                                                                                  PD-1547-15
                        PD-1547-15                              COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 12/1/2015 4:23:58 PM
                                                                  Accepted 12/1/2015 4:31:14 PM
                                                                                  ABEL ACOSTA
                                 To The                                                   CLERK


                      Court of Criminal Appeals
                                    of


                                  Texas

                       No._______________________


                          ELMER ALVARADO
                                PETITIONER


                                    vs.

                          THE STATE OF TEXAS
                               RESPONDENT



              PETITION FOR DISCRETIONARY REVIEW

      ________________________________________________________

      On Petition for Discretionary Review from the Court of Appeals
    for the First District, Houston, Texas in Cause No. 01-14-00965-CR,
          affirming the conviction in Cause No. 1381604 out of the
                 248th District Court of Harris County, Texas.
    _______________________________________________________


ORAL ARGUMENT WAIVED                 Kyle B. Johnson
                                     SBN: 10763570
                                     917 Franklin, Ste. 320
                                     Houston, Texas 77002
                                     Tel: (713) 223-4100
                                     Fax: (713) 224-2889

                                     ATTORNEY FOR
                                     PETITIONER
   December 1, 2015
                     INTERESTED PARTIES

Judge:               The Honorable Katherine Cabaniss
                     Presiding Judge, 248th District Court,
                     Harris County, TX
                     1201 Franklin, 16th Floor
                     Houston, TX 77002

Prosecutors:         Ms. Erin Epley (trial)
                     Assistant District Attorney
                     Harris County District Attorney’s Office
                     1201 Franklin
                     Houston, TX 77002

                     Mr. Alan Curry (appeal)
                     Assistant District Attorney
                     Harris County District Attorney’s Office, Appellate
                     1201 Franklin, 6th Floor
                     Houston, TX 77002

Defense Attorneys:   Mr. Sam Cammack (trial)
                     1001 W. Loop South, Ste. 700
                     Houston, TX 77027

                     Mr. Maverick Ray (trial)
                     1419 Franklin St.
                     Houston, Texas 77002

                     Mr. Kyle B. Johnson (appeal)
                     917 Franklin, Suite 320
                     Houston, TX 77002

Appellant:           Mr. Elmer Alvarado




                                  ii
                                         TABLE OF CONTENTS

INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

STATEMENT CONCERNING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . iv

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

STATEMENT OF THE PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                          iii
                                     INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)(plurality op.). . . . . . 2, 4

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
      61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Whatley v. State, 445 S.W.3d 159 (Tex.Crim.App. 2014).. . . . . . . . . . . . . . . . . . . 3

Rules

Tex. R. App. P. § 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. R. App. P. § 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


                     STATEMENT REGARDING ORAL ARGUMENT

                                        Oral argument is waived.




                                                        iv
                                      To The

                         Court of Criminal Appeals
                                         of

                                       Texas


                          No._______________________


                              ELMER ALVARADO
                                     PETITIONER
                                         vs.

                             THE STATE OF TEXAS
                                    RESPONDENT



                PETITION FOR DISCRETIONARY REVIEW

      ________________________________________________________

         On Petition for Discretionary Review from the Court of Appeals
       for the First District, Houston, Texas in Cause No. 01-14-00965-CR,
                   affirming the conviction in Cause No. 1381604
               from the 248th District Court of Harris County, Texas.
       _______________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

                         STATEMENT OF THE CASE

       The appellant was convicted of Indecency with a Child by a jury and sentenced

to 5 years in the Institutional Division of the Texas Department of Criminal Justice.
                              PROCEDURAL HISTORY

       In an unpublished Memorandum Opinion delivered on October 27, 2015, a

panel of the First Court of Appeals affirmed the appellant’s conviction. No motion

for rehearing was filed. The Petition for Discretionary Review is now due on

November 26, 2015.

.                              GROUND FOR REVIEW

       In the lower court, the appellant contended that the evidence was insufficient

to support his conviction. The lower court disagreed and this ruling appears to conflict

with the U.S. Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and with this Court’s decision in Brooks v.

State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality op .). Tex. R. App.

P. § 66.3(c).

                                      ARGUMENT

       In this case, the complainant, Arjany Vallejo (who was seven years old at the

time of trial), testified that she spent the night with the petitioner and his wife, Gloria,

after attending a birthday party with their granddaughter, Hailey. According to the

complainant, after the party, they all went back to the Gloria’s house. She and Hailey

went into Gloria’s bedroom, played for while, and then fell asleep.

       The complainant testified that, the next thing she remembered after falling

asleep was the appellant touching her “in [her] middle part”. She testified she was


                                             2
sleeping between the appellant and Haley and was wearing some shorts with an elastic

waist that Hailey loaned her. According to the complainant, the appellant touched her

under her clothes. She also remembers his hand was moving and this went on for

about seven seconds. The complainant testified that she then woke up Gloria and told

her she wanted to move.

         The complainant then was asked if she said anything to the petitioner and she

responded “no”. When asked why, she then responded “Because I didn’t woke him

up.” She was then asked if she thought the appellant was asleep, and she responded

“yes”.

         On appeal the petitioner argued that, given the complainant’s testimony, no

rational jury could have found that the petitioner’s conduct was intentional and

knowing (which the Court of Appeals took to mean “voluntary”).

         Relying on this Court’s opinion in Whatley v. State, 445 S.W.3d 159

(Tex.Crim.App. 2014), the court of appeals affirmed, holding that a rational jury

could infer “that Alvarado was feigning sleep”. citing Whatley at 165-67.

         Reliance on Whatley is misplaced because the facts are distinguishable. For

the purposes of an insufficiency analysis, there simply was a lot more evidence in

Whatley to support the conclusion that the defendant knew what he was doing. In

Whatley (even though the complainant testified she thought the defendant was asleep),

the defendant fondled the complainant on three different occasions and, on one of


                                           3
those occasions, the defendant made the complainant touch his penis. Id at 161-65.

       Here, there was only one instance of touching which lasted only seven seconds

and there was no indication that the petitioner knew what he was doing (as opposed

to Whatley where the defendant directed the complainant to touch him). Under the

circumstances, reliance on Whatley was misplaced and it is the petitioner’s

petitioner’s position that, based on the evidence here, no rational juror could “infer”

beyond a reasonable doubt that the petitioner was “feigning sleep” and that his actions

were done intentionally, knowingly and voluntarily. See Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d

893, 894–95 (Tex. Crim. App. 2010) (plurality op.)(When considering a challenge to

the sufficiency of the evidence, the reviewing court is to examine all the evidence in

the light most favorable to the verdict and determine whether a rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.)

       The evidence at trial was that the complainant thought the petitioner was

sleeping at the time that he touched her. The touching happened only once, and then,

only lasted seconds. Given this evidence, the State failed to establish beyond a

reasonable doubt that the act was voluntary and the evidence therefore was

insufficient to support the petitioner’s conviction.




                                           4
                              PRAYER FOR RELIEF

       The lower court’s ruling appears to conflict directly with the Courts’ rulings

in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and

Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality op.). It

is requested that discretionary review be granted.




                                   Respectfully submitted,




                                         /s/ Kyle B. Johnson
                                   Kyle B. Johnson
                                   SBN: 10763570
                                   929 Preston, Suite 200
                                   The Kiam Building
                                   Houston, Texas 77002
                                   Tel: (713) 223-4100
                                   Fax: (713) 224-2889

                                   ATTORNEY FOR
                                   ELMER ALVARADO




                                         5
                            CERTIFICATE OF SERVICE

        I do hereby certify that a true and correct copy of the above and foregoing
document has been forwarded to all counsel of record on this 17th day of June, 2014,
to wit:

       Alan Curry
       Appellate Division
       Harris County District Attorney’s Office
       1201 Franklin
       Houston, Texas 77002

       Ms. Lisa C. McMinn
       State Prosecuting Attorney
       P.O. Box 12405
       Capital Station, Austin, Texas 78711


                                        /s/   Kyle B. Johnson
                                     Kyle B. Johnson


                        CERTIFICATE OF COMPLIANCE

        I certify that this brief is in compliance with Tex. R. App. Proc. Rule 9.4(i)(3)
in that it contains 506 words.



                                             /s/ Kyle B. Johnson
                                            Kyle B. Johnson




                                           6
      APPENDIX

Court of Appeals Opinion




           7
Opinion issued October 27, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00965-CR
                          ———————————
                      ELMER ALVARADO, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1381604


                         MEMORANDUM OPINION

      Appellant Elmer Alvarado was indicted for the offense of Super-Aggravated

Sexual Assault of a Child (under 6 years old). The jury found Alvarado guilty of

the lesser charge of Indecency with a Child, and Alvarado was sentenced to 5
years’ confinement. Alvarado appeals, contending that the evidence is insufficient

to support the judgment. We affirm.

                                     Background

      On February 16, 2013, five-year-old Anna went to her aunt Gloria’s house

so that she could go to a birthday party with Gloria’s granddaughter, Heather. 1

After the party, Anna spent the night at Gloria’s house. Anna, Heather, Gloria, and

Gloria’s husband, Alvarado, all slept in the same bed together. Alvarado slept to

the far left, with Anna at his side, then Heather, and finally Gloria to the far right.

      During the night, Anna woke up upon feeling Alvarado’s hand under her

pants and underwear. For roughly “seven Mississippis,” Anna felt Alvarado’s

hand touching inside her “middle part.” Alvarado’s hand was moving, and then

Anna felt Alvarado scratch her. Anna moved away by waking up Gloria and

asking to trade spots on the bed. After trading spots, Anna went back to sleep

without saying anything to Alvarado or to Gloria about what she felt.

      The next night, Anna was back at home with her mother, Rita. Rita was

helping Anna wash herself in the bath, but Anna did not want her mother to touch

her pelvic area. Rita had never known Anna to act that way, so after the bath, Rita

asked Anna if someone had touched her.            With a shocked expression, Anna

replied, “yes.” Anna went on to tell her mother that Alvarado touched her under

1
      We refer to the complainant, her mother, and the complainant’s young cousin by
      the pseudonyms “Anna,” “Rita,” and “Heather,” respectively.

                                            2
her underwear and “scratched” her in her “cookie”—a term Anna used to refer to

her vaginal area.

      The next day, Rita took Anna to the doctor to examine an injury to Anna’s

foot that occurred during the birthday party. While there, she also asked the doctor

to examine Anna’s vaginal area, but she offered no explanation as to why. The

doctor did not find any physical indications of trauma. When the doctor asked

Anna if anyone had touched her, Anna denied ever being touched inappropriately.

      Rita did not report the incident to the police or Child Protective Services

until after talking with school personnel. Officer V. Caster with the Houston

Police Department’s Juvenile Sex Crimes division spoke with Rita and Anna,

prepared an offense report, and set up an interview with the Children’s Assessment

Center (“CAC”). Officer Caster also spoke with Alvarado, who voluntarily met

with Caster at her office. An investigator specializing in interviewing children

later talked with Anna at the CAC and testified that Anna provided a clear and

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

                                    Discussion

      Alvarado contends that insufficient evidence supports his conviction.

Particularly, Alvarado maintains that there is insufficient evidence to conclude that

Alavarado knowingly or intentionally touched Anna because Anna testified that

she thought Alvarado was asleep during the incident.



                                         3
A.    Standard of Review

      When evaluating the legal sufficiency of the evidence in jury trials and in

bench trials, we view the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim.

App. 2014); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The

standard is the same for both direct and circumstantial evidence cases. King v.

State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

      On appeal, we do not resolve any conflict of fact, weigh any evidence, or

evaluate the credibility of any witnesses, as this is the function of the trier of fact.

See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore

resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991), and “defer to the [trier of fact’s]

credibility and weight determinations.” Marshall v. State 210 S.W.3d 618, 625

(Tex. Crim. App. 2006).        To the extent that the record contains evidence

supporting conflicting inferences, we presume that the jury resolved conflicts in

favor of its verdict. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)

(citing Jackson, 443 U.S. at 326).




                                           4
B.    Applicable Law

      In order to obtain a conviction for the offense of indecency with a child by

touching, the evidence must show beyond a reasonable doubt that a defendant

(1) knowingly and intentionally (2) engaged in sexual contact (3) with a child

(4) younger than 17 years of age (5) who was not the defendant’s spouse. TEX.

PENAL CODE ANN. § 21.11(a)(1). In addition to the knowing or intentional mens

rea requirement established by section 21.11(a)(1), the Texas Penal Code further

requires a voluntary act as an element of guilt. TEX. PENAL CODE ANN. § 6.01(a)

(“A person commits an offense only if he voluntarily engages in conduct, including

an act, an omission, or possession.”). “[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) (quoted by

Whatley, 445 S.W.3d at 166).

            “Voluntariness,” within the meaning of Section 6.01(a), refers
            only to one’s own physical body movements. 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.

Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003) (citations omitted).




                                        5
C.    Analysis

      Alvarado argues that because Anna testified that she thought Alvarado was

sleeping when he touched her, a rational jury could not have concluded that

Alvarado acted knowingly or intentionally. Though Alvarado contends that there

is insufficient evidence to prove that he knowingly or intentionally touched Anna,

his arguments might also be understood to question whether the conduct at issue

was voluntary. See Whatley, 445 S.W.3d at 165–67 (whether appellant feigned

sleep or was in fact asleep when he inappropriately touched complainant raised

issue of voluntariness).

      Anna testified at trial that she thought Alvarado was asleep when he touched

her. Asked why she did not say anything to Alvarado when she awoke to find him

touching her, Anna responded, “[b]ecause I didn’t woke him up.” The inquiry

continued:

      State:        You didn’t wake him up. Do you think he was asleep?

      Anna:         Yes.

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

      Anna:         I do not know.

                    ...

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

      Anna:         Yes.



                                         6
      State:       Okay. ‘Cause did you look at him while he was doing that?

      Anna:        No.

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

      Anna:        [Nodding].

Following up on this line of questioning during cross examination, defense counsel

asked Anna, “when [Alvarado] touched you, did you think it was an accident in the

beginning?” Anna agreed. On the basis of such testimony, Alvarado argues that

the only rational conclusion to be drawn by the jury was that Alvarado was in fact

asleep, as Anna believed, and his actions were therefore neither intentional nor

knowing. We disagree.

      Viewing the evidence and reasonable inferences therefrom in the light most

favorable to the verdict, there was sufficient evidence from which a rational jury

could conclude beyond a reasonable doubt that Alvarado’s actions were both

intentional or knowing and voluntary. Though Anna—who was five years old at

the time of the offense and seven years old at the time of trial—testified that she

thought Alvarado was asleep during the incident, her testimony does not disprove

voluntariness or the requisite mental state because a rational jury could infer that

Alvarado was feigning sleep. Whatley, 445 S.W.3d at 165–67; Langley v. State,

No. 12-14-00095-CR, 2015 WL 2394144, at *4 (Tex. App.—Tyler May 20, 2015,

no pet. h.) (not designated for publication) (“Although Jane Doe’s testimony



                                         7
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”). In

Whatley, the child complainant testified that she believed the appellant was asleep

on three different occasions when he inappropriately touched her under her clothes.

Whatley, 445 S.W.3d at 161–65. On an appeal challenging the legal sufficiency of

the evidence, the Court of Criminal Appeals observed that “[a] reasonable jury

could have inferred from [complainant’s] testimony that as a child she was trying

to reconcile her love for her ‘father,’ as well as her more general desire for a father

figure, with his abuse of her and, in doing so, convinced herself that he was

unaware of his actions.” Id. at 167. Thus, notwithstanding the complainant’s

testimony, the Court concluded that the evidence and reasonable inferences

therefrom supported the jury’s guilty verdict. Id.

      Here, as in Whatley, notwithstanding the fact that Anna testified that she

thought Alvarado was asleep when he touched her, a reasonable jury could have

instead believed that Alvarado merely feigned sleep. This is particularly true in

light of Anna’s testimony that she did not see whether Alvarado’s eyes were open

or closed, that she did not hear him snoring, and that Alvarado placed his hand

under her pants and underwear and proceeded to “scratch” her vaginal area. See

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder,

the jury is entitled to judge the credibility of witnesses, and can choose to believe



                                          8
all, some, or none of the testimony presented by the parties.”); Whatley, 445

S.W.3d at 167 (though child complainant testified that she thought appellant was

asleep when he inappropriately touched her, jury could have reasonably inferred

that appellant was awake, but feigning sleep, and that his conduct was voluntary).

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle.

Do not publish. Tex. R. App. P. 47.2(b).




                                           9
