Turner v. State

• Decision Date: 02 July 1980
• Docket Number: No. 59055,No. 3,59055,3
• Citation: 600 S.W.2d 927
• Parties: Michael Scott TURNER, Appellant. v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 927

600 S.W.2d 927

Michael Scott TURNER, Appellant. v. The STATE of Texas, Appellee.

No. 59055.

Court of Criminal Appeals of Texas, Panel No. 3.

July 2, 1980.

Dennis W. McGill, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty. and John C. Kilpatrick, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeal follows conviction of appellant by a jury for the offense of indecency with a child denounced by V.T.C.A. Penal Code, § 21.11(a)(2), ¹ wherein the court assessed punishment at confinement in the Texas Department of Corrections for four years, notwithstanding his sworn application for probation.

In the four grounds of error presented, complaint is made that the evidence is insufficient to sustain the jury verdict; that the State was improperly permitted to bolster the testimony of the complainant; that the trial court erred in overruling appellant's motion to quash the in-court identification of appellant by the complainant because of an impermissibly suggestive lineup procedure; and that the trial court erred in refusing to permit appellant's sister to testify as to a defensive theory relevant to the complainant's identification of appellant. We will overrule these contentions and affirm.

On the afternoon of February 22, 1977 the complaining witness, a twelve year old girl we will call Anne, ² was returning home from class at an elementary school in Lubbock when she observed a dark blue Chevrolet Chevette travelling west on a public street; it then made a turn to the same direction she was walking on another street. The vehicle came to a stop ahead of the complainant and, as she passed by it, she looked into the open right window and saw the occupant of the vehicle sitting on the center console, straddling the floorboard gearshift and leaning forward and over. Anne testified that the man in the vehicle had on a shirt and jeans, though the jeans were "past his knees" as were his underwear; he was, in other words, naked from waist to knees. The complainant stated that as she looked into the automobile, the occupant "had his hands on his private parts" and "he was just sort of playing with it," ³ while at the same time smiling and laughing at her. During the course of this episode, Anne was no more than three feet from the vehicle and its occupant. She walked fastly away and some two blocks later looked back to find the car had left.

From her encounter with the occupant of the Chevette, Anne became scared and related the incident to her mother who in turn reported it to the police. On March 10, 1977, Anne was again walking home from school when she had the occasion to see the same Chevette at an intersection on the same street; stopped there, its driver motioned to her and other children to cross in front of the Chevette; he was then seen by Anne to be the same person who had exposed himself to her on February 22. Anne wrote down the license number of the Chevette and gave it to her mother who again notified police. Later that same day, Anne went to the Lubbock police station to view a lineup more about which we will write later and picked out appellant as the man who had exposed himself to her.

Officer Randy McGuire of the Lubbock Police Department testified that he spoke with Anne's father on February 22, 1977 in regard to the indecent exposure episode that same day. When asked what description the complainant gave of the male who had exposed himself, defense counsel immediately objected, the trial court sustained the objection and instructed the jury to disregard the question for all purposes. McGuire stated that after being given a description of the person who exposed himself, he stopped appellant's automobile, took him into custody and advised him of his constitutional rights.

Appellant called Barbara Fannon, his sister, who stated that she read of her brother's arrest in the newspaper. Defense counsel attempted to elicit from the witness the fact that there were other persons similar in appearance to her brother driving blue compact cars in and around Lubbock. After the State's objection to such a question was sustained, the trial court removed the jury and permitted defense counsel to elicit the answer to perfect his Bill of Exception. The witness stated that she noticed several persons including one man who resembled her brother so much that she waved to him. This man, recounted the witness, was driving a dark blue Chevette "just like my little brother's." Appellant did not testify.

In arguing under his first ground of error that the evidence is insufficient to support the verdict rendered by the jury, appellant stresses what he perceives as a lack of evidence to prove an essential ingredient in this type of offense "the proposition that the Defendant knew of the presence of the child and had the intention to arouse or gratify the sexual desire of a person, during the time that he had knowledge of the presence of a child." Recognizing that the Court has consistently held that knowledge and intent can be inferred from conduct of, remarks by and circumstances surrounding the acts engaged in by an accused, e. g., Allen v. State, 478 S.W.2d 946 (Tex.Cr.App.1972) and Dunlap v. State, 440 S.W.2d 672 (Tex.Cr.App.1969), appellant contrasts the factual situation in Bowles v. State, 550 S.W.2d 84 (Tex.Cr.App.1977) ⁴ and points to attention-getting conduct found in other cases decided by the Court. ⁵

For its part, the State also points to the recognized rule of review in such cases that permits inferences of knowledge and intent to be drawn from details of the factual situation, and it reminds us of the familiar standard that the evidence must be viewed in the light most favorable to the verdict to determine its sufficiency to sustain the judgment of conviction, referring to still another indecent exposure decision, Allen v. State, 478 S.W.2d 946 (Tex.Cr.App.1972). ⁶ Still, though sharply challenged to do so by the analysis of prior opinions in the area made by appellant, see notes 3 and 4 and accompanying text, ante, the State does not refer to any opinion in which the accused did not somehow call attention of the prospective viewer to his purpose to arouse or gratify sexual desire ⁷ a specific intent that is an essential element of the offense, Wesley v. State, 548 S.W.2d 37 (Tex.Cr.App.1977) thereby also indicating knowledge that a child is present. ⁸ Nor, it must be admitted, have we found any Texas case that upholds a conviction for indecency with a child under § 21.11(a)(2), supra, where the record is devoid of some character of attracting attention to the exposure.

That in finding the evidence sufficient to convict the Court has always pointed to some word or deed on the part of the accused which invited the minor to view his displayed genitals does not mean that such an invitation is a prerequisite to finding the knowledge that the child is present and the essential intent to arouse or gratify sexual desire that are both necessary to sustain a conviction for violating § 21.11(a)(2). It simply indicates that evidence of that nature was in the case and, if believed by the fact finder, tended to show the damning knowledge and incriminating intent that must be found in order to convict. Attention-getting is merely an evidentiary matter not an element of the offense.

Nevertheless, emphasizing what he conceives as an absolute lack of testimony to show or from which it may be inferred that appellant had any knowledge of the presence of Anne when she made her observations of his exposure, appellant argues that he "neither called to, spoke to, waived (sic) at, made any motions or gestures, caused any noise to be made, or did any other act which would call attention to himself." Rather, appellant urges the correct inferences to be drawn are that he "was not attempting public exposure, but indeed was leaning forward so as not to be in view of anyone who was passing by." ⁹ From adequate testimony, though, we find the jury was justified in inferring and finding the requisite knowledge and intent elements of the offense, even without evidence of appellant's calling attention to himself by direct word or deed, as is now explained.

The Chevette being driven by appellant was first seen by Anne travelling westward on a street that intersects with the street adjacent to which she was walking south. She was crossing an alleyway when appellant made a left turn onto her street; in maneuvering his car in that ninety degree arc and then driving south appellant's line of vision easily included the person of Anne as she walked along near the west curb and crossed the alleyway. Moving on parallel with her direction and passing her on his right, appellant pulled over to the curb and stopped his Chevette just ahead of Anne's pedestrian location. From these movements and their respective positions, the jury was permitted to infer that in his left turn and driving on south appellant saw Anne as she walked alone near the street. Furthermore, the jury was allowed to believe, as we do, that appellant was not operating his moving Chevette from a seated position on the center console, straddling its stick shift, so that only after coming to a stop ahead of Anne did he assume that posture with his pants and undershorts "past his knees" in expectation and anticipation that Anne would then walk by his car, just as she did, and see him. ¹⁰ When he began to play with himself the jury, we find, was solidly justified in concluding that he both knew of the presence of the child and intended to arouse and gratify his own sexual desire. The contemporaneous laugh and certain smile, as he reacted to her viewing his accomplishing that intent and purpose, confirm both.

An old code case for the offense of indecent exposure, under Article 535c, P.C. 1925, as amended, ¹¹ supports the finding that the evidence here is sufficient to...