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
ELMER ALVARADO PETITIONER vs.
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.
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?
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).