Garcia, Freddy ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0035-18
FREDDY GARCIA, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
K EASLER, J., delivered the opinion of the Court in which H ERVEY, R ICHARDSON,
N EWELL, and W ALKER, JJ., joined. Y EARY, J., filed a concurring opinion in which
S LAUGHTER, J., joined. K ELLER, P.J., concurred. K EEL, J., dissented.
OPINION
Freddy Garcia was indicted on one count of aggravated sexual assault, but at trial, the
victim described two separate sexual assaults. When the State rested its case in chief, Garcia
asked for an election between the two incidents. This request was denied. The court of
appeals held that denying Garcia’s request was error of constitutional magnitude and
reversed Garcia’s conviction. We agree that the trial judge committed constitutional error
GARCIA—2
but disagree that the error was harmful. We therefore reverse the court of appeals’ judgment
and affirm Garcia’s conviction.
I. BACKGROUND
A. Pre-trial and trial.
In 1987, the State filed an indictment against Garcia alleging that, on or about August
16, 1987, he penetrated his child step-daughter’s female sexual organ with his own. Upon
making bond, Garcia absconded. He was found in 2015 and extradited to Harris County.
At trial, the victim testified to multiple instances in which Garcia acted in a sexually
suggestive, indecent, or assaultive manner toward her. Each time the victim began
describing a different indecent or sexually assaultive act, Garcia moved that the State be
required to make an election—to pick which incident it would ultimately ask the jury to base
its verdict upon. Two of these incidents warrant description here.
First, the victim recounted an incident wherein Garcia called her into the bathroom
and “raped” her—penetrated her sexual organ with his own. The victim estimated that she
was around eleven years old when this assault occurred. The court of appeals referred to this
as “the bathroom incident.” The victim also recounted an incident wherein Garcia assaulted
her in her bedroom (“the bedroom incident”). The victim estimated that this assault occurred
on or about August 16th of 1987, as alleged in the indictment, when she was twelve.
When the State rested its case, Garcia re-urged his motion for election. The State
opposed the motion, arguing that the proper time for an election is at the close of all
GARCIA—3
evidence, and the trial judge agreed. Garcia offered to produce a citation to demonstrate his
right to an election at the end of the State’s case, but the trial judge declined, continuing to
hold that he would not order an election until both sides rested and closed.
So, at the close of all the evidence, Garcia once again asked the trial judge to make
the State elect which incident it would rely upon for conviction. To satisfy this request, the
State submitted, and the trial judge adopted, an application paragraph specifically focused
upon the bathroom incident:
Now, if you unanimously find from the evidence beyond a reasonable doubt
that on or about the 16th day of August, 1987, in Harris County, Texas, the
defendant, Freddy Garcia, did then and there intentionally or knowingly cause
the penetration of the female sexual organ of [the victim] . . . by placing his
sexual organ in the female sexual organ of [the victim], while inside a
bathroom inside an apartment [the victim] shared with her mother, brothers,
and the defendant, then you will find the defendant guilty[.]
The jury found Garcia guilty of aggravated sexual assault of a child.
B. Appeal.
On appeal, Garcia complained that the trial judge committed reversible constitutional
error by refusing to order an election when the State rested its case in chief. The State
responded by arguing that the trial judge had not erred because there was scant evidence that
genital-to-genital penetration occurred during the bedroom incident. It also argued that, if
the trial judge did err, the error was harmless beyond a reasonable doubt. The State did not
initially take issue with Garcia’s assertion that the trial judge’s error should be measured
GARCIA—4
against the constitutional harm standard laid out in Rule of Appellate Procedure 44.2(a).1
The court of appeals, following our opinion in O’Neal v. State, held that the trial judge
should have ordered an election at the end of the State’s case in chief.2 The court of appeals
also concluded that, under Phillips, the trial judge’s failure to order an election when the
State rested was constitutional error, subject to a Rule 44.2(a) harm analysis.3 Finally, citing
our opinion in Dixon v. State, the court of appeals “consider[ed] the four purposes behind the
election rule” in assaying the record for harm: (1) to protect the accused from the
introduction of extraneous offenses; (2) to minimize the risk that the jury might choose to
convict, not because one or more crimes were proved beyond a reasonable doubt, but because
all of them together convinced the jury that the defendant was guilty; (3) to ensure a
unanimous verdict as to one specific incident which constituted the offense charged in the
indictment; and (4) to give the defendant notice of the particular offense the State intends to
rely upon for prosecution and afford the defendant an opportunity to defend.4
The court of appeals first observed that, because Article 38.37 of the Code of Criminal
Procedure “permits the admission of evidence of relevant extraneous offenses committed by
1
See State’s Amended Appellate Brief at 8; see also T EX. R. A PP. P. 44.2(a)
(“Constitutional Error”).
2
Garcia v. State, 541 S.W.3d 222, 231 (Tex. App.—Houston [14th Dist.] 2017)
(citing O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988)).
3
Id. at 232 (citing Phillips v. State, 193 S.W.3d 904, 912–14 (Tex. Crim. App.
2006)).
4
Id. at 232–33 (citing Dixon v. State, 201 S.W.3d 731, 733 (Tex. Crim. App. 2006)).
GARCIA—5
a defendant against a child victim,” the first factor did not weigh in favor of reversal.5 With
regard to the second and third factors, the court of appeals found that there was a significant
risk that the jury rendered a mixed-and-matched or non-unanimous verdict because the jury
instructions “conflated the earlier bathroom incident and the separate August 16, 1987
bedroom incident.”6 This was essentially because, although the charge referred specifically
to an incident occurring “in a bathroom,” the evidence showed that the bedroom incident, not
the bathroom incident, occurred “on or about the 16th day of August, 1987.” Finally, the
court found that the fourth factor also weighed in favor of reversal, albeit “not [as] heavily,”
because without a timely election Garcia “had to defend against both assaults”—the bedroom
incident and the bathroom incident.7 Because it could not say that the trial judge’s error was
harmless beyond a reasonable doubt, the court of appeals reversed Garcia’s conviction and
remanded the case for a new trial.
C. Petition for Discretionary Review
In this petition for discretionary review, the State contends that the court of appeals’
analysis was flawed in two respects. First, the State argues that the court of appeals should
not have applied the Rule 44.2(a) constitutional harm standard to the trial judge’s election
error in this case. The trial judge essentially instructed the jury that, to convict Garcia of
5
Id. at 233 (citing, inter alia, T EX. C ODE C RIM. P ROC. art. 38.37).
6
Id. at 233–34.
7
Id. at 234–35.
 GARCIA—6
aggravated sexual assault, it had to unanimously agree upon the bathroom incident. The
State argues that this instruction satisfied Garcia’s right to a unanimous verdict and his right
to be convicted only upon proof beyond a reasonable doubt. Thus, the State argues that the
trial judge’s error is not rightly characterized as a total failure to order an election; it is better
understood as a failure to order an election in a timely fashion. And while a total failure to
order an election might be subject to a constitutional harm analysis, a “merely delayed”
election is non-constitutional error that should be reviewed under a Rule 44.2(b) non-
constitutional harm analysis.8
The State also argues that the court of appeals was mistaken when it concluded that
the application paragraph in the court’s charge conflated the bedroom incident with the
bathroom incident. According to the State, the mere fact that the application paragraph
contained the August 16, 1987 date did not suggest to the jury that it was free to mix and
match between the bathroom incident and the bedroom incident. Instead, the State argues
that the jury instructions adequately focused the jury’s deliberative attention on a single
event, the bathroom incident, and that attempting to utilize an “on or about” date more
closely correlated with that incident would have required the court’s instructions to deviate
from what was authorized by the indictment. We address each ground in turn.
II. ANALYSIS
In a sexual assault trial, where one act of intercourse is alleged in the indictment and
8
See T EX. R. A PP. P. 44.2(b) (“Other Errors”).
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more than one act of intercourse is shown by the evidence, the State must elect the act upon
which it would rely for conviction.9 The trial judge retains the discretion to order the State
to make an election at any time before the State rests its case in chief.10 But once the State
rests, in the face of a timely request by the defendant, the trial court must order the State to
make a decision. “Failure to do so constitutes error.” 11
For brevity’s sake, we will occasionally refer to the rule requiring the State to make
an election at the end of its case in chief as “the rule of timely election,” or “the timely
election rule.” For purposes of this opinion, a timely election means an election made at the
end of the State’s case in chief.
A. Did the trial judge commit constitutional error?
In Phillips v. State, we identified a defendant’s due-process right to adequate notice
and his due-process right to present a defense as two of several constitutional rights that are
implicated by a failure to order a timely election upon request.12 So, if followed, Phillips
would seem to decide this issue: Based on his due-process right to receive adequate notice
9
O’Neal, 746 S.W.2d at 771 (citations omitted).
10
Id. at 772.
11
Id.
12
See Phillips, 193 S.W.3d at 913–14 (“No principle of procedural due process is
more clearly established than that notice of the specific charge, and a chance to be heard in
a trial of the issues raised by the charge, if desired, are among the constitutional rights of
every accused in a criminal proceeding[.]”) (quoting Cole v. Arkansas, 333 U.S. 196, 201
(1948)).
GARCIA—8
and his due-process right to present a defense, Garcia had a constitutional right to timely
election. By requesting an election at the end of the State’s case in chief, he asserted that
right at the appropriate time, and the trial judge erred to deny his request. As a result,
constitutional error occurred, subject to a Rule 44.2(a) harm analysis.
We have previously said that “where a harm analysis is appropriate, claims of
constitutional error are subject to constitutional harm analysis and all other claims of error
are subject to non-constitutional harm analysis.”13 Constitutional errors that a party or
reviewing court considers de minimis are not, for that reason alone, subject to non-
constitutional harm analysis. They are simply less likely to be found harmful under the
appropriate constitutional harm analysis. In this case, the fact that the court’s charge focused
the jury’s attention on a single criminal incident may have vindicated Garcia’s right to a
unanimous verdict, but it did not somehow un-violate his due-process right to adequate
notice at the end of the State’s case in chief.
It follows that the only question we need to answer in this ground is whether we will
continue to adhere to Phillips. We ordinarily observe the doctrine of stare decisis “to
promote judicial efficiency and consistency, encourage reliance on judicial decisions, and
contribute to the integrity of the judicial process.”14 An exception is made when we conclude
13
See Jacobs v. State, 560 S.W.3d 205, 209 (Tex. Crim. App. 2018) (citations
omitted).
14
E.g., Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000) (citations
omitted).
GARCIA—9
that the precedent in question “was poorly reasoned or is unworkable.” 15 So, to decide
whether the trial judge’s error in this case should be analyzed under a Rule 44.2(a)
constitutional harm analysis, we need only decide whether Phillips was poorly reasoned or
if its holding has become unworkable.
We begin by observing that the rule announced in Phillips is hardly unworkable. The
“fundamental constitutional principles” of adequate notice and an opportunity to defend
require that an election be made when the State rests its case in chief.16 So, if the defendant
asks for an election at that time, the trial judge violates a constitutional right by overruling
the request. The defendant can complain of constitutional error on appeal.
Was Phillips poorly reasoned? We do not think so, at least insofar as it drew a
connection between the defendant’s right to a timely election and his rights to adequate
notice and an opportunity to defend. Phillips forthrightly acknowledged that it was the first
opinion to “directly decide[] the proper harm analysis for failure to elect.”17 But it did not
decide that issue on a whim. Phillips carefully assayed “the reasons for requiring an
election” and this Court’s prior precedents on the matter. It then expressly decided that
failing to comply with a motion for election at the end of the State’s case in chief offends
certain “fundamental constitutional principles”—namely, the defendant’s right to receive
15
Id. at 571–72 (citations omitted).
16
Phillips, 193 S.W.3d at 913–14 (citations omitted).
17
Id. at 913.
 GARCIA—10
adequate notice and an opportunity to defend himself.18
The State does not really attempt to assail Phillips’s logic in this regard, but it does
offer a hodgepodge of arguments for why, despite Phillips, a “merely delayed” election
should be subject to non-constitutional harm analysis. For example, the State argues that
delaying the election was a “procedural [error] rather than a substantive error,” which
supposedly “raises the question of whether the constitutional harm standard should still
apply.” We are not persuaded. The fact that a particular right can be characterized as
“procedural rather than substantive” does not mean—indeed, does not even really
suggest—that it is of non-constitutional import. It is not for nothing that our federal
Constitution guarantees every accused person some minimal “due process.” 19
But this argument does raise the question: If not the Due Process Clause, what
provision of law ultimately guarantees a criminal defendant the right to force a timely
election upon request? For example, does that right flow from a statute or written rule of
evidence or procedure?20 Were we convinced that the right of timely election is ultimately
underwritten by one of these provisions of law and has no independent due-process pedigree,
we might readily agree with the State that, while the defendant has a constitutional right to
an election at some point in the trial, he has only a statutory or rule-based right to a timely
18
Id. at 913–14.
19
See U.S. C ONST. amends. V, XIV.
20
Cf. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex. Crim. App. 2006).
GARCIA—11
election. If that were so, a “merely delayed” election truly would be error of non-
constitutional magnitude.
But our research has revealed no statute or written rule guaranteeing the right to an
election at the end of the State’s case in chief—which should come as no surprise. The
timely election rule is only to be found in the pronouncements of this Court and its
predecessor courts as handed down over the last century-and-a-half. And those
pronouncements provide, at the very least, a reasonable basis for Phillips’s conclusion that
the timely election rule is a requirement of fundamental due process.
One of the earliest Texas cases we have found discussing the timely election rule,
Fisher v. State, described it as “the true rule and the one which has been uniform in this
state.”21 Fisher cited Roscoe’s Digest Commentaries, the 1874 edition of which explained:
“[T]he reason for putting a prosecutor to his election being that the prisoner may not have
his attention divided between two charges, the election ought to be made, not merely before
the case goes to the jury, as it is sometimes laid down, but before the prisoner is called on for
his defence at the latest.” 22
Another early Texas case discussing the rule, Lunn v. State,23 cited Bishop’s
Commentaries on the Law of Criminal Procedure, which in 1872 opined that “[t]he chief
21
Fisher v. State, 33 Tex. 792, 793 (Tex. 1870).
22
Henry Roscoe, Roscoe’s Digest of the Law of Evidence in Criminal Cases 203
(Horace Smith et al. eds., 7th Am. from the 8th London ed. 1874) (citations omitted).
23
Lunn v. State, 44 Tex. 85, 86–87 (Tex. 1875).
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thing, down to the time when the government rests its case and the defence is called for, is
to prevent prejudice to the defendant, in the eyes of the jury, by bringing against him
testimony tending to show crimes for which he is not really indicted, and to which he is not
finally to make answer in the cause.”24 Bishop thus concluded: “[W]hatever may have been
done at an earlier stage of the trial, it is plain that as a general rule there should be an election
required before the prisoner opens to the jury his defence.”25 Lunn ultimately adopted
Bishop’s statement of the rule.26
Yet another early Texas case, Crosslin v. State, described timely election as a “right”
accorded to the defendant by law.27 At least four different times, Crosslin drew an express
connection between this legal “right” and the expectation that the defendant will receive
enough notice to defend himself. Crosslin said that the election “should not be so long
delayed that it would embarrass the accused by leaving him in doubt as against which offense
he will be called upon to defend.”28 It expressed a concern that a delayed election would put
the defendant “at the disadvantage of having to defend, not only against one but against 50
24
Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure § 463 (2d
ed. 1872).
25
Id.
26
See Lunn, 44 Tex. at 88 (“[I]f in any case the particular facts would make the case
an exception to the rule calling for the exercise of discretion the election should be made
before the defendant offers his evidence.”).
27
Crosslin v. State, 90 Tex. Crim. 467, 471 (Tex. Crim. App. 1921).
28
Id. at 470.
 GARCIA—13
or more offenses.”29 It concluded that the trial judge’s error in failing to order a timely
election in that case ultimately forced the defendant “to proceed with his cross-examination
of the state’s witnesses and in the introduction of his own in ignorance of the particular
offense of which he was prosecuted.”30 And it quoted approvingly of another court’s analysis
of the harmful effect of an untimely election: “Such a course was calculated to confound,
distract, and confuse the defendant in his defense. He was expected to meet one charge at
a specified time, but was required to defend against and meet six different acts[.]” 31
The point is not that these cases prove beyond dispute that the timely election rule is
of constitutional origin. We need not and do not decide on a blank slate that the Due Process
Clause guarantees the defendant a constitutional, notice-based right to force an election at
the end of the State’s case in chief. The point is that even if the constitutional pedigree of
the timely election rule was up for debate when Phillips was decided, in light of Phillips, it
no longer is. Phillips’s holding was supportable at the time it was handed down, and it
remains supportable now.
Because we conclude that Phillips’s holding was not unreasonable, and because we
think the standard Phillips established is not unworkable, we decline to overrule it. The court
of appeals rightly concluded that Garcia had a constitutional, due-process right to an election
29
Id. at 471.
30
Id.
31
Id. (quoting State v. Hilberg, 61 P. 215, 216 (Utah 1900)).
GARCIA—14
at the close of the State’s case in chief. Because that right was timely asserted and
erroneously denied, constitutional error occurred. Whatever events unfolded after the trial
judge’s timely-election error may have mitigated the harm stemming from it, but those
developments did not somehow transform Garcia’s constitutional right into a non-
constitutional right. The State’s first ground for review is overruled.
B. The error in this case was harmless.
As to the first of the four recognized election “purposes,”32 the court of appeals held
that because Article 38.37 of the Code of Criminal Procedure “permits the admission of
evidence of relevant extraneous offenses committed by a defendant against a child victim,”
the first factor did not support a finding of harm.33 The parties have not challenged this
holding, and our precedents support it in any event.34
As to the second and third election purposes, the court of appeals acknowledged that
the jury instructions in this case required the jury to “unanimously find beyond a reasonable
doubt” that Garcia had penetrated the victim “inside a bathroom inside an apartment” to
convict him of aggravated sexual assault. But the instructions also contained an “on or
about” date of August 16, 1987, which, according to the victim’s testimony and the
contemporaneous evidence, is closer to when the bedroom incident occurred. The court of
32
See Owings v. State, 541 S.W.3d 144, 150–51 (Tex. Crim. App. 2017); Dixon, 201
S.W.3d at 734.
33
Garcia, 541 S.W.3d at 233 (citing T EX. C ODE C RIM. P ROC. art. 38.37).
34
See Owings, 541 S.W.3d at 151; Dixon, 201 S.W.3d at 734–35.
GARCIA—15
appeals held that these two data points (“inside a bathroom” and “on or about the 16th day
of August, 1987”) were in conflict with one another, such that there was a significant risk
that one of two things occurred: either (1) the jury returned a guilty verdict despite harboring
a reasonable doubt as to each offense in isolation, or else (2) some jurors voted to convict
Garcia of the bedroom incident while others voted to convict him of the bathroom incident.35
We disagree with the court of appeals’ premise that the jury charge conflated the two
incidents. The court’s instructions informed the jury that “the State is not bound by the
specific date” alleged in the indictment. Rather, “a conviction may be had upon proof
beyond a reasonable doubt that the offense . . . was committed at any time prior to the filing
of the indictment which is within the period of limitations.” The jury was also told that,
based on the alleged offense date, the “limitation period applicable to the offense of
aggravated sexual assault of a child is ten years prior to August 28, 1987, the date of the
filing of the indictment.”
“We generally presume the jury follows the trial court’s instructions in the manner
presented.”36 That being the case, we perceive no great risk that the jury would have
understood August 16, 1987 as an express reference to the bedroom incident. Instead,
following the court’s instructions, the jury would have understood that both incidents—the
bedroom incident and the bathroom incident—fell within the time period described by the
35
Garcia, 541 S.W.3d at 233–34.
36
E.g., Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
GARCIA—16
limitation paragraph. Based solely on the date of August 16, 1987, the jury would not have
felt steered in one direction or another.
By contrast, the instructions’ explicit description of an assault occurring “inside a
bathroom” would have signaled to the jury that its verdict should ultimately turn on whether
it harbored a reasonable doubt as to the bathroom incident. The instructions’ description of
the incident—occurring “inside a bathroom”—was just enough information for the jury to
distinguish it from all of the other incidents upon which the jury could, consistent with the
indictment and the court’s instructions, vote to convict. At the same time, the description
was not so detailed as to risk “summing up the testimony [or] discussing the facts” of the
case.37 This, coupled with the court’s instruction that the jury had to unanimously agree upon
this incident to convict Garcia of aggravated sexual assault, assures us beyond a reasonable
doubt that Garcia’s right to a unanimous verdict was not imperiled by the trial judge’s
election error. The third election purpose was not frustrated.
With regard to the second election purpose, we must take into account that in this
case, unlike in some of our earlier election cases,38 the evidence against Garcia “was
presented from [multiple] different sources.”39 The victim testified about the bathroom and
bedroom incidents, but the bedroom incident was also supported by outcry evidence and by
37
T EX. C ODE C RIM. P ROC. art. 36.14.
38
See Owings, 541 S.W.3d at 151; Dixon, 201 S.W.3d at 735.
39
Garcia, 541 S.W.3d at 233.
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the presence of semen on the victim’s underwear.
However, as previously discussed, the jury was duly informed that its job was to
determine whether the State had proven beyond a reasonable doubt that, “while inside a
bathroom,” Garcia had penetrated the victim’s sexual organ with his own. Furthermore, the
jury was instructed that evidence of extraneous “crimes, wrongs, or acts against the child
who is the victim of the alleged offense in this case” could be only considered “in
determining . . . relevant matters, including: (1) the state of mind of the defendant and the
child; and (2) the previous and subsequent relationship between the defendant and the child,
and for no other purpose.” This instruction would have reinforced the notion that, while the
jury was permitted to consider bad acts other than the bathroom incident for some limited
evidentiary purposes, its ultimate job was to decide whether the bathroom incident was
proven beyond a reasonable doubt. This alleviates any concern that the jury “added up two
not-quite-proven offenses to get the State across the finish line.”40 The second election
purpose was not frustrated.
That leaves only the fourth and final election purpose—notice to Garcia for the
purpose of mounting a defense—potentially favoring reversal. But, for the following
reasons, we are convinced beyond a reasonable doubt that the trial judge’s violation of
Garcia’s right to adequate notice did not contribute to his conviction.
In his defense, Garcia denied that either incident had occurred, and he adopted a
40
See State’s Brief on Discretionary Review at 32.
GARCIA—18
defensive strategy that the State characterizes as a “blanket denial.” Garcia called, among
other witnesses, his son, who testified that the victim did not like Garcia when she was
growing up because he was a “strict disciplinarian.” Another of Garcia’s children echoed
this description of Garcia. We have held in previous cases that these kinds of “blanket
denial[s]” may render any violation of the defendant’s right to adequate notice harmless.41
We do not doubt the validity of this reasoning, but we must be careful not to take it
too far. For example, there may be instances in which the defendant prepares a tailored
defense as to each incident, but those defenses are inconsistent with one another. In those
circumstances, if the trial judge denies the defendant’s timely motion for election, the
defendant might plausibly argue that the trial judge’s ruling left him no choice but to make
a blanket denial. For, without knowing which incident would be submitted to the jury before
he opened his defense, what else was the defendant to do? He could not present both
defenses simultaneously without losing credibility with the jury, and if he presented one
defense but not the other, the State would simply elect the undefended incident. In that
event, a blanket denial would have been the only reasonable option left.
Although it is a close call, we are not persuaded that Garcia was faced with any such
dilemma. Arguing that (1) the bathroom incident was vaguely described and uncorroborated,
(2) the physical evidence supporting the bedroom incident failed to implicate him, and (3)
41
E.g., Owings, 541 S.W.3d at 153–54 (citing Cosio v. State, 353 S.W.3d 766,
777–78 (Tex. Crim. App. 2011)).
GARCIA—19
in any event, the victim had a motive to lie, are not inconsistent defensive strategies. Even
if Garcia could plausibly claim that presenting all of these defenses at the same time cost him
credibility with the jury, he has made no argument to that effect. We are ultimately
unconvinced that if the trial judge had put the State to its election at the appropriate time,
Garcia’s defensive strategy would have been meaningfully different.
For these reasons, with respect to each of the rights and interests at stake, we conclude
that the trial judge’s election error was harmless. The State’s second ground for review is
sustained.
III. CONCLUSION
We reverse the court of appeals’ judgment. Because the court of appeals overruled
Garcia’s only other issue on appeal, the trial court’s judgment is affirmed.
Delivered: November 20, 2019
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