Murphy v. State

Full title: TIMOTHY D. MURPHY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 28, 2011

No. 05-09-01188-CR (Tex. App. Apr. 28, 2011)

Opinion

No. 05-09-01188-CR

Opinion issued April 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the County Criminal Court No. 8, Dallas County, Texas Trial Court Cause No. MB0889255J.

Before Justices FITZGERALD, LANG-MIERS, and FILLMORE. Opinion By Justice FITZGERALD.

OPINION

KERRY P. FITZGERALD, Justice.

A jury convicted appellant Timothy D. Murphy of indecent exposure. The trial court sentenced him to 180 days' confinement, probated for twelve months of supervised probation. In a single appellate issue, appellant contends the trial court committed fundamental error by including a definition that was not related to a trial issue in the jury charge. We affirm the trial court's judgment. The information charged that appellant:

expose[d] to R. CATLIN his genitals with the intent to arouse and gratify the sexual desire of TIMOTHY D. MURPHY and said defendant did so recklessly and in conscious disregard of whether another person was present who would be offended and alarmed by such act, to wit: BY EXPOSING SAID DEFENDANT'S GENITALS AND BY MASTURBATING IN THE PRESENCE OF R. CATLIN IN NORBUCK PARK, A PUBLIC PARK LOCATED IN THE 100 BLOCK OF NORTH BUCKNER BOULEVARD, DALLAS, DALLAS COUNTY, TEXAS.

Detective Ronald Catlin, the "R. Catlin" referred to in the indictment, was the single witness at trial. Catlin, a detective on the Dallas Police Department's vice squad, was at Norbuck Park on the evening in question to investigate sexual activity occurring inside the park, including indecent exposure or public lewdness. Norbuck Park is a public park; at the time it contained a number of baseball fields and a nature trail. It also contained a single set of restrooms, one for men and one for women, close to a parking lot. Catlin and his partner waited by the parking lot and eventually followed one suspect into the men's restroom. The suspect began to change his clothes in one of the room's open stalls and then-while looking toward Catlin's partner-pulled out his erect penis and began masturbating. Before the detectives could identify themselves to the suspect, appellant entered the restroom. Appellant walked to the same stall where the suspect was masturbating, stood next to the suspect, and then removed his own erect penis and began to masturbate as well. The detectives identified themselves to both men and obtained the necessary information from them to file an at-large case against each of them. Catlin testified that there were still people in the park at the time of the incident and that "basically anybody" could have walked in during that time. Catlin considered appellant's act of masturbating in the restroom to be offensive; in his opinion, the act would have alarmed someone who walked into the restroom and saw it. The trial court charged the jury on indecent exposure, instructing that a person commits an offense if he exposes any part of his genitals with the intent to arouse or gratify the sexual desire of any person and if he is reckless as to whether another person is present who will be offended or alarmed by his act. See Tex. Penal Code Ann. § 21.08(a) (West 2003). The court then defined two terms. First it explained how a person can be "reckless" in his conduct:

A person acts recklessly or is reckless with respect to circumstances surrounding his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist. 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.

And then the court defined "public place":

A public place as used herein means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets and highways.

The court's application paragraph read:

Now, bearing in mind these instructions, if you find from the evidence beyond a reasonable doubt that on or about the 9th day of July, 2007, in Dallas County, Texas, the defendant, TIMOTHY D. MURPHY, did unlawfully then and there expose to R. Catlin genitals with intent to arouse and gratify the sexual desire of TIMOTHY D. MURPHY, and said defendant did so recklessly and in conscious disregard of whether another person was present who would be offended and alarmed by such an act, to wit: by exposing said defendant's genitals and masturbating in the presence of R. Catlin in Norbuck Park, a park located in the 100 block of North Buckner Boulevard, Dallas, Dallas County, Texas, you will find the defendant guilty as charged in the Information.

The trial judge asked whether either side had any objections to the charge. The prosecutor responded that he had none; defense counsel answered, "No, Your Honor." In his single issue on appeal, appellant contends the trial court's insertion of the definition of "public place" into the jury charge was fundamental error, because the term was neither included in the charging instrument nor an appropriate issue for trial. Appellant correctly states that the term "public place" is not mentioned in the penal code's description of the offense of indecent exposure. See Tex. Penal Code § 21.08(a). Appellant argues that inclusion of the definition of "public place" in the charge could have misled the jury as to the essential elements of the charged offense. Specifically, he contends the jury could have believed the State proved the offense if it merely established the conduct occurred in a public place, rather than proving the conduct was performed recklessly, as the statute requires. We agree that including the definition of "public place" in the charge, when that term was not an element of proof at trial, was error. But because appellant stated that he had no objection to the charge, we will not reverse for jury-charge error unless the record shows egregious harm to him because of the error. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). To meet this standard, the error must be so harmful that it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). We cannot conclude any harm caused by the extraneous definition in appellant's charge was egregious. The charge's application paragraph instructed jurors correctly that they were to find appellant guilty only if they found from the evidence that appellant acted recklessly. The term "public place" is not mentioned in the application paragraph. And appellant has made no complaint concerning the application paragraph. "Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Lewis v. State, 815 S.W.2d 560, 562 (Tex. Crim. App. 1991) (erroneous abstract charge on transferred intent not error when theory was not applied to facts in application paragraph). Because the charge error could not have caused egregious harm in this case, we overrule appellant's issue. We affirm the judgment of the trial court.