Victor Polanco v. State

• Court: Court of Appeals of Texas
• Decided: August 4, 2005
• Docket: 13-04-00303-CR
• Status: Published

Opinion

                             NUMBER 13-04-00303-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

VICTOR POLANCO,                                                                         Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

   On appeal from the County Court at Law of Aransas County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Victor Polanco, guilty of the offense of public lewdness.^[1]  The trial court (1) assessed appellant=s punishment at 365 days= confinement in the county jail and a $2,000 fine, (2) suspended the jail sentence, and (3) placed him on community supervision for one year.  The trial court has certified that this is not a plea bargain case, and the defendant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  In two issues, appellant contends the evidence is insufficient to support his conviction and the trial court erred in denying his motion to quash the information.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

                                            A.  Sufficiency of the Evidence

In his first issue, appellant contends the evidence is insufficient to support his conviction for public lewdness.  Specifically, appellant asserts the evidence is insufficient to establish that the offense occurred in a Apublic place.@

Appellant does not specify whether his challenge is to the legal or factual sufficiency of the evidence and does not discuss the applicable standards of review.  In his prayer for relief, however, appellant requests an acquittal, which is consistent with a legal sufficiency challenge.  See Chavero v. State, 36 S.W.3d 688, 693 (Tex. App.BCorpus Christi 2001, no pet.).  Accordingly, we construe this issue as a challenge to the legal sufficiency of the evidence and do not review the record for factual sufficiency.  See Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000) (conducting only legal sufficiency review where defendant requested acquittal and did not adequately brief factual sufficiency).

                                                          1.  Standard of Review

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether 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 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).  We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  Such a charge would be one that accurately sets out the law, is authorized by the charging instrument, 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.

                                                                    2.  Analysis

A person commits the offense of public lewdness if the person knowingly engages in an act of sexual contact in a public place.  See Tex. Pen. Code Ann. ' 21.07(a)(3) (Vernon 2003).  The information alleged that appellant knowingly engaged in an act of sexual contact, by grabbing the breast of the female victim, in a public place.

The record shows that the victim and her husband operate a boat repair shop.  On October 20, 2003, the victim was alone in the shop, working in her office.  Appellant, a long-time acquaintance of the victim and her husband, entered the victim=s office.  After engaging in conversation with the victim, appellant made physically aggressive sexual advances towards her.  The victim testified that appellant pinned her down, Aand then with his left hand he reached over and grabbed me by the breast and started fondling me.@

Appellant contends the evidence is insufficient to show that the offense occurred in a Apublic place.@  The Texas Penal Code defines Apublic place@ as any place to which the public or a substantial group of the public has access, and specifically sets forth a non-exhaustive list of public places.  See Tex. Pen. Code Ann. ' 1.07 (Vernon Supp. 2004-05).  Common areas of shops constitute an example of a public place.  See id.  The court of criminal appeals has held that A[o]ther areas of shops which are not >common areas= could be public places.  Thus, an accused could be convicted of public lewdness even if the illegal act was performed in a >shop= but the exact location of the act was not in a >common= area of that >shop.=@  Green v. State, 566 S.W.2d 578, 585 (Tex. Crim. App. 1978).

The record shows that on the day of the incident, the victim was alone in the building and was responsible for taking care of all incoming customers.  Her office door is approximately three or four feet from the building=s front entrance and was open at the time of the incident.  On cross-examination, the victim admitted that customer business is typically handled outside of her office.  We conclude, however, that this admission does not preclude a jury from finding that the victim=s office is a public place.  See id.

Viewing the evidence in the light most favorable to the jury=s verdict, we conclude that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Accordingly, we hold the evidence is legally sufficient to support appellant=s conviction for public lewdness.  Appellant=s first issue is overruled.

                                                         B.  Motion to Quash

In his second issue, appellant complains the trial court erred in denying his motion to quash the information.  Specifically, appellant contends the information does not allege that the sexual contact was done with the intent to arouse or gratify the sexual desire of any person.

If a defendant does not object to a defect, error, or irregularity of form or substance in the charging instrument before the date on which the trial on the merits commences, such complaints are waived.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2003); Satterwhite v. State, 952 S.W.2d 613, 615 (Tex. App.BCorpus Christi 1997), aff=d, 979 S.W.2d 626 (Tex. Crim. App. 1998).

The record reflects that appellant filed his motion to quash on May 18, 2004, the date the jury was seated and sworn.  In accordance with article 1.14(b), that was the date the trial Acommenced.@  See Satterwhite, 952 S.W.2d at 615; Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.BCorpus Christi 1994, no pet.) (holding that Atrial on the merits commences at the time that the jury is impaneled and sworn@). 

Because he failed to object before the date on which the trial on the merits commenced, we hold appellant waived this complaint.  We overrule appellant=s second issue.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 4th day of August, 2005.

---

^[1] See Tex. Pen. Code Ann. ' 21.07 (Vernon 2003).