                                                                                PD-0099-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                            Transmitted 3/13/2015 11:26:10 AM
                              No. PD-0099-15                   Accepted 3/13/2015 1:49:30 PM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                       Alejandro John Garcia
                                  Appellant
                                       v.
                          The State of Texas
                                   Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368,
   the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of
        Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014




      Petition for Discretionary Review

                               Submitted by:
                          David A. Schulman
  March 13, 2015            Attorney at Law
                          Post Office Box 783
                       Austin, Texas 78767-0783
                           Tel. 512-474-4747
                           Fax: 512-532-6282
                 eMail: zdrdavida@davidschulman.com
                    State Bar Card No. 17833400
                            John G. Jasuta
                            Attorney at Law
                          Post Office Box 783
                     Austin, Texas 78767-0783
                           Tel. 512-474-4747
                          Fax: 512-532-6282
                   eMail: lawyer1@johngjasuta.com
                    State Bar Card No. 10592300

                 Attorneys for Alejandro John Garcia
                    Identity of Parties and Counsel
      Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”),
the following is a complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel in the trial court, as well as
appellate counsel, so the members of the Court may at once determine whether
they are disqualified to serve or should recuse themselves from participating in
the decision of the case, and so the Clerk of the Court may properly notify the
parties to the trial court’s final judgment or their counsel, if any, of the judgment
and all orders of the Court of Appeals.

                                   Appellant
                            Alejandro John Garcia
                              TDCJ-ID No. 1818028
                                1800 Luther Drive
                              Navasota, Texas 77868

           Trial Counsel                            Appellate Counsel

         Richard Segura                            David A. Schulman
            SBN 00788384                                SBN 17833400
           Kathryn Ryle                            John G. Jasuta
           SBN 00797365                            SBN 10592300
         707 West 14th Street                    Post Office Box 783
         Austin, Texas 78701
                                              Austin, Texas 78767-0783

                                State of Texas
                                Hon. Jana Duty
                                  District Attorney
                         Williamson County Justice Center
                            405 Martin Luther King 2FL
                              Georgetown, Texas 78626

                 Trial                              Appellate Counsel
          Robert McCabe                                Deni Garcia
            SBN 24026830                               SBN 24027175
            Lytza Rojas                                John Prezas
            SBN 24046750                               SBN 24041722

                                          i
                             Table of Contents


Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . vii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . vii

Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ground for Review Number One Restated. . . . . . . . . . . . . . . . 3

      The Court of Appeals Erred When it Concluded
      Appellant Failed to Show the Defense’s Expert
      Testimony “Was Properly Applied” to Appellant.

Facts Relevant to First Ground for Review. . . . . . . . . . . . . . . . 3

Summary of the Argument - First Ground for Review . . . . . . . 5

Argument & Authorities - First Ground for Review. . . . . . . . . . 6

      The Court of Appeals Mis-Interpreted or Mis-Applied the
      Appropriate Standard . . . . . . . . . . . . . . . . . . . . . . . . . .        6

      The Evidence was Necessary to Counter the State’s
      Arguments .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   15

Conclusion - First Ground for Review. . . . . . . . . . . . . . . . . . 18


                                           i
                              Table of Contents
                                        (CONT)

Ground for Review Number Two Restated. . . . . . . . . . . . . . . 18

      The Court of Appeals Erred When it Resolved
      Appellant's Claim of Charge Error Without Reference
      to or Application of Almanza v. State.

Facts Relevant to Second Ground for Review. . . . . . . . . . . . . 18

Summary of the Argument - Second Ground for Review. . . . . 20

Argument & Authorities - Second Ground for Review. . . . . . . 20

Conclusion - Second Ground for Review.. . . . . . . . . . . . . . . . 23

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 25




                                             ii
                         Index of Authorities


Federal Cases:

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
   509 U.S. 579 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8


Texas Cases

Allen v. State, AP-74,951
    (Tex.Cr.App.; June 28, 2006). . . . . . . . . . . . . . . . . . . . . 11

Almanza v. State, 686 S.W.2d 157
   (Tex.Cr.App. 1985) .. . . . . . . . . . . . . . . . . . . . 18, 20-22, 24

Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . . . . . . 23

Bass v. State, 270 S.W.3d 557 (Tex.Cr.App. 2008). . . . . 16, 17

Cargill v. State, AP-76,189
    (Tex.Cr.App. November 19, 2014). . . . . . . . . . . . . . . . . . 16

E.I. du Pont de Nemours & Co. v. Robinson,
     923 S.W.2d 549 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . 5, 7

Garcia v. State, 03-12-00781-CR
    (Tex.App. - Austin; December 11, 2014). . . vii, 5, 8, 19, 20

Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App. 1998). . . . . . 10

Johnson v. State, 739 S.W.2d 299 (Tex.Cr.App. 1987). . . . . 21

Jordan v. State, 928 S.W.2d 550 (Tex.Cr.App. 1996). . . 12-14

                                      iii
                          Index of Authorities
                                       (CONT)

Texas Cases (CONT):
Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App. 1992). . . . 5, 7, 8

Mata v. State, 03-12-00476-CR
   (Tex.App. - Austin, June 24, 2014). . . . . . . . . . . . . . . . . 16

McBride v. State, 862 S.W.2d 600
   (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Powell v. State, 63 S.W.3d 435 (Tex.Cr.App. 2001).. . . . 16, 17

Renteria v. State, 206 S.W.3d 689 (Tex.Cr.App. 2006). . . . . 16

Sexton v. State, 93 S.W.3d 96 (Tex.Cr.App. 2002). . . . . . . . . 8

Spence v. State, 795 S.W.2d 743 (Tex.Cr.App. 1990). . . . . . 11

Tillman v. State, 354 S.W.3d 425 (Tex.Cr.App. 2011).. . . 8, 12

Vasquez v. State, 389 S.W.3d 361
    (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . . . . . . 19-22, 24

Walters v. State, 247 S.W.3d 204 (Tex.Cr.App. 2007).. . . . . 16


Texas Statutes / Codes:
     Rules of Evidence

           Rule 401... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

           Rule 404(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

           Rule 702 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   13

           Rule 705(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


                                          iv
          Statement Regarding Oral Argument

    Because of complexity of the expert witness issue involved,

the undersigned believe that oral argument will benefit the parties

and assist the Court. Appellant therefore requests the opportunity

to present oral argument in this case.

                   Statement of the Case

    This case involves the denial of the right to put on a full

defense, to introduce evidence in support of that defense, and to

have the jury instructed in a meaningful way, such as to allow the

jury to give effect to the evidence presented.

             Statement of Procedural History

    Appellant was charged by indictment with the offenses of

aggravated sexual assault of a child, a first (1st) degree felony

(Count I) and Indecency with a Child by Contact (Count II), a

second (2nd) degree felony, in Cause No. 11-216-K368 in the

368th District Court of Williamson County, Texas.         He was

acquitted on Count I and convicted on Count II, and sentenced to

confinement for ten (10) years. Notice of Appeal was timely given

                                 v
on November 20, 2012. The Court of Appeals’ opinion from which

review is sought was delivered by the Third Court of Appeals.

Garcia v. State, 03-12-00781-CR (Tex.App. - Austin; December

11, 2014). By previous Order of this Court, this petition is timely

filed if presented to the Clerk of the Court on or before March 13,

2015.




                                vi
                                No. PD-0099-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                        Alejandro John Garcia
                                     Appellant
                                           v.
                           The State of Texas
                                      Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368,
   the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of
        Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014




      Petition for Discretionary Review

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW, Alejandro John Garcia, Appellant in the

instant cause, by and through David A. Schulman and John G.

Jasuta, his undersigned attorneys, and respectfully files this

“Petition of Discretionary Review,” and would show the Court as

follows:

                            Facts of the Case
                    (Gleaned From the Opinion of the Court of Appeals)


     Appellant’s nine-year-old daughter went for an overnight visit

to the apartment Appellant shared with his girlfriend and their


                                            1
four-year-old son. She watched a movie with her brother in her

brother’s room while Appellant watched a movie in the living room

with the girl’s uncle, smoking marijuana. Appellant’s girlfriend

was at work that evening.

    Appellant’s daughter testified that she ordinarily slept on the

couch during her visits and that, after the movies finished,

Appellant fixed the couch as her bed that night. They watched

some television and, at around 9:36 p.m., she fell asleep on the

couch. She said that Appellant also fell asleep on the couch, which

was unusual. She woke up later when Appellant touched her,

unbuckled his belt, then did “something really gross.” She

testified, “He pulled down my pants and stuck his middle part into

my bottom. And then he put his hands on my front part.” She

testified that he put his “middle part inside my butt.” She testified

that after doing those things “he woke up, and he said, ‘Oh, my

God.’ And then he started wiping my butt and pulled up my pants.

And then he went and threw the paper towel away. . . . [H]e told




                                 2
me to take a shower, but I didn’t.” She said that Appellant said,

“What the F?” and “Why did I do that?” to himself.

     The child testified that he did not tell her to keep quiet, did

not threaten her, did not try to bribe her, and did not blame her.

She said that she knew Appellant was asleep when these events

occurred “because he wouldn’t have done that if he was awake.”

     The girl’s grandparents came and picked her up later that

night and delivered her to her mother, who then immediately took

the child to the hospital for a checkup. Because of the nature of

the actions reported to hospital personnel, Austin Police were

notified.

        Ground for Review Number One Restated

     The Court of Appeals Erred When it Concluded
     Appellant Failed to Show the Defense’s Expert
     Testimony “Was Properly Applied” to Appellant.

       Facts Relevant to First Ground for Review

     At opening, Mr. Segura promised the jury, without objection,

they would hear evidence that Appellant was asleep when the acts

occurred (RR Vol. 3, P. 42). To accomplish this, Appellant called

                                 3
Dr. Michel Bornemann, a medical doctor who specializes in the

study of parasomnia.

    When Appellant called Dr. Bornemann, the State requested

and obtained a hearing under Rule 705(b), Tex.R.Evid. Through

Dr. Bornemann, Appellant sought to offer evidence that he was

essentially sleepwalking when he touched his daughter and,

therefore, he lacked the requisite intent or voluntariness to commit

the crime.

    At the close of the voir dire examination, the State objected

and argued that it was based on a novel and unreliable scientific

theory that could mislead the jurors. The State contended the

theory lacked diagnostic criteria and support in the medical

community and that Dr. Bornemann did not “appropriately

diagnose this defendant as having any disorder.”

    The trial court refused to admit Dr. Bornemann's testimony.

At that time, the trial court stated:

    Obviously, based on the motion for continuance back in the
    summer, I knew that this was going to be an issue or probably
    would be an issue, and so I’ve been looking at it as we’ve
    progressed through the trial of the case this week.



                                 4
    It’s very interesting. But what he’s really here to say is the
    defense story which he gave the night in the videotape we’ve
    all heard he’s being truthful. And then it goes -- and that’s
    based solely on his and his present girlfriend’s -- or his
    interview of the defendant and his present girlfriend, not on
    all the scientific studies that he talked about if it were a
    clinical case.

    I’m going to sustain the State’s objection. If you need a
    further bill, if he’ll stick around, we’ll do that at the
    close of business today.

RR Vol. 4, P. 115.

    On appeal, Appellant claimed the trial court erred by

sustaining the State’s objection to Dr. Bornemann’s testimony.

The Court of Appeals rejected Appellant’s arguments, holding

Appellant   failed   to demonstrate the       admissibility    of Dr.

Bornemann’s testimony. Garcia, slip op. at 5.

                 Summary of the Argument
                  First Ground for Review

    The Daubert / Robinson / Kelly standard does not require

the testifying expert to have conducted scientific testing on the

subject of his testimony, merely that he has applied the particular

methodology when formulating an opinion. Additionally, otherwise

inadmissible evidence becomes admissible if the actions of the

opposing party “open the door.”


                                  5
  Argument & Authorities - First Ground for Review

                               A

          The Court of Appeals Mis-Interpreted or
           Mis-Applied the Appropriate Standard

    The Rules of Evidence favor admission of all relevant

evidence. Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.

1990). Under Rule 401, relevant evidence is evidence which has

“any tendency to make the existence of any fact of consequence to

the determination of the action more probable or less probable

than it would be without the evidence.” Bekendam v. State, 441

S.W.3d 295, 303 (Tex.Cr.App. 2014)(FN 4).

    For expert testimony to be admissible, the following

requirements must be met:

 Ø the expert's testimony must be based on sufficient facts
   or data;

 Ù the expert's testimony must be the product of reliable
   principles and methods, and

 Ú the expert must apply the principles and methods
   reliably to the facts of the case.



                               6
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 591 (1993); E.I. du Pont de Nemours & Co. v. Robinson,

923 S.W.2d 549, 556-557 (Tex. 1995); Kelly v. State, 824 S.W.2d

568, 571-572 (Tex.Cr.App. 1992).          Additionally, Kelly also

identified a non-exclusive list of factors which could influence a

trial court's determination of reliability, including

  Ø the extent to which the theory and procedure are
    accepted as valid by the relevant scientific community;

  Ù the technique's potential rate of error;

  Ú the availability of experts to test and assess the method
    or technique;

  Û the clarity and precision with which the underlying
    scientific premise and approach can be explained to the
    court; and

  Ü the knowledge and experience of the person(s) who
    applied the methodology on the occasion in question.

Kelly, 824 S.W.2d at 573.        Under Kelly, the proponent of

scientific evidence bears the burden of proving to the trial court,

by clear and convincing evidence, that the evidence is sufficiently




                                 7
relevant and reliable to assist the jury in determining a fact in

issue. Kelly, 824 S.W.2d at 573.

    Relying on Sexton v. State, 93 S.W.3d 96, 100 (Tex.Cr.App.

2002), the Court of Appeals held Appellant failed to demonstrate

the admissibility of Dr. Bornemann’s testimony. “We cannot say

that the trial court abused its discretion by excluding Dr.

Bornemann’s testimony because Garcia failed to show by clear

and convincing evidence that a valid technique for diagnosing

parasomnia was properly applied to him.” Garcia, slip op. at 5.

    Appellant acknowledges that Daubert and Kelly, as well as

their various progeny, require an expert to fit his testimony to the

facts of the case. See Tillman v. State, 354 S.W.3d 425

(Tex.Cr.App. 2011).    However, the substance of both the trial

court’s and the Court of Appeals’ ruling was that, in this case, Dr.

Bornemann had not applied a valid technique when formulating

his opinion. It is clear that both courts based this on Dr.

Bornemann’s acknowledgment that he did not perform any clinical

tests on Appellant.     What both courts ignored is that Dr.

                                 8
Bornemann testified unequivocally that such testing was not

necessary.

 Q. (Mr. McCabe) Did you perform any studies on Mr. Garcia?

 A. (Dr. Bornemann) No formal tests or studies were performed.

 Q. Wouldn’t you agree that you authored a paper -- co-authored a
    paper called "Violence in Sleep" out of the Oxford Journals;
    is that correct?

 A. Published by -- this is the one you’re looking at.   This was
    published in the scientific journal, Brain.

 Q. Yes. In 2010?

 A. Correct.

 Q. Okay. You were a co-author of that study?

 A. That’s correct.

 Q. Wouldn’t you agree that when you talk about -- there is a
    subsection called "History and Physical Examination" under
    "Diagnostic Procedures" about halfway through that paper. It
    says, "The first step in diagnosing a sleep disorder
    associated with violence is obtaining a complete history
    preferably from both the patient and the bed partner." You did
    those things; is that right?

 A. Well, I interviewed him. A physical examination was not
    performed, nor was it necessary. That is a comment related to
    the condition as a clinical entity and not necessarily as a
    forensic entity.

 Q. So when it says, "The clinical history should be followed by
    a   general   physical,    neurological,   and   psychiatric
    examinations," none of those things were done in this case?

 A. A physical examination wasn’t performed. It was not
    contributory to the review of the case. And there was no
    evidence to support further inquiry into a psychiatric
    condition.

 Q. It references -- forgive me if I pronounce this wrong --
    polysomnography.

 A. Correct. We have to keep in mind that that paper also is not
    particularly focused on sleepwalking. It also comments upon

                                  9
    unusual epilepsy. So, again, this is a clinical paper looking
    at violence that arises from sleep which is not necessarily
    particular or specific to sleep. It can also incorporate
    neurologic conditions such as epilepsy.

 Q. But there’s an entire section on here on arousal disorders,
    correct?

 A. That’s correct.

 Q. Is that what we’re talking about here is an arousal disorder?

 A. We are talking about an arousal disorder which is a subset of
    parasomnia.

 Q. So this paper is relevant to your testimony today?

 A. It is helpful, absolutely.

 Q. And   under   "Polysomnography,"   it  says, "an extensive
    polygraphic study with a multichannel scalp EEG, monitoring
    all four extremities in continuous, time-schychronized
    audio-visual recording is essential."

 A. Essential from a clinical diagnosis. From a forensic, legal
    perspective, a polysomnography that’s not associated with the
    allegation would not be able to determine what happened on
    that   particular   evening.   I   could   certainly   do   a
    polysomnography, or a sleep test, and find that he’s a
    sleepwalker.   But that only tells us he’s a sleepwalker.
    That’s not necessarily what may have occurred on the evening
    of the event.    So the information to determine -- render
    medical opinion which is well founded in our field is based
    upon the behavioral -- the characteristic behavioral patterns
    and also the specifics to the degree of consciousness and
    awareness in order to render an opinion related to a
    particular incident, not necessarily a global clinical issue
    which is particularly what that paper focuses on.

    The Court of Criminal Appeals has repeatedly recognized that

testimony from mental health experts is relevant to the issue of

future dangerousness. See Griffith v. State, 983 S.W.2d 282, 288

(Tex.Cr.App. 1998); see also McBride v. State, 862 S.W.2d 600,



                                 10
608 (Tex.Cr.App. 1993). The Court has also repeatedly made clear

that there is no requirement that the mental health expert offering

an opinion regarding whether a particular defendant will

constitute a danger in the future have ever personally interviewed

that defendant. Spence v. State, 795 S.W.2d 743, 762-763

(Tex.Cr.App.   1990);   see also Allen       v.   State, AP-74,951

(Tex.Cr.App.; June 28, 2006)(not designated for publication).1

     Being the pivotal “life or death” question in a capital case, it

is clear that whether there is a probability a particular defendant

“would commit criminal acts of violence that would constitute a

continuing threat to society . . .,” is at least as important a

question as whether Appellant’s behavior on the night in question

was the result of parasomnia.         If a personal interview is not

required when an expert is called to offer his or her opinion on

“future dangerousness” in the death penalty setting, certainly

conducting a “clinical study” is not required when an expert is



 1
    In Allen, there were concurring opinions by Judge Womack and Judge
Johnson. Neither are important to this issue.

                                 11
called to offer an opinion as to whether an individual is a

parasomniac.

     Additionally, as set out in Tillman, relevance is a “looser

notion than reliability,” and is “a simpler, more straight-forward

matter to establish.” Tillman, 354 S.W.3d at 438. The relevant

inquiry is whether evidence “will assist the trier of fact and is

sufficiently tied to the facts of the case.” Jordan v. State, 928

S.W.2d 550, 555 (Tex.Cr.App. 1996).

     In Jordan, the Court specifically addressed the “fit” aspect of

the relevance inquiry. There, the proffered expert “answered

questions about the specific facts of the case and how they might

be affected by the factors he testified to,” “stated his opinion about

the reliability of the eyewitness identifications,” and “identified

facts in the case that he believed impacted those identifications.”

Jordan, 928 S.W.2d at 556. However, the expert “did not testify

about several factors that might have affected the reliability of the

eyewitness identifications,” nor did he “interview the witnesses or

examine certain pieces of evidence.” Jordan, 928 S.W.2d at 555-

                                 12
556. Nevertheless, the Court held that, although the expert “did

not testify as to every conceivable factor that might affect the

reliability of eyewitness identification present,” his testimony “was

sufficiently tied to the facts to meet the simple requirement that it

be ‘helpful’ to the jury on the issue of eye witness reliability.”

Jordan, 928 S.W.2d at 556.

    In Jordan, the Court explained that the question under Rule

702, Tex.R.Evid., is “not whether there are some facts in the case

that the expert failed to take into account, but whether the

expert’s testimony took into account enough of the pertinent facts

to be of assistance to the trier of fact on a fact in issue.” Jordan,

928 S.W.2d at 556. Further, the Court noted that the expert’s

failure to account for some facts “is a matter of weight and

credibility, not admissibility.” Jordan, 928 S.W.2d at 556.

    In essence, therefore, what the Jordan Court ruled was that,

whether an expert is correct in his or her opinion is a fact question

for the jury to decide. In this case, Dr. Bornemann specifically

testified that he did have “specialized knowledge that’s scientific,

                                 13
technical, or otherwise that will assist the jury in understanding

evidence in this case and determine a fact in issue in this case”

(RR Vol. 4, PP. 102-103).

    In this case, the trial court undertook questioning Dr.

Bornemann - the final questions he would answer. The following

occurred:

    (THE COURT): Without the window dressing, tell me what you are
    here to render a paid expert opinion for?

    (Dr. Bornemann): Right. I’m here to review and support that
    Mr. Garcia’s behavior was without motivation, intent, and
    purposefulness because his behavior is consistent with
    parasomnia.

RR Vol. 4, P. 110. More specifically, as he had previous testified,

as part of his engagement in this case, Dr. Bornemann had

rendered a “formal medical opinion related to this case,” and that

opinion “indeed supports a sleep disorder, parasomnia with sexual

attributes” (RR Vol. 4, P. 87).

    Under the rationale of Jordan, whether he was correct or not

was a question for the jury.      Consequently, his opinion, that

Appellant’s behavior was consistent with parasomnia (RR Vol. 4,

P. 110), was relevant to the jury’s inquiry, because it tended to


                                  14
make “the existence of any fact of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” Rule 401, Tex.R.Evid. The trial

court erred by refusing to permit Dr. Bornemann’s testimony to be

heard by the jury, and the Court of Appeals erred by failing to so

find.

                                  B

The Evidence was Necessary to Counter the State’s Arguments

        Appellant further asserts that even otherwise inadmissible

evidence becomes admissible when it is necessary to counter the

theory or argument of the opponent. See, for example, the ample

amount of case law providing that evidence of extraneous bad

acts, which is otherwise rendered inadmissible by Rule 404(b),

Tex.R.Evid., becomes admissible when it is necessary to counter

an opponent’s theory.

        The Court has often said that evidence of a person's bad

character may be admissible when it is relevant to a non-character

conformity fact of consequence in the case, such as rebutting a

                                 15
defensive theory. Cargill v. State, AP-76,189 (Tex.Cr.App.

November 19, 2014)(not designated for publication), citing Powell

v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001). It has also held

that even the defense’s opening statement may open the door to

admission of extraneous-offense evidence to rebut a defensive

theory raised in that opening statement. Mata v. State, 03-12-

00476-CR (Tex.App. - Austin, June 24, 2014)(not designated for

publication), citing Bass v. State, 270 S.W.3d 557, 563

(Tex.Cr.App. 2008). Moreover, the concept of “opening the door”

applies to both the State and the defense. See, e.g., Renteria v.

State, 206 S.W.3d 689, 697 (Tex.Cr.App. 2006); Walters v. State,

247 S.W.3d 204, 220 (Tex.Cr.App. 2007).

    Both Powell and Bass provide that an opening statement can

open the door to the admission of otherwise inadmissible evidence.

That is important, because, in this case, as he concluded his

opening statement, counsel for the State told the jury:

    What the State anticipates the evidence is going to show is
    this fantastic tale from the defendant about night terrors,
    sleepwalking, and out-of-body experiences and wet dreams and
    this perfect storm of how all these complex acts of undressing
    yourself, undressing another person, sexual intercourse and


                                 16
     ejaculation all occurred while the defendant was not conscious
     and that, therefore, he didn’t intend to do any of these
     things. I’ll submit to you at the end of this evidence that
     it’s a load of crap. Thank you very much.


RR Vol. 3, P. 40.   Additionally, during its opening final argument,

the State attacked Appellant’s claim that he was asleep at the time

of the incident (RR Vol. 5, P. 21, L. 4-11; P. 23, L. 12-19). More

importantly, in his closing final argument, counsel for the State

emphasized the lack of “medical evidence” supporting the

defensive theory:

     (Mr. McCabe): There has been no medical evidence. There has
     been no scientific evidence. There has been nothing for you to
     consider that he didn’t act consciously, that he didn’t do
     these things on purpose, that he had some sort of disorder or
     wasn’t in his right mind. This was an intentional, knowing,
     voluntary act.

RR Vol. 5, P. 41, L. 9-14.

     Under the rationale of both Powell and Bass, the testimony

offered by the defense regarding Dr. Bornemann’s opinion on

Appellant’s behavior was admissible to rebut the argument made

by the State in its opening statement, that the claim Appellant was

asleep was a “load of crap.” This is further reinforced by the

statements made by counsel for the State during both opening and

closing final argument, also attacking Appellant’s defense.

                                  17
     The trial court erred by refusing to permit Dr. Bornemann's

testimony to be heard by the jury, and the Court of Appeals erred

by failing to so find.

           Conclusion - First Ground for Review

     Appellant proved, by clear and convincing evidence, that Dr.

Bornemann’s testimony would assist the jury in determining

whether Appellant acted while sleeping or not. The trial court

erred by excluding his opinion testimony, and the Court of Appeals

erred by affirming the trial court’s actions. Discretionary review

should be granted.

        Ground for Review Number Two Restated

     The Court of Appeals Erred When it Resolved
     Appellant's Claim of Charge Error Without Reference
     to or Application of Almanza v. State.

      Facts Relevant to Second Ground for Review
                  (Gleaned from the Opinion of the Court of Appeals)


     In his second point of error, below, Appellant argued the trial

court erred by refusing to include the words “intentionally or

knowingly” in the application paragraph of the indecency charge.


                                         18
The charge given was as follows,2 and Appellant requested that the

terms “intentionally or knowingly” be included where asterisks

inside of brackets have been inserted:

       Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt that the defendant, ALEJANDRO
       JOHN GARCIA, on or about December 24, 2010, in Williamson County,
       Texas, [***] engaged in sexual contact with a child younger than 17 years
       of age, namely, any touching by the defendant, including touching through
       clothing, of any part of the genitals of [KG], with intent to arouse or gratify
       the defendant’s sexual desire, then you will find the defendant guilty of the
       offense of Indecency with a Child by Contact, as alleged in Count Two of
       the indictment, and so say by your verdict.

As he did in the trial court, Appellant asserts, that without the

words “knowingly or intentionally” in the application paragraph,

the jury was free to treat the case as a strict liability offense and

convict Appellant even if they believe he did not act intentionally.

       Citing Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Cr.App.

2012), the Court of Appeals held that the jury charge must contain

an accurate statement of the law and must set out all of the

essential elements of the offense. It also held that, in examining

the charge for possible error, it was required to “view the charge as

a whole instead of as a series of isolated and unrelated


 2
     Copied verbatim from the Court of Appeals opinion. See Garcia, slip op. at 6.

                                            19
statements.” Garcia, slip op. at 6. The Court of Appeals thereafter

found the trial court did not abuse its discretion and overruled

Appellant’s point of error. Garcia, slip op. at 7.

                 Summary of the Argument
                 Second Ground for Review

    By considering Appellant’s claim under only Vasquez, the

Court of Appeals applied the wrong standard. Had it correctly

applied the long standing and still valid Almanza test, it would

have found that the trial court erred as claim by Appellant, and

that Appellant suffered “some harm.”

Argument & Authorities - Second Ground for Review

    In Vasquez, the defendant was charged with aggravated

robbery. The evidence at trial showed that he and his two

roommates hatched a scheme to steal money at gunpoint from a

woman driving a taqueria truck. He was the designated getaway

driver.

    The abstract section of the jury charge defined the law of

parties, and the application paragraph stated that the jury should


                                20
find appellant guilty if he was “acting alone or as a party (as herein

defined)” in committing aggravated robbery. The defense presented

was that the defendant was merely present when his roommates

committed the robbery.

      The jury convicted him and the Court of Appeals, relying on

the Court's plurality opinion in Johnson v. State, 739 S.W.2d 299

(Tex.Cr.App. 1987), found reversible error because the trial judge,

over the defendant’s objection, declined to apply the law of parties

more explicitly in the application paragraph. Vasquez, 342 S.W.3d

at 363.

      The Court granted the State's petition to decide whether

objected-to error in the application paragraph is subject to the

“usual harm analysis” set out in Almanza v. State, 686 S.W.2d

157, 171 (Tex.Cr.App. 1985), “or a per se finding of harm.”

Vasquez, 342 S.W.3d at 363. The Court ultimately concluded

that the “usual Almanza factors” applied.3

  3
     Although the Court found that “any error in the present application
paragraph” was harmless, unrelated to the instant case, the Court overruled
Johnson “to the extent that it suggests a per se finding of harm.” Vasquez, 342
S.W.3d at 363.

                                     21
    Vasquez does not and cannot stand as the standard for

addressing claims of jury charge error. The “usual Almanza

factors” remain the proper way to address such claims. Thus,

contrary to the Court of Appeals’ statement that it “must view the

charge as a whole instead of as a series of isolated and unrelated

statements,” the Court was, in fact, required to look not at the

charge “as a whole,” but at the particular part of the charge

identified by Appellant as being in error.     Had it done so, the

Court of Appeals would have found, for the reasons set out in

Appellant’s brief below, that the trial court erred by its actions.

    In this case, Appellant properly objected to the trial court’s

failure to include the terms “intentionally or knowingly” in the

court’s charge as requested. Thus, when it found jury charge

error, as Appellant asserts it would have been required to do, the

“usual Almanza factors” would require the Court of Appeals to

determine whether Appellant suffered “some harm.” Almanza, 686

S.W.2d at 171.    “Some harm” means any harm, regardless of




                                 22
degree. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App.

1986).

     Taking the application paragraph which was actually given to

the jury, then reading it as the common person would read it, one

would believe that they were authorized to convicted Appellant if

he “engaged in sexual contact with the complainant,” regardless

of whether they believed he did so knowingly or intentionally.

Indecency with a child is not a strict liability offense, yet the

court’s charge, as given, authorized the jury to convict as if it were.

Thus, Appellant did, in fact, suffer “some harm,” because the

application paragraph given to the jury in this case authorized

them to convict Appellant simply because he engaged in sexual

contact, even if they believed he was unaware he was doing it and

had no intention to do it.

         Conclusion - Second Ground for Review

     The trial court erred by refusing to include terms

“intentionally or knowingly” in the court's charge as requested by

Appellant’s trial counsel. The Court of Appeals erred by applying

                                  23
what it perceived to be the Vasquez standard, rather the “usual

Almanza factors” which the Court’s opinion in Vasquez

mandates. Had it utilized the “usual Almanza factors,” the Court

below would have found that the trial court erred in its charge to

the jury, and that Appellant was harmed by that error.

Discretionary review should be granted, and a new trial ordered.

                             Prayer
     WHEREFORE, PREMISES CONSIDERED, Alejandro John
Garcia, Appellant in the above styled and numbered cause
respectfully prays that the Court will grant Discretionary Review
of the instant case, and upon submission of the case will vacate
the judgments of the courts below, and remand this case for a new
trial.
                      Respectfully submitted,


_______________________________ _______________________________
John G. Jasuta                  David A. Schulman
Attorney at Law                   Attorney at Law
Post Office Box 783               Office Box 783
Austin, Texas 78767-0783          Austin, Texas 78767-0783
lawyer1@johngjasuta.com           zdrdavida@davidschulman.com
Tel. 512-474-4747                 Tel. 512-474-4747
Fax: 512-532-6282                 Fax: 512-532-6282
State Bar No. 10592300            State Bar No. 17833400

               Attorneys for Alejandro John Garcia

                                24
         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 4,498 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

March 13, 2015, a true and correct copy of the above and

foregoing “Petition for Discretionary Review” was transmitted via

the eService function on the State’s eFiling portal, to John Prezas

(jprezas@wilco.org), counsel for the State of Texas, and the Hon.

Lisa McMinn (lisa.mcminn@spa.state.tx.us), State’s Prosecuting

Attorney.


                            ______________________________________
                            David A. Schulman




                                25
Exhibit “A”
Court of Appeals’ Opinion of December 11, 2014
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00781-CR



                               Alejandro John Garcia, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 11-216-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found Alejandro John Garcia guilty of indecency with a child by contact and

assessed a sentence of ten years in prison. Garcia contends that the trial court abused its discretion

by excluding his expert’s testimony, that the trial court abused its discretion by refusing to include

the words “intentional and knowing” in the application paragraph of the jury instruction, and

that the evidence is insufficient to sustain the conviction for indecency by contact. We will affirm

the judgment.


                                         BACKGROUND

                Garcia’s nine-year-old daughter went for an overnight visit to the apartment Garcia

shared with his girlfriend and their four-year-old son. She watched a movie with her brother in her

brother’s room while Garcia watched a movie in the living room with the girl’s uncle, smoking

marijuana. Garcia’s girlfriend was at work that evening. Garcia’s daughter testified that she
ordinarily slept on the couch during her visits and that, after the movies finished, Garcia fixed the

couch as her bed that night. They watched some television and, at around 9:36 p.m., she fell asleep

on the couch. She said that Garcia also fell asleep on the couch, which was unusual. She woke up

later when Garcia touched her, unbuckled his belt, then did “something really gross.” She testified,

“He pulled down my pants and stuck his middle part into my bottom. And then he put his hands on

my front part.” She testified that he put his “middle part inside my butt.” She testified that after

doing those things “he woke up, and he said, ‘Oh, my God.’ And then he started wiping my butt and

pulled up my pants. And then he went and threw the paper towel away. . . . [H]e told me to take a

shower, but I didn’t.” She said that Garcia said, “What the F?” and “Why did I do that?” to himself.

She testified that he did not tell her to keep quiet, did not threaten her, did not try to bribe her, and

did not blame her. She said that she knew Garcia was asleep when these events occurred “because

he wouldn’t have done that if he was awake.”

                The girl’s grandparents came and picked her up later that night and delivered her to

her mother, who then immediately took the child to the hospital for a checkup. Because of the nature

of the actions reported to hospital personnel, Austin Police were notified.

                Austin police officer Gregory White testified that Garcia admitted that he touched his

penis to his daughter’s anus, but Garcia claimed he did not penetrate her. White testified that

Garcia “actually said that he wasn’t sleepwalking, but was just tired. He was trying to describe it.

He was just tired. . . . He offered that he was drinking and smoking weed but didn’t offer any other

explanation as to what would explain an altered mental state.” White said that Garcia reported being

fatigued from having worked long hours. White also testified, “In this case he was offering the

explanation that he [mistook] his daughter [] for his girlfriend [].”

                                                   2
               The child’s mother testified that her daughter texted her upset, but would not speak

to her when she picked her up later that night. The mother said that Garcia denied doing anything

to their daughter. The child started shaking at the hospital and refused to allow a genital exam. The

mother testified that she continues to take her daughter to counseling even though her daughter says

she does not know why she has to go and the counselor thinks they have nothing further to discuss.

               The Department of Public Safety forensic examiner testified that tests of the child’s

panties indicated the presence of semen in a stained area, though because no sperm were found the

substance could have been something else. The examiner tested the stain for DNA, compared it to

Garcia’s DNA, concluded that Garcia could not be excluded as a contributor, and stated that the

probability of choosing another unrelated contributor was one in 436.6 million for Hispanic persons.

               Based on the State’s objection, the trial court excluded Garcia’s proposed witness,

Dr. Michel Bornemann, a self-described “sleep physician.” Dr. Bornemann testified during a

voir dire examination and a bill of exception. He would have testified to the jury about the

possibility of Garcia acting sexually while essentially asleep. He said he reviewed a police report,

reviewed the hospital’s report on the examination of the victim, listened to Garcia’s interview

with Austin police, interviewed Garcia, and talked to Garcia’s girlfriend. Dr. Bornemann did not

physically examine Garcia, nor did he test him for whether he was a sleepwalker. He testified that

such tests can show whether someone sleepwalks during that test and whether the person has any

underlying condition that could account for sleepwalking, but not whether a person might have

sleepwalked on a particular previous occasion.

               The jury found Garcia not guilty of aggravated sexual assault of a child, but found

him guilty of indecency with a child by contact.

                                                   3
                                           DISCUSSION

               Garcia challenges the trial court’s exclusion of Dr. Bornemann’s testimony, its jury

instruction, and the sufficiency of the evidence to support the conviction.


The court did not err by excluding the proffered expert testimony.

               Garcia contends that the trial court erred by sustaining the State’s objection to his

expert, Dr. Bornemann. Garcia contends that the trial court wrongly excluded the testimony because

it did not like the way in which Dr. Bornemann reached his conclusion.

               We review trial-court rulings on the admissibility of evidence under an abuse of

discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). A trial court

abuses its discretion when it acts without reference to any guiding principles, and we reverse the

judgment when that abuse harms the defendant. Ex parte Ramey, 382 S.W.3d 396, 401 (Tex. Crim.

App. 2012). A party proffering expert testimony must show that the scientific evidence is reliable

through clear and convincing evidence showing the following: (1) the underlying scientific theory

is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied

on the occasion in question. Sexton v. State, 93 S.W.3d 96, 100 (Tex. Crim. App. 2002) (citing Kelly

v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)).

               When Garcia called Dr. Bornemann, the State requested and obtained a hearing

concerning the underlying facts or data on which his opinion was based. See Tex. R. Evid. 705(b).

Through Dr. Bornemann, Garcia sought to offer evidence that he was essentially sleepwalking when

he touched his daughter and, therefore, that he lacked the requisite intent or voluntariness to commit

the crime. At the close of the voir dire examination, the State objected to the testimony, arguing



                                                  4
that it was based on a novel and unreliable scientific theory that could mislead the jurors. The State

contended that the theory lacked diagnostic criteria and support in the medical community

and, furthermore, that Dr. Bornemann did not “appropriately diagnose this defendant as having

any disorder.”

                 We will focus on the third of the factors set out in Sexton. Dr. Bornemann stated that

he did not examine Garcia physically, although they conversed by telephone, and he did not rely on

any examination of Garcia regarding sleep disorders. Dr. Bornemann testified as follows:


       Clinically, in order to make a clinical diagnosis, you need longitudinal assessment
       of the individual to confirm that it is a recurrent problem that is of significant health
       or safety consequences to the individual and/or individuals that were with him. I
       can only guess what the situation would be with Mr. Garcia. But without having a
       longitudinal assessment as a physician and continuity of care, I can’t with confidence
       state that he has a specific disorder.


Thus, despite his conclusions regarding Garcia’s actions, Dr. Bornemann essentially testified

that diagnostic techniques are required to find a disorder and that he did not apply those techniques

to Garcia. We cannot say that the trial court abused its discretion by excluding Dr. Bornemann’s

testimony because Garcia failed to show by clear and convincing evidence that a valid technique for

diagnosing parasomnia was properly applied to him. See Sexton, 93 S.W.3d at 100.


The jury instruction on indecency was not erroneous.

                 Garcia contends that the trial court erred by refusing to include the words

“intentionally or knowingly” in the application paragraph of the indecency charge. The charge given

was as follows, and Garcia requested that the terms “intentionally or knowingly” be included where

we have inserted asterisks inside of brackets:

                                                   5
       Now bearing in mind the foregoing instructions, if you believe from the evidence
       beyond a reasonable doubt that the defendant, ALEJANDRO JOHN GARCIA, on
       or about December 24, 2010, in Williamson County, Texas, [***] engaged in sexual
       contact with a child younger than 17 years of age, namely, any touching by the
       defendant, including touching through clothing, of any part of the genitals of [KG],
       with intent to arouse or gratify the defendant’s sexual desire, then you will find the
       defendant guilty of the offense of Indecency with a Child by Contact, as alleged in
       Count Two of the indictment, and so say by your verdict.


Garcia contends that, without the requested words, the charge improperly instructed the jury to

convict him because he engaged in prohibited contact, even if he was unaware he was doing it and

had no intention of doing it.

               The jury charge must contain an accurate statement of the law and must set out

all of the essential elements of the offense. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.

App. 2012). In examining the charge for possible error, we must view the charge as a whole instead

of as a series of isolated and unrelated statements. Id.

               The applicable statute prohibits persons from engaging in sexual contact with a child.

See Tex. Penal Code § 21.11(a). Sexual contact occurs when a person acting with the intent to

arouse or gratify the sexual desire of any person either touches certain parts of a child’s body or

touches any part of a child’s body with certain parts of the toucher’s body. Id. § 21.11(c). The

statute does not include “knowing” as a culpable mental state for this offense, see id., so the court’s

exclusion of that word was proper. Contrary to Garcia’s argument, the charge given did not create

a “strict liability” offense based merely on contact because it instructs that, to be guilty of the

offense, the defendant must have committed the requisite touching intending to arouse or gratify

someone’s sexual desire. Courts have held that including the words “intentionally or knowingly”

as Garcia requested in an indecency charge would be error. See Bazanes v. State, 310 S.W.3d

                                                  6
32, 36-37 (Tex. App.—Fort Worth 2010, pet. ref’d); Jones v. State, 229 S.W.3d 489, 492

(Tex. App.—Texarkana 2007, no pet.). The trial court did not abuse its discretion by excluding the

terms “intentionally or knowingly” where Garcia requested they be included because his requested

instruction would not have accurately described the offense as defined by the language of the statute.


The evidence was sufficient to support the finding of guilt.

               Garcia contends that the record lacks evidence to support the finding that he had the

requisite intent when having sexual contact with his daughter. He contends that there is no evidence

that he acted intentionally or knowingly. A conviction on the offense of indecency with a child

requires a finding that the offender had sexual contact with the child intending to gratify the sexual

desire of any person. See Tex. Penal Code § 21.11. While the offense of indecency by contact

requires a finding that the offensive contact was committed with the specific intent to arouse or

gratify someone’s sexual desire and a more basic finding that the contact was committed voluntarily,

see id. § 6.01(a), the offense does not require any other finding of knowledge or intent.

               When reviewing the sufficiency of the evidence to support a verdict, an appellate

court must view the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found each essential element of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Brooks v. State, 323 S.W.3d 893, 896

(Tex. Crim. App. 2010). The reviewing court must defer to the jury’s determination of weight and

credibility; the jury is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. Brooks, 323 S.W.3d at 899. The fact finder is entitled to judge the credibility of

the witnesses and can believe all, some, or none of the testimony presented. Chambers v. State,



                                                  7
805 S.W.2d 459, 461 (Tex. Crim. App. 1991). When the record contains evidence supporting

conflicting inferences, the appellate court must presume that the jury resolved any conflicts in favor

of its verdict. Rabb v. State, 434 S.W.3d 613, 622 (Tex. Crim. App. 2014). Intent may be inferred

from acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.

App. 1991).

               Garcia does not dispute that he made the requisite contact with his daughter or that

she was a child within the statutory definition, but contends that he did not act with the requisite

intent or voluntariness. See Tex. Penal Code §§ 6.01(a) (voluntariness), 21.11(c) (sexual contact).

He points to his daughter’s testimony that he was asleep when he touched his daughter and that

he “woke up, and he said, ‘Oh, my God.’” He contrasts his behavior with that of other persons

convicted of sexual crimes. He cites a case in which the Texarkana court of appeals reversed a

conviction for aggravated sexual assault of a child based on the State’s failure to prove that an

accused acted voluntarily when touching his daughter because the State provided no evidence that

the defendant was awake or that a sleeping person could not engage in the offensive conduct.

Whatley v. State, 415 S.W.3d 530, 548 (Tex. App.—Texarkana 2013), reversed, No. PD-1627-13,

2014 Tex. Crim. App. LEXIS 1511 (Tex. Crim. App. Oct. 8, 2014).

               Since Garcia filed his supplemental brief based on the Texarkana court’s opinion,

however, the court of criminal appeals has reversed that decision, reinstating the jury’s verdict of

guilt. 2014 Tex. Crim. App. LEXIS 1511. Although the child in that case told investigators when

she was eleven years old that Whatley was asleep during the event because his eyes were closed

and he was snoring, she acknowledged during her testimony when she was eighteen that she had

been unable to see Whatley’s face when they were in bed because he was behind her. Id. at *14.

                                                  8
The court of criminal appeals found evidence from which the jury could have inferred that the child

had mistaken Whatley’s closed eyes and heavy breathing for sleep. Id. at *15. That court wrote that

the jury could have concluded that the child reported that Whatley was asleep to reconcile her love

for him with the abuse by asserting that he must have been unaware of his actions. Id. at *14.

Although the child had theorized that Whatley might have sleepily mistaken her for her mother,

her mother testified that, in the five years she had shared a bed with Whatley, he only once reached

for her in his sleep, and on that occasion he did not touch or penetrate her vagina.1 Id. at *14-15.

               As Garcia argued, the testimony in this case is somewhat similar to that in

Whatley—a record that the court of criminal appeals has concluded supports the jury’s verdict

and the implicit finding that Whatley’s actions were voluntary. See id. at *16-17. There is some

evidence on which the jury could have relied to find that Garcia’s actions were voluntary and

committed with the requisite intent. The presumptive presence of semen on the child’s clothing is

clear evidence that Garcia’s sexual desires were aroused and gratified by the contact. Although

Garcia’s daughter testified that her father was asleep during this event, the jury was entitled to

disregard this aspect of her testimony and apparently did so. The jurors were entitled to and must

have chosen instead to credit Garcia’s statement to police that he was not sleepwalking when it

occurred. They may have credited his statement that he believed he was touching his girlfriend as




       1
          This testimony conflicted with the mother’s report to police investigators that Whatley
had several times initiated sexual contact while asleep and claimed not to remember doing so. See
Whatley v. State, 415 S.W.3d 530, 546 (Tex. App.—Texarkana 2013), reversed, No. PD-1627-13,
2014 Tex. Crim. App. LEXIS 1511 (Tex. Crim. App. Oct. 8, 2014). Although the court of criminal
appeals did not reference this conflicting evidence in its opinion, it could have concluded that the
jury was entitled to resolve the conflict in favor of the mother’s trial testimony.


                                                 9
showing that he was awake enough to recognize that he was contacting someone in a sexual

manner—demonstrating that his actions were voluntary—but disbelieved his assertion that he

thought he was touching his girlfriend. The standard of review does not permit us to reverse the

conviction on this record.


                                        CONCLUSION

               Finding no reversible error presented, we affirm the conviction.




                                             Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: December 11, 2014

Do Not Publish




                                               10
