Summary
rejecting similar argument under similar subsection in section 21.11, which provides the elements of indecency with a child
Summary of this case from Chambers v. StateOpinion
No. 05-08-00077-CR
Opinion Filed November 18, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-26993-V.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
After a jury convicted Climaco Castaneda of indecency with a child by exposure, the trial court assessed punishment at six years in prison, suspended the sentence, and placed appellant on community supervision for six years. In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm. In July 2005, eleven-year-old A.A. went to the soccer fields with his mother and younger sister. While his mother played soccer, A.A. watched over his sister and other small children playing near the bleachers. A.A. noticed appellant sitting behind him on the bleachers about five feet away, facing the soccer field. According to A.A., appellant looked at him. Appellant left the area and walked in the direction of the soccer fields to play soccer. About twenty or thirty minutes later, appellant returned to sit on the same bleacher. When A.A. turned around this time and looked at appellant, he said appellant was pulling the bottom of his shorts up with one hand and showing his "private parts." A.A. identified what he meant by "private parts" by circling, on a diagram of a male body, the penis and genital area. A.A. did not remember what appellant was doing with his other hand. He said he did not see him rubbing his stomach, bending over, or clutching anything like he was in pain. Appellant did not talk to him or gesture to get his attention. A.A. said two to four girls were playing nearby and on the bleachers. He went and told his mother what he had seen and then gathered the children. A.A.'s mother told the other women what had happened. One of the women, Rosemary Padilla, testified the other mothers were upset and were "looking for bats . . . and stuff to hit him." Padilla said she told the women to "slow down" and she would call the police from her cell phone. As she walked toward the bleacher so that she could describe appellant to the police, she saw appellant putting his penis back in his shorts. She testified that she thought appellant's penis was "hard," although she later said she was not sure. She did not see him do anything to indicate he was in any pain. In fact, earlier in the evening, she had seen him jogging in the park. Padilla also said she was familiar with inguinal hernias but said she was sure she saw appellant's penis, not a hernia. Garland police officer T.A. Griffeth was dispatched to an indecency call at the park and saw appellant sitting alone on the bleachers. When Griffeth approached him, he noticed appellant's shorts were unzipped. Griffeth asked what he was doing, and appellant said he had been out running on the trails. Appellant said he had a pain in his pelvis from running and was "just sitting there rubbing on it." Although appellant did not appear to be ill or in pain, Griffeth said he asked appellant if he wanted him to call a paramedic. Appellant said he did not. Griffeth also testified there were more secluded, permanent bleachers where appellant could have rested that were farther away from the children. Additionally, he said there were places along the jogging trail for a person to stop and rest. Griffeth arrested appellant and took him to jail. There, appellant was asked if he had any medical problems, and he again said his pelvis was hurting. When asked if he needed to see a paramedic or doctor, appellant said no. Officer Jeffrey Lee interviewed appellant at the jail the day after his arrest. Lee said appellant told him he had a "medical condition with his colon" and was trying to relieve the pain when he was arrested. He demonstrated for Lee how he was sitting on the bench in pain, bent over and rubbing his midsection with his hand. He denied that his zipper was down. Appellant's defense at trial was that he was attempting to relieve pain caused by a hernia, not exposing himself, and witnesses simply misperceived his actions. Dr. F.A. Rodriguez, a general and vascular surgeon, saw appellant for the first time about six weeks after this incident. He testified appellant had a bilateral inguinal scrotal hernia. Dr. Rodriguez explained that a hernia is an opening in the abdominal wall through which the intestines can protrude, creating a bulge in the abdominal wall. According to Dr. Rodriguez, appellant's hernia was about the size of an orange and "came all the way down to the testicles on both sides." Several weeks after this incident, Dr. Rodriguez performed two surgeries to repair the condition. Rodriguez was asked what patients would do if they had the condition but did not seek surgical repair. He said it was not unusual for patients to learn to manually push the intestine back into place. On cross-examination, Dr. Rodriguez agreed that pushing the scrotal area to relieve pain would not involve exposing an erect penis. Additionally, he testified a bilateral inguinal scrotal hernia "cannot be confused" with a penis, even though both are in the same area. He also agreed a person would be in excruciating pain if the hernia extended so far it could be seen outside the shorts leg. However, he also said if the person were able to push it in, he would be able to walk around. Appellant testified he had known since 1999 that he had a hernia and, on the day of his arrest, had been experiencing some discomfort. Nevertheless, he went to the park alone to play soccer. He said he parked his car four or five spaces from the bleachers and sat down. He then walked across the fields to try to join in a soccer game, but the group of men refused because they had already started playing. As he walked back across the fields, he said he had sharp pains around his groin and testicles. He said he began looking for an area where he could relieve his pain and that his "best decision" was to return to the bleachers. He did not return to his car because it was "very hot." Once he sat down on the bleachers, he tried to relieve the pain by putting his hands "on the area" and pressing backwards and crossing his legs. He said it was "a little difficult" because it "was a public area" and he "didn't want anybody to think otherwise." Appellant demonstrated for the jury what he did that day to relieve his pain. He testified he was wearing knee-length, loose-legged shorts and a long T-shirt. Appellant testified there were "a lot of children all over the place" but did not remember them being so close that he could reach out and touch them, as one witness testified. He denied seeing A.A. or holding up his shorts and exposing his penis. Finally, he denied that the police officer offered to call an ambulance or paramedic. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. On a legal sufficiency challenge, this court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). As modified by the indictment in this case, a person commits the offense of indecency with a child by exposure if, with a child younger than seventeen and not his spouse, the person exposes any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of the defendant. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (Vernon 2003). The requisite specific intent to arouse or gratify the sexual desire of "the defendant" can be inferred from conduct, remarks, or all the surrounding circumstances. See Bowles v. State, 550 S.W.2d 84, 85 (Tex.Crim.App. (1977). An oral expression of intent is not required; the conduct itself is sufficient to infer intent. Connell v. State, 233 S.W.3d 460, 471 (Tex.App.-Fort Worth 2007, no pet.). Moreover, there is no requirement that a male offender's penis be erect. Id. Exposure has been defined as: "To deprive of concealment; to disclose or unmask something criminal, shameful, or the like." Id.; Balfour v. State, 993 S.W.2d 765, 769 (Tex.App.-Austin 1999, pet. ref'd). Relying primarily on his medical evidence and discounting the credibility of the State's witnesses, appellant argues the State failed to prove he exposed any part of genitals in the presence of a child or that he intended to arouse or gratify the sexual desire of any person. Rather, he suggests that, if anything, the witnesses saw a "hernia bulge" and he was simply trying to relieve the pain by massaging the area. He argues the guilty verdict was based on "hysteria and misperception." We cannot agree. Initially, we note the essence of appellant's arguments hinges on his belief that the witnesses simply were not credible. He complains A.A.'s "knowledge and understanding" of appellant's "conduct and motives" was based on a "brief glance" from several feet away, and once A.A. reported the offense, the "misperception turn[ed] into hysterical allegations by two other adult females." The credibility of the witnesses, however, is inherently a jury function. Jurors were able to assess the witnesses' demeanor and the certainty of what they saw and could determine their believability based on those factors as well as the evidence of the other circumstances at play on the day of the offense. The evidence showed that both A.A. and Padilla saw appellant exposing his penis while sitting on the bleacher with children nearby. A.A., who was only five feet away, saw appellant pulling up the bottom of his shorts to reveal his penis. Padilla saw appellant's penis "coming out of his shorts" and he was trying to put it back in place. Padilla told the jury she was familiar with inguinal hernias and was 100 percent certain that what she saw was appellant's penis, not a hernia. Even appellant's witness, Dr. Rodriguez, testified a penis could not be confused with a bilateral inguinal hernia, even though they are in the same area of the body. Moreover, the evidence was undisputed that children were in the area; even appellant said children were "all over the place." As for A.A.'s presence in particular, A.A. testified appellant looked at him during the first time appellant was sitting on the bench. When appellant returned the second time, he sat in the same place and A.A. had not moved. From this evidence, a jury was entitled to infer that appellant was aware of A.A.'s presence. Finally, A.A., Padilla, and the arresting officer all testified they did not see appellant bending over, crouching, or doing anything to indicate he was in pain. When appellant was offered medical attention, he refused. Additionally, the evidence showed that if appellant had been in pain at the park that day, there were other, more secluded areas he could have gone, including his own car, to perform the manipulation. Appellant, however, chose to sit on the bleacher, with children all around. From this evidence, the jury could have reasonably believed appellant was not relieving any pain, but was exposing himself for his own sexual gratification. While appellant argues the witnesses misperceived the actual events, the jury was entitled to consider the testimony of the eyewitnesses and others, as well as the surrounding circumstances, in rejecting his defense. We note appellant argues he proved his affirmative defense under section 21.11(b) because he showed that he did not use any duress, force, or threat against A.A. Section 21.11)(b) does not apply because the undisputed evidence showed appellant was more than three years older than A.A. See Tex. Penal Code Ann. § 21.11(b)(1) (Vernon 2003). Having reviewed the evidence under the appropriate standards of review, we conclude the evidence was both legally and factually sufficient to support appellant's conviction. We overrule both issues. We affirm the trial court's judgment.