N O

. 14

- 14

- 00 696

- CR

I N T HE C OURT OF A PPEALS

T HE F OURTEENTH D ISTRICT OF T EXAS

ALEJANDRO MORALES CALLES

Appellant

v.

T HE S TATE O F T EXAS

Appellee

On Appeal from Cause Number 138 4626

1 84 th District Court, Harris County, Texas

Honorable Jan Krocker , Judge Presiding

A PPELLANT ’ S A

MENDED B RIEF

O RAL A RGUMENT R EQUESTED A LEXANDER B UNIN

Chief Public Defender

Harris County, Texas

M ELISSA M ARTIN

Assistant Public Defender

Harris County, Texas

TBN 24002532

1201 Franklin St, 13 th Floor

Houston, Texas 77002

Phone: (713) 368

- 0016

Fax: (713) 368

- 9278

melissa.martin@pdo.hctx.net

Counsel for Appellant ACCEPTED

14-14-00696-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

6/18/2015 2:58:43 PM

CHRISTOPHER PRINE

CLERKii IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Alejandro Morales Calles

SPN# 00972606

701 N San Jacinto

Houston, TX 77002

TRIAL PROSECUTOR: Anthony Robinson

Assistant District Attorney

Harris County Texas

1201 Franklin St, 6 th Floor

Houston, TX 77002

DEFENSE COUNSEL AT TRIAL: John Garner Reed

Attorney a t Law

2100 E. Nasa Pkwy Ste n201

S eabrook , TX 77 586

COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin

Assistant Public Defender

Harris County TX

1201 Franklin St, 13 th Floor

Houston, TX 77002

melissa.martin@pdo.hctx.net

PRESIDING JUDGE: Hon. Jan Krocker

1 84 th District Court

Harris County, TX

1201 Franklin St, 1 7 th Floor

Houston, TX 77002iii T ABLE OF C ONTENTS

I DENTITY OF P

ARTIES AND C OUNSEL

................................ ................................ ................... ii

T ABLE OF C ONTENTS

................................ ................................ ................................ ............. iii

I NDEX OF A

UTHORITIES

................................ ................................ ................................ ........ i v

S TATEMENT OF THE C ASE

................................ ................................ ................................ ...... 1

M.G. ’ S T

ALE

................................ ................................ ................................ .............. 2

A LEX ’ S T

ALE

................................ ................................ ................................ ............. 3

S TATEMENT OF FACTS

................................ ................................ ................................ ............. 1

I SSUE P RESENTED

................................ ................................ ................................ ................... 3

T HE EVIDENCE OFFERED BY THE STATE WAS LEG ALLY INSUFFICIENT

FOR A RATIONAL JURY TO CONVICT APPELLANT UNDER J ACKSON V

. V IRGINIA

, 443 U.S. 307, 318 (1979)

.

S UMMARY OF THE A RGUMENT

................................ ................................ .............................. 4

A RGUMENT

................................ ................................ ................................ .............................. 5

A. S TANDARD OF R EVIEW

................................ ................................ ............................... 4

B. M.G. ’ S T ESTIMONY AS TO THE I NCIDENT

................................ ................................ 6

C. T HE O UTCRY

................................ ................................ ................................ .............. 14

C ONCLUSION

................................ ................................ ................................ ......................... 21

P RAYER

................................ ................................ ................................ ................................ .. 2 5

C ERTIFICATE OF S ERVICE

................................ ................................ ................................ .... 2 6

C ERTIFICATE OF C OMPLIANCE

................................ ................................ .............................. 2iv I NDEX OF A

UTHORITIES

Cases

Ervin v. State, 331 S.W. 3d 49 (Tex. App.

— Houston [1 st Dist.] 2010, pet. ref’d)

........... 5

Gear v. State

, 340 S.W.3d 743 (Tex. Crim. App. 2011)

................................ ....................... 5

Jackson v. Virginia , 443 U.S. 307 (1979)

................................ ................................ .. 4, 5 , 6, 22

Winfrey v. State , 323 S.W.3d 875 (Tex. Crim. App. 2010)

................................ ............. 5, 221 STATEMENT OF THE CASE

On a hot July day in 2012, Mr. Morales Calles (hereafter, Alex) was working in

his backyard when his fiancée

, M.O. , called him from work to let him know her sister,

D.O. , and her fiancé e

, GG , would be dropping four of their children off for him to

watch while they went to an appointment with D .O. s doctor (3 R.R. at 8;.13).

G.G. and D.O. brought G .G. , Jr., M.G. (the complainant), Mariah, and Isaiah to

Alex’s house, where they played on the tire swing with M .O.’s and Alex’s two children,

Juliana and Jeremiah (3 R.R. at 13; 35

- 36). After about 20 minutes, everyone went inside

becaus e it was getting too hot; M .G. and Alex both testified that they all started

watching a movie in the living room (3 R.R at 37; 4 R.R. at 132). M .G. and Alex both

testified the TV faced a full

- sized sofa and a reclining chair, with a loveseat at a right

ang le, facing the reclin er (3 R.R. at 38; 4R.R. at 132).

Sofa Loveseat

Recliner

TV

(diagram not to scale).

No photographs or floorplan of the home’s interior were offered into evidence;

only photos of the outside of the very small house were pr oduced.2

According to both Alex and M.G. , some of the children, including M.G.

,

started out sitting on the sofa to watch the movie and Alex sat on the recliner with his

feet up, working on his laptop (3 R.R. at 39; 5 R.R. at 21).

At this point, Alex’s an d M.G. ’s stories diverge.

M.G. ’s Tale

Isaiah, the youngest child there, got some toys out of Alex’s children’s room

and brought them to the sofa (3 R.R. at 39). The prosecutor then asked M.G. the

following:

Q. So, once he puts all the toys on the couch, w as it just not enough

room left?

A. There wasn’t. So, I had to move. Like I was squished on the

couch.

(3 R.R. at 41).

M.G. testified she then moved to the loveseat and sat facing the TV (3 R.R. at

44).

Q. So, you’re on the sofa, kind of by yourself at this time. Kind of

walk us through what happens next while you’re on the sofa.

A. He grabs my pants.

Q. Okay.

A. Tugs them like to the side.

Q. Well, can you kind of

– I couldn’t see. Can you stand up?

A. (Witness complies.) Pulls them like this to the side (indicating). He

kind of pulled them.3 MR. ROBINSON: May the record reflect that the witness has

taken her fingers and pulling her pants at the belt loop area?

THE COURT: Yes, sir.

THE WITNESS: Yes, sir.

Q. (BY MR. ROBINSON) You may sit. So , as he grabs your pants,

what does he do?

A. He tries to go in my pants.

(3 R.R. at 45).

M.G. goes on to state that Alex was successful in “go[ing] in” her pants and

inserted to fingers inside the “lips” of her vagina (3 R.R. at 50

- 51).

Further details of M.G. ’s testimony and statements she made to law enforcement

and her father will be introduced in argument.

Alex’ s Tale

When M.O. called him to let him know M.G. and the other children were going

to be dropped off, Alex was replacing rot ting wood on the back porch, using a

compressor and a nail gun (4 R.R. at 129

- 30). He was not happy about having to watch

four children in addition to his own because he was working on the porch project (4

R.R. at 130). When M.G. and the others arrived the y went straight to the tire swing to

play on it (4 R.R.at 131). Because it was hot, Alex had them go inside to watch a movie

(4 R.R. at 131). Alex collected up his tools and then went inside (4 R.R. at 131).

M.G. selected the movie and was sitting on the long couch (4 R.R. at 132). Alex

sat on his recliner and was looking at his laptop (4 R.R. at 132). After a while, M.G.4

came closer to Alex and was “spinning around” (4 R.R. at 132). “And I was trying to

look at my laptop, and she was messing with me kind of like in a friendly way” (4 R.R.

at 132). Alex showed the jury a bump on his head that he sustained in an accident and

he said M.G. was messing with it (4 R.R. at 133).

Eventually, Alex became irritated with M.G. ’s playing around with him when he

though t she should be taking care of the younger children, particularly Isaiah, who was

about one at the time (4 R.R. at 134). “She was over top of me, and she don’t listen to

me. So, I just call her that she was a lazy ass little kid, that she don’t respect ord ers, and

I’m going to tell her dad what she is doing” (4 R.R. at 135). In his frustration he pushed

her away forcefully (5 R.R. at 31). He regretted pushing her and being angry with her (5

R.R. at 31).

Issue Presented

The evidence offered by the state was legally insufficient for a rational jury

to convict appellant under Jackson v. Virginia , 443 U.S. 307, 318 (1979)

.

Summary of the Argument

There was insufficient evidence to support Mr. Morales’s conviction because the

record contains conclusive evidence of a reasonable doubt. No rational juror could have

failed to have reasonable doubt of his guilt. See Ervin v. State, 331 S.W. 3d 49, 55 (Te x.

App.

— Houston [1 st Dist.] 2010, pet. ref’d) ; Jackson v. Virginia, 443 U.S. 307, 318, n. 11

,

317

- 19 (1979)

.5 Argument

A. Standard of Review

Evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational factfinder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. Gear v. State

, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) , citing

Jackson, 443 U.S. at 319 . The evidence is insufficient if it conclusively establishes a

reasonable doubt. Ervin v . State , 331 S.W.3d 49, 55 (Tex. App.

— Houston [1 st Dist] 2010,

no pet.)

If the evidence at trial raises only a suspicion of guilt, even a strong suspicion,

the n that evidence is insufficient. Winfrey v. State , 323 S.W.3d 875, 882 (Tex. Crim. App.

2010) . “It is the obligat ion of the appellate courts to ensure evidence presented actually

supports a conclusion that the defendant committed the crime that was charged.” Id.

Once a defendant has been found guilty of the crime charged, the

factfinder's role as weigher of the evide nce is preserved through a legal

conclusion that upon judicial review all of the evidence is to be considered in

the light most favorable to the prosecution. The criterion thus impinges upon

“jury” discretion only to the extent necessary to guarantee the f undamental protection

of due process of law

.

Jackson , 443 U.S. at 319 , (citation omitted)(emphasis added).

B. M.G. ’s Testimony as to the Incident

Whatever happened between Alex and M.G. , it happened in a very small room

in a 660 square

- foot house (5 R.R. at 59). According to the Harris County Appraisal of6

the house, from which the state quoted, the house contains a total of 5 rooms: two

bedrooms and one bathroom; presumably the other two rooms are the living room and

kitchen, though the appraisal does not specify. No dimensions other than the square

footage of the house are shown. (HCAD appraisal attached as appendix.) The state

guessed the living room was 12 feet by 10 feet; Alex said it was “long” (5 R.R. at

60).Twelve feet in width would be insufficient to accommodate a regular

- sized sofa, a

recliner, and a loveseat in the configuration described by both M.G. and Alex. The living

room was more likely at least fifteen by eight or ten fee t.

The following diagram was produced from an interior design site, and the

furniture depicted is drawn to the scale of the 15’ x 8’ square foot dimensions of the

room. They are the average sizes of regular sofa, recliner, and loveseat and are provided

by the site. The diagram does not purport to be an exact replica and is included only to

aid the Court in visualizing the scene.7

Add to the room six children, ranging in age from one to 10 and one adult with

his feet propped up on the recliner working o n his laptop, and it becomes difficult to

fathom the incident M.G. described having taken place without any of the others

noticing, or without her crying out or struggling. But, assuming they were so enthralled

with the toys or the movie that they failed t o notice anything else, what is impossible to

fathom is that a man in a recliner, with his feet up, working on a laptop, could somehow

contort his body such that he could grab the belt loops of someone on the loveseat and

get his hands into her vagina, wit h his feet still propped up and the laptop still on his

lap.8

M.G. testified that she was sitting facing the television (3 R.R. at 44. Even

assuming Alex could reach her over the arm of the recliner, he would only be able to

reach the side of her pants, wi thout standing up. She said nothing about Alex getting

up from the chair or putting his laptop down; in fact she demonstrated to the jury how

he was sitting when she said he went into her pants with both hands (3 R.R. at 42

- 43).

What she described is simpl y not physically feasible.

After M.G. testified on direct examination that Alex “went into her panties,” the

prosecutor asked her how he did that if she was wearing jeans, and the following

exchange occurred:

A. He tugged me.

Q. He tugged you?

A. Tried t o pull me closer.

Q. And what did he specifically

– specifically what did he do with his

hands?

A. He went down my pants.

Q. With what?

A. His hands?

(3 R.R. at 50 ).

After showing M.G. a photograph of her with the CAC interviewer and

ascertaining she is wearing the same jeans in the picture that she wore on the day of the

alleged incident, the prosecutor asked:9

Q. Okay. So these pants you had, you said he

– that you referred to as

your Tio Alex, you said he was tugging at your pants. Were they

kind of stretchy at the waist? Were they button up?

A. Yes, sir.

Q. Which one? Were they stretchy or

–

A. They buttoned up.

Q. They buttoned up?

A. Yes, sir.

Q. So, were they loose fitting; o r were they tight?

A. They were loose fitting. They were loose fitting, about like in the

middle kind of.

Q. Sorry?

A. They are kind of tight, but kind of loose.

Q. Okay. Now, when he put his hands inside your pants and inside

your panties, do you recall when he took his hands out if you had

to button your pants back up?

A. I had to pull them up a little bit.

Q. You had to pull them back up?

A. Because they were like slipping, I guess. Because I had a belt on.

They were kind of big on me, so I ha d to pull them up.

(3 R.R. at 56).

During cross

- examination, however, this interchange with defense counsel took

place:10

Q. And did I understand you correctly that the jeans you’re wearing in

that picture are the same ones that you had on that day at Alex’ s

house?

A. Yes, sir.

Q. And you said they had buttons?

A. One button.

Q. Is it the kind

--

A. One button just to button my pants.

Q. Right. They had one button at the top and then the zipper?

A. Yes, sir.

Q. And you were also wearing a belt?

A. No, I wasn’t wearing a belt.

Q. Okay. Did you say you were wearing a belt?

A. I said I wasn’t wearing a belt.

Q. Oh, you didn’t?

A. Mr. Robinson asked me did I have to pull my pants up and down,

and I said no. I said yes, I had a belt.

I didn’t have a belt. I said I didn’t have a belt so I had to pull

my pants up because they were loose.

Q. You said you didn’t have a belt?

A. Yes, I said I didn’t have a belt.

(3 R.R. at 102).11

After M.G. described being on the loveseat and having Alex’s hands penet rating

her vagina, the prosecutor asked:

Q. Now, prior to going into your pants, did anything else happen?

A. He rubbed my arm.

Q. And what do you mean he rubbed your arm?

A. Like he rubbed it like that (indicating) by my shirt.

***

Q. Now, as he rubs your arm, what does he do next?

A. He stops.

Q. Okay. And why does he stop?

A. I don’t know. I can’t remember. Oh, I moved.

Q. You moved.

A. Yes, sir.

Q. When you say you moved, what

– what type of movement did you

do?

A. I scoot over.

Q. Closer to him or

–

A. Far away from him.

(3 R.R. at 46

- 47).

The prosecutor then took her through the vaginal penetration story again,

in more detail, then asked her:

Q. So, M.G. , now, you said the defendant

– he is rubbing your arm?12

A. Yes, sir.

Q. What happened next. Was that the end of everything?

A. That was before the kids brought the toys out. And then the kids

brought the toys out and I moved.

(3 R.R. at 50).

M.G. had testified earlier that she and some of “the kids” had started out sittin g

on the long couch when they came in to watch the movie (3 R.R. at 39). On being asked

if she had ever moved from that couch, she replied that she moved when Isaiah, the

infant, brought all the toys from Juliana and J.J.’s room and put them on the couch ( 3

R.R. at 39).

Q. So, once he puts all the toys on the couch, was it just not enough

room left?

A. There wasn’t. So, I had to move. Like I was squished on the couch.

(3 R.R. at 40).

A few minutes later, M.G. testified she had moved from the long couch to the

small sofa on the other side of the recliner (3 R.R. at 42). So, either she “scooted” far

away from Alex on the long couch, even though it was crowded with kids and toys,

because she didn’t like his rubbi ng her arm or she moved to the loveseat because there

was no room on the long couch.

In either version, M.G. establishes that the long couch was just as close to the

recliner as was the smaller one. She also testified that the other five children in the13

r oom, some of whom were sitting on the long couch next to the recliner, were

prevented from seeing what Alex was doing because his feet were “propped up” (3 R.R.

at 68). Further, she explained:

A. They were distracted by the toys.

Q. So, Isaiah is playing with the toys. And what else is on?

A. The movie.

Q. Watching a movie.

A. And that’s about it (3 R.R. at 69).

M.O. ’s two children, Juliana and J.J. (Jeremiah), were ages 6 and 7 at the time of

the visit to Alex’s house. Mariah was about 6 (3 R.R. at 7 6, 127). G.G. , Jr. was 4 (3 R.R.

at 127). Isaiah was one (4 R.R. at 127).

Assuming the seat of the long couch is approximately level with that of the

recliner, it is difficult to imagine that, at least the three older children would be unable

to see over h is propped up legs; they were sitting right next to him at more or less the

same height. They would have been able to see over his legs. And he would have to

have twisted his torso to face M.G. in order to get both hands into her pants.

Further, since M.G. claimed Alex had his feet up, working on his laptop, his grip

on her belt loop would have been tenuous at best; it would have been easy for her to

wriggle out of his reach. The record tells us nothing about what, if anything, she did or

said to get free.14

These details alone would conclusively establish reasonable doubt in a rational

juror’s mind but there is more.

C

. The Outcry

According to both M.G. and Alex, Alex took all six children with him to pick up

M.O. that afternoon from work (3 R.R. at 74, 4 R. R. at 49). M.G. did not tell M.O. that

Alec had molested her because she “was scared and [ ] just didn’t want to talk about it”

(3 R.R. at 75). Shortly after they got back to the house, G.G. , Sr. arrived (3 R.R. at 75,

4 R.R. at 49). M.G. was afraid to tel l G.G. what had happened:

Q. Were you afraid of what he was going to do to you, or are you afraid

–

A. To Alex. I was afraid that Alex was going to lie on me, and I was

going to get in trouble for nothing I didn’t do.

(3 R.R. at 75).

Her fear of getting into trouble would be consistent with Alex’s testimony that

he had pushed her away forcefully, called her a lazy ass, disrespectful kid, and said he

would tell her father about her behavior (4 R.R. at 135, 5 R.R. at 31).

Alex and M.O. invited G.G. , Sr. and the children to go Lakewood Church with

them and they agreed (3 R.R. at 77). M.G. testified that she did not want to go but her

little sister did and would make a fuss if M.G. told them she didn’t want to go (3 R.R.

at 77).

Q. And were you concer ned that your dad may ask you why you didn’t

want to go?15

A. Yes, sir.

Q. And why were you concerned about that?

A. I don’t know. Because I was really scared at that point. I didn’t

know what to do. And, so I was really afraid to tell my dad.

(3 R.R. at 77).

Or, she might have not wanted her father and Alex to be together outside of her

presence because Alex might use the opportunity to tell on her, as he had threatened

earlier. Alex testified that it was M.G. , not Mariah, who actively wanted to go to

Lakewood and she rode to church with Alex and M.O. (4 R.R. at 137). So did the other

two girls and J.J. (3 R.R. at 79). The other boys rode with G.G. , Sr. (3 R.R. at 79).

Eventually, after church, M.G. testified she rode with her father to a carwash and

when he came back to the car she told him Alex had touched her (3 R.R. at 81).

Q. So, you told him. What did you tell him?

A. I told him Alex had touched me.

Q. And did you tell him where Alex touched you?

A. Yes, sir.

Q. And did you describe the manner in which he touched you?

A. No. I just told him that he touched me, and he was like: What? And

I told him again, and he is like: Are you sure?

And I said, like: Yes, sir.

And he was like: Are you lying?

I’m like: no sir.

(3 R.R. at 82).16

G.G.

, M.G. ’s father, testified as the outcry witness immediately after M.G. . After

much questioning about his background and his relationship with Alex and M.O. , the

prosecutor brings him to the outcry and he directly contradicted what M.G. said she

told him:

Q. And do you ask her to give you any type of detail about what

happened?

A. Yes.

Q. And what is she able to tell you?

A. She told me that he tried to

– he tried to touch her boobies, and he

tried to touch her down there. And I asked her what: Do you mean down there? ( sic)

And she said, in my vagina.

Q. And did she elaborate on what he touched her with?

A. His finger inside her.

Q. Did you ask her any questions to kind of

–

A. Yes, I did. I asked her: Your clitoris or your lips or just the outside?

Which one?

She said: No dad. He went inside my lips.

(3 R.R. at 155).

M.G. told her father that Alex had touched her inappropriately while they were

at a carwash after church that evening (3 R.R. at 81). From the carwash, after G.G.17

called D e l fina, they went to pick her up from work and proceeded to Precinct 6 to

report the alleged incident (3 R.R. at 82).

Q. Okay. And so, did you talk to an officer out there that night?

A. Yes, sir.

Q. And when you talked to the officer, did you give him d etails of what

had occurred earlier that day?

A. I just told him that he touched me, and that’s it, and like what

before that and stuff. That’s about it. I didn’t go into detail.

(3 R.R. at 83).

Andres Guzman, the patrol officer at Precinct 6 with whom M.G. and her

parents spoke, testified that he was loading up his patrol car to start his shift when G.G.

and Delfina approached him at 1:00p.m (3 R.R. at 221). He spoke individually first to

G.G. , and then M.G. (3 R.R. at 224). He spoke to M.G. for 30 minu tes to an hour (3

R.R. at 226). Contrary to M.G. ’s testimony, the officer stated that M.G. provided him

with a lot of detail in their conversation (3 R.R. at 226). However, he characterized the

incident as “more of a contact

- type

- assault,” which is why he did not send her for a

rape kit (3 R.R. at 231). He said M.G. had told him that Alex had touched “the body

parts of the complainant” (3 R.R. at 231).

Q. And her body parts, were you referring to the female body parts?

A. Yes, her private parts. And she said it.

Q. Private parts?

A. Yes.18

Q. Did she

– was she referring to what you believed to be her vaginal

area?

A. Yes.

Q. Now, when someone is making a complaint against someone

touching them, did she tell you what the defendant touched her

with?

A. His hands.

(3 R.R. at 232).

Since G.G. spoke to Guzman before M.G. , had M.G. really told G.G. the

“details” he testified to, he surely would have told them to Guzman but Guzman did

not hear about the penetration allegation until he reviewed the CAC interview to

prepare for the trial (4 R.R. at 8

- 10).

Officer Guzman testified he found the CAC inte rview was consistent with what

M.G. had told him (3 R.R. at 230); even though what he had seen and heard on the

video made him realize M.G. was now alleging a different offense, penetration (4 R.R.

at 9).

Q. But the statement she gave you that night, were they ( sic ) consistent

with what she told Ms. Rogers?

A. Yes.

Q. So, it was just Ms. Rogers was able to get more detail from her.

A. Yes.

(4 R.R. at 10).19

Certainly, it is impossible to penetrate without touching her, but this officer

reported a touching, not a penetration. He reported a touching because that it what

M.G. had told him. If G.G. had told him about Alex’s finger having been in her vagina,

he wo uld have known to ask her the questions G.G. testified he asked her. He would

not have viewed the incident as a mere touching.

Guzman’s role was only to take the report, he referred the case Deputy Hudson

at the precinct for investigation (3 R.R. at 233). Deputy Hudson testified that he had

specialized training in dealing with child sex

- abuse cases (4 R.R. at 20

- 21). Hudson

reviewed Guzman’s report and stated the report indicated M.G. had said Alex had

touched her in her private area and her breasts (4 R.R . at 28

- 29).

Q. So, he touched in the private area and the breast area?

A. Yes, sir.

Q. So, when you initially hear just the words “touched in the private

area,” what are you thinking as far as the criminal offense?

A. I’m thinking that

– like just

– he had just touched her,

inappropriately touched her.

(4 R.R. at 27

- 28).

The deputy then set up an interview with M.G. at the precinct. “After I talked to

her and determined that her story was consistent as to the same as the report and the

same thing she told Deputy Guzman, that’s when I told the father: Okay. We need to

make an appointment to have an interview at the CAC” (4 R.R. at 30). Hudson observed

the interview at the CAC and testified that M.G. provided the interviewer with more20

details than she ha d to Guzman, and presumably him, since he stated earlier that his

interview with her at the precinct did not change his assessment of the case as a

touching.

Q. Now, how was she able to provide more detail?

A. When the interviewer asked her about touching private areas, at

that point she indicated that the suspect put

– did it twice and he

actually put his fingers in her vagina.

***

Q. So, was this like something that she just volunteered; or did the

interviewer have to kind of like ask questions to find out exactly

what she meant by private area?

A. Yes. The interviewers are trained to direct the questions to put the

child at ease to get more details, and she asked specific questions as

to what kind of touching and when

– by “private area,” did she

under stand what private areas and what areas it was okay for

someone to touch ( sic

).

(4 R.R. at 31).

We are not told what led M.G. to say Alex penetrated her vagina with his fingers

but during cross

- examination of Deputy Hudson, defense counsel elicited from him

that his report of the interview characterized this detail as a change of M.G. ’s story that

resulted in the Assistant District Attorney telling the deputy to schedule a forensic

examination and rape

- kit (4 R.R. at 60).

Conclusion

The jurors were not g

iven a picture of the room where M.G. claimed Alex

molested her. They were unable to see the furniture in proportion to the size of the21

room; they were not told the dimensions of the room. They were shown three

photographs of the outside of the house (State’s Exs. 2, 3, &11). They were told t he

room was small but just how small (3 R.R. at 38). The prosecutor skillfully kept their

attention focused entirely on what Alex allegedly did to M.G. , not on the fact that if it

happened it happened in front of five other children

They heard G.G. , Sr. li e on the stand about what M.G. told him had happened

to her. The alleged “details” emerged several days later when she was interviewed by

Tasha Rogers, who “elicited” them from her. They heard G.G. say he remembered the

day well, yet he testified his young est child, Ezekiel had not been born at the time. M.G.

testified Ezekiel was in the car when G.G. and Delfino dropped her and the other

children off at Alex’s house.

They heard from Alex a reason that could explain why M.G. might have made a

false allegati on against him.

The state will no doubt argue that all the issues raised here are matters of

credibility and weight of the evidence and reasonable inferences therefrom. But Jackson

does not eliminate judicial review entirely from legal sufficiency analyses ; it anticipates

the possibility that some convictions will require appellate courts to impinge upon jury

discretion “ to the extent necessary to guarantee the fundamental protection of due process of law .”

Jackson , 443 U.S. at 319 , (citation omitted)(emphasis added).

This is one of those cases. This is a case requiring this C ourt to ensure that the

evidence actually supports the conviction. Winfrey v. State , 323 S.W.3d 875, 882 (Tex.22

Crim. App. 2010) . It does not. No rational juror would conclude the state proved its

case beyond a reasonable doubt.

“Reasonable doubt” is no longer defined for jurors. They are told things like:

“[W]e do know f

rom case law it’s a very high standard. It’s less than 100 percent,

because the state could never prove anything to you a hundred percent unless you were

there and saw it and then of course you would be a witness, not a juror...For some

people I guess it mig ht be 90 percent or some people 95 percent, for some people 99,

whatever it is to you as long as it is a very high standard” (2 R.R. at 38).

But reasonable doubt was never meant to mean a percentage of the evidence

presented by the state; it is about the quality of the doubt in the juror’s mind, given the

quality of the state’s evidence. It is about whether one’s doubt is reasonable in the face

of what the state has shown them.

Jurors are also routinely, as in this case, shown a slide of an uncompleted pu zzle

depicting the outline of a gun. The prosecutor stated: “Notice all the puzzle pieces aren’t

filled in. This is beyond a reasonable doubt. You know based on seeing that without

having all the pieces that this is a gun.... Basically it’s a kind of common sense thing.

You know it when you see it” (2 R.R. at 99). The puzzle analogy is inapt; whether a

crime has been committed is far more complex than a puzzle showing a gun handle,

trigger, and muzzle. The consequences of filling in gaps in the prosecution’s story

improperly, due to misunderstanding the evidence, for example, or relying on23

testimony of a child sex

- abuse investigator to assess whether a witness is lying (4 R.R.

at 43) are far too dire to trivialize in this fashion.

It defies reason that a man in his mid

- forties, with no prior felonies, and only

three very minor B misdemeanors

— a man with grown children

— an undocumented

alien, with everything to lose

-- would suddenly commit aggravated sexual assault of a

child within mere feet of five other childr en, two of whom lived with him, and some of

whom were nieces and nephews of his girlfriend’s sister. And do so when the child’s

father is expected at any time to come and pick his children up from his house.

Prayer

In view of the above, Alejandro Morales Calles, entreats this Court to recognize

that the state’s evidence conclusively raised reasonable doubt and find it legally

insufficient. He asks the Court to reverse his conviction and render an acquittal.

Respectfully submitted,

Alexander Bunin

Chief Public Defender

Harris County Texas

/s/ Melissa Martin

_______________________ Melissa Martin

Assistant Public Defender

Harris County Texas

1201 Franklin, 13 th floor

Houst on Texas 7700224 (713) 274

- 6709

TBA No. 24002532

Email: melissa.martin@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that a copy of this brief was e

- served to the Appellate Division, Harris

County District Attorney located at 1201 Franklin, 6 th Floor, Houston, TX 77002 and

was also sent by first

- class mail to Appellant.

/s/ Melissa Martin

______________________________ M ELISSA M ARTIN

CERTIFICATE OF COMPLIANCE

Pursuant to proposed 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 4322 words printed in a proportionally spaced typeface.25

2. This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3. Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumv ention of the type

- volume limits in Tex. R. App. Proc. 9.4(j)

,

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

/s/ Melissa Martin

____________________________ M ELISSA M ARTIN