No. 01-14-00965-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



No. 1381604

In the 248th District 

Of Harris County, Texas 



ELMER ALVARADO 

Appellant 

V.

THE STATE OF TEXAS 

Appellee



STATE’S APPELLATE BRIEF 



DEVON ANDERSON

District Attorney 

Harris County, Texas 

ERIN EPLEY

Assistant District Attorney 

Harris County, Texas 

KIMBERLY APERAUCH STELTER

Harris County Criminal Justice Center 

1201 Franklin, Suite 600 

Houston, Texas 77002

Telephone: 713.755.5826 

stelter_kimberly@dao.hctx.net 

State Bar Number: 19141400 

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

01-14-00965-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/27/2015 4:03:52 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/27/2015 4:03:52 PM CHRISTOPHER A. PRINE Clerk
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STATEMENT REGARDING ORAL ARGUMENT

State believes that the matters raised by the appellant are well-settled, 

that the briefs in this case adequately apprise this Court of the issues and the 

law. Therefore, the State does not request oral argument. 

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a 

complete list of the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Kimberly Aperauch Stelter  Assistant District Attorney on 

appeal

Erin Epley Assistant District Attorney at trial

Appellant or criminal defendant:

Elmer Alvarado—Defendant 

Counsel for Appellant:

Kyle B Johnson  Counsel on appeal 

Sam Cammack, Maverick Ray defense counsel at trial

Trial Judge:

Honorable Katherine Cabaniss  Judge Presiding
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TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT........................................................i

IDENTIFICATION OF THE PARTIES.........................................................................i

TABLE OF CONTENTS ............................................................................................. ii

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

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

STATEMENT OF FACTS............................................................................................1

SUMMARY OF THE ARGUMENT..............................................................................4

REPLY TO APPELLANT’S SOLE ISSUE PRESENTED..............................................4

The evidence is sufficient for the jury to have found appellant 

guilty of indecency with a child.

PRAYER ...................................................................................................................13

CERTIFICATE OF SERVICE ....................................................................................14

CERTIFICATE OF COMPLIANCE............................................................................15
iii

INDEX OF AUTHORITIES

CASES

Adanandus v. State,

866 S.W.2d 210 (Tex. Crim. App.1993)...........................................................................8

Garcia v. State,

2014 WL 7140423, at *4-5 (Tex. App.—

Austin, 2014, pet. ref’d)(not designated for publication).................................... 11

Gear v. State,

340 S.W.3d 743 (Tex. Crim. App. 2011)..........................................................................4

Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007)...............................................................................5

Jackson v. Virginia,

443 U.S. 307 (1979).................................................................................................................5

Langley v. State,

2015 WL 2394144, at *3 (Tex. App.—

Tyler 2015, no pet. h.)(not designated for publication)....................................... 11

Rogers v. State,

105 S.W.3d 630(Tex. Crim. App. 2003)...........................................................................8

Whatley v. State,

445 S.W.3d 159 (Tex. Crim. App. 2014)..............................................................5, 8, 10

STATUTES

TEX. PENAL CODE ANN. §21.11(a)(1) (West 2011).............................................................5

TEX. PENAL CODE § 6.01(a) (West 2011)................................................................................8

TEX. PENAL CODE ANN. §21.11(c) (West 2011 ......................................................................6
iv

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ........................................................................................................i
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was charged with aggravated sexual assault of a child 

under six years of age (CR-6). He pled not guilty, and the case proceeded to 

trial before a jury (CR-92). The jury found appellant guilty of the lesserincluded offense of indecency with a child, and sentenced him to five years in 

the institutional division of the Texas Department of Criminal Justice (CR-92). 

Appellant then filed notice of appeal, and the court certified his right to appeal 

(CR-90, 94). 

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STATEMENT OF FACTS

On February 16, 2013, Rita dropped her five-year-old daughter Anna off 

at her Aunt Gloria’s to attend a birthday party with Gloria’s granddaughter 

Heather (RR4-14-15). 1 After the party, Anna went home with Gloria to spend 

the night (RR5-15). Anna slept in a bed with Heather, Gloria, and Gloria’s 

 

1

To protect their privacy, the State is using the pseudonyms “Anna,” “Rita,” and 

“Heather” to refer to the complainant, her mother, and the complainant’s young cousin. 
2

husband, appellant. Appellant was on the left, then Anna, then Heather and 

Gloria (RR5-17). 

Anna woke up during the night to find appellant’s hand inside her 

leggings and underwear (RR5-17). Appellant’s hand was touching inside her 

“middle part”

2 and moving (RR5-21). Then appellant “scratched” her (RR5-

21). This went on for “seven Mississippis” until Anna moved away (RR5-22). 

Anna didn’t say anything to appellant or Gloria about what happened that 

night or later, but she did wake her aunt and ask her to trade places with her 

in bed (RR5-23). 

Anna went home the next evening (RR4-16, 5-24). Rita had Anna take a 

bath before bed (RR4-19). When she checked in on Anna, however, Anna was 

not bathing (RR4-19). Rita began helping Anna wash, but when she got to her 

pelvic area Anna didn’t want her mother to touch her (RR4-20). Rita was 

surprised, because Anna had never acted this way before (RR4-21). 

After the bath, Rita asked Anna if someone had touched her (RR4-21). 

Anna’s reaction was to turn and give her mother a “shocked” look (RR4-22). 

She then looked down, turned her back to her mother, and said “yes” (RR4-22-

 

2 Using an anatomically correct doll, Anna indicated that her “middle part” was the 

female genitalia (RR5-19). 
3

22). Anna told Rita how appellant touched her under her panties and 

“scratched” her in her “cookie”3 (RR4-22).

Rita was upset, but did not call the police right away (RR4-24-25). 

Instead, she waited until the next day to take Anna to a doctor, as Anna had 

hurt her foot at the birthday party (RR4-26). While at the doctor’s office Rita 

asked him to check Anna’s vaginal area, but did not say why (RR4-30). The 

doctor did not find anything wrong (RR4-35). He spoke to Anna privately and 

asked her if someone had touched her, but she denied it (RR4-34). 

After talking to school personnel, Rita reported the incident to police 

(RR3-11). Anna was interviewed by a forensic investigator who specialized in 

interviewing children (RR4-105, 107). While the investigator was not able to 

speak of the details Anna provided, she was able to say that Anna gave a clear 

and consistent explanation of who, where, and what happened to her, and that 

her explanation of events was consistent with what she had told her mother 

(RR4-117). 

The police also interviewed appellant (RR3-44). Appellant agreed with 

Anna about the date they had been together last but didn’t want to talk about 

what had happened, saying it was a “very delicate situation.” (RR3-46). 

 

3 Anna referred to the vaginal area as “cookie,” or “torta” when she was five and the 

offense occurred (RR4-20). 
4

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SUMMARY OF THE ARGUMENT

The evidence is sufficient for the jury to have found appellant guilty of 

indecency with a child. A rational jury could have found that appellant’s 

touching of the complainant was voluntary and not done while he was 

sleeping.



REPLY TO APPELLANT’S SOLE ISSUE PRESENTED

The evidence is sufficient for the jury to have found appellant 

guilty of indecency with a child.

Appellant raises only one issue in his appeal; that the evidence was 

legally insufficient to support his conviction for indecency with a child. 

A. Standard of review on insufficiency of the evidence

“In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that evidence 

and reasonable inferences therefrom, a rational fact finder could have found 
5

the essential elements of the crime beyond a reasonable doubt.” Gear v. State,

340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia, 443 U.S. 

307, 318–19 (1979). Under this standard, appellate courts must defer to the 

jury’s ability to fairly “resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate 

facts.” Jackson, 443 U.S. at 319; see Whatley v. State, 445 S.W.3d 159, 166 (Tex. 

Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 

The jury may draw “multiple reasonable inferences as long as each inference 

is supported by the evidence.” Hooper, 214 S.W.3d at 15. “[A]n inference is a 

conclusion reached by considering other facts and deducing a logical 

consequence from them.” Id. at 16. It is not necessary that every fact point 

directly and independently to the defendant’s guilt; it is enough if the 

conclusion is warranted by the combined and cumulative force of all the 

incriminating circumstances. See id. at 13. Finally, circumstantial evidence has 

the same probative value as direct evidence, and alone, can be sufficient to 

establish guilt. Id.

B. Application to the facts

In addition to the initial charge of super-aggravated sexual assault, the 

jury was given the option to convict appellant of the lesser-included offense of 
6

indecency with a child by sexual contact. TEX. PENAL CODE ANN. §21.11(a)(1) 

(West 2011). To sustain a conviction for indecency with a child under this 

subsection, the evidence must show that the defendant engaged in sexual 

contact with a child younger than 17 years of age, whether the child is of the 

same or opposite sex. Id. The jury was thus instructed to find appellant guilty 

of indecency with a child if they found beyond a reasonable doubt that 

appellant “did ... intentionally or knowingly engage in sexual contact with 

[Anna], a child under the age of seventeen years, by touching the genitals of 

[Anna] with the intent to arouse or gratify the sexual desire of [the 

appellant]...” (CR-72). “Sexual contact” was defined for the jury as “any 

touching by a person, including touching through clothing, of any part of the 

genitals of a child with the intent to arouse or gratify the sexual desire of any 

person.” (CR-72). See TEX. PENAL CODE ANN. §21.11(c) (West 2011). The jury 

found appellant guilty of this lesser offense (CR-79). 

Appellant concedes that a jury could find that he engaged in sexual 

contact with Anna as she described, but argues that the evidence is 

insufficient to prove that he intentionally or knowingly committed the 

touching (Appellant’s brief, p. 22). Appellant’s argument is based on Anna’s 

testimony that she assumed appellant was “asleep” when he touched her. This 

statement was made in response to the prosecutor’s question of why Anna 
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didn’t say anything to appellant when he touched her that night. Anna 

responded “Because I didn’t woke him up.” (sic) (RR5-22). The following 

exchange then occurred:

Q (by the State): You didn’t wake him up. Do you think he was asleep?

A (by Anna): Yes.

Q: How do you think his hand got under your pants?

A: I do not know.

Q: So, you’re just guessing, huh?

..........

A: Yes.

Q: Okay. ‘Cause did you look at him while he was doing that?

A: No.

Q: So, you don’t know if his eyes were open or not, do you?

A: (Nodding).

(RR5-22-23). 

On Cross-examination defense counsel seized on Anna’s assumption 

that appellant was asleep and got the seven-year-old to answer affirmatively 

to his question “when Elmer touched you, did you think it was an accident in 

the beginning?” (RR5-60). As a result, the defense argued alternatively at 
8

closing that either appellant never touched Anna, or that if he did, the 

touching was an “accident.” (RR5-91, 92, 93, 104).

Appellant, by arguing that he touched Anna while asleep and by 

accident, is essentially contending that the evidence failed to show that his act 

was “voluntary.” Whatley v. State, 445 S.W.3d at 166. “[T]he issue of the 

voluntariness of one’s conduct, or bodily movements, is separate from the 

issue of one’s mental state.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex.

Crim. App.1993). Section 6.01(a) of the Texas Penal Code requires a 

voluntary—i.e., volitional—act as an element of guilt. TEX. PENAL CODE § 6.01(a)

(West 2011) (“A person commits an offense only if he voluntarily engages in 

conduct, including, an act, an omission, or possession.”). “Voluntariness,” 

within the meaning of Section 6.01(a), refers only to one’s own physical body 

movements. Whatley v. State, 445 S.W.3d at 166. “If those physical movements 

are the nonvolitional result of someone else’s act, are set in motion by some 

independent non-human force, are caused by a physical reflex or convulsion, 

or are the product of unconsciousness, hypnosis, or other nonvolitional 

impetus, that movement is not voluntary.” Id., citing Rogers v. State, 105 

S.W.3d 630, 638 (Tex. Crim. App. 2003). 

Although Anna might have assumed appellant was asleep and touched 

her by accident, the jury could have understood what the child did not: that 
9

appellant’s actions were both volitional and intentional. Appellant’s touch 

was not simply a brush up against the exterior of Anna’s clothing, which might 

accidently happen while sleeping. Rather, Anna testified that she woke up 

with appellant’s hand deep inside her leggings and panties, and with 

appellant’s fingers touching her vaginal area (RR3-93, RR4-23, RR5-21).

Appellant’s hand was moving under Anna’s panties and lasted “seven 

Mississippis” after she woke up, until she moved away (RR5-21, 23). This is 

not the type of contact which happens by “accident” or while “asleep.” 

Furthermore, while Anna might not have known what appellant was 

doing or why he was doing it, she seemed to instinctually know it was wrong. 

Instead of rolling over and going to sleep, she woke up her aunt and asked if 

she could move to the other side of the bed (RR5-22). When taking a bath the 

next day she was fussy and upset, and didn’t want her mother to touch her 

vaginal area (RR4-19, 21). When her mother asked if someone had touched 

her, she acted both shocked and embarrassed, turning away and looking down 

before answering “yes.” (RR5-22). Thus, while Anna might have agreed with 

defense counsel that the touching could have been an “accident,” she seemed 

not to believe this explanation herself. 

While Anna sensed something was wrong, the jury had the maturity to 

know it. They could understand, where Anna could not, the sexual nature of 
10

appellant putting his hand inside the little girl’s panties and “scratching” her 

vagina. And they would understand that such actions do not happen by 

“accident.” The prosecutor put it best in her closing argument: 

And she may not understand it now. And in her brain, unsure of 

what a sexual offense is or what the motivation for that might be, 

she will tell you I didn't see his eyes, but maybe he was asleep, 

probably he was asleep, right? It was an accident. He thought I 

was something else. Because she doesn't know what you and I 

know. She doesn't know what he knows, which is there’s an actual

purpose for the things that he was doing. And she shouldn't have 

to understand that yet. But you do.

(RR5-112). The jury, looking at appellant’s actions from an adult point of view, 

and drawing reasonable inferences therefrom, could conclude that appellant’s 

conduct was voluntary and intentional, and not an accident. 

Finally, several other courts have found, in similar circumstances, that a 

defendant’s actions were voluntary despite claims of being asleep. For 

example, in Whatley, the defendant, the complainant’s step-father, on more 

than one instance reached under the complainant’s clothing and rubbed her 

vagina while pretending to be asleep. Whatley, 445 S.W.3d at 164. The 

complainant, who was eleven at the time, told investigators that she thought 

appellant was asleep and may not have known what he was doing. Id. When 

she testified at 18 years of age, however, she stated that she had no doubt that 

the defendant knew what he was doing. Id. Finding the evidence sufficient for 
11

the jury to have found appellant’s actions to be voluntary, the court noted 

that:

[a] reasonable jury could have had difficulty believing that the 

appellant, who only “sometimes” fell asleep quickly while in bed 

with his wife, was so deeply asleep within minutes on three 

different occasions that he unconsciously undertook the 

dexterous action of putting his hands inside the complainant’s 

pants.

Id. The jury in this case could likewise find it difficult to believe that appellant 

unconsciously inserted his hand into the waistband of a petite five-year-old 

girl’s leggings and panties deep enough to “scratch” her vagina, and continued 

to do so until she moved away. See also Garcia v. State, 2014 WL 7140423, at 

*4-5 (Tex. App.—Austin, 2014, pet. ref’d)(not designated for publication) (jury 

could have disbelieved complainant’s testimony that she thought the 

defendant must have been asleep when he engaged in touching); Langley v. 

State, 2015 WL 2394144, at *3 (Tex. App.—Tyler 2015, no pet. h.)(not 

designated for publication) (“Although Jane Doe's testimony showed that she 

believed Appellant was sleeping, this does not negate intent, as it can be 

inferred from the circumstances that Appellant was feigning sleep”).

Viewing the evidence in the light most favorable to the verdict, a 

reasonable jury could have determined that appellant’s actions were 
12

voluntary and did not occur while he was asleep or by accident. Appellant’s 

sole point of error is without merit, and should be overruled.


13

PRAYER

The State respectfully requests that this Court affirm the judgment of 

the trial court.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/Kimberly Aperauch Stelter

KIMBERLY STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar Number: 19141400

Stelter_kimberly@dao.hctx.net
14

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument is being served 

by mail at the following address

Kyle B. Johnson

Attorney at Law

917 Franklin, Suite 320

Houston, Texas 77002

/s/Kimberly Aperauch Stelter 

KIMBERLY STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar Number: 19141400

stelter_kimberly@dao.hctx.net
15

CERTIFICATE OF COMPLIANCE

 The undersigned attorney certifies that this computer-generated 

document has a word count of 2,929 words, based upon the representation 

provided by the word processing program that was used to create the 

document.

/s/Kimberly Aperauch Stelter

KIMBERLY STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

TBC No. 19141400

stelter_kimberly@dao.hctx.net