                                                                                                  ACCEPTED
                                                                                                01-13-00894
                                                                                   FIRST COURT OF APPEALS
                                                                                           HOUSTON, TEXAS
                                                                                         4/8/2015 4:16:44 PM
                                                                                        CHRISTOPHER PRINE
                                                                                                      CLERK

                         Nos. 01-13-00894-CR, 01-13-00895-CR

                                                                           FILED IN
                             IN THE COURT OF APPEALS                1st COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                       FOR THE                      4/8/2015 4:16:44 PM
                                                                    CHRISTOPHER A. PRINE
                              FIRST JUDICIAL DISTRICT                       Clerk

                                  HOUSTON, TEXAS

JULIO ALVARADO,                            §                APPELLANT
                                           §
V.                                         §
                                           §
STATE OF TEXAS,                            §                APPELLEE



 On Appeal in Causes Numbers 1325698 and 1325690 from the 232nd District Court of Harris

                                     County, Texas.


                             APPELLANT’S REPLY BRIEF



                                                      Cory J. Roth
                                                      Cory Roth Law Office
                                                      4306 Yoakum Boulevard, Suite 240
                                                      Houston, Texas 77006
                                                      Bar: 24088337
                                                      Phone: (713) 864-3400
                                                      Fax: (713) 864-3413
                                                      Email: CoryRothJD@gmail.com
                                                      Attorney for Appellant




                           ORAL ARGUMENT REQUESTED

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IDENTITY OF THE PARTIES AND COUNSEL




                                      2
                                                    TABLE OF CONTENTS




INDEX OF AUTHORITIES ........................................................................................................ 3
SUMMARY OF THE ARGUMENT .......................................................................................... 4
ARGUMENT ................................................................................................................................. 4
PRAYER ...................................................................................................................................... 10




                                                 INDEX OF AUTHORITIES
Cases
Cornet v. State, 359 S.W.3d 217, 226 (Tex. App. 2012) ................................................................ 9
Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) ..................................................... 6, 7
Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009) ................................................... 5
Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) ....................................................... 7
Rawlings v. State, 874 S.W.2d 740, 744 (Tex. App.—Fort Worth 1994) ...................................... 9
Statutes
22.021(a)(1)(A)(i) ........................................................................................................................... 9
Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) ......................................................................... 6
Tex. Code Crim. Proc. Sec. 22.011(a)(1)(A) .................................................................................. 9
Rules
Tex. R. Evid. 404(a)(3) ................................................................................................................... 5




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                              SUMMARY OF THE ARGUMENT

       Appellant was denied his constitutional right to present a defense. His theory of defense

is that the complainant is a dishonest young lady who fabricated allegations of sexual abuse against

her father as he was about to administer corporal punishment. The trial court reversibly erred by

prohibiting the Appellant from presenting two recantation witness that would have shed light on

the complainant’s character for truthfulness. Additionally, the trial court’s designation of Claudia

Mullin as the outcry witness was outside the zone of reasonable disagreement and constitutes

reversible error.


                                          ARGUMENT

       I.      TESTIMONY OF SHANTARIA FRANCIS AND YVONNE EVANS
               WAS NOT CUMULATIVE
       Appellee asserts in its reply to Appellant’s first point of error that the testimony of

Shantaria Francis and Yvonne Evans was cumulative. Appellee, however, fails to state, explain,

or cite how the proffered testimony of either witness is cumulative. Their testimony was not

cumulative. There was no other evidence admitted that was similar to that offered through Ms.

Evans and Ms. Francis. Moreover, without admitting that their testimony was cumulative, even if

their testimony was cumulative, the probative value of their testimony was not substantially

outweighed by the countervailing considerations.

       Appellee correctly notes that trial counsel for Appellant stated that the testimony of Ms.

Francis and Ms. Evans was not offered for the truth of the matter asserted.               Appellee

misunderstands what the truth of the matter asserted would be in these instances. Here, the matter

asserted was that the complainant recanted. Thus, the truth of that matter would be that the

molestations did not occur. Trial counsel did not offer the recantation testimony to prove that the


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molestations did not occur. Rather, trial counsel offered the recantation testimony to impeach the

credibility of the complainant. Ms. Evans’ testimony was also offered for the proper purpose of

establishing the complainant’s state of mind during the time frame in which she made the

allegations of abuse.

       When a person withdraws an accusation, the withdrawal can fairly and reasonably be

described as a recantation. A person who has recanted has made a statement that is inconsistent

with a previous statement. When a person makes inconsistent allegations of criminal conduct, the

person opens herself up to questions about her credibility and character for truthfulness. A

witness’s character for truthfulness is always admissible. Hammer v. State, 296 S.W.3d 555, 563

(Tex. Crim. App. 2009), Tex. R. Evid. 404(a)(3). Here, the testimony of Ms. Francis and Ms.

Evans were specifically offered to show that the complainant had a bad character for truthfulness.

Their testimony should have been admitted and it was harmful error to exclude it.

       II.     COMPLAINANT’S OUTCRIES TO GLORIS GONZALES, VELMA
               BANDA AND PASTOR MANCHUCHA SATISFIED THE OUTCRY
               WITNESS STATUTE
       The Appellee, both at trial and on appeal, is of the mistaken understanding that the outcry

witness statute requires children to be of the same sophistication, intellect, and detail orientation

of adults. The Appellee would require that in order for a spontaneous outcry to be admissible, that

the child complainant describe the date, time, location, and a complete recitation of the alleged

abuse as well as have a keen understanding of the legal definition of the term “penetration.” The

law, however, does not require such great level of detail of an outcry for it to satisfy the outcry

witness statute.

       Appellee alleges that the complainant’s statements to Ms. Gonzales, Ms. Banda, and Pastor

Manchuca were “too vague, or described offenses other than those with which the appellant was

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charged.” Appellee’s assertion is false. An outcry statement must in some discernible manner

describe the alleged offense in order to qualify as an outcry. Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990). An outcry witness is the first person age eighteen or older, other than the

defendant, to whom the child complainant made a statement about an alleged sexual offense

committed against the child. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2). The trial court

abuses its discretion when its decision to designate an outcry witness is outside the zone of

reasonable disagreement. Id.

       Here, the designation of Ms. Mullin as the outcry witness was outside the zone of

reasonable disagreement. In order to determine the identity of the proper outcry witness, all a

court needs to do is ask and answer a series of questions:

       1. Was the proffered outcry witness age eighteen or older?

       2. Was the proffered outcry witness someone other than the defendant?

       3. Did the complainant tell the proffered outcry witness allegations of sexual abuse in

           some discernible manner?

       4. Did the complainant tell the proffered outcry witness that the alleged abuser was the

           defendant?

       5. Was the proffered outcry witness the first person with whom the complainant shared

           the above-mentioned criteria?

       Answering and applying the questions to Ms. Mullin:

       1. Ms. Mullin was age eighteen or older.

       2. Ms. Mullin was someone other than the defendant.




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       3. The complainant did tell Ms. Mullin allegations of sexual abuse in some discernible

           manner.

       4. The complainant did tell Ms. Mullin that the alleged abuser was the defendant.

       5. Ms. Mullin WAS NOT the first person age eighteen or older other that the defendant

           with whom the complainant shared allegations of sexual abuse against the Appellant in

           some discernible manner.

       The Appellee, both at trial and on appeal, are under the mistaken belief that in order for

allegations of abuse to satisfy the outcry witness statute, the allegations must describe the exact

details of the alleged abuse. However, as long as the statement contains sufficient information

about the nature of the act and the identity of the perpetrator, the statement will fall under the

outcry witness statute. Nino v. State, 223 S.W.3d 749, 753 (Tex. App.—Houston [14 Dist.] 2007).

It is true that an allegation of abuse must be more than a general allusion from the child that

something in the area of abuse took place; however, the statement need not be detailed or lengthy.

Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011), citing Garcia v. State, 792 S.W.2d

at 91. Emphasis added. This Honorable Court will note that neither her sister Court in Nino, nor

any other case law that Appellant has read, requires exact details of the alleged charged abuse as

the State argues. Rather, as stated in Lopez, the statement need not be detailed, and that is because

courts and the legislature recognize that children are not sophisticated and that spontaneous

outcries are to be more trusted than those elicited by forensic interviewers.

       The record clearly demonstrates that the complainant’s initial statements to Ms. Gonzales

satisfy the outcry witness statute. A general allusion to abuse would not prompt a step-mother to

be so emotionally distraught that she was crying a week after the allegations because she thought

her husband impregnated her step-daughter.

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        Although Appellee is correct in its observation that the record does not reflect what the

complainant told Ms. Banda, a mere allusion to abuse would not cause a family friend to

persistently call CPS, the complainant’s school, and her pastor to protect the complainant.

Appellant does, however, concede that Ms. Banda is the least likely out of Ms. Gonzales and Pastor

Manchuca to be the appropriate outcry witness.

        Appellee is hung up on whether the complaint specifically told Ms. Gonzales, Ms. Banda,

or Pastor Manchuca that the Appellant penetrated her. Without waiving his argument that the

complainant need not describe the act of penetration for her statements to the aforementioned

adults to constitute outcries, Appellant re-alleges that the complainant explicitly told Pastor

Manchuca that the Appellant penetrated her vagina:

        Q (Defense Counsel Eric Davis). Sir in regards to Yeimi she told you about him
        masturbating, standing in a room naked masturbating on her?
        A (Pastor Manchuca). Yeimi told me that.
        Q. She never told you anything about any penetration. Isn't that true?
        A. Tried to.
        Q. He tried to?
        A. He touched her.
        Q. He touched her. She never told you that he put his penis inside her?
        A. Touched her with his penis in1 her vagina.
        Q. So she told you he penetrated her?
        A. She felt that he touched her and she push him away.
        IV R.R. 58.




1
  The word, “in” is defined as “used to indicate location or position within something,” “used as a function word to
indicate inclusion, location, or position within limits.” Mirriam-Webster Dictionary http://www.merriam-
webster.com/dictionary/in

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           In Texas, sexual assault is defined as intentionally or knowingly causing the penetration of

the anus or sexual organ of another person by any means, without that person’s consent. Tex.

Code Crim. Proc. Sec. 22.011(a)(1)(A), 22.021(a)(1)(A)(i). Sexual intercourse is defined as

penetration of the female sex organ by the male sex organ. Tex. Code Crim. Proc. Sec. 22.01(3).

To penetrate means “tactile contact beneath the fold of complainant's external genitalia," and that

it is not inaccurate "to describe [conduct] as a penetration, so long as [the] contact with [the

complainant's] anatomy could reasonably be regarded by ordinary English speakers as more

intrusive than contact with her outer vaginal lips." Cornet v. State, 359 S.W.3d 217, 226 (Tex.

App. 2012). Moreover, courts have stated the penetration element is satisfied if the evidence

showed penetration of the vagina, however slight, beyond a reasonable doubt. Rawlings v. State,

874 S.W.2d 740, 744 (Tex. App.—Fort Worth 1994).                  The complainant described a brief

penetration of her vagina by the Appellant to Pastor Manchuca, which satisfies the outcry witness

statute.



           Here, the jury charge stated, in pertinence, “you will find the defendant guilty of aggravated

sexual assault of a child, as charged in the indictment,” if “you find from the evidence… the

defendant… intentionally or knowingly caused the penetration of the sexual organ of [the

complainant]… by placing his sexual organ in the sexual organ of [the complainant].” In light of

Pastor Manchuca’s above-cited testimony and the definition of “penetrate,” the complainant

clearly and unambiguously told Pastor Manchuca, prior to Ms. Mullin, that the Appellant

penetrated her vagina by intentionally placing his penis in the complainant’s vagina. The word

“in,” as used by the complainant, could reasonably be regarded by ordinary English speakers as

more intrusive than contact with her outer vaginal lips.



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       The trial court’s decision to designate Ms. Mullin as the outcry witness was outside the

zone of reasonable disagreement. The complainant made discernible allegations of sexual abuse

to several adults before making the same allegations, but in more detail, to Ms. Mullin. The

Appellee’s misunderstanding of the outcry witness statute strips the statute of its legislative intent,

and denies the Appellant due process of law. The trial court denied Appellant his right to present

a defense. Appellant’s convictions must be reversed and remanded.




                                            PRAYER

       Julio Cesar Alvarado prays that this Honorable Court reverse the judgments of conviction

against him, and remand this case for a new trial on the merits.




                                                           _______________________________
                                                           Cory J. Roth
                                                           Cory Roth Law Office
                                                           4306 Montrose Boulevard, Suite 240
                                                           Houston, Texas 77006
                                                           T. 713.864.3400
                                                           F. 713.864.3413
                                                           C. 832.419.9973
                                                           B. 24088337
                                                           CoryRothJD@gmail.com




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                                 CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing to the Harris County District Attorney by hand

delivery on April 8, 2015.

                                                            ___________________________
                                                            Cory J. Roth




                              CERTIFICATE OF COMPLIANCE

       Pursuant to 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 1985

       words printed in a proportionally spaced typeface.

   2. This brief is printed in a proportionally spaced typeface using Times New Roman 12 point

       font in text and Times New Roman 10 point font in footnotes.

   3. Upon request, undersigned counsel will provide an electronic version of this brief and/or

       copy of the word printout in 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



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result in the Court’s striking this brief and imposing sanctions against the person who

signed it.

                                                  ___________________________
                                                  Cory J. Roth




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