                              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

                               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
                             Table of Contents


Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . vi

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . vi

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 4,499 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
