino testified that Garcia requested a meeting, during
which Garcia stated that K.V. had plenty of clothes but chose to wear the same
dirty clothes. Trevino stated that Garcia also said K.V. lied, was dirty and
gross, and made other derogatory statements about K.V. At the beginning of
K.V.’s fifth-grade year, Trevino testified that she noticed K.V. had a black eye
and reported the injury to Child Protective Services (CPS), but, to her
knowledge, CPS did not investigate. K.V. testified that she lied about any
Garcia v. State Page 3 injuries because she feared repercussions from Garcia. During K.V.’s sixthgrade year, Trevino was made aware that K.V.’s younger sister told her teacher
K.V. was sleeping outside. Trevino spoke with K.V., who would not confirm
her sister’s statements, but Trevino made another report to CPS anyway due
to these allegations and the history she had observed. Again, Trevino stated
that CPS did not follow up and that Garcia and K.V.’s father met with school
administrators and again blamed K.V. for her appearance. Later that school
year, K.V. was absent from school for a few days, which Trevino noted was
unusual. When K.V. returned, Trevino observed that she had a black eye, some
scratches, and other injuries. When Trevino talked to K.V. about her injuries,
she initially claimed they were from an animal, but Trevino did not think the
injuries were consistent with something caused by an animal. Trevino again
called CPS.
CPS and police responded to the school, and K.V. eventually began to
describe where she got the injuries and the history of physical and emotional
abuse. K.V. was then taken to the hospital for an assessment. The forensic
nurse who conducted the assessment observed that “there was not any part of
[K.V.’s] body, from the bottoms of her feet to the top of her skull, that didn’t
have some sort of bruising, scarring, some sort of abnormality that children
should not be subjected to.”
Garcia v. State Page 4
B. Issue one: Sufficiency of the Evidence
In her first issue, Garcia contends that the evidence was insufficient to
support the jury’s finding that K.V. suffered a serious mental deficiency,
impairment, or injury.
1. Standard of Review
The Court of Criminal Appeals has defined our standard of review of
a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence in
the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017). This standard requires the appellate court
to defer “to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a
sufficiency review must not engage in a “divide and conquer”
strategy but must consider the cumulative force of all the evidence.
Villa, 514 S.W.3d at 232. Although juries may not speculate about
the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S.
at 319); see also Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and
we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). This is because the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight
Garcia v. State Page 5
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to “the elements
of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the
defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The “law as authorized by the
indictment” includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).
2. Authority
A person commits the offense of injury to a child if she intentionally or
knowingly, by act or omission, causes a child: (1) serious bodily injury; (2)
serious mental deficiency, impairment, or injury; or (3) bodily injury. See TEX.
PENAL CODE ANN. § 22.04. An omission constitutes an offense if the actor has
a legal or statutory duty to act or if the actor has assumed care, custody, or
control of the child. See id.
Garcia v. State Page 6
The Texas Penal Code does not define “serious mental deficiency,
impairment, or injury.” We therefore give the statutory terms their plain and
ordinary meanings. See TEX. GOV’T CODE ANN. § 311.011(a); Edwards v. State,
666 S.W.3d 571, 575 (Tex. Crim. App. 2023). This Court previously explained
that the deficiency, impairment, or injury must be heightened or excessive. Ex
Parte Hammons, 628 S.W.3d 335, 337 (Tex. App.—Waco 2021). The term
“deficiency” by itself means “the quality or state of being deficient,” which in
turn means “lacking in some necessary quality or element,” or “not up to a
normal standard or complement.” Edwards v. State, 666 S.W.3d 571, 575 (Tex.
Crim. App. 2023) (citing Merriam-Webster’s Collegiate Dictionary (11th ed.
2020)). “Impairment” means “diminishment or loss of function or ability.” Id.
Webster’s Collegiate Dictionary also defines the phrase “mental deficiency” as
“a deficiency in cognitive functioning, specifically, intellectual disability.” Id.
3. Discussion
Garcia argues that the State failed to prove that K.V.’s PTSD or
depression amounted to a serious mental deficiency, impairment, or injury.
Specifically, Garcia compares the evidence in this case to evidence presented
in Edwards, Rodriguez, and Nawaz, arguing that this case more closely
resembles Edwards because the evidence is largely speculative or insufficient
to support a finding of any actual mental harm. See Edwards v. State, 666
Garcia v. State Page 7 S.W.3d at 575; Rodriguez v. State, No. 10-21-00147-CR, 2023 WL 398689 at
*12 (Tex. App.—Waco Jan. 25, 2024, pet. ref’d) (mem. op., not designated for
publication); Nawaz v. State, No. 05-19-00092-CR, 2023 WL 5542625 at *3
(Tex. App.—Dallas Aug. 29, 2023) (mem. op., not designated for publication).
In Edwards, the Court of Criminal Appeals held that while the State provided
sufficient evidence to prove the child ingested a large amount of cocaine, it
failed to provide sufficient evidence that the child actually suffered any of the
theoretical side effects of cocaine ingestion about which the expert witness
testified. Edwards v. State, 666 S.W.3d 571, 576 (Tex. Crim. App. 2023). In
contrast here, the State presented evidence of concrete harm K.V. suffered as
a result of Garcia’s actions.
K.V. testified about the impact Garcia’s actions had on her mental
health. Trevino testified that as a result of Garcia’s actions, K.V. has expressed
suicidal ideations and experienced panic attacks, nightmares, anxiety, and
depression. Additionally, Dr. Whitney Crowson diagnosed K.V. with PTSD,
connected that diagnosis to her prolonged abuse, and described the ongoing
emotional and psychological consequences of that trauma. See Stuhler v. State,
218 S.W.3d 706 (Tex. Crim. App. 2007) (a therapist’s testimony that the
complainant child’s experience caused the child to suffer PTSD was sufficient
evidence to establish serious mental deficiency, impairment, or injury). Dr.
Garcia v. State Page 8 Crowson’s evaluations characterized K.V.’s history of prolonged psychological
cruelty, neglect, and abuse as resulting in prolonged suffering and constituting
“a chronic history of child torture.” Dr. Crowson also described the lasting
severity of K.V.’s symptoms. She testified that although K.V. tried to appear
functional and healthy, she had “a lot of conflict, a lot of sadness, despair,
anger, [and] confusion” beneath that outward appearance and that it would
take her a long time to heal.
Garcia also argues that because K.V. was doing better at the time of trial,
a rational jury could not reasonably infer the existence of a serious mental
deficiency, impairment, or injury. However, improvement after the offense
does not negate legally sufficient evidence that the injury occurred. See Blea
v. State, 483 S.W.3d 29, 34 (Tex. Crim. App. 2016) (“The statute’s plain
language refers to the injury caused by the offender, and it does not require
consideration of any medical treatment that may have lessened the impact of
the injury.”). The relevant inquiry is whether a rational jury could find beyond
a reasonable doubt that K.V. suffered from a serious mental deficiency,
impairment, or injury as a result of Garcia’s conduct.
We must consider the cumulative force of all the evidence and defer to
the jury’s reasonable inferences. Looking at the foregoing evidence in the light
most favorable to the verdict, a rational trier of fact could have found that
Garcia v. State Page 9 Garcia’s actions caused serious mental injury to K.V. beyond a reasonable
doubt.
Therefore, we overrule Garcia’s first issue.
C. Double Jeopardy
In her second issue, Garcia contends that her punishment under both
counts violates double jeopardy principles. In count one, Garcia was convicted
of injury to a child by act. In count two, Garcia was convicted of injury to a
child by omission.
The Double Jeopardy Clause provides that “[n]o person shall . . . be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S.
CONST. AMEND. V. This guarantee was made applicable to the states by the
Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 796, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); see also U.S. CONST.
AMEND. XIV.
A double jeopardy complaint may only be raised for the first time on
appeal if “(1) the undisputed facts show the 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 interest.” Garfias v. State, 424 S.W.3d
54, 57-58 (Tex. Crim. App. 2014). There are three types of double jeopardy
claims: (1) a second prosecution for the same offense after acquittal, (2) a
Garcia v. State Page 10 second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense. Langs v. State, 183 S.W.3d 680, 685 (Tex.
Crim. App. 2006). In determining whether there is a double-jeopardy violation
in a case involving multiple violations of the same statute, the relevant inquiry
is always whether the legislature intended to permit multiple
punishments. Loving v. State, 401 S.W.3d 642, 646 (Tex. Crim. App. 2013); see
also Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010) (“[The
Double Jeopardy Clause] also protects [a defendant] from being punished more
than once for the same offense in a single prosecution.”).
Injury to a child under Penal Code Section 22.04 is a result-oriented
offense, and the legislature did not intend the act-versus-omission alternatives
to constitute separate offenses. See Villanueva v. State, 227 S.W.3d 744, 748–
50 (Tex. Crim. App. 2007). The State concedes that appellant’s convictions
violate the Double Jeopardy Clause. We agree. We hold that punishing the
appellant in the same proceeding for injury to a child by act and injury to a
child by omission violated her double-jeopardy protection.
The remedy is to retain the “most serious” offense—that is to say, the
offense for which the sentencing entity assessed the highest punishment-and
set aside the other. Littrell v. State, 271 S.W.3d 273, 279 (Tex. Crim. App.
2008).
Garcia v. State Page 11
We sustain Garcia’s second issue and vacate the judgment of conviction
for the second count, injury to a child by omission.
D. Conclusion
We affirm the judgment of the trial court as to Count I. We vacate the
judgment of the trial court as to Count II.
MATT JOHNSON
Chief Justice
OPINION DELIVERED and FILED: July 23, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed and vacated
Do not publish
CRPM
Garcia v. State Page 12