Raul Torres-Garcia v. State of Arkansas

Cite as 2025 Ark. App. 190
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-12

Opinion Delivered April 2, 2025
RAUL TORRES-GARCIA
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-18-1585]
STATE OF ARKANSAS
APPELLEE
HONORABLE ROBIN F. GREEN,
JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Raul Torres-Garcia appeals the Benton County Circuit Court’s order denying his

petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal

Procedure (2022). We affirm.

On October 18, 2019, the State filed an amended criminal information charging

Torres-Garcia with second-degree sexual assault and two counts of first-degree sexual assault.

The State alleged that Torres-Garcia assaulted a minor child (MC) on or before July 2018

and that he was MC’s temporary caretaker or in a position of trust or authority over her.

On October 22, 2019, the court held a jury trial, and MC testified that Torres-Garcia

was a friend of her parents’ and that she babysat his children. She explained he had sex with

her in his car on five or six occasions. She further testified that he dry humped her and
stroked her breast on other occasions. The jury found Torres-Garcias guilty of all three

charges. He was sentenced to an aggregate term of fifty years’ imprisonment. On April 21,

2021, this court affirmed Torres-Garcia’s conviction. Torres-Garcia v. State, 2021 Ark. App.

174.

On June 16, 2021, Torres-Garcia petitioned for postconviction relief pursuant to

Rule 37.1 in the Benton County Circuit Court. He alleged that his trial counsel was

ineffective for (1) not asking a nurse whether MC’s hymen was intact, (2) not testing his car

for DNA, (3) not moving for a mistrial when Mery Rivera testified, (4) misunderstanding the

law, (5) not moving for a mistrial when Lieutenant Helmich testified about Rivera, (6) not

objecting to Lieutenant Helmich’s testimony when the testimony went beyond the scope of

rebuttal, and (7) calling his wife to testify at trial.

On January 18, 2023, the circuit court denied Torres-Garcia’s petition without a

hearing. Torres-Garcia now challenges the denial of relief.

We do not reverse a denial of postconviction relief unless the circuit court’s findings

are clearly erroneous. Reed v. State, 2011 Ark. 115 (per curiam). A finding is clearly erroneous

when, although there is evidence to support it, the appellate court, after reviewing the entire

evidence, is left with the definite and firm conviction that a mistake has been made. Id.

The benchmark question to be resolved in judging an ineffective-assistance-of-counsel

claim is whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result. Norris v. State, 2013

Ark. 205, 427 S.W.3d 626 (per curiam). We assess the effectiveness of counsel under a two-

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prong standard as set forth by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984). See Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under

the Strickland test, a claimant must show both that counsel’s performance was deficient and

that the deficient performance prejudiced the defense to the extent that the appellant was

deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is

unnecessary to examine both components of the inquiry if the petitioner fails to satisfy either

requirement. See Pennington v. State, 2013 Ark. 39 (per curiam).

A petitioner claiming ineffective assistance must first show that counsel made errors

so serious that counsel was not functioning as the “counsel” guaranteed to the petitioner by

the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254 (per

curiam). There is a strong presumption that trial counsel’s conduct falls within the wide

range of reasonable professional assistance, and an appellant has the burden of overcoming

this presumption by identifying specific acts or omissions of trial counsel that when viewed

from counsel’s perspective at the time of the trial could not have been the result of reasonable

professional judgment. Id.

To meet the second prong of the test, a claimant must show that there is a reasonable

probability that the fact-finder’s decision would have been different absent counsel’s errors.

Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. Id.

On appeal, Torres-Garcia first argues that the circuit court erred by finding that his

trial counsel was not ineffective for not asking a nurse whether MC’s hymen was intact. He

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claims that if the nurse had testified that MC’s hymen was intact, that testimony would have

attacked the truthfulness of MC’s allegations.

The supreme court has held that the extent to which a witness is questioned is a

matter of trial tactics and does not justify Rule 37 relief. Hicks v. State, 289 Ark. 83, 86, 709

S.W.2d 87, 89 (1986). For example, in Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001),

a petitioner claimed that his attorney should have contradicted the witness who testified

against him by producing evidence that it had rained on the night in question after the

witness testified that it had not rained. Id. The petitioner argued that the contradiction

would have detracted from the witness’s credibility, making it less likely that the jury would

believe the witness’s testimony that the petitioner had committed a crime. Id. The supreme

court rejected this argument, explaining that the manner of questioning a witness is a

subjective issue in which different attorneys could have different approaches, and tactical

decisions are not grounds for postconviction relief. Id. The court further explained that it

was the jury’s job to determine the credibility of the witnesses and that there was no

indication that the jury would have resolved the credibility determination in the petitioner’s

favor, even if the witness’s testimony had been contradicted. Id.

Similarly, in this case, trial counsel’s manner of questioning the nurse was a tactical

decision, and as the circuit court noted in its order denying relief on this claim, a broken

hymen is not a sexual-assault element. Accordingly, we find no error by the circuit court on

this point.

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Torres-Garcia next argues that the circuit court erred by finding that his trial counsel

was not ineffective for not testing his car for DNA to prove that no sexual encounters with

MC occurred there.

We disagree. Even though trial counsel did not test the car for DNA, the trial record

shows that counsel argued about the State’s lack of DNA evidence from the car. Further,

Torres-Garcia has not shown that there is a reasonable probability that the jury’s decision

would have been different had the car been tested for DNA. A sexual-assault victim’s

testimony alone, describing the sexual contact, is enough for a conviction. Bahena v. State,

2023 Ark. App. 261, 667 S.W.3d 553; see Clarks v. State, 2011 Ark. 296 (per curiam). Thus,

the circuit court did not err in denying relief on this claim.

Torres-Garcia also argues that the circuit court erred by finding that his trial counsel

was not ineffective for not moving for a mistrial during Rivera’s testimony. Rivera testified

that Torres-Garcia had sexually assaulted her when she was fourteen years old. 1

A person seeking postconviction relief on an ineffective-assistance-of-counsel claim

that is based on counsel’s failure to make a motion must show that counsel could have made

a successful argument to demonstrate prejudice under Strickland. Breeden v. State, 2014 Ark.

159, 432 S.W.3d 618. Failure to make a meritless motion does not constitute ineffective

assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A mistrial is

1
In 2006, the State charged Torres-Garcia with fourth-degree sexual assault of Rivera,
but the trial ended in a mistrial when Rivera recanted on the stand. The court later dismissed
the charge on the basis of double jeopardy.

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a drastic remedy that should be employed only when the error complained of cannot be

cured by an instruction to the jury and only when justice cannot be served by continuing the

trial. Baumann v. State, 2021 Ark. App. 58.

In this case, trial counsel moved to exclude and limit Rivera’s testimony, but the

circuit court denied counsel’s motions and admitted the testimony. Thus, Torres-Garcia fails

to show that a mistrial motion would have been successful, and the circuit court did not err

in finding no relief on this claim.

Torres-Garcia next argues that the circuit court erred by finding that his trial counsel

was not ineffective for failing to understand the law. He asserts that trial counsel was

unversed “in the law pertaining to Mery Rivera’s Arkansas [Rule of Evidence] 404(b)

testimony.” He maintains that Rivera’s testimony should have been excluded.

We find no error by the circuit court. Again, trial counsel moved to exclude and limit

Rivera’s testimony, and this court affirmed the admission of the testimony pursuant to the

pedophile exception to Rule 404(b). Torres-Garcia, 2021 Ark. App. 174. The issue clearly has

been addressed by this court, and Rule 37 does not provide an opportunity to reargue settled

points. Reams v. State, 2018 Ark. 324, 560 S.W.3d 441 (per curiam).

Torres-Garcia also argues that the circuit court erred by finding that his trial counsel

was not ineffective for not moving for a mistrial when Lieutenant Helmich testified about

Rivera’s accusations. He claims that Lieutenant Helmich and the State knew the testimony

was false.

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Again, a failure to make a meritless motion does not constitute ineffective assistance

of counsel. Breeden, 2014 Ark. 159, 432 S.W.3d 618; Greene, 356 Ark. 59, 146 S.W.3d 871.

In this case, before Lieutenant Helmich testified, the court admitted Rivera’s testimony

concerning Torres-Garcia’s sexual assault against her as well as his threats to her family.

Torres-Garcia also does not explain how the State and Lieutenant Helmich knew the

testimony was false. Given these circumstances, we cannot say that the circuit court erred by

finding that trial counsel was not ineffective for failing to move for a mistrial on the basis of

Lieutenant Helmich’s testimony.

Torres-Garcia’s final argument is that his trial counsel was ineffective for failing to

include his wife on the defense witness list. He points out that the court excluded her

testimony due to counsel’s failure, and he claims that her testimony would have been of great

value to his defense.

However, Torres-Garcia did not raise this issue to the circuit court in his Rule 37.1

petition, and the circuit court did not issue a ruling on it. Instead, Torres-Garcia argued that

his trial counsel was ineffective for calling his wife as witness, and the circuit court found

that trial counsel was not ineffective because his wife did not testify.2 Issues raised for the

first time on appeal are not grounds to reverse a circuit court’s order. Williams v. State, 2013

Ark. 375 (per curiam). Further, a petitioner’s failure to obtain a ruling on an issue from the

2
On appeal, Torres-Garcia explains that he mistook his wife’s proffered testimony as
trial testimony.

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circuit court precludes review on appeal. Huddleston v. State, 347 Ark. 226, 231 S.W.3d 163

(2001) (per curiam). Accordingly, we find no error on this point. We thus affirm the order

denying Torres-Garcia’s Rule 37.1 petition.3

Affirmed.

VIRDEN and BARRETT, JJ., agree.

Raul Torres-Garcie, pro se appellant.

Tim Griffin, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

3
In his Rule 37.1 petition, Torres-Garcia argued that his trial counsel was ineffective
for not objecting to Lieutenant Helmich’s testimony when it went beyond the scope of
rebuttal. However, on appeal, he states that “there is no ineffective assistance of counsel
claim involved and to argue differently would be to waste the Court’s time.” Thus, he has
abandoned this argument on appeal, and we do not address the merits.

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