Opinion
No. 04-05-00295-CR
Delivered and Filed: August 22, 2007. DO NOT PUBLISH.
Appeal from the County Court at Law No. 6, Bexar County, Texas Trial Court No. 870052, Honorable Philip Meyer, Judge Presiding. REVERSED AND RENDERED.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This appeal is on remand from the Texas Court of Criminal Appeals. The State contends on appeal that the trial court erred in granting Albert W. McKnight's motion for new trial based on alleged charge error concerning the lesser included offense of disorderly conduct. In our first opinion, we determined that the trial court's discretion to grant a new trial based on jury-charge error was not limited by the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). See State v. McKnight, 217 S.W.3d 596, 599-600 (Tex.App.-San Antonio 2006), vacated, 213 S.W.3d 915, 916 (Tex.Crim.App. 2007). The Texas Court of Criminal Appeals vacated our judgment and remanded the case for reconsideration in light of its opinion in Igo v. State, 210 S.W.3d 645, 646-47 (Tex.Crim.App. 2006), in which the court held that Almanza is the proper standard to review a trial court's ruling on a motion for new trial based on a claim of jury-charge error. See State v. McKnight, 213 S.W.3d at 916. Applying the Almanza standard to the claim of jury-charge error in the instant case, we conclude that the trial court erred in granting the motion for new trial.
Background
McKnight was charged with indecent exposure after an undercover park ranger, Officer Gabriel Escobedo, arrested him for exposing his penis to him in the woods at Brackenridge Park. The jury charge submitted both the indecent exposure charge and a lesser included offense of disorderly conduct. The jury convicted McKnight of disorderly conduct. The relevant portion of the charge relating to disorderly conduct reads as follows: If you find the defendant Not Guilty of the offense [of] Indecent Exposure, read and consider the following regarding the lesser included offense of Disorderly Conduct:Our law provides that a person commits an offense if he exposes any part of his genitals and he is reckless about whether another person is present who will be offended or alarmed by his act.
To warrant a conviction of the defendant in this case, you must find from the evidence beyond a reasonable doubt that:
1) the defendant, Albert McKnight, did expose any part of his genitals;
2) at the time defendant exposed his sexual organ, if he did, Gabriel Escobedo, was in plain view of the defendant, and within such distance as to be able to see whether the Defendant [italics is handwritten insert] did expose any part of defendant's genitals; and
3) such exposure of any part of defendant's genitals by defendant to Gabriel Escobedo, if any, under the circumstances, was conduct that was reckless about whether another is present who would be offended or alarmed by defendant's alleged act.If you have a reasonable doubt as to whether any one or more of the foregoing matters have been established by the evidence, you cannot convict the defendant of the lesser included offense of Disorderly Conduct. Now, if you find from the evidence beyond a reasonable doubt that on or about November 29, 2003, in Bexar County, Texas, the defendant, Albert W. McKnight, did intentionally or knowingly expose any part of his genitals to Gabriel Escobedo, while the said Gabriel Escobedo was present and in plain view of the defendant and within such distance of the defendant as to be able to then and there see any part of the defendant's genitals, and if you further find from the evidence beyond a reasonable doubt that defendant's act of exposing any part of his genitals, if he did, in Gabriel Escobedo's presence and in plain view of Gabriel Escobedo, and within such distance as that Gabriel Escobedo was then and there able to see any part of his [sic] defendant's genitals, was conduct that established that defendant was reckless about whether another person was present who would be offended or alarmed by said act of exposure, then you will find the defendant guilty of the lesser included offense of Disorderly Conduct. McKnight filed a motion for new trial asserting that the jury had been misdirected about the law because: (1) the charge omitted the "public place" element with regard to the disorderly conduct offense; and (2) the charge contained the phrase "any part of his genitals" as opposed to the term "genitals" in the disorderly conduct charge. The trial court granted the motion for new trial, handwriting the following as its reason on the typewritten order, "Due to error in the portion of [the] jury charge related to Class C lesser included offense of Disorderly Conduct."
Discussion
Although the State challenges the trial court's decision to grant McKnight's motion for new trial, the Texas Court of Criminal Appeals has instructed us that the proper standard for reviewing a complaint of jury-charge error in a motion for new trial is "Article 36.19, as construed in Almanza." Igo, 210 S.W.3d at 647. In evaluating an allegation of charge error, we must first decide whether there was error in the jury charge. Almanza, 686 S.W.2d at 174; see also Ex parte Smith, 185 S.W.3d 455, 464 (Tex.Crim.App. 2006). If so, the next step is to assess the harm that the deficient jury charge caused the defendant. Almanza, 686 S.W.2d at 171, 174; Ex parte Smith, 185 S.W.3d at 464. Whether sufficient harm resulted from the charging error to require reversal depends upon whether the defendant specifically objected to the error at trial. Ex parte Smith, 185 S.W.3d at 467. When there has been a timely objection made at trial, we look only for "some harm." Id. (citing Almanza). By contrast, where the error is urged for the first time on appeal, we look for "egregious harm." Id.; Guevara v. State, 191 S.W.3d 203, 205-06 (Tex.App.-San Antonio 2005, pet. ref'd). The record must demonstrate that the defendant has suffered actual, not just theoretical, harm. Almanza, 686 S.W.2d at 174; Guevara, 191 S.W.3d at 206. On appeal, we assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Guevara, 191 S.W.3d at 206. If the defendant failed to object to the jury charge, he must show that the error caused him such egregious harm that he did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Guevara, 191 S.W.3d at 206.1. Objections Made
During the charge conference McKnight's attorney made the following objection with regard to the inclusion of disorderly conduct as a lesser included offense:MR. PARKS: We do not believe there was evidence to include a lesser charge. Has to be evidence that would indicate to a jury if an offense was committed.
[Discussion regarding wording.]
MR. PARKS: We would vehemently oppose the charge being offered at all in any context, regardless of the language that is utilized. So I want the Court to be aware we are not really arguing over the language and how they prepare it and what would be the easiest to prepare. Obviously you are going to do it the easiest way for Lori. So we don't think it is applicable. We don't think that from the evidence if an offense is committed the offense was committed was judicial [sic] conduct. We don't believe there is any evidence to support, so we vehemently object to including it in the charge.
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THE COURT: . . . Any other objections to that portion of the lesser included offense, other than the one you object to that is being included at all?
MR. PARKS: We just rest on that particular objection.Accordingly, McKnight was not objecting "over the language" of the charge but to the very inclusion of disorderly conduct as a lesser included offense. Because no objection was made with regard to the language submitted in the charge, the trial court could only grant the motion for new trial under the Almanza standards if the record demonstrated egregious harm.
2. Public Place
A person commits the offense of disorderly conduct if he intentionally or knowingly exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act. Tex. Pen. Code Ann. § 42.01 (Vernon Supp. 2005). The State concedes that the jury charge instruction on disorderly conduct submitted in this case omitted the element of public place. The record, however, fails to establish egregious harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Guevara, 191 S.W.3d at 206. The occurrence of the offense in a public place was not a contested issue. Both Chief Stephen Baum and Officer Gabriel Escobedo testified that the wooded area of Brackenridge Park where the offense occurred was a public place. Officer Escobedo testified there were plenty of people in the park on the day of the offense. The jury charge contained the following definition of public place, "A `Public Place' means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops." Finally, the State made several references to the public place requirement of the disorderly conduct offense during closing argument, including the following:MR. HERBERG: . . . And guess what, when you go out into a park to publicly urinate, that's violating the law. And you have the law that will be given to you to read back there, and you will see there is no potty exception for the disorderly conduct statute. And so all this business about going out and saying he had to pee-
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MR. HERBERG: The testimony has been, and you are adults, you have common sense. When you get arrested, when you do something wrong in a public park, public urinating, you may be fined. Judge McKnight doesn't want to do that. He doesn't want to pay the fine. Disorderly conduct. Doesn't want to have the punishment. . . .Therefore, considering the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, and the argument of counsel, the record failed to establish egregious harm. See Almanza, 686 S.W.2d at 171; Guevara, 191 S.W.3d at 206.