Opinion
No. 05-10-00451-CR
Opinion issued May 6, 2011.
On Appeal from the 397th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 058860.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
OPINION
The State charged appellant John Thomas Vann with two counts of indecency with a child. On Count 1, the jury found him guilty of the lesser-included offense of indecent exposure and assessed his punishment at zero days and no fine. On Count 2, the jury found him guilty of the charged offense, indecency with a child; on that count, it assessed two years' confinement-with a recommendation of probation-and a $2000 fine. In this Court, appellant challenges the sufficiency of the evidence supporting his convictions and contends the trial court erred by admitting certain evidence. We affirm the trial court's judgment on Count 2. We reverse the judgment on Count 1 and remand that count for a new punishment hearing.
Background
Appellant lived across the street from the complaining witnesses' family (the "Family"), which included parents R.K. ("Father") and K.K. ("Mother"), their ten-year-old son J.K., and their five-year-old daughter P.K. At trial, the parents and J.K. testified that they had, on previous occasions, seen appellant walking around inside his home and playing video games while naked. Father testified he had actually seen appellant having sex with his girlfriend on a couch inside the door. Appellant was visible to the Family in these instances because he frequently kept his door open and did not cover his windows with blinds or curtains. Mother testified that appellant showed an unusual interest in her children: he invited J.K. to come over and play video games; he commented frequently on P.K.'s appearance; he asked to go along to the children's ball games. She believed appellant watched her and the children when they went swimming in the neighborhood so he could join them. J.K. testified appellant invited him to come over to play video games and watch American Idol. On the evening of July 30, 2009, the Family returned home after visiting relatives. Mother testified she was with her children in the front yard of their house-which faced appellant's front yard-when she saw appellant walking around inside his house naked. She hurried the children inside, found her husband in the bedroom, and began to tell him what she had seen. "[A] minute or two" after she began speaking to her husband, J.K. called out to her to "come here," saying "he's naked, outside, smoking a cigarette." Mother looked out the window and confirmed her son's observation: she saw appellant, naked and smoking a cigarette, in his driveway. She told J.K. to move away from the window and turned off the living room lights. J.K. also testified at trial that he saw appellant, naked except for a cap, sitting on a car parked in the driveway, smoking a cigarette. Some time later that evening, Mother was putting P.K. to bed. She laid down in P.K.'s room and fell asleep. She was awakened by a noise outside. At the same time, Father testified, he heard the noise and went to investigate. He looked out the window and saw appellant running from the Family's yard across the street to his own house. Appellant was wearing only a cap; he was carrying a bottle of Bud Light beer. Mother called the police. The police explored the Family's property and found three Bud Light beer bottles. One of those bottles was discovered outside P.K.'s window, along with a pair of gray tennis shoes. In the same area by P.K.'s window, police discovered two marks in the soft ground consistent with a person's kneeling there and a smudge on the window itself. (Although the blinds were down, it was possible to see inside P.K.'s room through some of the slats.) Investigators also found footprints in the soft ground on the side of the Family's house. The officers went to appellant's house to interview him. They found a cap, which Father later identified as the one he saw appellant wearing that night, on appellant's front porch. Although the officers could see appellant-naked and asleep on his bed-through a window, they could not rouse him to answer the door. The police procured a warrant and entered the house. They observed and photographed a number of Bud Light beer bottles throughout the house. They observed that appellant had dirt and mud on his feet, knees, and buttocks; they helped him put shorts on and then photographed him as well. Appellant identified the tennis shoes found by P.K.'s window as his. Appellant later admitted to the police that he had been looking in the Family's windows that night. Appellant was charged with two counts of indecency with a child: Count 1 referred to P.K.; Count 2 referred to J.K. The jury found appellant guilty of indecency on Count 2 and guilty of the lesser included offense of indecent exposure on Count 1. The jury assessed his punishment for the indecency conviction at two years' confinement-with a recommendation of probation-and a $2000 fine. It assessed his punishment on the indecent-exposure conviction at zero days' confinement and assessed no fine. The trial court signed a judgment in accord with the jury's findings, and this appeal followed.Sufficiency of the Evidence
In appellant's first two issues, he challenges the legal and factual sufficiency of the evidence supporting his convictions for both indecency with a child and indecent exposure. The Texas Court of Criminal Appeals has determined that the Jackson v. Virginia standard is the only standard a reviewing court is to 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. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) (following Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899. 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. Appellant makes four specific charges under his sufficiency issues. Although he does not segregate his charges between the two counts, we will address the counts-and the charges related to their elements-separately.Indecency With a Child
At the time of the offense in question, the penal code provided in relevant part:A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person . . . with intent to arouse or gratify the sexual desire of any person . . . exposes the person's anus or any part of the person's genitals knowing the child is present.Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 21.11(a)(2)(A), 2001 Tex. Gen. Laws 1463 (amended 2009) (current version at Tex. Penal Code Ann. §§ 21.11(a)(2)(A), 21.11(b-1) (West Supp. 2010)) [hereinafter "Act of May 23, 2001"]. All four of appellant's sufficiency challenges fall within the elements of this statute. First, appellant contends the State failed to establish that neither of the children was the spouse of appellant. Under the above-quoted version of the statute, the State must establish that the defendant was not the spouse of the child at the time of the offense. Circumstantial evidence may be used to prove an essential element of indecency with a child, including whether the child was the spouse of the actor. See Rivera-Reyes v. State, 252 S.W.3d 781, 785 (Tex. App.-Houston [14th Dist.] 2008, no pet.). In this case, the jury convicted appellant of indecency with respect to J.K.; the testimony of his parents established that J.K. is their son. Because appellant is also male, J.K. could not-as a matter of law-be appellant's spouse. See Jacquez v. State, 579 S.W.2d 247, 249 (Tex. Crim. App. 1979); see also Tex. Fam. Code Ann. § 6.204(b) (West 2006). Appellant next complains the evidence was insufficient to prove he was "with a child." Appellant's parsing of the offense is not clear here: he appears to be demanding evidence that J.K. was accompanying him in some fashion. We find no authority for such a requirement. Instead, convictions for indecency with a child by exposure are regularly upheld despite there being some distance between the actor and the victim. See, e.g., Uribe v. State, 7 S.W.3d 294, 295 (Tex. App.-Austin 1999, pet. ref'd) (defendant exposed himself in his car while staring at children in another car in parking lot); Casper v. State, 634 S.W.2d 39, 40 (Tex. App.-Tyler 1982, no pet.) (defendant exposed himself in front of open window to children playing in another yard); see also Piazza v. State, No. 05-98-00299-CR, 1999 WL 323295, at *2 (Tex. App.-Dallas May 24, 1999, no pet.) (defendant exposed himself in front of window, while child playing outside across street) (not designated for publication). Indeed, the victim need not even be aware of the exposure underlying the indecency conviction. See Wilson v. State, 9 S.W.3d 852, 856 (Tex. App.-Austin 2000, no pet.) ("section 21.11 does not require a showing that the victim saw the defendant's exposed genitals"). The offense is based on the actor's conduct and intent, not on the victim's comprehension of that conduct and intent. Id. The statutory language introducing this offense describes the child who can be a victim of an indecency offense: one of either gender who is younger than seventeen years old and is not married to the offender. See Act of May 23, 2001, § 21.11(a). The remainder of this subpart describes conduct that will amount to an indecency offense if it is performed "with" such a child. Id. § 21.11(a)(1) (sexual contact), (2) (exposure). The record contains uncontroverted testimony that J.K. was a child younger than seventeen years old and, as discussed above, sufficient evidence to support the inference J.K. was not appellant's spouse. Appellant's complaint concerning whether he was "with" J.K. is not well-taken. The State is required to prove appellant acted "knowing a child [was] present," and appellant challenges the sufficiency of this standard as well. However, the record is replete with evidence that appellant knew J.K. lived across the street. And as to the evening in question, Mother testified she and the children had been in the front yard when she saw appellant walking around his house naked. She stated that appellant "knew we were outside." Only moments later, appellant walked outside in full view of J.K., who was looking out the Family's living room window. Mother testified the light was on in the living room and appellant's porch light was on. J.K. and Mother both testified they saw appellant expose himself outside; the jury could reasonably have inferred that appellant could see J.K. and Mother as well. Viewed in the light most favorable to the verdict, we conclude the evidence is sufficient to support the jury's implied finding that appellant knew J.K. was present during the offense. See Brooks, 323 S.W.3d at 899. Finally, appellant charges that the evidence is insufficient to establish that his actions were done with the intent to arouse or gratify anyone's sexual desire. We can infer the requisite specific intent to arouse or gratify appellant's sexual desire from his conduct, his remarks, and all surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). Our record indicates that appellant's prior conduct involving nudity had taken place inside his home, albeit with doors open and shades undrawn. However, in this instance, appellant's conduct escalated to what can only be described as exhibitionism. Appellant walked out the front door of his home naked, continued down the driveway, sat on the hood of a car parked near the end of the driveway, and smoked a cigarette. Appellant argues repeatedly that there was no evidence of him touching himself or calling out for attention during the incident. Of course "attention-getting" is not an element of the offense. Turner v. State, 600 S.W.2d 927, 930 (Tex. Crim. App. 1980). But even if it were, appellant's exhibitionism certainly drew attention to his nakedness. The jury could rationally infer from appellant's conduct in this circumstance that this public display was undertaken to gratify himself in a sexual manner. See McKenzie, 617 S.W.2d at 216.
Indecent Exposure
The jury found appellant guilty of the lesser included offense of indecent exposure in the count related to P.K. The penal code provides:A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.Tex. Penal Code Ann. § 21.08(a) (West 2003). Thus, of appellant's four specific sufficiency challenges, only one relates to his conviction for indecent exposure: whether sufficient evidence established his actions were done with the intent to arouse or gratify the sexual desire of any person. Again, we consider all of the evidence in the light most favorable to the verdict. Brooks, 323 S.W.3d at 899. And we can infer the requisite specific intent from appellant's conduct, his remarks, and all surrounding circumstances. See McKenzie, 617 S.W.2d at 216. There was ample evidence appellant came onto the Family's property and, while naked and intoxicated, knelt outside P.K.'s window. The evidence supports the inference appellant drank beer and peeked into P.K.'s room through slats in the blinds. Again, appellant stresses that no witness saw him drawing attention to himself in a sexual manner. Appellant's argument ignores the fact that evidence of a naked, intoxicated man kneeling outside a neighbor's window and peeking in, on its own, supports an inference that he was acting to gratify sexual desires. A rational jury could have so concluded. See Brooks, 323 S.W.3d at 899. We conclude sufficient evidence supported appellant's convictions; we overrule his first and second issues.
Admissibility of Pornographic Material
During the search of appellant's home incident to his arrest, the police seized two pornographic movies on DVD, titled "Young Asian Cheerleader Search" and "Teen Divas Volume 1." They also seized two magazines titled "Alice in Sexland" and "Hot Moms." When the State offered photographs of these items, appellant objected, arguing that the items were irrelevant and that they were "highly inflammatory" and any evidentiary value they possessed would be outweighed by their prejudicial effect on the jury. The trial court allowed the titles of the materials to be read by the investigator who discovered them in appellant's home, but no photographs were admitted into evidence. On cross examination, the investigator testified that none of the seized materials depicted children. In his third issue, appellant contends the trial court erred by admitting this evidence of pornography seized from his home. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). The trial court ruled, and the State contends on appeal, that the pornographic materials were circumstantial evidence of appellant's intent to gratify his sexual desires. However, appellant was charged and convicted of offenses against children, and these materials did not depict children. The State argues that "in cases such as these," a defendant's possession of pornography is relevant to his intent. However, in each of the cases cited by the State, the pornography was linked substantively to the charged offense. See Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) (defendant possessed photographs of victim, taken during charged offense); Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.-Fort Worth 2007, pet. ref'd) (defendant, charged with aggravated assault of young boy, possessed photographs of young boys engaging in sexual acts); Darby v. State, 922 S.W.2d 614, 620 (Tex. App.-Fort Worth 1996, pet. ref'd) (defendant, charged with indecency with child for touching young female while masquerading as professional photographer and posing her with teddy bear, possessed magazine containing sexually explicit photos of young girl posed with teddy bear). The State has not pointed us to any similar connection between appellant's offenses and the materials he possessed. Nevertheless, even if we assume-without deciding-that it was error to allow the State to introduce the titles of the seized materials into evidence, the error was harmless. As we have discussed above, the evidence was sufficient to establish appellant's intent to gratify his sexual desires without relying on the seized materials. The jury was told the materials did not involve child pornography. Given the ample evidence of appellant's guilt, we cannot conclude the admission of these materials made it any more likely the jury would convict appellant of the child-related offenses. Moreover, nothing in the jury's light-handed assessment of punishment indicates a desire to punish appellant generally as a bad person. We decide appellant's third issue against him.Illegal Sentence
The jury assessed appellant's punishment for indecent exposure, a Class B misdemeanor, at zero time and no fine. The penal code provides: An individual adjudged guilty of a Class b misdemeanor shall be punished by:(1) a fine not to exceed $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both such fine and confinement.Tex. Penal Code Ann. § 12.22 (West 2003). A jury can choose not to assess a fine. However, a jury is not free to disregard the range of punishment dictated by statute. Punishment that is outside the statutory sentencing range is unauthorized by law and therefore illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Any court with jurisdiction can notice and take action to correct an illegal or void sentence at any time, even sua sponte. Id. at 805-07. Accordingly, we reverse the trial court's judgment as to Count 1 and remand the case to the trial court for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West 2006).