Opinion
NO. 14-19-00515-CR
07-14-2020
Robert CANTU, Jr., Appellant v. The STATE of Texas, Appellee
Perry R. Stevens, Angleton, for Appellant. Trey David Picard, Angleton, for Appellee.
Perry R. Stevens, Angleton, for Appellant.
Trey David Picard, Angleton, for Appellee.
Panel consists of Justices Christopher, Jewell, and Hassan.
Kevin Jewell, Justice
A jury found appellant Robert Cantu, Jr. guilty of four counts of indecency with a child. Appellant appeals the judgment of conviction on two counts, which were predicated on two instances of indecent exposure. In legal-sufficiency challenges to the evidence supporting each count, appellant contends that the State failed to prove beyond a reasonable doubt that he exposed himself to the complainant's view and that he intended to gratify himself.
For the reasons explained below, we affirm the trial court's judgment.
Background
The State alleged that appellant committed five counts of indecency with the complainant, a child. In count one, the State alleged that appellant, with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact with a child younger than seventeen years old by touching the child's breast. In counts two, three, four, and five, the State alleged that appellant, on separate occasions and with the intent to arouse or gratify his sexual desire, intentionally or knowingly exposed his genitals, knowing a child younger than seventeen years old was present.
A Brazoria County grand jury indicted appellant on all five counts. Appellant pleaded not guilty, and the case went to trial, where the following relevant facts were established.
Appellant complains only about counts four and five, so we confine our discussion to the allegations and testimony relevant to those counts.
Appellant lived with his wife in Brazoria County. The complainant, who was thirteen or fourteen years old during the relevant time period, lived with her mother and grandmother two houses away. Appellant and his wife were friendly with the complainant's mother.
When the complainant was in eighth grade, she and appellant spent a significant amount of time together, sometimes at appellant's house. The complainant's mother worked in the afternoons, and appellant occasionally picked up the complainant from school and took her to his house.
On the occasion supporting the allegations in count four, the complainant and appellant were alone at appellant's house. The complainant was seated on a stool in the kitchen. According to the complainant, appellant stood behind her and began to masturbate. The complainant did not see any part of appellant's genitals, but she heard appellant breathing deeply and heard his ring repeatedly hit the stool on which she was sitting as his hand moved back and forth. The complainant testified that she saw semen on her belt and shoes after appellant finished masturbating.
The events forming the basis of count five also occurred while the complainant and appellant were alone at appellant's house in the kitchen. The complainant was standing facing the counter when appellant approached, stood behind her, and placed his hands on the counter on either side of the complainant, thus boxing her in between his body and the counter. Appellant tried to kiss the complainant. Then he pulled down his shorts and began to masturbate. Appellant asked the complainant to touch his penis, but she refused. Appellant then complained, "I do all this stuff for you. You don't do anything for me. All I ask for is one thing and you can't even do that." The complainant testified that she did not see his penis, which was covered by the hem of his oversized shirt, and appellant did not ejaculate.
The jury found appellant guilty as charged in the indictment on counts one, three, four, and five. The jury found appellant not guilty on count two. According to the jury's verdict on punishment, appellant was sentenced to a term of confinement in the Texas Department of Criminal Justice, Institutional Division, for each count of guilt, with the sentences for counts three, four, and five to run concurrently and those concurrent sentences to run after the sentence for count one. Appellant timely appealed.
Analysis
As relevant here, appellant was charged with and convicted of indecency with a child by exposure. A person commits the offense if, with a child younger than seventeen years of age, the person, "with intent to arouse or gratify the sexual desire of any person ... exposes ... any part of the person's genitals, knowing the child is present." Tex. Penal Code § 21.11(a)(2)(A). The terms "expose" or "exposure" are not defined in the statute.
Appellant challenges his convictions regarding counts four and five on legal-sufficiency grounds. According to appellant, because the complainant testified that she did not actually see any part of appellant's genitals during the occurrences described in counts four and five, the State failed to prove beyond a reasonable doubt the element of "exposure," and the evidence is legally insufficient to support the jury's verdict on those two counts. Appellant also contends that the complainant's testimony is insufficient to prove appellant's intent to arouse or gratify his sexual desire.
When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether a rational factfinder could have found the elements of the offense beyond a reasonable doubt. See Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); Espino-Cruz v. State , 586 S.W.3d 538, 542 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd). Although we consider all evidence presented at trial, we do not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Espino-Cruz , 586 S.W.3d at 543 (citing Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ). A factfinder may accept one version of the facts and reject another, and the factfinder may accept or reject any part of a witness's testimony. Febus v. State , 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). We defer to the factfinder's resolution of conflicts in the evidence, weighing of the testimony, and drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Finally, we note that the testimony of a child complainant alone is sufficient to support a conviction for indecency with a child by exposure. See Tex. Code Crim. Proc. art. 38.07(a), (b)(1) (uncorroborated testimony of child victim is sufficient to support conviction under Penal Code chapter 21 if child victim was seventeen years of age or younger at time of offense).
As noted above, the term "expose" is not defined by statute, so we apply the term consistent with its generally understood meaning. See Warner v. State , 257 S.W.3d 243, 246 (Tex. Crim. App. 2008) ("[A] term not defined by the legislature may be understood by its meaning in ordinary usage."). For purposes of the indecency with a child statute, courts have defined exposure to mean: " ‘To deprive of concealment; to disclose or unmask something criminal, shameful, or the like.’ " Balfour v. State , 993 S.W.2d 765, 769 (Tex. App.—Austin 1999, pet. ref'd) (quoting Miller v. State , 156 Tex.Crim. 389, 243 S.W.2d 175, 176 (1951) ).
Contrary to appellant's contention, the common understanding of the terms "expose" or "exposure" does not require the State to prove that the child complainant saw any part of an accused's genitals. Rather, "the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances." Harris v. State , 359 S.W.3d 625, 631 (Tex. Crim. App. 2011). The child need only be in the accused's presence for the offense to be effectuated; the child does not have to be aware of the exposure. Id. ; see also Ex parte Amador , 326 S.W.3d 202, 209 (Tex. Crim. App. 2010) (the offense of indecency with a child by exposure "is based on the defendant's actions and mental state, not the other person's comprehension") (Cochran, J., concurring). Accepting appellant's view of the law could leave some clear offenses beyond prosecutorial reach, contrary to the legislature's evident intent as gleaned from the statute's text. For example, if the law were as appellant contends, the State could never prove an offense under Penal Code section 21.11(a)(2)(A) if a child complainant was blind, or blind-folded, even when all elements of the statute are shown beyond a reasonable doubt.
Unsurprisingly, courts have repeatedly rejected the very argument that appellant makes today. See Uribe v. State , 7 S.W.3d 294, 296-97 (Tex. App.—Austin 1999, pet. ref'd) (rejecting appellant's claim that State had to prove that the child saw appellant's exposed genitals); see also Harty v. State , 552 S.W.3d 928, 932 (Tex. App.—Texarkana 2018, no pet.) (rejecting appellant's sufficiency of the evidence challenge based on claim that complainant could not see appellant's genitals because he was covering them with his hand); Ayala v. State , No. 14-08-00839-CR, 2010 WL 811124, at *3 (Tex. App.—Houston [14th Dist.] Mar. 11, 2010, pet. ref'd) (mem. op., not designated for publication) (jury could have found that appellant's genitals were exposed based on complainant's testimony "that she saw appellant's hands moving up and down from his mid-section"); Breckenridge v. State , 40 S.W.3d 118, 128 (Tex. App.—San Antonio 2000, pet. ref'd) (stating that section 21.11(a) does not require proof that the victim actually saw the accused's genitals); Metts v. State , 22 S.W.3d 544, 547 (Tex. App.—Fort Worth 2000, pet. ref'd) (holding that the State only had to prove that appellant's genitals were exposed, not that the complainant perceived them); Wilson v. State , 9 S.W.3d 852, 856 (Tex. App.—Austin 2000, no pet.) (upholding conviction for indecency with a child by exposure where victim did not see appellant's genitals). Therefore, the State was not required to prove that the complainant saw any part of appellant's genitals in order to secure a conviction for indecency with a child by exposure.
For purposes of count four, the complainant testified that appellant started masturbating behind her, she could hear him breathing "like heavy, like deep breath[ing]," she could hear his ring hit the stool she was sitting on "like back and forth, like more than once," and she knew appellant had finished masturbating because "[h]is semen came out of him and it -- it got on [her] belt; and when [she] stood up, it dripped down to the -- the back of [her] shoe." For purposes of count five, the complainant testified that appellant tried to kiss her and "then after that, it was -- somehow he ended up pulling his pants down and he started masturbating. He was like I want you to touch it, touch it, touch it. He kept saying it over and over again." When the complainant refused to touch appellant, appellant "pulled [his shorts] down a little bit" and began moving his hand "back and forth." From this testimony, the jury reasonably could find beyond a reasonable doubt that on two separate occasions appellant exposed his genitals in the presence of a child. See Ayala , 2010 WL 811124, at *3 ; Uribe , 7 S.W.3d at 296-97.
Appellant's second argument under his legal-sufficiency challenges to his convictions under counts four and five is that no evidence shows that he intended to gratify himself. We disagree. The complainant's testimony described above is sufficient to prove beyond a reasonable doubt that appellant exposed himself in order to arouse or gratify his sexual desire. In both instances, the complainant described an act of masturbation, from which the jury reasonably could infer appellant's intent to arouse or gratify his sexual desire. See Mastrangelo v. State , No. 09-05-00337-CR, 2007 WL 1052438, at *1 (Tex. App.—Beaumont Apr. 4, 2007, no pet.) (mem. op., not designated for publication) ("The jury could conclude that the child was describing an act of masturbation and infer an intent on the part of the appellant to gratify himself sexually.").
We hold that the evidence adduced at trial is legally sufficient to support the jury's findings on counts four and five. Conclusion
We overrule appellant's issue and affirm the trial court's judgment.