No. 05-05-00304-CR
Opinion Filed October 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MB03-37731-A. Affirm.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice O'NEILL.
A jury convicted Dzung Dinh Pham of indecent exposure. The trial court assessed punishment at ninety days' confinement in the county jail, probated for twelve months, and a $500 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
At 8:00 p.m. on November 3, 2003, Paul Shaw, general manager for Bally Total Fitness in Irving (the Club), was informed that appellant was sitting in a vehicle in the parking lot masturbating. Jose Rodriguez told Shaw that as he, his wife, and young daughter walked from the parking to the Club, he saw a man in a white pickup truck masturbating. Rodriguez and his wife were very upset. Shaw immediately went to the parking lot and saw appellant sitting in a white pickup truck. When appellant noticed Shaw, appellant put his head back and pretended to be asleep. As Shaw walked past the driver's side, he looked into the truck and saw appellant holding his penis in his hand. Shaw testified he saw the top of appellant's penis, but he did not see appellant masturbating. Shaw walked to the back of the vehicle, wrote down the license plate number, and then confronted appellant. Shaw testified appellant's driver's-side window was halfway down and the interior light was on. Shaw asked appellant what he was doing; appellant said he was reading. Shaw told appellant he had received a complaint about appellant sitting in the parking lot watching people leave the Club and masturbating. Appellant said, "I might like to watch girls leave the club, but I was not out here masturbating." Shaw testified he neither saw appellant reading nor saw a book inside the truck. After appellant told Shaw that he was a member of the Club, Shaw took appellant's membership card and told appellant to leave or Shaw would contact the police. Shaw went back inside the Club and called the police. When officers arrived, they talked with appellant, who was still sitting in his truck in the parking lot. Then an officer spoke with Shaw and Rodriguez. Shaw testified that appellant's truck was parked where people would be constantly walking by it and seeing appellant inside. Shaw testified he assumed appellant's penis was circumcised because he saw the top of it. Officer Esparza testified he was dispatched to the Club on an indecent exposure call of a man in a white pickup truck who was masturbating while parked in front of the Club. Esparza talked with Shaw and Rodriguez, then talked with appellant. Appellant denied he had been masturbating in the truck, but never stated he had been reading a book out loud to practice his English diction. Dallas County deputy sheriff Jack Dearborn testified he and a bailiff examined appellant's genitals to see if appellant was circumcised. When examined, appellant's penis was in a flaccid state. Appellant was uncircumcised. Dearborn testified he did not know whether an erect uncircumcised penis would appear to be circumcised. Appellant denied he was masturbating in his truck or that he exposed his penis at all. Appellant, who works as a systems analyst for Bell Helicopter, testified he went to the Club after work on November 3, 2003 intending to exercise. He arrived at about 5:30 p.m. and decided to sit in his vehicle and practice his English diction, which was his custom to do. Appellant said he lived with his mother and sister, and would often read out loud while inside his vehicle so he would not bother anyone. Appellant claimed he was reading out loud and then fell asleep. Shaw woke him up and said there had been a complaint about appellant parking there often and that appellant had been watching the women. Appellant replied, "Maybe sometimes I might look at some of the women." Shaw told appellant he had to either go in the Club to exercise or leave. Appellant testified that Shaw never said he would call the police and never said anything about masturbation. Appellant ignored Shaw and continued reading his book. The police arrived about forty-five minutes later. Appellant testified that the first time he knew he was being accused of masturbating in his truck was when Shaw came outside with an officer and stated that appellant was masturbating in the truck. The officer told appellant he needed to leave the premises, and appellant left immediately. During cross-examination, appellant testified he had been in the United States for twenty-nine years, had a Master's degree in mechanical engineering, and was a citizen. He testified he would sit in the parking lot at the Club about once a week and look at women when they passed. Appellant admitted he would be concerned if someone were watching his mother and sister enter and exit their health club. Appellant claimed that from 5:30 p.m., the time he arrived at the Club, until about 8:00 p.m., the time he was awakened by Shaw, he was sitting in his truck reading aloud and fell asleep. Appellant testified he did not know Shaw personally, and Shaw lied when he said he saw appellant's hand on appellant's penis. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense 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). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly exposed his genitals with intent to arouse or gratify his own sexual desires, and appellant was reckless about whether another was present who would be offended or alarmed by appellant's act. See Tex. Pen. Code Ann. § 21.08(a) (Vernon 2003). Discussion
Appellant argues the evidence is legally insufficient to show the element of intent to arouse or gratify his sexual desires. Appellant further argues the evidence is factually insufficient because Shaw, the sole witness, was mistaken about appellant being circumcised. Thus, appellant asserts, Shaw could not have seen appellant's penis. The State responds that both direct and circumstantial evidence proved appellant's intent to arouse or gratify appellant's sexual desires, and that the evidence is factually sufficient because Shaw testified he saw appellant's exposed penis and the jury was free to believe or disbelieve the testimony. A Club member complained to Shaw that appellant was masturbating while sitting in a truck in the Club's parking lot. Shaw testified he saw appellant holding his penis, and saw the tip of appellant's exposed penis. The intent to arouse or gratify can be inferred from the conduct of, remarks by, and circumstances surrounding the acts. See Cate v. State, 124 S.W.3d 922, 931 (Tex.App.-Amarillo 2004, no pet.). Although appellant claimed he was sitting in his truck reading a book out loud and was not masturbating, he admitted he sat in the Club's parking lot for two-and-a-half hours. Appellant also admitted he sat in the Club's parking lot once a week to watch women leave the Club. A jury could rationally infer, beyond a reasonable doubt, that appellant acted with the intent to arouse or gratify his sexual desires. See Harvey, 135 S.W.3d at 717. We conclude the evidence is legally sufficient to prove the intent to arouse of gratify element. Dearborn testified he examined appellant's genitals and found that appellant's penis was not circumcised. Shaw testified he assumed appellant's penis was circumcised because he only saw the tip of it. The jury was the sole judge of the weight and credibility of the witnesses and their testimony. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standard, we conclude it is factually sufficient to support the conviction. See Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.