                                                                                    ACCEPTED
                                                                                14-14-00696-CR
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           6/18/2015 2:58:43 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                      NO. 14-14-00696-CR

                 IN THE COURT OF APPEALS                        FILED IN
            THE FOURTEENTH DISTRICT OF TEXAS             14th COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                                         6/18/2015 2:58:43 PM
                                                         CHRISTOPHER A. PRINE
             ALEJANDRO MORALES CALLES                             Clerk
                      Appellant

                                v.

                     THE STATE OF TEXAS
                           Appellee


            On Appeal from Cause Number 1384626
            184th District Court, Harris County, Texas
             Honorable Jan Krocker, Judge Presiding



                APPELLANT’S AMENDED BRIEF



ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          MELISSA MARTIN
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN 24002532
                                          1201 Franklin St, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278
                                          melissa.martin@pdo.hctx.net

                                          Counsel for Appellant
             IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                         Alejandro Morales Calles
                                   SPN# 00972606
                                   701 N San Jacinto
                                   Houston, TX 77002

TRIAL PROSECUTOR:                  Anthony Robinson
                                   Assistant District Attorney
                                   Harris County Texas
                                   1201 Franklin St, 6th Floor
                                   Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:          John Garner Reed
                                   Attorney at Law
                                   2100 E. Nasa Pkwy Ste n201
                                   Seabrook, TX 77586

COUNSEL ON APPEAL FOR APPELLANT:   Melissa Martin
                                   Assistant Public Defender
                                   Harris County TX
                                   1201 Franklin St, 13th Floor
                                   Houston, TX 77002
                                   melissa.martin@pdo.hctx.net

PRESIDING JUDGE:                   Hon. Jan Krocker
                                   184th District Court
                                   Harris County, TX
                                   1201 Franklin St, 17th Floor
                                   Houston, TX 77002




                            ii
                                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ........................................................................................................iv

STATEMENT OF THE CASE...................................................................................................... 1
      M.G.’S TALE .............................................................................................................. 2
      ALEX’S TALE ............................................................................................................. 3

STATEMENT OF FACTS ............................................................................................................. 1

ISSUE PRESENTED ................................................................................................................... 3

          THE EVIDENCE OFFERED BY THE STATE WAS LEGALLY INSUFFICIENT
          FOR A RATIONAL JURY TO CONVICT APPELLANT UNDER JACKSON V.
          VIRGINIA, 443 U.S. 307, 318 (1979).

SUMMARY OF THE ARGUMENT .............................................................................................. 4

ARGUMENT .............................................................................................................................. 5

     A. STANDARD OF REVIEW ............................................................................................... 4

     B. M.G.’S TESTIMONY AS TO THE INCIDENT ................................................................ 6

     C. THE OUTCRY.............................................................................................................. 14

CONCLUSION ......................................................................................................................... 21

PRAYER .................................................................................................................................. 25

CERTIFICATE OF SERVICE .................................................................................................... 26

CERTIFICATE OF COMPLIANCE.............................................................................................. 2




                                                                    iii
                                         INDEX OF AUTHORITIES


Cases

Ervin v. State, 331 S.W. 3d 49 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ........... 5

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) ....................................................... 5

Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................4, 5, 6, 22

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................. 5, 22




                                                         iv
                           STATEMENT OF THE CASE

       On a hot July day in 2012, Mr. Morales Calles (hereafter, Alex) was working in

his backyard when his fiancée, M.O., called him from work to let him know her sister,

D.O., and her fiancée, GG, would be dropping four of their children off for him to

watch while they went to an appointment with D.O.s doctor (3 R.R. at 8;.13).

       G.G. and D.O. brought G.G., Jr., M.G. (the complainant), Mariah, and Isaiah to

Alex’s house, where they played on the tire swing with M.O.’s and Alex’s two children,

Juliana and Jeremiah (3 R.R. at 13; 35-36). After about 20 minutes, everyone went inside

because it was getting too hot; M.G. and Alex both testified that they all started

watching a movie in the living room (3 R.R at 37; 4 R.R. at 132). M.G. and Alex both

testified the TV faced a full-sized sofa and a reclining chair, with a loveseat at a right-

angle, facing the recliner (3 R.R. at 38; 4R.R. at 132).



       Sofa                               Loveseat

                      Recliner


       TV


(diagram not to scale).

       No photographs or floorplan of the home’s interior were offered into evidence;

only photos of the outside of the very small house were produced.

                                             1
       According to both Alex and M.G., some of the children, including M.G.,

started out sitting on the sofa to watch the movie and Alex sat on the recliner with his

feet up, working on his laptop (3 R.R. at 39; 5 R.R. at 21).

       At this point, Alex’s and M.G.’s stories diverge.

M.G.’s Tale

       Isaiah, the youngest child there, got some toys out of Alex’s children’s room

and brought them to the sofa (3 R.R. at 39). The prosecutor then asked M.G. the

following:

       Q.     So, once he puts all the toys on the couch, was it just not enough
              room left?

       A.     There wasn’t. So, I had to move. Like I was squished on the
              couch.

(3 R.R. at 41).

       M.G. testified she then moved to the loveseat and sat facing the TV (3 R.R. at

44).

       Q.     So, you’re on the sofa, kind of by yourself at this time. Kind of
              walk us through what happens next while you’re on the sofa.

       A.     He grabs my pants.

       Q.     Okay.

       A.     Tugs them like to the side.

       Q.     Well, can you kind of – I couldn’t see. Can you stand up?

       A.     (Witness complies.) Pulls them like this to the side (indicating). He
              kind of pulled them.
                                            2
              MR. ROBINSON: May the record reflect that the witness has
              taken her fingers and pulling her pants at the belt loop area?

              THE COURT: Yes, sir.

              THE WITNESS: Yes, sir.

       Q.     (BY MR. ROBINSON) You may sit. So, as he grabs your pants,
              what does he do?

       A.     He tries to go in my pants.

(3 R.R. at 45).

       M.G. goes on to state that Alex was successful in “go[ing] in” her pants and

inserted to fingers inside the “lips” of her vagina (3 R.R. at 50-51).

       Further details of M.G.’s testimony and statements she made to law enforcement

and her father will be introduced in argument.

Alex’s Tale

       When M.O. called him to let him know M.G. and the other children were going

to be dropped off, Alex was replacing rotting wood on the back porch, using a

compressor and a nail gun (4 R.R. at 129-30). He was not happy about having to watch

four children in addition to his own because he was working on the porch project (4

R.R. at 130). When M.G. and the others arrived they went straight to the tire swing to

play on it (4 R.R.at 131). Because it was hot, Alex had them go inside to watch a movie

(4 R.R. at 131). Alex collected up his tools and then went inside (4 R.R. at 131).

       M.G. selected the movie and was sitting on the long couch (4 R.R. at 132). Alex

sat on his recliner and was looking at his laptop (4 R.R. at 132). After a while, M.G.
                                             3
came closer to Alex and was “spinning around” (4 R.R. at 132). “And I was trying to

look at my laptop, and she was messing with me kind of like in a friendly way” (4 R.R.

at 132). Alex showed the jury a bump on his head that he sustained in an accident and

he said M.G. was messing with it (4 R.R. at 133).

       Eventually, Alex became irritated with M.G.’s playing around with him when he

thought she should be taking care of the younger children, particularly Isaiah, who was

about one at the time (4 R.R. at 134). “She was over top of me, and she don’t listen to

me. So, I just call her that she was a lazy ass little kid, that she don’t respect orders, and

I’m going to tell her dad what she is doing” (4 R.R. at 135). In his frustration he pushed

her away forcefully (5 R.R. at 31). He regretted pushing her and being angry with her (5

R.R. at 31).

                                     Issue Presented

       The evidence offered by the state was legally insufficient for a rational jury
       to convict appellant under Jackson v. Virginia, 443 U.S. 307, 318 (1979).

                               Summary of the Argument

       There was insufficient evidence to support Mr. Morales’s conviction because the

record contains conclusive evidence of a reasonable doubt. No rational juror could have

failed to have reasonable doubt of his guilt. See Ervin v. State, 331 S.W. 3d 49, 55 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d); Jackson v. Virginia, 443 U.S. 307, 318, n. 11,

317-19 (1979).



                                              4
                                          Argument

A.    Standard of Review

      Evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational factfinder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing

Jackson, 443 U.S. at 319. The evidence is insufficient if it conclusively establishes a

reasonable doubt. Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist] 2010,

no pet.)

      If the evidence at trial raises only a suspicion of guilt, even a strong suspicion,

then that evidence is insufficient. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App.

2010). “It is the obligation of the appellate courts to ensure evidence presented actually

supports a conclusion that the defendant committed the crime that was charged.” Id.

      Once a defendant has been found guilty of the crime charged, the
      factfinder's role as weigher of the evidence is preserved through a legal
      conclusion that upon judicial review all of the evidence is to be considered in
      the light most favorable to the prosecution. The criterion thus impinges upon
      “jury” discretion only to the extent necessary to guarantee the fundamental protection
      of due process of law.

Jackson, 443 U.S. at 319, (citation omitted)(emphasis added).

B.    M.G.’s Testimony as to the Incident

      Whatever happened between Alex and M.G., it happened in a very small room

in a 660 square-foot house (5 R.R. at 59). According to the Harris County Appraisal of

                                                5
the house, from which the state quoted, the house contains a total of 5 rooms: two

bedrooms and one bathroom; presumably the other two rooms are the living room and

kitchen, though the appraisal does not specify. No dimensions other than the square

footage of the house are shown. (HCAD appraisal attached as appendix.) The state

guessed the living room was 12 feet by 10 feet; Alex said it was “long” (5 R.R. at

60).Twelve feet in width would be insufficient to accommodate a regular-sized sofa, a

recliner, and a loveseat in the configuration described by both M.G. and Alex. The living

room was more likely at least fifteen by eight or ten feet.

      The following diagram was produced from an interior design site, and the

furniture depicted is drawn to the scale of the 15’ x 8’ square foot dimensions of the

room. They are the average sizes of regular sofa, recliner, and loveseat and are provided

by the site. The diagram does not purport to be an exact replica and is included only to

aid the Court in visualizing the scene.




                                            6
       Add to the room six children, ranging in age from one to 10 and one adult with

his feet propped up on the recliner working on his laptop, and it becomes difficult to

fathom the incident M.G. described having taken place without any of the others

noticing, or without her crying out or struggling. But, assuming they were so enthralled

with the toys or the movie that they failed to notice anything else, what is impossible to

fathom is that a man in a recliner, with his feet up, working on a laptop, could somehow

contort his body such that he could grab the belt loops of someone on the loveseat and

get his hands into her vagina, with his feet still propped up and the laptop still on his

lap.




                                            7
       M.G. testified that she was sitting facing the television (3 R.R. at 44. Even

assuming Alex could reach her over the arm of the recliner, he would only be able to

reach the side of her pants, without standing up. She said nothing about Alex getting

up from the chair or putting his laptop down; in fact she demonstrated to the jury how

he was sitting when she said he went into her pants with both hands (3 R.R. at 42-43).

What she described is simply not physically feasible.

       After M.G. testified on direct examination that Alex “went into her panties,” the

prosecutor asked her how he did that if she was wearing jeans, and the following

exchange occurred:

       A.     He tugged me.

       Q.     He tugged you?

       A.     Tried to pull me closer.

       Q.     And what did he specifically – specifically what did he do with his
              hands?

       A.     He went down my pants.

       Q.     With what?

       A.     His hands?

(3 R.R. at 50).

       After showing M.G. a photograph of her with the CAC interviewer and

ascertaining she is wearing the same jeans in the picture that she wore on the day of the

alleged incident, the prosecutor asked:

                                           8
         Q.    Okay. So these pants you had, you said he – that you referred to as
               your Tio Alex, you said he was tugging at your pants. Were they
               kind of stretchy at the waist? Were they button up?

         A.    Yes, sir.

         Q.    Which one? Were they stretchy or –

         A.    They buttoned up.

         Q.    They buttoned up?

         A.    Yes, sir.

         Q.    So, were they loose fitting; or were they tight?

         A.    They were loose fitting. They were loose fitting, about like in the
               middle kind of.

         Q.    Sorry?

         A.    They are kind of tight, but kind of loose.

         Q.    Okay. Now, when he put his hands inside your pants and inside
               your panties, do you recall when he took his hands out if you had
               to button your pants back up?

         A.    I had to pull them up a little bit.

         Q.    You had to pull them back up?

         A.    Because they were like slipping, I guess. Because I had a belt on.
               They were kind of big on me, so I had to pull them up.

(3 R.R. at 56).

         During cross-examination, however, this interchange with defense counsel took

place:


                                               9
       Q.     And did I understand you correctly that the jeans you’re wearing in
              that picture are the same ones that you had on that day at Alex’s
              house?

       A.     Yes, sir.

       Q.     And you said they had buttons?

       A.     One button.

       Q.     Is it the kind --

       A.     One button just to button my pants.

       Q.     Right. They had one button at the top and then the zipper?

       A.     Yes, sir.

       Q.     And you were also wearing a belt?

       A.     No, I wasn’t wearing a belt.

       Q.     Okay. Did you say you were wearing a belt?

       A.     I said I wasn’t wearing a belt.

       Q.     Oh, you didn’t?

       A.     Mr. Robinson asked me did I have to pull my pants up and down,
              and I said no. I said yes, I had a belt.
                     I didn’t have a belt. I said I didn’t have a belt so I had to pull
              my pants up because they were loose.

       Q.     You said you didn’t have a belt?

       A.     Yes, I said I didn’t have a belt.

(3 R.R. at 102).



                                             10
       After M.G. described being on the loveseat and having Alex’s hands penetrating

her vagina, the prosecutor asked:

       Q.     Now, prior to going into your pants, did anything else happen?

       A.     He rubbed my arm.

       Q.     And what do you mean he rubbed your arm?

       A.     Like he rubbed it like that (indicating) by my shirt.

                                         ***
       Q.     Now, as he rubs your arm, what does he do next?

       A.     He stops.

       Q.     Okay. And why does he stop?

       A.     I don’t know. I can’t remember. Oh, I moved.

       Q.     You moved.

       A.     Yes, sir.

       Q.     When you say you moved, what – what type of movement did you
              do?

       A.     I scoot over.

       Q.     Closer to him or –

       A.     Far away from him.

(3 R.R. at 46-47).

              The prosecutor then took her through the vaginal penetration story again,

in more detail, then asked her:

       Q.     So, M.G., now, you said the defendant – he is rubbing your arm?
                                            11
       A.      Yes, sir.

       Q.         What happened next. Was that the end of everything?

       A.      That was before the kids brought the toys out. And then the kids
               brought the toys out and I moved.

(3 R.R. at 50).

       M.G. had testified earlier that she and some of “the kids” had started out sitting

on the long couch when they came in to watch the movie (3 R.R. at 39). On being asked

if she had ever moved from that couch, she replied that she moved when Isaiah, the

infant, brought all the toys from Juliana and J.J.’s room and put them on the couch (3

R.R. at 39).

       Q.      So, once he puts all the toys on the couch, was it just not enough
               room left?

       A.      There wasn’t. So, I had to move. Like I was squished on the couch.

(3 R.R. at 40).

       A few minutes later, M.G. testified she had moved from the long couch to the

small sofa on the other side of the recliner (3 R.R. at 42). So, either she “scooted” far

away from Alex on the long couch, even though it was crowded with kids and toys,

because she didn’t like his rubbing her arm or she moved to the loveseat because there

was no room on the long couch.

       In either version, M.G. establishes that the long couch was just as close to the

recliner as was the smaller one. She also testified that the other five children in the

                                            12
room, some of whom were sitting on the long couch next to the recliner, were

prevented from seeing what Alex was doing because his feet were “propped up” (3 R.R.

at 68). Further, she explained:

       A.     They were distracted by the toys.

       Q.     So, Isaiah is playing with the toys. And what else is on?

       A.     The movie.

       Q.     Watching a movie.

       A.     And that’s about it (3 R.R. at 69).

       M.O.’s two children, Juliana and J.J. (Jeremiah), were ages 6 and 7 at the time of

the visit to Alex’s house. Mariah was about 6 (3 R.R. at 76, 127). G.G., Jr. was 4 (3 R.R.

at 127). Isaiah was one (4 R.R. at 127).

       Assuming the seat of the long couch is approximately level with that of the

recliner, it is difficult to imagine that, at least the three older children would be unable

to see over his propped up legs; they were sitting right next to him at more or less the

same height. They would have been able to see over his legs. And he would have to

have twisted his torso to face M.G. in order to get both hands into her pants.

       Further, since M.G. claimed Alex had his feet up, working on his laptop, his grip

on her belt loop would have been tenuous at best; it would have been easy for her to

wriggle out of his reach. The record tells us nothing about what, if anything, she did or

said to get free.


                                            13
          These details alone would conclusively establish reasonable doubt in a rational

juror’s mind but there is more.

C.        The Outcry

          According to both M.G. and Alex, Alex took all six children with him to pick up

M.O. that afternoon from work (3 R.R. at 74, 4 R.R. at 49). M.G. did not tell M.O. that

Alec had molested her because she “was scared and [ ] just didn’t want to talk about it”

(3 R.R. at 75). Shortly after they got back to the house, G.G., Sr. arrived (3 R.R. at 75,

4 R.R. at 49). M.G. was afraid to tell G.G. what had happened:

          Q.    Were you afraid of what he was going to do to you, or are you afraid
                –

          A.    To Alex. I was afraid that Alex was going to lie on me, and I was
                going to get in trouble for nothing I didn’t do.

(3 R.R. at 75).

          Her fear of getting into trouble would be consistent with Alex’s testimony that

he had pushed her away forcefully, called her a lazy ass, disrespectful kid, and said he

would tell her father about her behavior (4 R.R. at 135, 5 R.R. at 31).

          Alex and M.O. invited G.G., Sr. and the children to go Lakewood Church with

them and they agreed (3 R.R. at 77). M.G. testified that she did not want to go but her

little sister did and would make a fuss if M.G. told them she didn’t want to go (3 R.R.

at 77).

          Q.    And were you concerned that your dad may ask you why you didn’t
                want to go?

                                             14
       A.     Yes, sir.

       Q.     And why were you concerned about that?

       A.     I don’t know. Because I was really scared at that point. I didn’t
              know what to do. And, so I was really afraid to tell my dad.

(3 R.R. at 77).

       Or, she might have not wanted her father and Alex to be together outside of her

presence because Alex might use the opportunity to tell on her, as he had threatened

earlier. Alex testified that it was M.G., not Mariah, who actively wanted to go to

Lakewood and she rode to church with Alex and M.O. (4 R.R. at 137). So did the other

two girls and J.J. (3 R.R. at 79). The other boys rode with G.G., Sr. (3 R.R. at 79).

       Eventually, after church, M.G. testified she rode with her father to a carwash and

when he came back to the car she told him Alex had touched her (3 R.R. at 81).

       Q.     So, you told him. What did you tell him?

       A.     I told him Alex had touched me.

       Q.     And did you tell him where Alex touched you?

       A.     Yes, sir.

       Q.     And did you describe the manner in which he touched you?

       A.     No. I just told him that he touched me, and he was like: What? And
              I told him again, and he is like: Are you sure?

                           And I said, like: Yes, sir.
                           And he was like: Are you lying?
                           I’m like: no sir.

(3 R.R. at 82).
                                           15
       G.G., M.G.’s father, testified as the outcry witness immediately after M.G.. After

much questioning about his background and his relationship with Alex and M.O., the

prosecutor brings him to the outcry and he directly contradicted what M.G. said she

told him:

       Q.     And do you ask her to give you any type of detail about what
              happened?

       A.     Yes.

       Q.     And what is she able to tell you?

       A.     She told me that he tried to – he tried to touch her boobies, and he
              tried to touch her down there. And I asked her what: Do you mean
              down there? (sic)

                            And she said, in my vagina.

       Q.     And did she elaborate on what he touched her with?

       A.     His finger inside her.

       Q.     Did you ask her any questions to kind of –

       A.     Yes, I did. I asked her: Your clitoris or your lips or just the outside?
              Which one?

                     She said: No dad. He went inside my lips.

(3 R.R. at 155).

       M.G. told her father that Alex had touched her inappropriately while they were

at a carwash after church that evening (3 R.R. at 81). From the carwash, after G.G.



                                             16
called Delfina, they went to pick her up from work and proceeded to Precinct 6 to

report the alleged incident (3 R.R. at 82).

       Q.     Okay. And so, did you talk to an officer out there that night?

       A.     Yes, sir.

       Q.     And when you talked to the officer, did you give him details of what
              had occurred earlier that day?

       A.     I just told him that he touched me, and that’s it, and like what
              before that and stuff. That’s about it. I didn’t go into detail.

(3 R.R. at 83).

       Andres Guzman, the patrol officer at Precinct 6 with whom M.G. and her

parents spoke, testified that he was loading up his patrol car to start his shift when G.G.

and Delfina approached him at 1:00p.m (3 R.R. at 221). He spoke individually first to

G.G., and then M.G. (3 R.R. at 224). He spoke to M.G. for 30 minutes to an hour (3

R.R. at 226). Contrary to M.G.’s testimony, the officer stated that M.G. provided him

with a lot of detail in their conversation (3 R.R. at 226). However, he characterized the

incident as “more of a contact-type-assault,” which is why he did not send her for a

rape kit (3 R.R. at 231). He said M.G. had told him that Alex had touched “the body

parts of the complainant” (3 R.R. at 231).

       Q.     And her body parts, were you referring to the female body parts?

       A.     Yes, her private parts. And she said it.

       Q.     Private parts?

       A.     Yes.
                                              17
         Q.    Did she – was she referring to what you believed to be her vaginal
               area?

         A.    Yes.

         Q.    Now, when someone is making a complaint against someone
               touching them, did she tell you what the defendant touched her
               with?

         A.    His hands.

(3 R.R. at 232).

         Since G.G. spoke to Guzman before M.G., had M.G. really told G.G. the

“details” he testified to, he surely would have told them to Guzman but Guzman did

not hear about the penetration allegation until he reviewed the CAC interview to

prepare for the trial (4 R.R. at 8-10).

         Officer Guzman testified he found the CAC interview was consistent with what

M.G. had told him (3 R.R. at 230); even though what he had seen and heard on the

video made him realize M.G. was now alleging a different offense, penetration (4 R.R.

at 9).

         Q.    But the statement she gave you that night, were they (sic) consistent
               with what she told Ms. Rogers?

         A.    Yes.

         Q.    So, it was just Ms. Rogers was able to get more detail from her.

         A.    Yes.

(4 R.R. at 10).

                                            18
       Certainly, it is impossible to penetrate without touching her, but this officer

reported a touching, not a penetration. He reported a touching because that it what

M.G. had told him. If G.G. had told him about Alex’s finger having been in her vagina,

he would have known to ask her the questions G.G. testified he asked her. He would

not have viewed the incident as a mere touching.

       Guzman’s role was only to take the report, he referred the case Deputy Hudson

at the precinct for investigation (3 R.R. at 233). Deputy Hudson testified that he had

specialized training in dealing with child sex-abuse cases (4 R.R. at 20-21). Hudson

reviewed Guzman’s report and stated the report indicated M.G. had said Alex had

touched her in her private area and her breasts (4 R.R. at 28-29).

       Q.     So, he touched in the private area and the breast area?

       A.     Yes, sir.

       Q.     So, when you initially hear just the words “touched in the private
              area,” what are you thinking as far as the criminal offense?

       A.     I’m thinking that – like just – he had just touched her,
              inappropriately touched her.

(4 R.R. at 27-28).

       The deputy then set up an interview with M.G. at the precinct. “After I talked to

her and determined that her story was consistent as to the same as the report and the

same thing she told Deputy Guzman, that’s when I told the father: Okay. We need to

make an appointment to have an interview at the CAC” (4 R.R. at 30). Hudson observed

the interview at the CAC and testified that M.G. provided the interviewer with more
                                           19
details than she had to Guzman, and presumably him, since he stated earlier that his

interview with her at the precinct did not change his assessment of the case as a

touching.

       Q.     Now, how was she able to provide more detail?

       A.     When the interviewer asked her about touching private areas, at
              that point she indicated that the suspect put –did it twice and he
              actually put his fingers in her vagina.

                                             ***
       Q.     So, was this like something that she just volunteered; or did the
              interviewer have to kind of like ask questions to find out exactly
              what she meant by private area?

       A.     Yes. The interviewers are trained to direct the questions to put the
              child at ease to get more details, and she asked specific questions as
              to what kind of touching and when – by “private area,” did she
              understand what private areas and what areas it was okay for
              someone to touch (sic).

(4 R.R. at 31).

       We are not told what led M.G. to say Alex penetrated her vagina with his fingers

but during cross-examination of Deputy Hudson, defense counsel elicited from him

that his report of the interview characterized this detail as a change of M.G.’s story that

resulted in the Assistant District Attorney telling the deputy to schedule a forensic

examination and rape-kit (4 R.R. at 60).

                                      Conclusion

       The jurors were not given a picture of the room where M.G. claimed Alex

molested her. They were unable to see the furniture in proportion to the size of the

                                            20
room; they were not told the dimensions of the room. They were shown three

photographs of the outside of the house (State’s Exs. 2, 3, &11). They were told the

room was small but just how small (3 R.R. at 38). The prosecutor skillfully kept their

attention focused entirely on what Alex allegedly did to M.G., not on the fact that if it

happened it happened in front of five other children

       They heard G.G., Sr. lie on the stand about what M.G. told him had happened

to her. The alleged “details” emerged several days later when she was interviewed by

Tasha Rogers, who “elicited” them from her. They heard G.G. say he remembered the

day well, yet he testified his youngest child, Ezekiel had not been born at the time. M.G.

testified Ezekiel was in the car when G.G. and Delfino dropped her and the other

children off at Alex’s house.

       They heard from Alex a reason that could explain why M.G. might have made a

false allegation against him.

       The state will no doubt argue that all the issues raised here are matters of

credibility and weight of the evidence and reasonable inferences therefrom. But Jackson

does not eliminate judicial review entirely from legal sufficiency analyses; it anticipates

the possibility that some convictions will require appellate courts to impinge upon jury

discretion “to the extent necessary to guarantee the fundamental protection of due process of law.”

Jackson, 443 U.S. at 319, (citation omitted)(emphasis added).

       This is one of those cases. This is a case requiring this Court to ensure that the

evidence actually supports the conviction. Winfrey v. State, 323 S.W.3d 875, 882 (Tex.
                                                21
Crim. App. 2010). It does not. No rational juror would conclude the state proved its

case beyond a reasonable doubt.

       “Reasonable doubt” is no longer defined for jurors. They are told things like:

“[W]e do know from case law it’s a very high standard. It’s less than 100 percent,

because the state could never prove anything to you a hundred percent unless you were

there and saw it and then of course you would be a witness, not a juror…For some

people I guess it might be 90 percent or some people 95 percent, for some people 99,

whatever it is to you as long as it is a very high standard” (2 R.R. at 38).

       But reasonable doubt was never meant to mean a percentage of the evidence

presented by the state; it is about the quality of the doubt in the juror’s mind, given the

quality of the state’s evidence. It is about whether one’s doubt is reasonable in the face

of what the state has shown them.

       Jurors are also routinely, as in this case, shown a slide of an uncompleted puzzle

depicting the outline of a gun. The prosecutor stated: “Notice all the puzzle pieces aren’t

filled in. This is beyond a reasonable doubt. You know based on seeing that without

having all the pieces that this is a gun…. Basically it’s a kind of common sense thing.

You know it when you see it” (2 R.R. at 99). The puzzle analogy is inapt; whether a

crime has been committed is far more complex than a puzzle showing a gun handle,

trigger, and muzzle. The consequences of filling in gaps in the prosecution’s story

improperly, due to misunderstanding the evidence, for example,                 or relying on


                                            22
testimony of a child sex-abuse investigator to assess whether a witness is lying (4 R.R.

at 43) are far too dire to trivialize in this fashion.

       It defies reason that a man in his mid-forties, with no prior felonies, and only

three very minor B misdemeanors—a man with grown children—an undocumented

alien, with everything to lose-- would suddenly commit aggravated sexual assault of a

child within mere feet of five other children, two of whom lived with him, and some of

whom were nieces and nephews of his girlfriend’s sister. And do so when the child’s

father is expected at any time to come and pick his children up from his house.

                                            Prayer

       In view of the above, Alejandro Morales Calles, entreats this Court to recognize

that the state’s evidence conclusively raised reasonable doubt and find it legally

insufficient. He asks the Court to reverse his conviction and render an acquittal.




                                                   Respectfully submitted,

                                                   Alexander Bunin
                                                   Chief Public Defender
                                                   Harris County Texas

                                                   /s/ Melissa Martin
                                                   _______________________
                                                   Melissa Martin
                                                   Assistant Public Defender
                                                   Harris County Texas
                                                   1201 Franklin, 13th floor
                                                   Houston Texas 77002
                                              23
                                                (713) 274-6709
                                                TBA No. 24002532
                                                Email: melissa.martin@pdo.hctx.net




                           CERTIFICATE OF SERVICE

       I certify that a copy of this brief was e-served to the Appellate Division, Harris
County District Attorney located at 1201 Franklin, 6th Floor, Houston, TX 77002 and
was also sent by first-class mail to Appellant.

                                                /s/ Melissa Martin
                                                ______________________________
                                                MELISSA MARTIN



                       CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.     Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 4322 words printed in a proportionally spaced typeface.



                                           24
2.    This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.   Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
                                                /s/ Melissa Martin
                                                ____________________________
                                                MELISSA MARTIN




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