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concluding trial court did not err by refusing jury instruction on lesser-included offense of indecent exposure where defendant was convicted of indecency with a child by exposure, defendant did not testify or offer evidence in guilt phase, and witnesses testified children were present and defendant "could not have failed to see" them
Summary of this case from Velasquez v. StateOpinion
No. 05-09-00818-CR
Opinion Filed January 4, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-50274-PQ.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
OPINION
A jury convicted appellant, Eric Caesar Joseph, of indecency with a child. The trial court found "true" the enhancement provisions and sentenced appellant to imprisonment for twenty-five years. In four issues, appellant attacks the legal and factual sufficiency of the evidence to establish his guilt, asserts the trial court erred by not instructing the jury on the lesser included offense of indecent exposure, and complains that the victim's mother was permitted to give opinion testimony that appellant was trying to arouse himself sexually. We affirm the trial court's judgment. BACKGROUND A jury convicted appellant of indecency with a child. Tamequia Tinnion resided at an apartment complex on Beck Avenue in Dallas, Texas, with her children, including her two year old son. On the afternoon of January 9, 2009, Tinnion's son was outside playing with a neighbor child. Tinnion testified that her son ran into their apartment to tell her that appellant was outside "playing with himself." Terry Carreon, who resided in the apartment next to Tinnion's, was leaving her apartment when she saw appellant "parading himself" all around the courtyard of the apartment complex with his penis exposed, touching his penis. According to Carreon's testimony, appellant was not masturbating but was "grabbing himself." Carreon stated that several children, including Tinnion's son, were in the courtyard at the time. Because she did not have a phone, Carreon went to Tinnion's apartment to tell her about appellant and ask her to call the police. Tinnion went outside and observed appellant just standing there, playing with his penis and grinning. She reported him to the manager of the apartment complex and called the police. She then got her gun and went downstairs to confront appellant. When she asked him what he was doing and demanded that he stop, he remained standing in the doorway of an apartment, penis exposed, and just grinned at her. Appellant went inside the apartment once the police arrived. Dallas patrol officers received a dispatch that a man was exposing himself at the apartment complex. When the police arrived at the apartment complex, a number of adults and children were outside and pointed to a specific apartment. The police knocked on the door of the apartment and appellant opened the door with his penis still exposed. Officer Terry stated he smelled a strong chemical smell when appellant opened the door. Officer Hedges stated appellant seemed a bit confused and "wasn't quite there." The officers attempted to question appellant but he did not explain his conduct. Ultimately, appellant was arrested, handcuffed, and put in the squad car. During the punishment phase of the trial, appellant testified he could not remember the incident. He stated that the medications he takes for AIDS cause him to occasionally feel confused. He also stated he had part of a beer and a "sip" on a "blunt" that day. His mother testified his medications frequently cause him to be disoriented and confused. DISCUSSION Legal and Factual Sufficiency In his first and second issues, Appellant challenges the legal and factual sufficiency of the evidence to show he had the intent to arouse or gratify his sexual desire, or the knowledge that children were present. The Texas Court of Criminal Appeals recently determined that the Jackson v. Virginia legal sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894 (Tex. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Accordingly, we will consider the argument appellant raises regarding factual sufficiency as supplementary to his legal sufficiency issue. To obtain a conviction for indecency with a child by exposure, the State was required to prove beyond a reasonable doubt that appellant, with intent to arouse or gratify the sexual desire of any person, exposed his genitals knowing a child younger than seventeen years of age was present. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (West Supp. 2010). Appellant asserts the evidence is legally insufficient to show intent to arouse or gratify sexual desire because there is no evidence that he had an erection, was masturbating, or engaged in any attention-getting conduct such as beckoning, making motions with his hands, lips, pelvis, or penis, or pointing towards himself. He also claims that because it is apparent from the record that he was oblivious to his surroundings, there is no direct evidence that he knew children were around. The record reflects appellant walked around the courtyard of the apartment complex, "playing with" or "grabbing" his exposed penis while children were running around and playing in the courtyard and on the stairs of the apartment complex. Tinnion testified that even after she confronted appellant to ask why he was doing that in front of her son and his friend, appellant just stood there, penis in hand, and grinned at her. The requisite knowledge and intent can be inferred from appellant's conduct, remarks and all surrounding circumstances. See Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.-San Antonio 2000, pet. ref'd); Ercanbrack v. State, 646 S.W.2d 480, 481-82 (Tex. App.-Houston [1st Dist.] 1982, no pet.). Attention-getting acts such as beckoning, motioning, or pointing are not required. An overt act characterized as an attention-getting device is evidentiary and not an element of the offense of indecency with a child. Turner v. State, 600 S.W.2d 927, 930 (Tex. Crim. App. [Panel Op.] 1980); Ercanbrack, 646 S.W.2d at 481-82. Further, the offense does not require that arousal or gratification actually occur. See Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.-Corpus Christi 2000, pet. ref'd). In Ashanti v. State, this court concluded the actor's conduct, stoking his penis in the presence of his step-daughter, was legally and factually sufficient to support the jury's finding that he had the requisite intent. Ashanti v. State, No. 05-96-01920-CR, 1999 WL 39041, at *3 (Tex. App.-Dallas Feb. 1, 1999, pet. ref'd). Appellant argues he "was oblivious to his surroundings, dazed, and confused, to the point where he may well have not formed any intent at all." He also asserts there is no direct evidence that he knew children were around. Although the police officers testified that appellant seemed confused and "wasn't all there," the record does not support appellant's contention that he was completely oblivious to his surroundings. Tinnion confronted appellant and demanded that he stop exposing himself in front of the children in the courtyard. If he failed to notice the children before being confronted by Tinnion, she alerted him to their presence. Yet appellant continued to stand in the door of the apartment, playing with his penis and grinning at Tinnion. Also, we note that appellant had the presence of mind to go into the apartment and close the door when the patrol cars drove up to the apartment complex. Viewing the evidence in the light most favorable to the verdict, we conclude the jury was justified in inferring and finding the requisite knowledge and intent elements of the offense. We overrule appellant's first and second issues. Instruction on Lesser Included Offense In his third issue, Appellant contends the trial court erred by denying his request to charge the jury on the lesser included offense of indecent exposure. Appellant argues that he was merely reckless in his conduct; therefore, he could be guilty of indecent exposure rather than indecency with a child. The State counters, noting there is no evidence that appellant's conduct with respect to the presence of others was merely reckless because appellant admitted knowing there were others in the apartment complex. The State argues there must be some evidence directly germane to the lesser included offense to warrant its submission. An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, or if it differs from the offense charged only in that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (West 2006). A trial court must submit a charge on a lesser included offense if (1) the lesser included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record which would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). Texas has adopted the cognate pleadings approach to the first step of the lesser included offense analysis. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first step is a question of law and requires us to compare the elements of the offense as charged with the statutory elements of the potential lesser included offense. Id. We do not consider the evidence presented at trial. Id. at 535. The first step is met if the elements of the lesser offense are included within the proof necessary to establish the offense as charged. Id. at 535-36. The Texas Court of Criminal Appeals has determined that indecent exposure is a lesser included offense of indecency with a child by exposure. See Ex parte Amador, No. PD-1072-09, 2010 WL 3984773, at *4 (Tex. Crim. App. Oct. 13, 2010); Briceno v. State, 580 S.W.2d 842, 844 (Tex. Crim. App. [Panel Op.] 1979). "Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who `will be offended or alarmed' by the defendant's act, see Tex. Pen. Code § 21.08, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not `offended or alarmed' by the defendant's act. See Tex. Pen. Code § 21.11." Amador, 2010 WL 3984773, at *3. We conclude that indecent exposure is included within the proof necessary to establish the charged offense, and the first step of the lesser included offense analysis is met. The second step of the lesser included offense analysis requires us to review the record to determine if some evidence exists to support giving the lesser included offense instruction to the jury. Hall, 225 S.W.3d at 536. That is, we determine whether the record contains some evidence that "would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to the lesser charge. Id. Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser included offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser included offense should be given. Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 1689 (2010). Appellant contends it is clear from the evidence that he was oblivious to his surroundings and was unconcerned about an angry mother with a gun or three police officers trying to talk to him. Appellant argues that the evidence that he went outside with his penis exposed without considering circumstances such as the time of day, or that people were regularly outside in the courtyard, was evidence of reckless conduct. Therefore, appellant asserts he should have been given the requested instruction for the lesser-included offense of indecent exposure. However, the record reflects that appellant did not testify or offer any evidence during the guilt phase of the trial. Both Tinnion and Carreon testified there were children playing in the courtyard on the afternoon in question and appellant could not have failed to see the children as he "paraded" around the courtyard, playing with himself. We conclude appellant failed to satisfy the second step of the lesser included offense analysis. He offered no evidence, and there is no evidence in the record to show that if appellant was guilty, he was guilty only of indecent exposure. We therefore conclude the trial court did not err in denying appellant's request for a lesser-included offense instruction. We overrule appellant's third issue. Opinion Testimony Tinnion was allowed to testify that she thought appellant was trying to arouse himself. In his fourth issue, Appellant argues Tinnion was not shown to be qualified to give her opinion as to his intent and the trial court erred in allowing such testimony. Appellant bases his argument on rule 701 of the Texas Rules of Evidence which allows a lay witness to give opinion testimony if such opinion is rationally based on the perceptions of the witness. The State contends there was no objection raised to the question that ultimately produced the testimony about which appellant complains. Therefore, according to the State, the matter was not preserved for review. The State also points out that because appellant's complaint on appeal is based on rule 701 of the Texas Rules of Evidence, it does not comport with the objection voiced by appellant in the trial court. To preserve a complaint for appellate review, a party must make a timely and specific objection and obtain an express or implied ruling on that objection. Tex. R. App. P. 33.1(a). An objection must be made each time inadmissible evidence is offered unless the complaining party obtains a running objection. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). Even though an objection to evidence is properly made, subsequent presentation of essentially the same evidence without objection waives error. See Thomas v. State, 226 S.W.3d 697, 704 (Tex. App.-Corpus Christi 2007, no pet.); Salazar v. State, 127 S.W.3d 355, 362 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd); Williams v. State, 840 S.W.2d 449, 461-62 (Tex. App.-Tyler 1991, pet. ref'd). The record reflects that appellant initially objected to the question posed to Tinnion because it called for speculation. Upon objection by appellant's counsel, the trial judge instructed the witness that she was not to speculate but to base her response on what she observed. With that admonition, the trial court overruled the objection. The prosecutor then re-phrased the question, asking: "And based on what you observed, Ms. Tinnion, what you saw, was that man trying to arouse himself sexually out there with those kids around?" This question drew no objection. We conclude that because appellant failed to assert an objection to the subsequent question, appellant failed to preserve error as to Tinnion's testimony. Appellant complains the trial court erred in admitting harmful opinion testimony that appellant was trying to arouse himself sexually in violation of Texas Rule of Evidence 701. Appellant asserts that admission of Tinnion's testimony was error because the record was insufficient to show that the witness had personal knowledge of facts that would allow her opinion to be rationally based and her opinion attempted to communicate the mental state of appellant. At trial, however, appellant merely objected that the prosecutor's question called for speculation. Appellant's objection on appeal does not comport with his complaint below; thus, it is waived. See Tyner v. State, No. 05-02-01372-CR, 2003 WL 21962447, at *6 (Tex. App.-Dallas Aug. 18, 2003, no pet.). We overrule appellant's fourth issue. CONCLUSION Having overruled all of appellant's issues, we affirm the judgment of the trial court.