Opinion
02-22-00269-CR
07-27-2023
Christopher Moreno, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from County Criminal Court No. 7 Tarrant County, Texas Trial Court No. 1613165.
Before Birdwell, Wallach, and Walker, JJ.
MEMORANDUM OPINION
Wade Birdwell, Justice.
I. Introduction
Appellant Christopher Moreno was convicted by a jury of the offense of indecent exposure and sentenced to two days in the Tarrant County Jail. Moreno raises three points. First, he contends that the evidence was insufficient to establish that he was reckless as to the presence of another person at the time of the offense. We overrule the first point because evidence of the public location, the presence of other persons in the vicinity, and the video portraying Moreno's acts was sufficient to support the jury's finding as to this element of the offense. Second, Moreno contends that the trial court abused its discretion in overruling his motion to quash the information for failing to name the complainant. We overrule the second point because the information adequately alleged recklessness, and the name of the complainant is not an element of the offense. Finally, Moreno complains that the trial court's judgment incorrectly names his trial counsel. We modify the trial court's judgment to correct this error and affirm the judgment as modified.
II. Background
Moreno was charged by information stating
[t]hat Christopher Moreno . . . did expose any part of [his] genitals with intent to arouse or gratify [his] or any person's sexual desire, and [Moreno] was reckless about whether another was present who would be offended or alarmed by his act, in that he masturbated his exposed penis in his motor vehicle parked at a public recreational park ....
Moreno pleaded not guilty and moved to quash the information on the ground that it did not state any facts establishing the presence of another person to support the recklessness allegation. The trial court heard and denied the motion.
At trial, complainant Donal Brewer, Public Works Director for the City of Blue Mound, testified that he observed a silver pickup truck parked in the parking lot at James Boyles Memorial Park around 5:00 p.m. on September 3, 2019. The park includes ball fields, playgrounds, basketball and tennis courts, a community center, a water plant, and maintenance buildings. The parking lot is located next to and runs along the entrance to the park, which is immediately adjacent to a housing development. Brewer testified that the public works office is located next to the parking lot, and the park is equipped with security cameras.
While monitoring the park's security cameras, Brewer noticed the truck sitting in the parking lot for about fifteen to twenty minutes and grew suspicious when he saw no one enter or exit the vehicle. Brewer focused one of the security cameras on the truck and zoomed in to read the license plate. He then turned the camera to view the cab of the truck and observed the driver masturbating with his genitals exposed. Brewer saved a video from the security camera and called the police.
The video, admitted at trial, reflects that there were no persons in the immediate vicinity of the truck, but two vehicles passed behind the truck as they entered the park. Brewer testified that a girls' softball team was practicing on the ball field at the time, and that it was common for park visitors to come to the public works office to use the restroom or obtain water.
Police Chief Dusty Steel responded to Brewer's call. The truck, however, was gone when he arrived at the park. Based on the video captured by Brewer, Chief Steel tracked the truck to a residence near the park. Chief Steel and another officer went to the residence three days later and contacted Moreno, who owned the truck. Chief Steel testified that Moreno did not deny his conduct and acknowledged that he was aware of other people in the park on the day in question.
Moreno was later charged for indecent exposure. The jury found Moreno guilty, and the trial court sentenced him to two days in the Tarrant County Jail.
III. Point No. 1-Sufficiency of the Evidence
In his first point, Moreno contends that the evidence was insufficient to establish his recklessness about whether another was present who would be offended or alarmed by his act. We disagree.
Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
Elements of the Offense
"A person commits the offense of indecent exposure 'if he exposes . . . any part of his genitals with intent to arouse or gratify the desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.'" Romano v. State, 610 S.W.3d 30, 34-35 (Tex. Crim. App. 2020) (quoting Tex. Penal Code Ann. § 21.08(a)). "A person acts 'recklessly' when he is (1) subjectively aware of a substantial and unjustifiable risk that specific circumstances existed and (2) consciously disregards that risk." Id. at 35 (citing Tex. Penal Code Ann. § 6.03(c)). "The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Tex. Penal Code Ann. § 6.03(c). "[A] culpable mental state must generally be inferred from the circumstances." Romano, 610 S.W.3d at 35.
Sufficiency Analysis
Moreno contends that the evidence is insufficient to support a rational finding of recklessness. Moreno cites evidence that his vehicle was the only one in the parking lot, his vehicle was facing away from the park entrance, the vehicles that entered while he was there passed several car lengths behind him, and Brewer used "sophisticated camera equipment" to "zoom[] in" to view inside of Moreno's vehicle. In other words, "[f]rom Moreno's standpoint, no one was around, much less actually present." Moreno, however, fails to explain how this evidence mitigates the substantial and unjustifiable risk that another person present in the public park would be offended or alarmed by his behavior. See id. at 34-35.
Moreno cites Smith v. State, 309 S.W.3d 10, 16 (Tex. Crim. App. 2010), and Gengnagel v. State, 748 S.W.2d 227, 230 (Tex. Crim. App. 1988), for the proposition that an act of exposure is not inherently reckless. These cases are of no avail for two reasons. First, their holdings are limited to the sufficiency of the indictments and contain no factual analysis to assist our legal sufficiency determination. See Smith, 309 S.W.3d at 19; Gengnagel, 748 S.W.2d at 230. Second, the record here contains evidence from which a jury could infer Moreno's recklessness.
Specifically, the record reflects that Moreno was parked in a parking lot at the entrance to a public park adjacent to a housing development. The park was frequently used by families and children and was in fact being used by a girls' softball team at the time of the offense. Additionally, Brewer observed Moreno masturbating inside of the truck, and the record reflects that anyone walking near the truck could have observed the same thing. Brewer testified that he was offended by what he observed.
Moreno also cites Romano, 610 S.W.3d at 31, as presenting a "salient distinction" from the evidence reflected in the record. Romano was convicted of indecent exposure for masturbating outside of his vehicle in Houston's Memorial Park. Id. A police officer who was patrolling the park on horseback had taken a concealed position in the trees to observe an empty parking lot. Id. The officer observed a vehicle enter and park in the parking lot. Id. Romano exited the vehicle, walked to the rear of the vehicle, pulled down his shorts with one hand, and began masturbating with the other. Id. Romano was arrested and convicted of indecent exposure. Id. at 32-33.
Moreno contends the salient difference is that Romano exited the vehicle, and Moreno did not. According to Moreno, his decision to "seclude[] himself in his vehicle in an empty parking lot" militates against a recklessness finding. This difference does not render Romano inapposite to our determination. The Romano court noted that the offense occurred in "a parking lot that was open and visible to passing road traffic, bicyclists and pedestrians, and anyone using the public restroom facilities or picnic tables immediately nearby," and that exposure of genitalia in a public place "is risky when it is done under circumstances (like time and weather) that make it likely that other people will be present." Id. at 35. The same could be said of the circumstances at issue here.
Recklessness requires a gross deviation from the standard of care that an ordinary person would exercise under the circumstances. Tex. Penal Code Ann. § 6.03(c). "The idea that there would be an ordinary standard of care for masturbating in a public park in broad daylight is 'oxymoronic in nature.'" Romano, 610 S.W.3d at 36. Accordingly, we overrule Moreno's first point.
IV. Point No. 2-Sufficiency of the Information
In his second point, Moreno contends that the trial court erred in denying his motion to quash the information on the grounds that it did not "allege the acts or circumstances relied on to demonstrate that the forbidden conduct was committed in a reckless manner." We disagree.
Standard of Review
The rules regarding the certainty required in an indictment also apply to an information. State v. Laird, 208 S.W.3d 667, 669 (Tex. App.-Fort Worth 2006, no pet.). The sufficiency of an indictment is a legal issue. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When our review of a trial court's denial of a motion to quash turns only on the indictment's sufficiency, we review the trial court's decision de novo. Hughitt, 583 S.W.3d at 626; Moff, 154 S.W.3d at 601.
Analysis
Moreno filed a motion to quash the information arguing that the information was insufficient under the Texas and United States Constitutions and various articles of the Texas Code of Criminal Procedure, including Article 21.15. Specifically, Moreno's motion asserted that the information failed to "identify or indicate the presence of 'another' person." The trial court heard and denied the motion. On appeal, Moreno contends that this left him "legally in the blind as to whom his exposure was directed."
The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008); see also U.S. Const. amend. VI; Tex. Const. art. I, § 10. To provide fair notice, the charging instrument must convey sufficient information to allow the accused to prepare a defense. Barbernell, 257 S.W.3d at 250. In most cases, a charging instrument that tracks the relevant statutory text will provide adequate notice to the accused. Id. at 251. "[S]ubject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements." Smith, 309 S.W.3d at 14 (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)). Thus, the State is not required to allege facts that are merely evidentiary in nature. Id. When recklessness is a part or element of an offense, Article 21.15 of the Code of Criminal Procedure requires "the complaint, information, or indictment [to] allege, with reasonable certainty, the act or acts relied upon to constitute recklessness." Tex. Code Crim. Proc. Ann. art. 21.15.
The information here alleged the elements of the offense and was, thus, sufficient to satisfy due-process notice requirements. See Smith, 309 S.W.3d at 14. The information also alleged that Moreno "masturbated his exposed penis in his motor vehicle parked at a public recreational park." This is sufficient to allege recklessness under Article 21.15. See id. at 16 ("The information would have sufficiently apprised [appellant] of the act or acts constituting recklessness if the State had alleged that [appellant] exposed his penis and masturbated in a public place."); State v. York, 31 S.W.3d 798, 802 (Tex. App.-Dallas 2000, pet. ref'd) ("By alleging that [appellant] exposed his penis at a public park, the State alleged circumstances indicating [appellant] was aware of the risk that another person was present who would be offended by his act of exposing himself and that he acted in conscious disregard of that risk.").
Moreno cites Hankins v. State, 85 S.W.3d 433, 437 (Tex. App.-Corpus Christi- Edinburg 2002, no pet.), for the proposition that the State was required to allege that the act was directed to a specific person. Hankins cites no authority for this proposition, and "the person to 'whom the [offense] is directed is not an essential element' of indecent exposure." Metts v. State, 22 S.W.3d 544, 547 (Tex. App.-Fort Worth 2000, pet. ref'd) (quoting Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim. App. 1977)). Thus, the name of the person to whom Moreno allegedly exposed himself is a fact that is merely evidentiary in nature, and the State was not required to include it in the information. See Smith, 309 S.W.3d at 14. Accordingly, the trial court did not err in denying Moreno's motion to quash, and we overrule Moreno's second point.
V. Point No. 3-Modification of the Judgment
In his third point, Moreno asks us to modify the trial court's judgment to correct the identification of his trial counsel. The State agrees.
We may modify a judgment to make the record speak the truth when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). This includes the correction of counsel's name. See Hooks v. State, No. 05-15-00186-CR, 2016 WL 3541542, at *3 (Tex. App.-Dallas June 21, 2016, no pet.) (mem. op., not designated for publication). The judgment indicates that Moreno was represented by Camrie Ventry, but the record reflects that Moreno was represented by Courtney Miller and Thomas Mitch Dooley. We therefore modify the trial court's judgment to reflect that Moreno was represented by Courtney Miller and Thomas Mitch Dooley.
VI. Conclusion
Having overruled Moreno's first and second points and having modified the judgment to correct Moreno's trial counsel information, we affirm the trial court's judgment as modified.