Joseph v. The State Of Tex.
| Decision Date | 04 January 2011 |
| Docket Number | No. 05-09-00818-CR,05-09-00818-CR |
| Parties | ERIC CAESAR JOSEPH, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
A jury convicted appellant, Eric Caesar Joseph, of indecency with a child. The trial court found “true” the enhancement provisions and sentenced appellant to imprisonment for twenty-five years. In four issues, appellant attacks the legal and factual sufficiency of the evidence to establish his guilt, asserts the trial court erred by not instructing the jury on the lesser included offense of indecent exposure, and complains that the victim's mother was permitted to give opinion testimony that appellant was trying to arouse himself sexually. We affirm the trial court's judgment.
A jury convicted appellant of indecency with a child. Tamequia Tinnion resided at an apartment complex on Beck Avenue in Dallas, Texas, with her children, including her two year old son. On the afternoon of January 9, 2009, Tinnion's son was outside playing with a neighbor child. Tinnion testified that her son ran into their apartment to tell her that appellant was outside “playing with himself.” Terry Carreon, who resided in the apartment next to Tinnion's, was leaving her apartment when she saw appellant “parading himself” all around the courtyard of the apartment complex with his penis exposed, touching his penis. According to Carreon's testimony, appellant was not masturbating but was “grabbing himself.” Carreon stated that several children, including Tinnion's son, were in the courtyard at the time. Because she did not have a phone, Carreon went to Tinnion's apartment to tell her about appellant and ask her to call the police.
Tinnion went outside and observed appellant just standing there, playing with his penis and grinning. She reported him to the manager of the apartment complex and called the police. She then got her gun and went downstairs to confront appellant. When she asked him what he was doing and demanded that he stop, he remained standing in the doorway of an apartment, penis exposed, and just grinned at her. Appellant went inside the apartment once the police arrived.
Dallas patrol officers received a dispatch that a man was exposing himself at the apartment complex. When the police arrived at the apartment complex, a number of adults and children were outside and pointed to a specific apartment. The police knocked on the door of the apartment and appellant opened the door with his penis still exposed. Officer Terry stated he smelled a strong chemical smell when appellant opened the door. Officer Hedges stated appellant seemed a bit confused and “wasn't quite there.” The officers attempted to question appellant but he did not explain his conduct. Ultimately, appellant was arrested, handcuffed, and put in the squad car.
During the punishment phase of the trial, appellant testified he could not remember the incident. He stated that the medications he takes for AIDS cause him to occasionally feel confused. He also stated he had part of a beer and a “sip” on a “blunt” that day. His mother testified his medications frequently cause him to be disoriented and confused.
In his first and second issues, Appellant challenges the legal and factual sufficiency of the evidence to show he had the intent to arouse or gratify his sexual desire, or the knowledge that children were present. The Texas Court of Criminal Appeals recently determined that the Jackson v. Virginia legal sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894 (Tex. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Accordingly, we will consider the argument appellant raises regarding factual sufficiency as supplementary to his legal sufficiency issue.
To obtain a conviction for indecency with a child by exposure, the State was required to prove beyond a reasonable doubt that appellant, with intent to arouse or gratify the sexual desire of any person, exposed his genitals knowing a child younger than seventeen years of age was present. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (West Supp. 2010). Appellant asserts the evidence is legally insufficient to show intent to arouse or gratify sexual desire because there is no evidence that he had an erection, was masturbating, or engaged in any attention-getting conduct such as beckoning, making motions with his hands, lips, pelvis, or penis, or pointing towards himself. He also claims that because it is apparent from the record that he was oblivious to his surroundings, there is no direct evidence that he knew children were around.
The record reflects appellant walked around the courtyard of the apartment complex, “playing with” or “grabbing” his exposed penis while children were running around and playing in the courtyard and on the stairs of the apartment complex. Tinnion testified that even after she confronted appellant to ask why he was doing that in front of her son and his friend, appellant just stood there, penis in hand, and grinned at her. The requisite knowledge and intent can be inferred from appellant's conduct, remarks and all surrounding circumstances. See Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.-San Antonio 2000, pet. ref'd); Ercanbrack v. State, 646 S.W.2d 480, 481-82 (Tex. App.-Houston [1st Dist.] 1982, no pet.). Attention-getting acts such as beckoning, motioning, or pointing are not required. An overt act characterized as an attention-getting device is evidentiary and not an element of the offense of indecency with a child. Turner v. State, 600 S.W.2d 927, 930 (Tex. Crim. App. [Panel Op.] 1980); Ercanbrack, 646 S.W.2d at 481-82. Further, the offense does not require that arousal or gratification actually occur. See Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.-Corpus Christi 2000, pet. ref'd). In Ashanti v. State, this court concluded the actor's conduct, stoking his penis in the presence of his step-daughter, was legally and factually sufficient to support the jury's finding that he had the requisite intent. Ashanti v. State, No. 05-96-01920-CR, 1999 WL 39041, at *3 (Tex. App.-Dallas Feb. 1, 1999, pet. ref'd).
Appellant argues he “was oblivious to his surroundings, dazed, and confused, to the point where he may well have not formed any intent at all.” He also asserts there is no direct evidence that he knew children were around. Although the police officers testified that appellant seemed confused and “wasn't all there, ” the record does not support appellant's contention that he was completely oblivious to his surroundings. Tinnion confronted appellant and demanded that he stop exposing himself in front of the children in the courtyard. If he failed to notice the children before being confronted by Tinnion, she alerted him to their presence. Yet appellant continued to stand in the door of the apartment, playing with his penis and grinning at Tinnion. Also, we note that appellant had the presence of mind to go into the apartment and close the door when the patrol cars drove up to the apartment complex. Viewing the evidence in the light most favorable to the verdict, we conclude the jury was justified in inferring and finding the requisite knowledge and intent elements of the offense. We overrule appellant's first and second issues.
In his third issue, Appellant contends the trial court erred by denying his request to charge the jury on the lesser included offense of indecent exposure. Appellant argues that he was merely reckless in his conduct; therefore, he could be guilty of indecent exposure rather than indecency with a child. The State counters, noting there is no evidence that appellant's conduct with respect to the presence of others was merely reckless because appellant admitted knowing there were others in the apartment complex. The State argues there must be some evidence directly germane to the lesser included offense to warrant its submission.
An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, or if it differs from the offense charged only in that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (West 2006). A trial court must submit a charge on a lesser included offense if (1) the lesser included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record which would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).
Texas has adopted the cognate pleadings approach to the first step of the lesser included offense analysis. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first step is a question of law and requires us to compare the elements of the offense as charged with the statutory elements of the potential...
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