### To Th e 

### Co u rt o f Crim in al Ap peals

of 

### Tex as
No._______________________

ELMER ALVARADO PETITIONER

vs. THE STATE OF TEXAS RES PONDENT

P ETITION F OR DISCRETIONARY REVIEW

________________________________________________________ On Petition f

or Discretionary

Review f rom the Court of

Appeals f or the First District, Houston, Texas in Cause No. 01-14-00965-CR, af f irm ing the conviction in Cause No. 1381604 out of the 248th District Court of Harris County , Texas.

_______________________________________________________
ORAL ARGUMENT W AIVED Ky le B. Johnson SBN: 10763570 917 Franklin, Ste. 320 Houston, Texas 77002 Tel: (713) 223-4100 Fax: (713) 224-2889 ATTORNEY FOR PETITIONERTABLE 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

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

. . . . . . . . . . . . . . . . . . . 3 Rules

STATEMENT CONCERNING ORAL ARGUMENT Oral argum ent is waived.

iiiT o The 

### Co u rt o f Crim in al Ap peals

o f
Texas
No._______________________

ELMER ALVARADO PETITIONER vs. THE STATE OF TEXAS RES PONDENT

PETITION FOR DISCRETIONARY REVIEW

________________________________________________________ On Petition f

or Discretionary

Review f rom the Court of

Appeals f or the First District, Houston, Texas in Cause No. 01-14-00965-CR, a f f irm ing the conviction in Cause No. 1381604 f rom the 248th District Court of H arris County , Texas.

_______________________________________________________ TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:



### STATEM ENT OF THE CASE
The appellant was convicted of Indecency with a C hild by a jury and sentenced
to 5 y ears in the Institutional D ivision o f the Texas Departm e n t of Crim i nal Justice.PROCEDURAL HISTORY

In an unpublished M e m orandum Opinion delivered on Oct o ber 27, 2015, a panel of the F irst Court of Appeals af

f irm ed the appellant’s conviction. No m otion f or rehearing was f

iled. The Petition f

o r D iscretionary Review i s n o w due on Novem ber 26, 2015.

. GROUND FOR REVIEW
In t he lower court, the appellant contended that the evidence was insuf f icient
to suppo r t his conviction. The lower court disagreed a nd t his ruling appears to run
counter with the rulings in b oth

. Jackson v. Virginia , 4 4 3 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 t his c ase, the com

plainant, Arjany Vallejo (who was seven y ears old at the tim e of trial), testif

ied that she spent the night with the petitioner and his wif e, Gloria, af ter attending a birthday party with their granddaughter, Hailey

. According to t he

com plainant, af

t er the party , they all went back to the Gloria’s house. She and Hailey went into Gloria’s bedroom , play ed f or while, and then f

e l l asleep. The com plainant testif

ied that , t h e n ext thing s he rem em bered af ter f alling asleep was th e a ppellant touching h er “in [ her] m iddle part”. She testif ied she was sleeping between the appellant and Haley and was wearing som e shorts with an elastic

2waist that Haley loaned her. According to the c om plainant, the appellant touched her under her clothes. She a lso rem em bers his h and wa s mo v i n g a n d this went on f or about seven seconds. The com plainant testif

ied that she then woke up Gloria and told her she wanted to m ove. Th e c o m plainant then w as asked if she s a id any t hing to t he petioner and she responded “no”. W hen a sked why , she then responded “Because I d idn’t woke him up.” She was t hen a sked if s he thought t he appellant was asleep, and she r esponded “y es”. On appeal the petitioner argued that, given the comp l a i n a nt’s testim ony , no

r ational jury could have f ound that the petitioner’s conduct was intentional a n d knowing (which the Court of Appeals took to m ean “voluntary ”). Rely ing on this Court’s opinion in W h atley v. St a t e , 445 S.W .3d 159 (Tex.Crim .App. 2014), the court of a ppeals af f irm ed, h olding that a ra tional jury could inf er “that Alvarado was f

eigning sleep”. citing W

hatley at 165-67. Reliance on W

hatley i s m isplaced because the f acts are distinguishable. For the purposes o f an insuf

f iciency analy sis, th e re sim ply w as a lot m ore evidence in
W hatley to support the conclu s i o n t hat the def endant knew what he was doing. In
W hatley (even though the c o m p l a i n a n t t e s t i f ied she thought the def

endant was asleep), the def endant f ondled the com

plainant on three dif

f erent occasions a n d , on one of those occasions, t he def

endant m ade the com

plainant touch his penis. Id at 161-65.

3Here, there was only o ne instance of touching which lasted only seven seconds

and t here was no indication that the petitioner knew w hat he was d oing (as opposed
to W hatley where the d e f

e n d ant directed the com

plainant t o touch him ). Under the circum stances, reliance on W hatley was m isplac e d and it is the petitioner’s petitioner’s position that, based on the e v i d ence here, no rational juror could f ind bey ond a r e asonable d o ubt (based on an assum ption that the petitioner was f eigning sleep) that his actions w ere done intentionally , knowingly and voluntarily

. See Jackson v. Virginia , 443 U .S. 307, 319, 99 S.Ct. 2781, 6 1 L.Ed.2d 560 (1979); Brooks

v. St a t e , 323 S.W .3d 893, 894–95 (Tex. Crim

. A pp. 2010) (plurality op.)(W hen considering a c hallenge to the suf f iciency o f the evidence, the reviewing court is to

exam ine all the evidence i n the light m ost f a v o r a b l e to the v erdict and determ ine whether a rational trier of f act could have f

ound the essential elem ents of the of f ense bey ond a reasonable doubt.) PRAYER FOR RELIEF The lower court’s ruling appears to conf lict directly with the Courts’ rulings in J ackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2 781, 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.

4Respectf ully subm itted,

/s/ Ky le B. Johnson Ky le 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 certif

y that a true and co r r e c t c o p y o f the above and f oregoing docum ent has b e en f

orwarded to all counsel of record on t his 17 t h day of June, 2014, to wit: Alan Curry Appellate Division Harris County

District Attorney ’s Of

f i ce 1201 Franklin Houston, Texas 77002 Ms. Lisa C. McMinn State Prosecuting Attorney P.O. Box 12405 Capital Station, Austin, Texas 78711
/s/ Ky l e B. Johnson Ky le B. Johnson

5APPENDIX Court of Appeals Opinion

6

### Opinion issued October 2 7 , 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 T rial 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 Al varado was sentenced to 52 

### 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 h ad 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 y oung cousin by the pseudonyms “Anna,” “Rita,” and “Heather,” respectively.3 

### 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 wit h 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 C aster 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 i ncident.4 

### 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 es sential 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 thi s 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 “d efer 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 confl icts 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).5 

### B. Applicable Law In order to obtain a conviction for the offense of indecency with a child by touching, the evidence must show beyon d 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. T EX


### . P ENAL 

### C ODE 

### A NN


### . § 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. T EX


### . P ENAL 

### C ODE 

### A NN


### . § 6.01(a) (“A person commits an offense only if he voluntarily engages in conduct, incl uding 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 , 44 5 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 f orce, 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).6 

### 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 knowin gly 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 inapp ropriately 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? Ann a: Yes.7 

### 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

as ked 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 An na 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 be yond a reasonable doubt that Al varado’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 aslee p 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 testimony8 

### 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 lega l 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 suppo rted 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 par ticularly 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 proceed ed to “scratch” her vaginal area. S ee 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 believe9 

### 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 h e 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).Envelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=f9f3149d-1b84-4777-9f17-08861ef7f24f [12/1/2015 1:10:05 PM] Print this page 

## 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 Convenience Fee $0.09 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $2.99 Total Provider Tax Fees $0.25 Grand Total $3.33 Payment Account Name Kyle B. Johnson Transaction Amount $3.33 Transaction Response Transaction ID 13041521 Order # 007998677-0 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 Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Reason Time Rejection Comment

Other 12/01/2015 01:06:44 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 theEnvelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=f9f3149d-1b84-4777-9f17-08861ef7f24f [12/1/2015 1:10:05 PM] PM identity of Judge, Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a 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 Alan Curry Curry_Alan@dao.hctx.net Harris County District Attorney's Office EServe Sent Yes 11/30/2015 08:27:30 AM Lisa McMinn information@spa.texas.gov State Prosecuting Attorney EServe Sent Yes 11/30/2015 10:55:21 AM