Opinion issued March 28, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00143-CR NO. 01-12-00144-CR ——————————— OSCAR GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 1 Harris County, Texas Trial Court Case Nos. 1455269 & 1455271
MEMORANDUM OPINION
A jury found appellant Oscar Garcia guilty of two separate misdemeanor
offenses of indecent exposure. Appellant was sentenced to 120 days in jail for each offense, with the sentences to run concurrently. On appeal, appellant raises
one issue contending that the evidence was insufficient to support his conviction.
We affirm.
Background
In May 2007, high school student A.P. worked at a snow cone shop. The
shop had a drive-through window where a customer could purchase snow cones
from his car. When serving a customer from the window, the shop employee can
see into the customer’s vehicle.
In early May 2007, A.P. was working alone at the snow cone shop.
Appellant pulled up to the drive-through window in a truck. A.P. recognized him
as a regular customer. A.P. took appellant’s order. When she returned to the
window with appellant’s snow cone and change, A.P. saw that appellant, who was
still in his truck, had taken his penis out, and she saw that it was erect. A.P. gave
appellant his snow cone and change; she then closed the window.
On May 15, 2007, A.P. was again working alone at the snow cone shop
when appellant returned. This time appellant was driving a green car. When she
approached the window, A.P. recognized appellant and refused him service. A.P.
called the police. The police made a report but no arrest was made at that time.
On May 20, 2007, appellant returned to the snow cone shop. He again drove
up to the window in a green car. At the time, high school students G.R. and F.H.
2 were working. G.R. and F.H. had been warned about appellant and knew to keep a
look out for a green car.
F.H. went near the window, but it was G.R. who handed appellant his snow
cone and change. G.R. noticed that appellant was smirking and looking down
below his waist at his genital area. G.R. observed that appellant was not wearing
any pants. He was wearing only a white t-shirt. The girls wrote down appellant’s
license plate number. Appellant left quickly, driving over the grass and almost
hitting a sign. The girls called the police. About 15 minutes later, Deputy R.
Montes with the Harris County Sheriff’s Department arrived. He had also been the
officer who had responded the previous week to A.P.’s call.
Deputy Montes learned that the license plate number belonged to a green car
owned by appellant’s wife. The officer went to appellant’s home where he saw
appellant next to a green car bearing the same license plate number as had been
provided by G.R. and F.H.. Appellant matched the description of the man given by
the girls. Appellant was detained and placed in the back of a patrol car.
In the meantime, G.R. and F.H. had contacted A.P. and told her to come to
the shop. The police drove appellant back to the snow cone shop where the three
girls identified appellant as the man that each had seen in the drive through
wearing no pants.
3 Appellant was charged in two separate informations with indecent exposure.
In the first information, associated with trial court cause number 1455269, G.R. is
listed as the complainant. The second information, associated with trial court
cause number 1455271, names A.P. as the complainant.
The cases were tried together to a jury. A.P., G.R., and F.H. testified at trial.
Each testified that she had seen appellant at the snow cone shop on the day of the
alleged offenses wearing no pants. A.P. testified that she had seen appellant’s
exposed, erect penis. G.R. also indicated in her testimony that she had seen
appellant’s penis. Although she had not seen appellant’s penis, F.H. testified that
appellant was wearing no pants and no underwear.
G.R. testified that, when he was looking at her, appellant had a smirk on his
face. She stated that appellant was looking at her and then looking down at his
genital area, indicating that he wanted her to look there. At trial, each girl again
identified appellant as the man each had seen at the snow cone shop wearing no
pants.
Deputy Montes also testified. In describing the events surrounding
appellant’s detention and arrest, the deputy stated that appellant had admitted to
being at the snow cone shop that same day but denied exposing himself.
Appellant testified in his own defense at trial. He stated that he never told
Deputy Montes that he had been at the snow cone shop earlier that day. He
4 testified that he had been at home working on a car at the time G.R. and F.H. said
he was at the shop. Appellant testified that he had never gone through the drive
through wearing no pants and had not exposed himself to the girls.
Appellant also offered the testimony of a number of witnesses, including
family members, a friend, and a neighbor. They each provided testimony to
support appellant’s claim that he was at home at the time of the incident.
After hearing all of the evidence, the jury found appellant guilty of two
misdemeanor offenses of indecent exposure. The trial court sentenced appellant to
120 days in jail, to be served concurrently. These appeals followed.
Sufficiency of the Evidence
Appellant identifies one issue in his briefing. We construe the issue to be a
challenge to the sufficiency of the evidence supporting the judgment in each
appellate cause. 1
1 Appellant has filed one brief bearing both appellate cause numbers. Trial court cause number 1455269, in which G.R. is the complainant, corresponds to appellate cause number 01–12–00143–CR. Trial court cause number 1455271, in which A.P. is the complainant, corresponds to appellate cause number 01–12–00144–CR. In the brief, appellant expressly challenges the sufficiency of the evidence to support his conviction in appellate cause number 01–12–00143–CR. Appellant also discusses the elements of the offense and the evidence with respect to the indecent exposure offense for which he was convicted in appellate cause number 01–12–00144–CR. We liberally construe appellant’s brief to raise a sufficiency of the evidence challenge to the judgment of conviction in each appellate cause. See TEX. R. APP. P. 38.9 (supporting liberal construction of briefs because briefs “are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, [thus] substantial compliance with [briefing rules] is sufficient . . . .”). 5 A. Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying the
same standard of review, regardless of whether an appellant presents the challenge
as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,
53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority
holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). See id.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued March 28, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00143-CR NO. 01-12-00144-CR ——————————— OSCAR GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 1 Harris County, Texas Trial Court Case Nos. 1455269 & 1455271
MEMORANDUM OPINION
A jury found appellant Oscar Garcia guilty of two separate misdemeanor
offenses of indecent exposure. Appellant was sentenced to 120 days in jail for each offense, with the sentences to run concurrently. On appeal, appellant raises
one issue contending that the evidence was insufficient to support his conviction.
We affirm.
Background
In May 2007, high school student A.P. worked at a snow cone shop. The
shop had a drive-through window where a customer could purchase snow cones
from his car. When serving a customer from the window, the shop employee can
see into the customer’s vehicle.
In early May 2007, A.P. was working alone at the snow cone shop.
Appellant pulled up to the drive-through window in a truck. A.P. recognized him
as a regular customer. A.P. took appellant’s order. When she returned to the
window with appellant’s snow cone and change, A.P. saw that appellant, who was
still in his truck, had taken his penis out, and she saw that it was erect. A.P. gave
appellant his snow cone and change; she then closed the window.
On May 15, 2007, A.P. was again working alone at the snow cone shop
when appellant returned. This time appellant was driving a green car. When she
approached the window, A.P. recognized appellant and refused him service. A.P.
called the police. The police made a report but no arrest was made at that time.
On May 20, 2007, appellant returned to the snow cone shop. He again drove
up to the window in a green car. At the time, high school students G.R. and F.H.
2 were working. G.R. and F.H. had been warned about appellant and knew to keep a
look out for a green car.
F.H. went near the window, but it was G.R. who handed appellant his snow
cone and change. G.R. noticed that appellant was smirking and looking down
below his waist at his genital area. G.R. observed that appellant was not wearing
any pants. He was wearing only a white t-shirt. The girls wrote down appellant’s
license plate number. Appellant left quickly, driving over the grass and almost
hitting a sign. The girls called the police. About 15 minutes later, Deputy R.
Montes with the Harris County Sheriff’s Department arrived. He had also been the
officer who had responded the previous week to A.P.’s call.
Deputy Montes learned that the license plate number belonged to a green car
owned by appellant’s wife. The officer went to appellant’s home where he saw
appellant next to a green car bearing the same license plate number as had been
provided by G.R. and F.H.. Appellant matched the description of the man given by
the girls. Appellant was detained and placed in the back of a patrol car.
In the meantime, G.R. and F.H. had contacted A.P. and told her to come to
the shop. The police drove appellant back to the snow cone shop where the three
girls identified appellant as the man that each had seen in the drive through
wearing no pants.
3 Appellant was charged in two separate informations with indecent exposure.
In the first information, associated with trial court cause number 1455269, G.R. is
listed as the complainant. The second information, associated with trial court
cause number 1455271, names A.P. as the complainant.
The cases were tried together to a jury. A.P., G.R., and F.H. testified at trial.
Each testified that she had seen appellant at the snow cone shop on the day of the
alleged offenses wearing no pants. A.P. testified that she had seen appellant’s
exposed, erect penis. G.R. also indicated in her testimony that she had seen
appellant’s penis. Although she had not seen appellant’s penis, F.H. testified that
appellant was wearing no pants and no underwear.
G.R. testified that, when he was looking at her, appellant had a smirk on his
face. She stated that appellant was looking at her and then looking down at his
genital area, indicating that he wanted her to look there. At trial, each girl again
identified appellant as the man each had seen at the snow cone shop wearing no
pants.
Deputy Montes also testified. In describing the events surrounding
appellant’s detention and arrest, the deputy stated that appellant had admitted to
being at the snow cone shop that same day but denied exposing himself.
Appellant testified in his own defense at trial. He stated that he never told
Deputy Montes that he had been at the snow cone shop earlier that day. He
4 testified that he had been at home working on a car at the time G.R. and F.H. said
he was at the shop. Appellant testified that he had never gone through the drive
through wearing no pants and had not exposed himself to the girls.
Appellant also offered the testimony of a number of witnesses, including
family members, a friend, and a neighbor. They each provided testimony to
support appellant’s claim that he was at home at the time of the incident.
After hearing all of the evidence, the jury found appellant guilty of two
misdemeanor offenses of indecent exposure. The trial court sentenced appellant to
120 days in jail, to be served concurrently. These appeals followed.
Sufficiency of the Evidence
Appellant identifies one issue in his briefing. We construe the issue to be a
challenge to the sufficiency of the evidence supporting the judgment in each
appellate cause. 1
1 Appellant has filed one brief bearing both appellate cause numbers. Trial court cause number 1455269, in which G.R. is the complainant, corresponds to appellate cause number 01–12–00143–CR. Trial court cause number 1455271, in which A.P. is the complainant, corresponds to appellate cause number 01–12–00144–CR. In the brief, appellant expressly challenges the sufficiency of the evidence to support his conviction in appellate cause number 01–12–00143–CR. Appellant also discusses the elements of the offense and the evidence with respect to the indecent exposure offense for which he was convicted in appellate cause number 01–12–00144–CR. We liberally construe appellant’s brief to raise a sufficiency of the evidence challenge to the judgment of conviction in each appellate cause. See TEX. R. APP. P. 38.9 (supporting liberal construction of briefs because briefs “are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, [thus] substantial compliance with [briefing rules] is sufficient . . . .”). 5 A. Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying the
same standard of review, regardless of whether an appellant presents the challenge
as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,
53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority
holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in the
light most favorable to the verdict, no rational fact finder could have found that
each essential element of the charged offense was proven beyond a reasonable
doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.
358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.
Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We can hold evidence to be insufficient under the Jackson standard in two
circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.
Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235
S.W.3d at 750.
6 The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.” Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Analysis
1. Exposure Element
In Appellate Cause No. 01–12–00143–CR (Trial Court Cause No. 1455269),
appellant contends that the evidence was insufficient to show that he exposed his
genitals because the evidence does not show that either G.R. or F.H. saw his penis.
Under Penal Code Section 21.08, a person commits the offense of indecent
7 exposure if he exposes his anus or any part of his genitals with intent to arouse or
gratify the sexual desire of any person, and he is reckless about whether another is
present who will be offended or alarmed by his act. TEX. PENAL CODE ANN.
§ 21.08 (Vernon 2011).
The information in Appellate Cause No. 01–12–00143–CR provides as
follows:
[O]n or about May 20, 2007, [appellant] did then and there unlawfully expose his genitals to [G.R.] with intent to arouse and gratify the sexual desire of [appellant], and [appellant] was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: [appellant] was in a vehicle and exposed his genitals while at a drive thru [sic] window.
G.R. indicated in her testimony that she saw appellant’s penis. G.R. gave
the following testimony on direct examination by the State:
Q. [D]o you remember what he was wearing?
A. Just a white tee shirt.
Q. Did he have any pants on?
A. No, ma’am.
Q. And when he came up, he drove up?
A. Through the drive-through.
Q. Okay. And when was the first time that you noticed that he only had a tee shirt on?
A. He looked at me, and he looked down—
8 Q. Okay.
A.—whenever he asked me for a snow cone—whenever I gave him his snow cone and was going to take the money.
Q. Okay. And so you went to hand him his snow cone and his change?
A. Uh-huh.
Q. All right. Then can you kind of explain to us what he did? You said he looked
at you?
A. Yes, ma’am.
Q. Did he look at you normal?
A. Like a—with a smirk on his face.
Q. All right. Then after he looked at you, where did he look?
A. Down, below his—like, below his waist, down there, I guess.
Q. And, like, in his—the area where his genitals are?
Q. Okay. And did—do you remember if he spread his legs or anything?
A. The way he looked—the way somebody drives, I guess. Like, your legs [have] to be open a little bit.
Q. All right. And then how—were you able to tell that he was—what was he gesturing with his eyes for you to look at?
....
A. I have no idea. Like, I felt like that he was—I don’t know. Like, for me to look at him down there. I don’t know.
9 Q. So he wanted—you think he wanted you to look at his penis?
A. Yes.
Q. All right. Did you look?
Q. All right. And was he—there any question in your mind there was anything there other than his penis?
A. Excuse me?
Q. Did you think—did you see anything else besides his penis?
A. No.
Q. And he had no other clothes on except for that white tee shirt?
A. The white tee shirt.
G.R.’s testimony indicating that she had not seen anything other than
appellant’s penis was evidence that she saw appellant’s genitals. Other evidence
also indicated that appellant exposed his penis. Both G.R. and F.H. testified that
appellant was not wearing any pants. They each testified that he was wearing only
a white t-shirt. Although she indicated that she could not actually see appellant’s
penis because he had it “somewhat covered up,” F.H. was clear in her testimony
that appellant was not wearing pants or any underwear. In addition, G.R. testified
that appellant gestured with his eyes for her to look at his genitals. From the
evidence, the jury could have determined that appellant exposed his genitals.
10 In Appellate Cause No. 01–12–00144–CR (Trial Court Cause No. 1455271),
the allegations contained in the information are the same as those contained in
Trial Court Cause No. 1455269. The only difference is that A.P. is the named
complainant in Trial Court Cause No. 1455271. In that case, A.P. unequivocally
testified that she saw appellant’s penis while he was at the drive-through window.
Thus, with respect to the offense in that case, the jury heard direct evidence that
appellant exposed his genitals.
2. Intent to Arouse or Gratify
In Appellate Cause No. 01–12–00143–CR (Trial Court Cause No. 1455269),
appellant contends that the evidence is insufficient to show that he exposed himself
with the intent to arouse or gratify any person. He points out that neither G.R. nor
F.H. testified that she saw the “condition” of his penis; in other words, neither girl
testified that she saw that appellant’s penis was erect. Appellant also asserts,
“[T]here was no evidence presented of, or testimony from [G.R. or F.H.],
regarding masturbation, actions consistent with masturbation, actions consistent
with sexual arousal or gratification, peculiar sounds made by Appellant, possession
of sexual aides, or that the alleged exposure was sexually motivated.”
Under the language of Penal Code section 21.08, and the allegations made in
the information, the State was not required to prove that appellant was actually
aroused or that appellant actually gratified his sexual desire. See TEX. PENAL CODE
11 ANN. § 21.08. Rather, the State was required only to prove that appellant exposed
his penis with the intent to arouse and gratify his sexual desire. See id.; Shamam v.
State, 280 S.W.3d 271, 278 (Tex. App.—Amarillo 2007, no pet.) (rejecting
appellant’s argument that there was no express evidence that either he or the
complainant were aroused or gratified by appellant’s indecent exposure because
“the offense requires that the exposure occurs with intent to arouse or gratify the
sexual desire of any person”); see also Gregory v. State, 56 S.W.3d 164, 171 (Tex.
App.—Houston [14th Dist.] 2001, pet. dism’d) (concluding, in prosecution for
indecency with a child case, that appellant’s argument pointing to lack of evidence
showing that appellant’s penis was erect, that appellant masturbated, or that he
ejaculated during any of the encounters with the complainants was without merit
because intent element of the offense did not require the State to prove that the
“male offender’s penis be erect”); Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.
App.—Corpus Christi 2000, pet. ref’d) (quoting Caballero v. State, 927 S.W.2d
128, 130–31 Tex. App.—El Paso 1996, pet. ref’d) (“The indecency [with a child]
offense includes the requirement of ‘intent to arouse or gratify the sexual
desire’. . . . The offense, however, does not require that the arousal or gratification
actually occur.”)).
It is well established that the requisite specific intent to arouse or to gratify
the sexual desire of any person can be inferred from an accused’s conduct,
12 remarks, and all surrounding circumstances. See Turner v. State, 600 S.W.2d 927,
929 (Tex. Crim. App. [Panel Op.] 1980); Martins v. State, 52 S.W.3d 459, 474
(Tex. App.—Corpus Christi 2001, no pet.). With respect to the offense in No. 01–
12–00143–CR, the evidence showed that appellant drove, without pants or
underwear, to the drive through at the snow cone shop. Testimony showed that
whoever was working at the window could see into the customer’s vehicle.
The evidence established that appellant exposed himself while two teenage
girls, F.H. and G.R., were working at the drive through. Appellant had also
exposed himself earlier that month to high school junior, A.P., at the drive through
window. Significantly, G.R. testified that, when she brought his snow cone and
change to the window, appellant looked at her with a smirk on his face and
gestured with his eyes for her to look at his genitals. Given these circumstances,
we conclude that, with respect to the offense in No. 01–12–00143–CR (Trial Court
Cause No. 1455269), a rational jury could have justifiably inferred that appellant’s
intent was to gratify his own sexual desire.
In Appellate Cause No. 01–12–00144–CR (Trial Court Cause No. 1455271),
A.P. testified she saw that appellant’s penis was erect. From this, the jury could
have determined that appellant exposed himself with the intent to arouse or to
gratify his own sexual desire. See TEX. PENAL CODE ANN. § 21.08.
13 Viewing all the evidence in the light most favorable to the jury verdicts, we
conclude that a rational fact finder could have found, beyond a reasonable doubt,
all of the essential elements of the charged offense of indecent exposure in each
case. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We hold that the evidence is
sufficient to support the judgments of conviction.
We overrule appellant’s sole issue in each appeal.
Conclusion
We affirm the judgment in each appellate cause.
Laura Carter Higley Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).