Swire v. State

997 S.W.2d 370, 1999 Tex. App. LEXIS 5962, 1999 WL 643180
Court of Appeals of Texas·Decided August 11, 1999·No. 09-98-552CR·Published·Cited by 7 cases

Opinions

OPINION

STOVER, Justice.

Russell Lee Swire was found guilty in a bench trial of the offense of indecent exposure. He was sentenced by the trial court to thirty days confinement in the county jail and a fine of $500.00. On appeal, Swire challenges the sufficiency of the evidence to support the conviction.

Ronald Roy and his wife Rhonda are Swire’s next door neighbors. Mr. Roy testified that Mrs. Roy had been complaining for a couple of years that Swire “was making gestures at her and hiding behind trees; in essence, stalking her.” Mr. Roy testified that Swire had also acted in a similar manner toward his thirteen year old daughter. Mrs. Roy testified that “she kept feeling somebody watching [her].” She stated, “I started seeing him look out his windows, and he started looking out his back door.” “Every time I hung up my laundry, there he was, walking around looking at me all the time.” Swire’s activity made Mrs. Roy feel uncomfortable, and so the Roys set up a videotape in an outside pump house aimed in the direction of Swire’s backyard. At the time the video camera was set up, Mr. Roy believed Swire was stalking his wife, but he had no idea Swire was exposing himself or masturbating. Mrs. Roy testified she and her husband intended to use the tapes to confront Swire about his behavior with the expectation of getting him to stop.

On the morning of the offense, Mrs. Roy was in and out of her backyard all morning until around 11:00 a.m. She testified, “I was hanging up laundry and I kept seeing him going real quick ..., you could see him hurry up and try to hide himself from me.” She also saw Swire with a pump sprayer. Later she viewed the video tape that had been recorded that morning. She testified that as she watched the tape, she saw that Swire had been masturbating, and she could see his penis. She stated, “When he’s walking with the spray thing ... I seen him start licking his hand and then he starts doing it.” She was shocked and found it very offensive. Mrs. Roy did not see Swire expose himself except on the videotape.

Mr. Roy called the Orange County Sheriffs department and made a report. Deputy Fred Hanauer was dispatched to the Roys’ home. Hanauer testified the tape depicted a gentleman, later identified as Swire, in his backyard. “He was carrying some type of spray bottle; and as he walked around the yard looking in the direction of the Roy residence, he was obviously masturbating.” Hanauer could see that Swire’s penis was exposed. Detective Danny Moore testified that he had taken Swire’s statement in which Swire admitted he had been in his backyard doing chores and “that he was doing something to himself.”

The video tape exhibits Swire masturbating while walking around his yard pretending to do yard chores. A chain link fence separates the two properties. Initially Swire is seen with a pump sprayer in one hand, masturbating with the other. Later he replaces the sprayer with a large white bucket while continuing to masturbate. Swire was obviously making an effort to conceal himself with the sprayer and bucket and surrounding bushes, but at times he is in clear view of the Roys’ yard, and at times his penis is exposed.

In his sole point of error, Swire contends the trial court erred in denying his motion for directed verdict when the evidence was insufficient to sustain a con[372]*372viction for indecent exposure. A challenge to a trial court’s ruling on a motion for a directed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. See Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993); Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990). In reviewing the sufficiency of the evidence, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992).

A sufficiency of the evidence challenge is measured only by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. This standard applies to both jury and bench trials. Id.

Swire was charged under Tex. Pen. Code Ann. § 21.08 (Vernon 1994) which contains the following elements: (1) A person, (2) exposes his anus or any part of his genitals, (3) with intent to arouse or gratify the sexual desire of any person, and (4) he is reckless about whether another is present who will be offended or alarmed by his act. See Wallace v. State, 550 S.W.2d 89, 91 (Tex.Crim.App.1977).

The record clearly shows that Swire was the person committing the offense with the intent to arouse or gratify his own sexual desire. There was also evidence that Swire exposed his genitals. Mrs. Roy testified that while watching the video, she saw Swire’s penis “a couple of times.” Deputy Hanauer also testified that, in the video, Swire’s penis was exposed.1 See, e.g., McGee v. State, 804 S.W.2d 546, 547 (Tex.App.—Houston [14th Dist.] 1991, no pet.) (Where defendant was seen masturbating in store dressing room, State was not required to prove that appellant intended for another to see his genitals, merely that his genitals were open to view.)

The evidence also demonstrates that Swire was reckless about whether another person was present who would be offended or alarmed by his act. Recklessness is defined by the Penal Code as follows:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex. Pen.Code Ann. § 6.03(c) (Vernon 1994).

The record clearly shows that Swire’s behavior was reckless. Mrs. Roy testified she was in her backyard “[a]ll the time” tending to such chores as gardening, cleaning the swimming pool, and hanging the laundry. She stated that “[ejvery time I hung up my laundry, there he was, walking around looking at me all the time.” It can readily be inferred from Mrs. Roy’s [373]*373testimony that Swire was aware that he could be seen by his neighbors. See, e.g., Young v. State,

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Swire v. State, 997 S.W.2d 370, 1999 Tex. App. LEXIS 5962, 1999 WL 643180 (Tex. Ct. App. 1999).

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