In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00307-CR ___________________________
KYLE GORDON COX, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR15602
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
Appellant Kyle Gordon Cox was convicted of indecency with a child by
exposure. See Tex. Penal Code Ann. § 21.11(a)(2)(A). A jury determined his
punishment and assessed a sentence of three years in prison. In two issues, Cox
complains that the evidence was insufficient to demonstrate his sexual intent and that
the trial court should have excused a juror for demonstrated bias. We will affirm.
Background
Cox is the father of Holly.1 Holly normally lived with her mother, Elizabeth,
but visited Cox once a month. One evening in June of 2021, when Holly was four,
she told her mother, “Daddy showed me his no-nos,” meaning his genitals. Elizabeth
was shocked and called Cox. He refused to talk on the telephone, but told her they
could discuss it at the next visitation.
At the next visit, Cox met Elizabeth but demanded that she leave her phone
and any recording devices in her car. Elizabeth confronted Cox with the information
that he had exposed his penis to Holly. Cox responded that he showed her because
“[s]he wanted to know.” Elizabeth pointed out that exposing himself was not an
appropriate way to educate Holly on the differences between the sexes.
To protect the complainant’s anonymity, we use aliases to refer to her and her 1
mother. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 Elizabeth called Child Protective Services. Eventually, Dan Bradshaw, an
investigator with the Hood County District Attorney’s Office began to look into the
matter. Cox gave two recorded non-custodial statements to Investigator Bradshaw.
Cox told him:
• Holly had asked Cox the difference between boys and girls. Cox’s purpose in showing her his penis was to explain a difference.
• Cox wanted to show Holly his penis because, in his childhood, Cox had been required to rely on neighborhood children to gain knowledge about sex differences. He did not want the same thing to happen to Holly.
• Cox had an erection when he exposed his penis to Holly.
• Cox did not know why he had an erection, but he also said that it was caused by the “wrestling” that he had been engaging in with Holly immediately prior to the exposure.
• In his sexual relationships, Cox enjoyed being hit and feeling pain.
• Cox did not know how many times he had achieved an erection caused by wrestling with Holly. He also did not know if similar erections would happen in the future.
• Because it was erect, Cox did not need to support his penis with his hands when he showed it to Holly.
• Cox showed his penis and testicles to Holly for a duration of between thirty seconds and one minute.
In Investigator Bradshaw’s opinion, he had given Cox “every opportunity to
come up with any kind of other story that he could come up with.” After his second
interview, the investigator procured a warrant and arrested Cox.
3 Legal Sufficiency of Intent
In his first issue, Cox argues that the evidence was insufficient to demonstrate
that he exposed his genitals with the intent to arouse or gratify the sexual desire of any
person. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (defining indecency offense to
require, among other things, the “intent to arouse or gratify the sexual desire of any
person”). Specifically, he relies on his statements to both Elizabeth and law
enforcement that his purpose in exposing himself was to “educate” Holly about
differences between the sexes.
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). We must scrutinize circumstantial evidence of intent as we do
other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim.
App. 2009). But when a record supports conflicting inferences, we “must presume—
even if it does not affirmatively appear in the record—that the trier of fact resolved
any such conflict in favor of the prosecution, and must defer to that resolution.”
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
A person commits the offense of indecency with a child if he exposes his
genitals knowing a child is present “with [the] intent to arouse or gratify the sexual
desire of any person.” Tex. Penal Code Ann. § 21.11(a)(2)(A). “[T]he requisite
4 specific intent to arouse or gratify the sexual desire of any person can be inferred
from the defendant’s conduct, his remarks[,] and all surrounding circumstances.”
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); see
Stephenson v. State, 673 S.W.3d 370, 384 (Tex. App.—Fort Worth 2023, pet. ref’d). The
defendant need not admit his sexual intent for the jury to infer that such intent was
present. Stephenson, 673 S.W.3d at 384.
Here, the evidence was sufficient to support a finding that Cox acted with
sexual intent. Although Cox maintained during his conversations with Investigator
Bradshaw that his motive was educational, he did admit—several times—that his
penis was erect when he showed it to Holly. The undisputed fact that Cox’s penis
was erect when he exposed himself to Holly would normally, by itself, be sufficient
evidence to justify a jury’s verdict that he intended to gratify his sexual desire. See
Rodriquez v. State, 634 S.W.2d 48, 49 (Tex. App.—Amarillo 1982, no pet.) (holding
sexual gratification element established by evidence that defendant’s exposed penis
was erect and he had a “big old smile on his face”). And certainly the jury was not
compelled (in the face of the evidence of an erection) to accept Cox’s story that his
sole motivation was educational. See Stephenson, 673 S.W.3d at 384 (holding jury was
not required to accept defendant’s explanation that his conduct was meant as a joke
and was not sexual).
But there was more. Cox told Investigator Bradshaw that he derived sexual
enjoyment from the pain of being hit by a sexual partner, and he also said that his
5 erection was the result of his “roughhousing” with Holly. Indeed, Cox could not
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00307-CR ___________________________
KYLE GORDON COX, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR15602
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
Appellant Kyle Gordon Cox was convicted of indecency with a child by
exposure. See Tex. Penal Code Ann. § 21.11(a)(2)(A). A jury determined his
punishment and assessed a sentence of three years in prison. In two issues, Cox
complains that the evidence was insufficient to demonstrate his sexual intent and that
the trial court should have excused a juror for demonstrated bias. We will affirm.
Background
Cox is the father of Holly.1 Holly normally lived with her mother, Elizabeth,
but visited Cox once a month. One evening in June of 2021, when Holly was four,
she told her mother, “Daddy showed me his no-nos,” meaning his genitals. Elizabeth
was shocked and called Cox. He refused to talk on the telephone, but told her they
could discuss it at the next visitation.
At the next visit, Cox met Elizabeth but demanded that she leave her phone
and any recording devices in her car. Elizabeth confronted Cox with the information
that he had exposed his penis to Holly. Cox responded that he showed her because
“[s]he wanted to know.” Elizabeth pointed out that exposing himself was not an
appropriate way to educate Holly on the differences between the sexes.
To protect the complainant’s anonymity, we use aliases to refer to her and her 1
mother. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 Elizabeth called Child Protective Services. Eventually, Dan Bradshaw, an
investigator with the Hood County District Attorney’s Office began to look into the
matter. Cox gave two recorded non-custodial statements to Investigator Bradshaw.
Cox told him:
• Holly had asked Cox the difference between boys and girls. Cox’s purpose in showing her his penis was to explain a difference.
• Cox wanted to show Holly his penis because, in his childhood, Cox had been required to rely on neighborhood children to gain knowledge about sex differences. He did not want the same thing to happen to Holly.
• Cox had an erection when he exposed his penis to Holly.
• Cox did not know why he had an erection, but he also said that it was caused by the “wrestling” that he had been engaging in with Holly immediately prior to the exposure.
• In his sexual relationships, Cox enjoyed being hit and feeling pain.
• Cox did not know how many times he had achieved an erection caused by wrestling with Holly. He also did not know if similar erections would happen in the future.
• Because it was erect, Cox did not need to support his penis with his hands when he showed it to Holly.
• Cox showed his penis and testicles to Holly for a duration of between thirty seconds and one minute.
In Investigator Bradshaw’s opinion, he had given Cox “every opportunity to
come up with any kind of other story that he could come up with.” After his second
interview, the investigator procured a warrant and arrested Cox.
3 Legal Sufficiency of Intent
In his first issue, Cox argues that the evidence was insufficient to demonstrate
that he exposed his genitals with the intent to arouse or gratify the sexual desire of any
person. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (defining indecency offense to
require, among other things, the “intent to arouse or gratify the sexual desire of any
person”). Specifically, he relies on his statements to both Elizabeth and law
enforcement that his purpose in exposing himself was to “educate” Holly about
differences between the sexes.
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). We must scrutinize circumstantial evidence of intent as we do
other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim.
App. 2009). But when a record supports conflicting inferences, we “must presume—
even if it does not affirmatively appear in the record—that the trier of fact resolved
any such conflict in favor of the prosecution, and must defer to that resolution.”
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
A person commits the offense of indecency with a child if he exposes his
genitals knowing a child is present “with [the] intent to arouse or gratify the sexual
desire of any person.” Tex. Penal Code Ann. § 21.11(a)(2)(A). “[T]he requisite
4 specific intent to arouse or gratify the sexual desire of any person can be inferred
from the defendant’s conduct, his remarks[,] and all surrounding circumstances.”
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); see
Stephenson v. State, 673 S.W.3d 370, 384 (Tex. App.—Fort Worth 2023, pet. ref’d). The
defendant need not admit his sexual intent for the jury to infer that such intent was
present. Stephenson, 673 S.W.3d at 384.
Here, the evidence was sufficient to support a finding that Cox acted with
sexual intent. Although Cox maintained during his conversations with Investigator
Bradshaw that his motive was educational, he did admit—several times—that his
penis was erect when he showed it to Holly. The undisputed fact that Cox’s penis
was erect when he exposed himself to Holly would normally, by itself, be sufficient
evidence to justify a jury’s verdict that he intended to gratify his sexual desire. See
Rodriquez v. State, 634 S.W.2d 48, 49 (Tex. App.—Amarillo 1982, no pet.) (holding
sexual gratification element established by evidence that defendant’s exposed penis
was erect and he had a “big old smile on his face”). And certainly the jury was not
compelled (in the face of the evidence of an erection) to accept Cox’s story that his
sole motivation was educational. See Stephenson, 673 S.W.3d at 384 (holding jury was
not required to accept defendant’s explanation that his conduct was meant as a joke
and was not sexual).
But there was more. Cox told Investigator Bradshaw that he derived sexual
enjoyment from the pain of being hit by a sexual partner, and he also said that his
5 erection was the result of his “roughhousing” with Holly. Indeed, Cox could not
remember how many times he had achieved an erection as a result of wrestling with
his daughter in the past, and he could not rule out that it would happen again. From
this, a rational juror could deduce that Cox’s exposure of his genitals was done with
an intent to arouse or gratify his own sexual desires.
We overrule Cox’s first issue.
The Trial Court’s Refusal to Dismiss a Juror
In his second issue,2 Cox argues that the trial court should have found a juror
to be “disabled,” removed him, and proceeded with a jury of eleven. Cox bases his
argument on his assertion that the particular juror “flipped” Cox off with his finger
while the jury was listening to the judge’s initial instructions.
Before testimony began in Cox’s trial, Cox (who was initially representing
himself) made known to the trial court that, the day before, one of the empaneled
jurors was “flipping [him] off.” He asked that the trial court view security video
footage of the jury during the moment in question. The judge examined the footage
in chambers, then told Cox that what he saw was a particular juror scratching his nose
with his index finger. The judge had printed out still photos of the event and showed
them to Cox. Cox said, “I understand” and did not request any further relief.
2 We granted Cox leave to file an amended brief raising this second issue. The State did not respond to Cox’s amended brief.
6 During trial, Cox asked for and was appointed defense counsel. Counsel
reviewed the footage and again raised a claim that the juror in question could not be
fair and was “already prejudiced” against Cox. She requested either a mistrial or that
the particular juror be removed and that trial proceed with only eleven jurors. The
trial judge explained that his review of the video footage indicated that the juror’s
fingers were resting on his cheek, that the index finger and middle finger were never
separated, and that the juror was looking at the judge the entire time.
The judge offered to bring the juror in for questioning but denied Cox’s
motion for mistrial and request to proceed with eleven jurors. Defense counsel
declined the court’s invitation to question the juror.
On appeal, Cox disagrees with the trial court’s finding, asserting that the juror
was indeed obscenely gesturing at Cox. Relying on Tex. Code Crim. Proc. Ann. art.
36.29, he argues that the juror in question was “disabled” because of “extreme bias
and prejudice” and that the trial court should have removed that juror and continued
the trial with eleven. Cox does not complain on appeal about the trial court’s refusal
to declare a mistrial.
Article 36.29 provides that not less than twelve jurors can render and return a
verdict in a felony case. Tex. Code Crim. Proc. Ann. art. 36.29(a). There is, however,
an exception: where the trial court determines that a juror has become “disabled,” a
verdict may be rendered by fewer than twelve jurors. Id. For a juror to qualify as
“disabled” under Article 36.29, the Court of Criminal Appeals has interpreted that
7 article to require (1) that the juror suffer from a physical illness, mental condition, or
emotional state that would hinder or inhibit the juror from performing his duties as a
juror or (2) that the juror suffer from a condition that would inhibit him from fully
and fairly performing the functions of a juror. Scales v. State, 380 S.W.3d 780, 783
(Tex. Crim. App. 2012).
The trial court has discretion to determine whether a juror has become disabled
under Article 36.29 of the Code of Criminal Procedure. Id. Without substituting our
own judgment for that of the trial court, we must assess whether, after viewing the
evidence in the light most favorable to the trial court’s ruling, the ruling was arbitrary
or unreasonable. Id. at 784. We must uphold the trial court’s ruling if it falls within
the zone of reasonable disagreement. Id.
Assuming without deciding that a juror who displays an obscene gesture to a
defendant has demonstrated a level of bias that could render him “disabled” under
Article 36.29,3 we conclude that the trial court did not abuse its discretion in refusing
to unseat the juror in question. The security footage was made part of the appellate
record, and that footage supports the trial court’s conclusion: the juror’s fingers were
resting on his nose, he was paying attention to the trial judge, and he did not look in
3 Bias on a juror’s part does not automatically render him “disabled,” see Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990), but it might constitute a mental condition serious enough to “inhibit[] a juror from fully and fairly performing the functions of a juror,” see Reyes v. State, 30 S.W.3d 409, 411–12 (Tex. Crim. App. 2000).
8 Cox’s direction while his fingers were in that position. The still photo of the juror in
question, blown up to a reasonable degree, is even clearer evidence that the juror was
not “flipping off” anyone, much less Cox. We hold that the trial court did not abuse
its discretion in refusing to find that the juror was biased to such an extent that he was
“disabled” under Article 36.29. See Tex. Code Crim. Proc. Ann. art. 36.29; Scales, 380
S.W.3d at 783. We overrule Cox’s second issue.
Conclusion
Having overruled Cox’s two issues, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 22, 2024