### 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 PETITIONER PD-1547-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 12/1/2015 4:23:58 PM Accepted 12/1/2015 4:31:14 PM

ABEL ACOSTA CLERKINTERESTED PARTIES

Judge: The Honorable Katherine Cabaniss Presiding Judge, 248th District Court, Harris County , TX 1201 Franklin, 16th Floor Houston, TX 77002 Prosecutors: Ms. Erin Epley (trial) Assistant District Attorney Harris County

District Attorney ’s Of

f i ce 1201 Franklin Houston, TX 77002 Mr. Alan Curry

(appeal) Assistant District Attorney Harris County

District Attorney ’s Of

f i ce, Appellate 1201 Franklin, 6 t h Floor Houston, TX 77002 Def ense Attorney s: Mr. Sam Cam m ack (trial) 1001 W . Loop South, Ste. 700 Houston, TX 77027 Mr. Maverick Ray

(trial) 1419 Franklin St. Houston, Texas 77002 Mr. Ky le B. Johnson (appeal) 917 Franklin, Suite 320 Houston, TX 77002 Appellant: Mr. Elm er Alvarado

iiTABLE OF CONTENTS

INTERESTED PARTIES.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT CONCERNING ORAL ARGUMENT.

. . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE PROCEDURAL HISTORY.

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

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PRAYER FOR RELIEF.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CERTIFICATE OF SERVICE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CERTIFICATE OF COMPLIANCE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 APPENDIX.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iiiINDEX 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 Tex. R. App. P. § 9.4(i)(3).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Tex. R. App. P. § 66.3(c).

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

STATEMENT REGARDING ORAL ARGUMENT

Oral argum ent is waived.

ivT 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 s upport his conviction. The lower court disagreed and this ruling appears to conf lict with the U.S. Suprem e Court’s decision in J ackson v. Virginia , 443 U.S. 307, 319, 9 9 S

. C t
. 2781, 61 L.Ed.2d 560 (1979) a nd with this Court’s decision in Brooks v . State , 3 23 S.W .3d 893, 894–95 (Tex. Crim

. A pp. 2010) (plurality o p .). Tex. R. App. P. § 66.3(c). 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,

a f ter attending a birthday party with their granddaughter, Hailey

. According to the

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 he next thing she rem em bered a f t e r f alling asleep was the a

p p e l lant touching h er “in [ her] m iddle part”. She testif ied she was

2sleeping between the appellant and Haley and was w earing s om e shorts with an elastic

waist that Hailey loaned her. According to the com plainant, t he a

ppellant touched her

u n d e r her clothes. She also rem em bers his hand was m oving and this w e n t o n f o r about seven seconds. The com plainant testif

ied that she then woke up Gloria and told her she wanted to m ove. The com plainant then was asked if she said any thing to the p etitioner and she responded “no”. W hen asked why , s he t hen responded “Because I didn’t woke him up.” She w as t hen a sked if s he thought t he appellant was asleep, and she r esponded “y es”. On appe a l t h e petitioner argued that, given the com p lainant’s testim ony , no rational jury c o uld h ave f ound that the petitioner’s conduct was intentional and knowing (which the Court of Appeals took to m ean “voluntary ”). Rely ing on this Court’s opinion in W h a tley v. State , 445 S.W .3d 159 (T ex.Crim

. App. 2014), the court of appeals af f irm ed, holding that a rational jury could inf er “that Alvarado was f

eigning sleep”. citing W

hatley at 165-67. Reliance on W

hatley is m isplaced b ecause the f a ct s are distinguishable. For the purposes o f an insuf

f iciency analy sis, there sim ply w as a lot m ore evidence in W hatley to support the conclusion that the de f e n d a n t 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),
t h e def endant f o ndled t he com

plainant on three dif

f erent occasions and, o n one o f

3those occasions, the def endant m ade the com

plainant touch his penis. Id at 161-65. Here, there was o nly o ne instance o f t ouching which lasted only seven seconds and t here was no indication that the petitioner knew what he was doing (as opposed
to W hatley where the def

endant dir e c t e d the com

plainant t o touch him ). Under the ci r cum stances, reliance on W hatley was m isplaced and it is the petitioner’s petitioner’s position that, based on the evidence here, no rational juror could “inf er” bey ond a reasonable doubt that the petitioner was “f eigning sleep” and that his actions

were done intentionally , knowingly and voluntar i l y . See Jackson v. Virginia , 443 U.S. 307, 319, 9 9 S.Ct. 2 781, 61 L.Ed.2d 560 (1979); Brooks v . S t a t e , 3 2 3 S.W .3d 893, 894–95 (Tex. C rim

. App. 2010) (plurality op.)(W hen considering a c hallenge to the suf f iciency o f the evidence, the reviewing c ourt is to exam i ne all the evidence in the light m ost f

avorable to the verdict and determ i ne w hether a rational trier of f act could have f

oun d the essential elem ents o f the of f ense bey ond a reasonable doubt.) The e vidence at t rial was that t he c o mp l a inant thought t he petitioner was sleeping at the tim e that he touched her. The touching h appened only once, and then, only lasted seconds. Given t h i s evidence, the State f ailed to e stablish bey ond a

r easonable doubt that t he act was voluntary and the evidence theref ore wa s insuf f icient to support the petitioner’s conviction.

4PRAYER 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.

Respectf 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

5CERTIFICATE OF SERVICE

I do hereby certif

y that a true and correct copy of the abo v e a n d f o regoing docum ent has been f

o rwarded 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

CERTIFICATE OF COMPLIANCE I c ertif y that this brief is in com

pliance with Tex. R. App. Proc. Rule 9.4(i)(3) in that it contains 506 words.

/s/ Ky le B. Johnson Ky le B. Johnson

6APPENDIX Court of Appeals Opinion

7

### 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).