Alvarado, Elmer

PD-1547-15

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 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
December 1, 2015
PETITIONER
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT CONCERNING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . iii

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

PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

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

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii
 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

STATEMENT CONCERNING ORAL ARGUMENT

Oral argument is waived.

iii
 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 run

counter with the rulings in both . 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 .).

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

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

2
waist that Haley 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 petioner 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

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

3
 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 find

beyond a reasonable doubt (based on an assumption that the petitioner was feigning

sleep) 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.)

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.

4
 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

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

5
 APPENDIX

Court of Appeals Opinion

6
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
Envelope Details

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Envelope 7998677
Case Information
Location Court Of Criminal Appeals
Date Filed 11/25/2015 06:17:12 PM
Case Number
Case Description
Assigned to Judge
Attorney Kyle Johnson
Firm Name Kyle B. Johnson, Attorney at Law
Filed By Kyle Johnson
Filer Type Not Applicable
Fees
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Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description Petition for Discretionary Review
Reference Number 875219
Comments
Status Rejected
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Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
12/01/2015 The petition for discretionary review does not contain a certification of compliance
with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
Other 01:06:44

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Envelope Details

identity of Judge, Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a
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corrected petition for discretionary review.
Documents
Lead Document Alvarado PDR with Opinion.pdf [Original]

eService Details
Name/Email Firm Service Type Status Served Date/Time Opened
Harris County
Alan Curry 11/30/2015
Curry_Alan@dao.hctx.net District Attorney's EServe Sent Yes 08:27:30 AM
Office
Lisa McMinn State Prosecuting 11/30/2015
EServe Sent Yes
information@spa.texas.gov Attorney 10:55:21 AM

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