Opinion
No. 10-04-00292-CR
Delivered and filed May 16, 2007. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2 McLennan County, Texas. Trial Court No. 20034654CR2.
Before Justice Vance, Judge Charles F. Baird, and Judge Stephen Ellis
Judge of the 299th District Court of Travis County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
Judge of the 35th District Court of Brown and Mills Counties, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
MEMORANDUM OPINION ON REMAND
H. F. Westerman, Jr., an elected constable in Falls County, was convicted of indecent exposure for masturbating in his truck in an H.E.B. grocery store parking lot. The trial court sentenced him to 120 days in jail, probated for eighteen months, and a $2,000 fine, with $1,800 probated for eighteen months. Westerman appealed, arguing that (1) the evidence is legally insufficient; (2) the evidence is factually insufficient; and (3) he was denied effective assistance of counsel. In our first opinion, we held that the evidence was legally sufficient but agreed with Westerman's complaint that he was denied effective assistance of counsel. Westerman v. State, 2005 WL 1484056 (Tex.App. — Waco June 22, 2005) (mem. op.) (not designated for publication). On the State's petition for discretionary review, the Court of Criminal Appeals reversed our decision on ineffective assistance and remanded the appeal to us to address Westerman's factual sufficiency issue. Westerman v. State, 2006 WL 2694388 (Tex.Crim.App. Sept. 20, 2006) (not designated for publication). We will affirm.Standard of Review
In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEXAS L. REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the factfinder's weighing of the evidence and to disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17. Because the opinion of the Court of Criminal Appeals thoroughly sets out the evidence, we quote from it at length:Heather Reyna, a Waco resident and owner of a real estate company, testified that she went grocery shopping at H.E.B on June 26, 2003, at about 5:00 p.m. She parked right up front. An "older, beat up" camper truck was parked face-to-face with her Jaguar. She noticed a man, later identified as appellant, sitting in the passenger seat. Ms. Reyna did her shopping and then walked back to her car with her bags about twenty minutes later. She noticed that appellant was still sitting in the passenger seat of the truck. She had to step up onto the curb to get to her car. She said, "As I walked up the curb, I noticed that [appellant] had his underwear pulled down with one hand and was masturbating with his other hand." Ms. Reyna said he was looking out his window to where "there was some kids and a lady walking." She said that she had "[n]o doubt at all" that appellant was masturbating.
Ms. Reyna quickly got in her car and decided to call 911 "because this is not the right place." She backed out, drove to the edge of the parking lot, and called 911. The operator asked her for a description of the truck and its license plate number. Ms. Reyna, still watching the truck, noticed that appellant "crawled out of the passenger seat, and crawled into the driver's seat, put on his hat, put on his seat belt, and he backed up." Ms. Reyna, trying to get the license plate number, followed as appellant drove across the street to the Target parking lot.
According to Ms. Reyna, when appellant noticed her following him, he drove out of the Target lot. She followed. When appellant came to a red light, he saw that she was still behind him, so he ran the light. Ms. Reyna followed, also running the red light and still on the phone to 911. When the police pulled appellant over, Ms. Reyna stopped as well and gave the responding officer a written statement. She testified that she called 911 because "to be parking out on the front row, in the very front row, doing that kind of stuff, I just feel like [that] should be something that you do elsewhere besides in public."
Officer Andy O'Neill testified that he was dispatched to find Ms. Reyna who was following appellant's truck. He testified that he "pulled in between the silver Jag and the truck to pull the vehicle over, and the silver Jaguar pulled in the parking lot behind us." According to Officer O'Neill, appellant was completely dressed and also had on a badge, a pistol in a leather holster, and a cowboy hat. When Officer O'Neill told him why he had been pulled over, appellant just said it "hadn't happened." Appellant did not say anything about having had an upset stomach, and Officer O'Neill did not see any Pepto-Bismol bottle. Officer O'Neill saw nothing out of the ordinary — no tell-tale evidence of recent masturbation, no "napkins in the floorboard, in the seat, . . . any kind of pornographic material, magazines, anything like that, clothes being undone, belts being unbuckled, things like that." He let appellant go, and he took a statement from Ms. Reyna. Then she, too, went on her way. The State rested its case.
Appellant testified that he drove to Waco to meet his friend, Peggy Hendrix, to play bingo. They were to meet at Target. When he got to Waco, he went to the Target first, but he didn't see Ms. Hendrix's van. He then went to the H.E.B. because he needed to use the restroom. After using the restroom, he pulled out of his parking spot and started to exit the lot, but then "the urge hit" him again. He had "diarrhea something fierce that day." He re-parked, this time right up front and went back in the H.E.B.
He testified that he bought a bottle of Pepto-Bismol and got in on the passenger side: "What I had done when I got back in the pickup, I loosened my belt, undone it, and I took my weapon off." He said he then sat in his truck for 15 to 20 minutes, "sitting there, staring off in space most of the time," waiting for his upset stomach to settle down.
When asked whether he ever had his penis in his hand appellant replied, "No, Sir. I had that bottle of Pepto-Bismol between my legs, and I was shaking it up and down like that, for maybe two or three seconds." He also denied that his clothes were ever loose enough that Ms. Reyna could have seen his underwear. He added that "as big as my stomach is, I don't think she could have seen me." After he started feeling better, he "crawled over, just like she said" to the driver's side, started up his truck, and left. He then returned to the Target to look for his friend's van, which wasn't there. He started towards the bingo hall because the backup plan was to meet there at 5:00.
Appellant said that, before he reached the bingo hall, "I looked behind me, and it looked like the whole city of Waco was lit up with police cars." Appellant described the stop as being very short, and, after Officer O'Neill let him go, he went to the Dairy Queen to get a milk shake. Then he waited in his truck at the bingo hall for his friend Peggy, who arrived a few minutes later. Appellant testified unequivocally that he never noticed Ms. Reyna at the H.E.B., never noticed that she was following him in her Jaguar, did not run a red light (it might have been yellow), and never exposed himself in the H.E.B. parking lot.
On cross-examination, the prosecutor asked whether Peggy, appellant's friend, was "here today to confirm this story." Appellant said no. When asked why he didn't say anything about not feeling well to Officer O'Neill, appellant said he didn't have much of a chance to say anything because, after Officer O'Neill brought his identification back, he told him he was free to go, "so I took it at that." Asked whether he told Peggy about the whole incident, he said, "Sure did. Yes, ma'am."Westerman, 2006 WL 2694388, at *1-3 (footnotes omitted). The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The evidence is not factually insufficient merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). In this case, the jury was free to reject Westerman's testimony. See Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001); Chambers, 805 S.W.2d at 461. It clearly did so, as the verdict indicates that the jury believed Reyna and disbelieved Westerman. Considering all of the evidence in a neutral light, we hold that the jury was justified in finding Westerman guilty. See Watson, 204 S.W.3d at 414-15. Accordingly, the evidence was factually sufficient. We overrule Westerman's second issue and affirm the trial court's judgment. Affirmed