Elmer Alvarado v. State ( 2015 )

ACCEPTED
01-14-00965-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/27/2015 4:03:52 PM
No. 01-14-00965-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
At Houston 7/27/2015 4:03:52 PM
CHRISTOPHER A. PRINE
Clerk

No. 1381604
In the 248th District
Of Harris County, Texas

ELMER ALVARADO
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
ERIN EPLEY
Assistant District Attorney
Harris County, Texas
KIMBERLY APERAUCH STELTER
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
stelter_kimberly@dao.hctx.net
State Bar Number: 19141400
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
State believes that the matters raised by the appellant are well-settled,
that the briefs in this case adequately apprise this Court of the issues and the
law. Therefore, the State does not request oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a
complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Kimberly Aperauch Stelter  Assistant District Attorney on
appeal
Erin Epley Assistant District Attorney at trial
Appellant or criminal defendant:
Elmer Alvarado—Defendant
Counsel for Appellant:
Kyle B Johnson  Counsel on appeal
Sam Cammack, Maverick Ray defense counsel at trial
Trial Judge:
Honorable Katherine Cabaniss  Judge Presiding
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ........................................................i
IDENTIFICATION OF THE PARTIES .........................................................................i
TABLE OF CONTENTS ............................................................................................. ii
INDEX OF AUTHORITIES ....................................................................................... iii
STATEMENT OF THE CASE...................................................................................... 1
STATEMENT OF FACTS ............................................................................................ 1
SUMMARY OF THE ARGUMENT .............................................................................. 4
REPLY TO APPELLANT’S SOLE ISSUE PRESENTED .............................................. 4
The evidence is sufficient for the jury to have found appellant
guilty of indecency with a child.
PRAYER ................................................................................................................... 13
CERTIFICATE OF SERVICE .................................................................................... 14
CERTIFICATE OF COMPLIANCE ............................................................................ 15
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INDEX OF AUTHORITIES
CASES
Adanandus v. State,
866 S.W.2d 210 (Tex. Crim. App.1993)........................................................................... 8
Garcia v. State,
2014 WL 7140423, at *4-5 (Tex. App.—
Austin, 2014, pet. ref’d)(not designated for publication) .................................... 11
Gear v. State,
340 S.W.3d 743 (Tex. Crim. App. 2011).......................................................................... 4
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................................................... 5
Jackson v. Virginia,
443 U.S. 307 (1979)................................................................................................................. 5
Langley v. State,
2015 WL 2394144, at *3 (Tex. App.—
Tyler 2015, no pet. h.)(not designated for publication) ....................................... 11
Rogers v. State,
105 S.W.3d 630(Tex. Crim. App. 2003)........................................................................... 8
Whatley v. State,
445 S.W.3d 159 (Tex. Crim. App. 2014).............................................................. 5, 8, 10
STATUTES
TEX. PENAL CODE ANN. §21.11(a)(1) (West 2011) ............................................................. 5
TEX. PENAL CODE § 6.01(a) (West 2011) ................................................................................ 8
TEX. PENAL CODE ANN. §21.11(c) (West 2011 ...................................................................... 6
iii
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ........................................................................................................ i
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was charged with aggravated sexual assault of a child
under six years of age (CR-6). He pled not guilty, and the case proceeded to
trial before a jury (CR-92). The jury found appellant guilty of the lesser-
included offense of indecency with a child, and sentenced him to five years in
the institutional division of the Texas Department of Criminal Justice (CR-92).
Appellant then filed notice of appeal, and the court certified his right to appeal
(CR-90, 94).
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STATEMENT OF FACTS
On February 16, 2013, Rita dropped her five-year-old daughter Anna off
at her Aunt Gloria’s to attend a birthday party with Gloria’s granddaughter
Heather (RR4-14-15). 1 After the party, Anna went home with Gloria to spend
the night (RR5-15). Anna slept in a bed with Heather, Gloria, and Gloria’s
1
To protect their privacy, the State is using the pseudonyms “Anna,” “Rita,” and
“Heather” to refer to the complainant, her mother, and the complainant’s young cousin.
husband, appellant. Appellant was on the left, then Anna, then Heather and
Gloria (RR5-17).
Anna woke up during the night to find appellant’s hand inside her
leggings and underwear (RR5-17). Appellant’s hand was touching inside her
“middle part”2 and moving (RR5-21). Then appellant “scratched” her (RR5-
21). This went on for “seven Mississippis” until Anna moved away (RR5-22).
Anna didn’t say anything to appellant or Gloria about what happened that
night or later, but she did wake her aunt and ask her to trade places with her
in bed (RR5-23).
Anna went home the next evening (RR4-16, 5-24). Rita had Anna take a
bath before bed (RR4-19). When she checked in on Anna, however, Anna was
not bathing (RR4-19). Rita began helping Anna wash, but when she got to her
pelvic area Anna didn’t want her mother to touch her (RR4-20). Rita was
surprised, because Anna had never acted this way before (RR4-21).
After the bath, Rita asked Anna if someone had touched her (RR4-21).
Anna’s reaction was to turn and give her mother a “shocked” look (RR4-22).
She then looked down, turned her back to her mother, and said “yes” (RR4-22-
2
Using an anatomically correct doll, Anna indicated that her “middle part” was the
female genitalia (RR5-19).
2
22). Anna told Rita how appellant touched her under her panties and
“scratched” her in her “cookie”3 (RR4-22).
Rita was upset, but did not call the police right away (RR4-24-25).
Instead, she waited until the next day to take Anna to a doctor, as Anna had
hurt her foot at the birthday party (RR4-26). While at the doctor’s office Rita
asked him to check Anna’s vaginal area, but did not say why (RR4-30). The
doctor did not find anything wrong (RR4-35). He spoke to Anna privately and
asked her if someone had touched her, but she denied it (RR4-34).
After talking to school personnel, Rita reported the incident to police
(RR3-11). Anna was interviewed by a forensic investigator who specialized in
interviewing children (RR4-105, 107). While the investigator was not able to
speak of the details Anna provided, she was able to say that Anna gave a clear
and consistent explanation of who, where, and what happened to her, and that
her explanation of events was consistent with what she had told her mother
(RR4-117).
The police also interviewed appellant (RR3-44). Appellant agreed with
Anna about the date they had been together last but didn’t want to talk about
what had happened, saying it was a “very delicate situation.” (RR3-46).
3
Anna referred to the vaginal area as “cookie,” or “torta” when she was five and the
offense occurred (RR4-20).
3
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SUMMARY OF THE ARGUMENT
The evidence is sufficient for the jury to have found appellant guilty of
indecency with a child. A rational jury could have found that appellant’s
touching of the complainant was voluntary and not done while he was
sleeping.

REPLY TO APPELLANT’S SOLE ISSUE PRESENTED
The evidence is sufficient for the jury to have found appellant
guilty of indecency with a child.
Appellant raises only one issue in his appeal; that the evidence was
legally insufficient to support his conviction for indecency with a child.
A. Standard of review on insufficiency of the evidence
“In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational fact finder could have found
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the essential elements of the crime beyond a reasonable doubt.” Gear v. State,
340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia, 443 U.S.
307, 318–19 (1979). Under this standard, appellate courts must defer to the
jury’s ability to fairly “resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319; see Whatley v. State, 445 S.W.3d 159, 166 (Tex.
Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The jury may draw “multiple reasonable inferences as long as each inference
is supported by the evidence.” Hooper, 214 S.W.3d at 15. “[A]n inference is a
conclusion reached by considering other facts and deducing a logical
consequence from them.” Id. at 16. It is not necessary that every fact point
directly and independently to the defendant’s guilt; it is enough if the
conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances. See id. at 13. Finally, circumstantial evidence has
the same probative value as direct evidence, and alone, can be sufficient to
establish guilt. Id.
B. Application to the facts
In addition to the initial charge of super-aggravated sexual assault, the
jury was given the option to convict appellant of the lesser-included offense of
5
indecency with a child by sexual contact. TEX. PENAL CODE ANN. §21.11(a)(1)
(West 2011). To sustain a conviction for indecency with a child under this
subsection, the evidence must show that the defendant engaged in sexual
contact with a child younger than 17 years of age, whether the child is of the
same or opposite sex. Id. The jury was thus instructed to find appellant guilty
of indecency with a child if they found beyond a reasonable doubt that
appellant “did … intentionally or knowingly engage in sexual contact with
[Anna], a child under the age of seventeen years, by touching the genitals of
[Anna] with the intent to arouse or gratify the sexual desire of [the
appellant]…” (CR-72). “Sexual contact” was defined for the jury as “any
touching by a person, including touching through clothing, of any part of the
genitals of a child with the intent to arouse or gratify the sexual desire of any
person.” (CR-72). See TEX. PENAL CODE ANN. §21.11(c) (West 2011). The jury
found appellant guilty of this lesser offense (CR-79).
Appellant concedes that a jury could find that he engaged in sexual
contact with Anna as she described, but argues that the evidence is
insufficient to prove that he intentionally or knowingly committed the
touching (Appellant’s brief, p. 22). Appellant’s argument is based on Anna’s
testimony that she assumed appellant was “asleep” when he touched her. This
statement was made in response to the prosecutor’s question of why Anna
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didn’t say anything to appellant when he touched her that night. Anna
responded “Because I didn’t woke him up.” (sic) (RR5-22). The following
exchange then occurred:
Q (by the State): You didn’t wake him up. Do you think he was asleep?
A (by Anna): Yes.
Q: How do you think his hand got under your pants?
A: I do not know.
Q: So, you’re just guessing, huh?
……….
A: Yes.
Q: Okay. ‘Cause did you look at him while he was doing that?
A: No.
Q: So, you don’t know if his eyes were open or not, do you?
A: (Nodding).
(RR5-22-23).
On Cross-examination defense counsel seized on Anna’s assumption
that appellant was asleep and got the seven-year-old to answer affirmatively
to his question “when Elmer touched you, did you think it was an accident in
the beginning?” (RR5-60). As a result, the defense argued alternatively at
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closing that either appellant never touched Anna, or that if he did, the
touching was an “accident.” (RR5-91, 92, 93, 104).
Appellant, by arguing that he touched Anna while asleep and by
accident, is essentially contending that the evidence failed to show that his act
was “voluntary.” Whatley v. State, 445 S.W.3d at 166. “[T]he issue of the
voluntariness of one’s conduct, or bodily movements, is separate from the
issue of one’s mental state.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex.
Crim. App.1993). Section 6.01(a) of the Texas Penal Code requires a
voluntary—i.e., volitional—act as an element of guilt. TEX. PENAL CODE § 6.01(a)
(West 2011) (“A person commits an offense only if he voluntarily engages in
conduct, including, an act, an omission, or possession.”). “Voluntariness,”
within the meaning of Section 6.01(a), refers only to one’s own physical body
movements. Whatley v. State, 445 S.W.3d at 166. “If those physical movements
are the nonvolitional result of someone else’s act, are set in motion by some
independent non-human force, are caused by a physical reflex or convulsion,
or are the product of unconsciousness, hypnosis, or other nonvolitional
impetus, that movement is not voluntary.” Id., citing Rogers v. State, 105
S.W.3d 630, 638 (Tex. Crim. App. 2003).
Although Anna might have assumed appellant was asleep and touched
her by accident, the jury could have understood what the child did not: that
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appellant’s actions were both volitional and intentional. Appellant’s touch
was not simply a brush up against the exterior of Anna’s clothing, which might
accidently happen while sleeping. Rather, Anna testified that she woke up
with appellant’s hand deep inside her leggings and panties, and with
appellant’s fingers touching her vaginal area (RR3-93, RR4-23, RR5-21).
Appellant’s hand was moving under Anna’s panties and lasted “seven
Mississippis” after she woke up, until she moved away (RR5-21, 23). This is
not the type of contact which happens by “accident” or while “asleep.”
Furthermore, while Anna might not have known what appellant was
doing or why he was doing it, she seemed to instinctually know it was wrong.
Instead of rolling over and going to sleep, she woke up her aunt and asked if
she could move to the other side of the bed (RR5-22). When taking a bath the
next day she was fussy and upset, and didn’t want her mother to touch her
vaginal area (RR4-19, 21). When her mother asked if someone had touched
her, she acted both shocked and embarrassed, turning away and looking down
before answering “yes.” (RR5-22). Thus, while Anna might have agreed with
defense counsel that the touching could have been an “accident,” she seemed
not to believe this explanation herself.
While Anna sensed something was wrong, the jury had the maturity to
know it. They could understand, where Anna could not, the sexual nature of
9
appellant putting his hand inside the little girl’s panties and “scratching” her
vagina. And they would understand that such actions do not happen by
“accident.” The prosecutor put it best in her closing argument:
And she may not understand it now. And in her brain, unsure of
what a sexual offense is or what the motivation for that might be,
she will tell you I didn't see his eyes, but maybe he was asleep,
probably he was asleep, right? It was an accident. He thought I
was something else. Because she doesn't know what you and I
know. She doesn't know what he knows, which is there’s an actual
purpose for the things that he was doing. And she shouldn't have
to understand that yet. But you do.
(RR5-112). The jury, looking at appellant’s actions from an adult point of view,
and drawing reasonable inferences therefrom, could conclude that appellant’s
conduct was voluntary and intentional, and not an accident.
Finally, several other courts have found, in similar circumstances, that a
defendant’s actions were voluntary despite claims of being asleep. For
example, in Whatley, the defendant, the complainant’s step-father, on more
than one instance reached under the complainant’s clothing and rubbed her
vagina while pretending to be asleep. Whatley, 445 S.W.3d at 164. The
complainant, who was eleven at the time, told investigators that she thought
appellant was asleep and may not have known what he was doing. Id. When
she testified at 18 years of age, however, she stated that she had no doubt that
the defendant knew what he was doing. Id. Finding the evidence sufficient for
10
the jury to have found appellant’s actions to be voluntary, the court noted
that:
[a] reasonable jury could have had difficulty believing that the
appellant, who only “sometimes” fell asleep quickly while in bed
with his wife, was so deeply asleep within minutes on three
different occasions that he unconsciously undertook the
dexterous action of putting his hands inside the complainant’s
pants.
Id. The jury in this case could likewise find it difficult to believe that appellant
unconsciously inserted his hand into the waistband of a petite five-year-old
girl’s leggings and panties deep enough to “scratch” her vagina, and continued
to do so until she moved away. See also Garcia v. State, 2014 WL 7140423, at
*4-5 (Tex. App.—Austin, 2014, pet. ref’d)(not designated for publication) (jury
could have disbelieved complainant’s testimony that she thought the
defendant must have been asleep when he engaged in touching); Langley v.
State, 2015 WL 2394144, at *3 (Tex. App.—Tyler 2015, no pet. h.)(not
designated for publication) (“Although Jane Doe's testimony showed that she
believed Appellant was sleeping, this does not negate intent, as it can be
inferred from the circumstances that Appellant was feigning sleep”).
Viewing the evidence in the light most favorable to the verdict, a
reasonable jury could have determined that appellant’s actions were
11
voluntary and did not occur while he was asleep or by accident. Appellant’s
sole point of error is without merit, and should be overruled.

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PRAYER
The State respectfully requests that this Court affirm the judgment of
the trial court.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 19141400
Stelter_kimberly@dao.hctx.net
13
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument is being served
by mail at the following address
Kyle B. Johnson
Attorney at Law
917 Franklin, Suite 320
Houston, Texas 77002
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 19141400
stelter_kimberly@dao.hctx.net
14
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated
document has a word count of 2,929 words, based upon the representation
provided by the word processing program that was used to create the
document.
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
TBC No. 19141400
stelter_kimberly@dao.hctx.net
15