Boone v. State, 45864

• Decision Date: 11 April 1973
• Docket Number: No. 45864,45864
• Parties: Roger Dean BOONE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 509

492 S.W.2d 509

Roger Dean BOONE, Appellant, v. The STATE of Texas, Appellee.

No. 45864.

Court of Criminal Appeals of Texas.

April 11, 1973.

Rex Kirby, Tyler, for appellant.

Curtis L. Owen, Dist. Atty., and John e. Trube, Asst. Dist. Atty., Tyler, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for disorderly conduct wherein the punishment was assessed at a fine of $160.00. See Article 474, Vernon's Ann.P.C.

The complaint, omitting the formal parts, charged that the appellant

'. . . did then and there unlawfully engage in indecent conduct in a public place, to wit: the place known as Sandy Beach on Lake Tyler, Smith County; by being present in said public place in the nude under circumstances in which such conduct tended to cause or provoke a disturbance . . ..'

After conviction in the Justice of the Peace Court, there was a trial de novo in the County Court at Law. Hence, this conviction and appeal.

Appellant intially challenges the sufficiency of the evidence to sustain this conviction for disorderly conduct under Article 474, § 1(5), supra, which reads, in pertinent part, as follows:

'Section 1. . . . Disorderly conduct consists of any of the following:

(5) in a public or private place engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance;

The record reflects that two Smith County Deputy Sheriffs and two Highway Patrolmen of the Department of Public Safety in two separate vehicles approached Sandy Beach on Lake Tyler about 12:30 a.m. on July 12, 1971 to check the area although they had received no specific complaint. At the beach, lighted by four lights on the top of two-100 foot telephone poles, they found four cars and approximately eight males at or near the cars in question. The officers began questioning these individuals about possible liquor law violations. No one was arrested.

During this investigation, Wayne Hellen, one of the highway patrolmen, noticed two people swimming in the lake. He instructed them to come out. The appellant responded that he could not come out because he did not have on any clothes. Hellen replied, 'If you went in that way, you ought to be able to come out that way.' Following the officer's instructions, the appellant emerged from the lake immediately put on his clothes and went to the patrol car as instructed. ¹ Following him out of the water was a young lady who was also nude. She first put on a T-shirt and, after some protest, put on a pair of pants and also went to the patrol car.

Three of the four officers present at the scene testified for the State. Each of the officers affirmatively stated that there was no disturbance at the beach at the time in question. When Patrolman Hellen was asked if the tranquility of the area was disturbed when the appellant came out of the water, he replied, 'Oh, it was a little movement around, looking, more or less.' He further stated there was no commotion among the people. Patrolman Conway, when asked if the people on the beach became more boisterous when the two came out of the water, replied, 'I didn't notice it if they did.' A deputy sheriff testified that one group of boys 'kind of laughed and cut up a little bit,' 'acted up,' but related they left upon request.

The officers, by their testimony, speculated that a disturbance could have ensued had they not been present. Their testimony reflected that a sense of 'tension' in the 'crowd' arose from the young lady's appearance on the beach in...