                                                               ACCEPTED
                                                           01-14-00965-CR
                                                FIRST COURT OF APPEALS
                                                        HOUSTON, TEXAS
                                                      7/27/2015 4:03:52 PM
     No. 01-14-00965-CR                              CHRISTOPHER PRINE
                                                                    CLERK


             In the
       Court of Appeals
            For the                       FILED IN
                                   1st COURT OF APPEALS
    First District of Texas            HOUSTON, TEXAS
          At Houston               7/27/2015 4:03:52 PM
                                   CHRISTOPHER A. PRINE
                                           Clerk
    

         No. 1381604
      In the 248th District
    Of Harris County, Texas

    

     ELMER ALVARADO
         Appellant
            V.
    THE STATE OF TEXAS
          Appellee

    
   STATE’S APPELLATE BRIEF
    

                  DEVON ANDERSON
                  District Attorney
                  Harris County, Texas

                  ERIN EPLEY
                  Assistant District Attorney
                  Harris County, Texas

                  KIMBERLY APERAUCH STELTER
                  Harris County Criminal Justice Center
                  1201 Franklin, Suite 600
                  Houston, Texas 77002
                  Telephone: 713.755.5826
                  stelter_kimberly@dao.hctx.net
                  State Bar Number: 19141400

ORAL ARGUMENT NOT REQUESTED
                STATEMENT REGARDING ORAL ARGUMENT

       State believes that the matters raised by the appellant are well-settled,
that the briefs in this case adequately apprise this Court of the issues and the
law. Therefore, the State does not request oral argument.

                       IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a

complete list of the names of all interested parties is provided below.

      Counsel for the State:

            Devon Anderson  District Attorney of Harris County

            Kimberly Aperauch Stelter  Assistant District Attorney on

                     appeal

            Erin Epley Assistant District Attorney at trial

      Appellant or criminal defendant:

            Elmer Alvarado—Defendant

      Counsel for Appellant:

            Kyle B Johnson  Counsel on appeal

            Sam Cammack, Maverick Ray defense counsel at trial

      Trial Judge:

            Honorable Katherine Cabaniss  Judge Presiding




                                         i
                                            TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ........................................................i

IDENTIFICATION OF THE PARTIES .........................................................................i

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................... iii

STATEMENT OF THE CASE...................................................................................... 1

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

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

REPLY TO APPELLANT’S SOLE ISSUE PRESENTED .............................................. 4


         The evidence is sufficient for the jury to have found appellant
         guilty of indecency with a child.


PRAYER ................................................................................................................... 13

CERTIFICATE OF SERVICE .................................................................................... 14

CERTIFICATE OF COMPLIANCE ............................................................................ 15




                                                             ii
                                             INDEX OF AUTHORITIES

CASES

Adanandus v. State,
  866 S.W.2d 210 (Tex. Crim. App.1993)........................................................................... 8
Garcia v. State,
  2014 WL 7140423, at *4-5 (Tex. App.—
  Austin, 2014, pet. ref’d)(not designated for publication) .................................... 11
Gear v. State,
  340 S.W.3d 743 (Tex. Crim. App. 2011).......................................................................... 4
Hooper v. State,
  214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................................................... 5
Jackson v. Virginia,
  443 U.S. 307 (1979)................................................................................................................. 5
Langley v. State,
  2015 WL 2394144, at *3 (Tex. App.—
  Tyler 2015, no pet. h.)(not designated for publication) ....................................... 11
Rogers v. State,
  105 S.W.3d 630(Tex. Crim. App. 2003)........................................................................... 8
Whatley v. State,
 445 S.W.3d 159 (Tex. Crim. App. 2014).............................................................. 5, 8, 10


STATUTES

TEX. PENAL CODE ANN. §21.11(a)(1) (West 2011) ............................................................. 5
TEX. PENAL CODE § 6.01(a) (West 2011) ................................................................................ 8
TEX. PENAL CODE ANN. §21.11(c) (West 2011 ...................................................................... 6




                                                                  iii
RULES

TEX. R. APP. P. 38.2(a)(1)(A) ........................................................................................................ i




                                                                  iv
TO THE HONORABLE COURT OF APPEALS:


                            STATEMENT OF THE CASE

      The appellant was charged with aggravated sexual assault of a child

under six years of age (CR-6). He pled not guilty, and the case proceeded to

trial before a jury (CR-92). The jury found appellant guilty of the lesser-

included offense of indecency with a child, and sentenced him to five years in

the institutional division of the Texas Department of Criminal Justice (CR-92).

Appellant then filed notice of appeal, and the court certified his right to appeal

(CR-90, 94).

                        




                              STATEMENT OF FACTS

      On February 16, 2013, Rita dropped her five-year-old daughter Anna off

at her Aunt Gloria’s to attend a birthday party with Gloria’s granddaughter

Heather (RR4-14-15). 1 After the party, Anna went home with Gloria to spend

the night (RR5-15). Anna slept in a bed with Heather, Gloria, and Gloria’s




1
 To protect their privacy, the State is using the pseudonyms “Anna,” “Rita,” and
“Heather” to refer to the complainant, her mother, and the complainant’s young cousin.
husband, appellant. Appellant was on the left, then Anna, then Heather and

Gloria (RR5-17).

      Anna woke up during the night to find appellant’s hand inside her

leggings and underwear (RR5-17). Appellant’s hand was touching inside her

“middle part”2 and moving (RR5-21). Then appellant “scratched” her (RR5-

21). This went on for “seven Mississippis” until Anna moved away (RR5-22).

Anna didn’t say anything to appellant or Gloria about what happened that

night or later, but she did wake her aunt and ask her to trade places with her

in bed (RR5-23).

      Anna went home the next evening (RR4-16, 5-24). Rita had Anna take a

bath before bed (RR4-19). When she checked in on Anna, however, Anna was

not bathing (RR4-19). Rita began helping Anna wash, but when she got to her

pelvic area Anna didn’t want her mother to touch her (RR4-20). Rita was

surprised, because Anna had never acted this way before (RR4-21).

      After the bath, Rita asked Anna if someone had touched her (RR4-21).

Anna’s reaction was to turn and give her mother a “shocked” look (RR4-22).

She then looked down, turned her back to her mother, and said “yes” (RR4-22-




2
  Using an anatomically correct doll, Anna indicated that her “middle part” was the
female genitalia (RR5-19).
                                            2
22).   Anna told Rita how appellant touched her under her panties and

“scratched” her in her “cookie”3 (RR4-22).

       Rita was upset, but did not call the police right away (RR4-24-25).

Instead, she waited until the next day to take Anna to a doctor, as Anna had

hurt her foot at the birthday party (RR4-26). While at the doctor’s office Rita

asked him to check Anna’s vaginal area, but did not say why (RR4-30). The

doctor did not find anything wrong (RR4-35). He spoke to Anna privately and

asked her if someone had touched her, but she denied it (RR4-34).

       After talking to school personnel, Rita reported the incident to police

(RR3-11). Anna was interviewed by a forensic investigator who specialized in

interviewing children (RR4-105, 107). While the investigator was not able to

speak of the details Anna provided, she was able to say that Anna gave a clear

and consistent explanation of who, where, and what happened to her, and that

her explanation of events was consistent with what she had told her mother

(RR4-117).

       The police also interviewed appellant (RR3-44). Appellant agreed with

Anna about the date they had been together last but didn’t want to talk about

what had happened, saying it was a “very delicate situation.” (RR3-46).


3
 Anna referred to the vaginal area as “cookie,” or “torta” when she was five and the
offense occurred (RR4-20).
                                            3
                       




                       SUMMARY OF THE ARGUMENT

      The evidence is sufficient for the jury to have found appellant guilty of

indecency with a child. A rational jury could have found that appellant’s

touching of the complainant was voluntary and not done while he was

sleeping.

                       




             REPLY TO APPELLANT’S SOLE ISSUE PRESENTED

      The evidence is sufficient for the jury to have found appellant
      guilty of indecency with a child.

      Appellant raises only one issue in his appeal; that the evidence was

legally insufficient to support his conviction for indecency with a child.

      A. Standard of review on insufficiency of the evidence

      “In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light

most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational fact finder could have found

                                        4
the essential elements of the crime beyond a reasonable doubt.” Gear v. State,

340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia, 443 U.S.

307, 318–19 (1979). Under this standard, appellate courts must defer to the

jury’s ability to fairly “resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319; see Whatley v. State, 445 S.W.3d 159, 166 (Tex.

Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

The jury may draw “multiple reasonable inferences as long as each inference

is supported by the evidence.” Hooper, 214 S.W.3d at 15. “[A]n inference is a

conclusion reached by considering other facts and deducing a logical

consequence from them.” Id. at 16. It is not necessary that every fact point

directly and independently to the defendant’s guilt; it is enough if the

conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. See id. at 13. Finally, circumstantial evidence has

the same probative value as direct evidence, and alone, can be sufficient to

establish guilt. Id.


      B. Application to the facts

      In addition to the initial charge of super-aggravated sexual assault, the

jury was given the option to convict appellant of the lesser-included offense of


                                       5
indecency with a child by sexual contact. TEX. PENAL CODE ANN. §21.11(a)(1)

(West 2011). To sustain a conviction for indecency with a child under this

subsection, the evidence must show that the defendant engaged in sexual

contact with a child younger than 17 years of age, whether the child is of the

same or opposite sex. Id. The jury was thus instructed to find appellant guilty

of indecency with a child if they found beyond a reasonable doubt that

appellant “did … intentionally or knowingly engage in sexual contact with

[Anna], a child under the age of seventeen years, by touching the genitals of

[Anna] with the intent to arouse or gratify the sexual desire of [the

appellant]…” (CR-72). “Sexual contact” was defined for the jury as “any

touching by a person, including touching through clothing, of any part of the

genitals of a child with the intent to arouse or gratify the sexual desire of any

person.” (CR-72). See TEX. PENAL CODE ANN. §21.11(c) (West 2011). The jury

found appellant guilty of this lesser offense (CR-79).

      Appellant concedes that a jury could find that he engaged in sexual

contact with Anna as she described, but argues that the evidence is

insufficient to prove that he intentionally or knowingly committed the

touching (Appellant’s brief, p. 22). Appellant’s argument is based on Anna’s

testimony that she assumed appellant was “asleep” when he touched her. This

statement was made in response to the prosecutor’s question of why Anna

                                        6
didn’t say anything to appellant when he touched her that night. Anna

responded “Because I didn’t woke him up.” (sic) (RR5-22). The following

exchange then occurred:



     Q (by the State): You didn’t wake him up. Do you think he was asleep?

     A (by Anna): Yes.

     Q: How do you think his hand got under your pants?

     A: I do not know.

     Q: So, you’re just guessing, huh?

     ……….

     A: Yes.

     Q: Okay. ‘Cause did you look at him while he was doing that?

     A: No.

     Q: So, you don’t know if his eyes were open or not, do you?

     A: (Nodding).

(RR5-22-23).

     On Cross-examination defense counsel seized on Anna’s assumption

that appellant was asleep and got the seven-year-old to answer affirmatively

to his question “when Elmer touched you, did you think it was an accident in

the beginning?” (RR5-60). As a result, the defense argued alternatively at

                                         7
closing that either appellant never touched Anna, or that if he did, the

touching was an “accident.” (RR5-91, 92, 93, 104).

      Appellant, by arguing that he touched Anna while asleep and by

accident, is essentially contending that the evidence failed to show that his act

was “voluntary.” Whatley v. State, 445 S.W.3d at 166. “[T]he issue of the

voluntariness of one’s conduct, or bodily movements, is separate from the

issue of one’s mental state.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex.

Crim. App.1993). Section 6.01(a) of the Texas Penal Code requires a

voluntary—i.e., volitional—act as an element of guilt. TEX. PENAL CODE § 6.01(a)

(West 2011) (“A person commits an offense only if he voluntarily engages in

conduct, including, an act, an omission, or possession.”). “Voluntariness,”

within the meaning of Section 6.01(a), refers only to one’s own physical body

movements. Whatley v. State, 445 S.W.3d at 166. “If those physical movements

are the nonvolitional result of someone else’s act, are set in motion by some

independent non-human force, are caused by a physical reflex or convulsion,

or are the product of unconsciousness, hypnosis, or other nonvolitional

impetus, that movement is not voluntary.” Id., citing Rogers v. State, 105

S.W.3d 630, 638 (Tex. Crim. App. 2003).

      Although Anna might have assumed appellant was asleep and touched

her by accident, the jury could have understood what the child did not: that

                                       8
appellant’s actions were both volitional and intentional. Appellant’s touch

was not simply a brush up against the exterior of Anna’s clothing, which might

accidently happen while sleeping. Rather, Anna testified that she woke up

with appellant’s hand deep inside her leggings and panties, and with

appellant’s fingers touching her vaginal area (RR3-93, RR4-23, RR5-21).

Appellant’s hand was moving under Anna’s panties and lasted “seven

Mississippis” after she woke up, until she moved away (RR5-21, 23). This is

not the type of contact which happens by “accident” or while “asleep.”

      Furthermore, while Anna might not have known what appellant was

doing or why he was doing it, she seemed to instinctually know it was wrong.

Instead of rolling over and going to sleep, she woke up her aunt and asked if

she could move to the other side of the bed (RR5-22). When taking a bath the

next day she was fussy and upset, and didn’t want her mother to touch her

vaginal area (RR4-19, 21). When her mother asked if someone had touched

her, she acted both shocked and embarrassed, turning away and looking down

before answering “yes.” (RR5-22). Thus, while Anna might have agreed with

defense counsel that the touching could have been an “accident,” she seemed

not to believe this explanation herself.

      While Anna sensed something was wrong, the jury had the maturity to

know it. They could understand, where Anna could not, the sexual nature of

                                           9
appellant putting his hand inside the little girl’s panties and “scratching” her

vagina. And they would understand that such actions do not happen by

“accident.” The prosecutor put it best in her closing argument:

      And she may not understand it now. And in her brain, unsure of
      what a sexual offense is or what the motivation for that might be,
      she will tell you I didn't see his eyes, but maybe he was asleep,
      probably he was asleep, right? It was an accident. He thought I
      was something else. Because she doesn't know what you and I
      know. She doesn't know what he knows, which is there’s an actual
      purpose for the things that he was doing. And she shouldn't have
      to understand that yet. But you do.

(RR5-112). The jury, looking at appellant’s actions from an adult point of view,

and drawing reasonable inferences therefrom, could conclude that appellant’s

conduct was voluntary and intentional, and not an accident.

      Finally, several other courts have found, in similar circumstances, that a

defendant’s actions were voluntary despite claims of being asleep. For

example, in Whatley, the defendant, the complainant’s step-father, on more

than one instance reached under the complainant’s clothing and rubbed her

vagina while pretending to be asleep. Whatley, 445 S.W.3d at 164.           The

complainant, who was eleven at the time, told investigators that she thought

appellant was asleep and may not have known what he was doing. Id. When

she testified at 18 years of age, however, she stated that she had no doubt that

the defendant knew what he was doing. Id. Finding the evidence sufficient for


                                      10
the jury to have found appellant’s actions to be voluntary, the court noted

that:

        [a] reasonable jury could have had difficulty believing that the
        appellant, who only “sometimes” fell asleep quickly while in bed
        with his wife, was so deeply asleep within minutes on three
        different occasions that he unconsciously undertook the
        dexterous action of putting his hands inside the complainant’s
        pants.

Id. The jury in this case could likewise find it difficult to believe that appellant

unconsciously inserted his hand into the waistband of a petite five-year-old

girl’s leggings and panties deep enough to “scratch” her vagina, and continued

to do so until she moved away. See also Garcia v. State, 2014 WL 7140423, at

*4-5 (Tex. App.—Austin, 2014, pet. ref’d)(not designated for publication) (jury

could have disbelieved complainant’s testimony that she thought the

defendant must have been asleep when he engaged in touching); Langley v.

State, 2015 WL 2394144, at *3 (Tex. App.—Tyler 2015, no pet. h.)(not

designated for publication) (“Although Jane Doe's testimony showed that she

believed Appellant was sleeping, this does not negate intent, as it can be

inferred from the circumstances that Appellant was feigning sleep”).

        Viewing the evidence in the light most favorable to the verdict, a

reasonable jury could have determined that appellant’s actions were




                                        11
voluntary and did not occur while he was asleep or by accident. Appellant’s

sole point of error is without merit, and should be overruled.


                      




                                      12
                                 PRAYER

      The State respectfully requests that this Court affirm the judgment of

the trial court.



                                             DEVON ANDERSON
                                             District Attorney
                                             Harris County, Texas



                                             /s/Kimberly Aperauch Stelter
                                             KIMBERLY STELTER
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             (713) 755-5826
                                             State Bar Number: 19141400
                                             Stelter_kimberly@dao.hctx.net




                                     13
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument is being served

by mail at the following address

      Kyle B. Johnson
      Attorney at Law
      917 Franklin, Suite 320
      Houston, Texas 77002



                                               /s/Kimberly Aperauch Stelter
                                               KIMBERLY STELTER
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               State Bar Number: 19141400
                                               stelter_kimberly@dao.hctx.net




                                      14
                    CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated

document has a word count of 2,929 words, based upon the representation

provided by the word processing program that was used to create the

document.




                                          /s/Kimberly Aperauch Stelter

                                          KIMBERLY STELTER
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002-1923
                                          (713) 755-5826
                                          TBC No. 19141400
                                          stelter_kimberly@dao.hctx.net




                                  15
