Opinion Filed August 17, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Grayson County, Texas, Trial Court Cause No. 2010-2-83.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
Duaine Allen Barton appeals his conviction for the offense of display of harmful material to a minor. See Tex. Penal Code Ann. § 43.24(b)(2) (West 2011). In two issues, appellant contends the trial court erred in denying his requests to quash the information and for a jury instruction on the offense of obscene display, which he claims was a lesser included offense. We affirm the trial court's judgment.
Section 43.24 was amended during the 2011 regular legislative session to add subsection (c-1), which provides "[i]t is a defense to prosecution under this section that the actor was the spouse of the minor at the time of the offense." Act of June 17, 2011, 82nd Leg., R.S., ch. 497, §§ 1-3, 2011 Tex. Sess. Law. Serv. (West, Westlaw through June 2011 amendments). The change in law applies only to an offense committed on or after September 1, 2011, the effective date of the change.
Background On December 14, 2009, Denison police officer Donald Rhodes responded to a 911 call at the Denison Public Library. The call came from an adult library patron who had taken her three children to the library and saw appellant watching a pornographic video on one of the library computers. The computer appellant was using was located approximately fifteen to twenty feet from the children's section of the library. The computer was also situated just two to three feet away from a path of footprints placed on the floor by the library staff used "to walk kids and parents back to the children's area. . . ." The complaining library patron had just walked with her children past the computers using the path of footprints. After Rhodes obtained information that three children had seen the video, he arrested appellant. Appellant was charged with the offense of display of harmful material to a minor through an information that alleged:
that on or about the 14th day of December, 2009, . . . DUAINE BARTON did intentionally or knowingly display harmful material, to wit: internet pornography, by viewing it on a computer in a public library, and the defendant knew that said material was harmful, and the defendant was reckless about whether a minor was present who would be offended or alarmed by the display in that he utilized a computer near the children's section of a public library. Arguing the information did not allege an offense because it did not name a minor to whom the harmful material was allegedly displayed, appellant sought to quash the information. He also asserted the act of looking at Internet pornography is a constitutionally-protected activity, and therefore, the application of penal code section 43.24 to the facts of this case violated his First Amendment protections. The trial court denied the motion to quash, and the case proceeded to trial. At trial, the jury heard testimony from A.M., who was twelve on December 14, 2009. A.M. testified she remembered that day because "there was somebody doing some gross things in the library." She explained she went to the library that day with her mom and sister to "do some fun stuff on the computers." She sat at the computer next to a man she identified as appellant, and after logging in, she looked over and saw appellant watching a video of a woman with two men. She recounted "the men were touching [the woman] and doing gross things to her." Because she was upset, A.M. found her mom and told her about the incident. A.M. testified that when she went to use the computer, she also saw two little boys standing there. Appellant testified he went to the library to check his e-mail. He knew that some of his e-mails would contain pornographic material and selected that particular computer because it was "kind of out of the way." He testified he did not see any kids around him and that he specifically did not see A.M. Appellant explained that if he had seen any kids, he "wouldn't have pulled up no more sites." He admitted, however, that he was caught up in what he was watching and was not paying attention to his surroundings; he testified he would not see a child if the child just walked by. He also admitted he had seen children at the library playing games on the computers. During the charge conference, appellant requested a jury instruction on what he argued was a lesser included offense of obscene display. See Tex. Penal Code Ann. § 43.22(a) (West 2011). The trial court denied the request and instructed the jury on display of harmful material to a minor as charged in the information. After hearing testimony from numerous witnesses, including Rhodes, A.M., the library director, the complaining library patron, and appellant, the jury convicted appellant of the offense as charged and assessed punishment at forty-five days in the Grayson County jail.
Motion to Quash the Information In his first issue, appellant contends the trial court erred in denying his motion to quash the information because it failed to allege the name of a victim or give him "specific notice of who was alleged to have been the victim." He asserts the trial court's error in not quashing the information allowed the State to proceed to trial with a "hypothetical" minor in violation of his constitutional rights. The sufficiency of a charging instrument presents a question of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). We therefore review de novo a trial court's ruling on a motion to quash a charging instrument. See id. at 14; Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). To conform with an accused's right to notice as set forth in the United States and Texas Constitutions, the charging instrument "must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." Moff, 154 S.W.3d at 601; DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); see also U. S. Const. amend. VI; Tex. Const. art. I, § 10. Generally, a charging instrument that tracks the language of a criminal statute is sufficient to allege an offense and to provide the accused with notice of the charged offense. State v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996); DeVaughn, 749 S.W.2d at 67. The trial court should grant a motion to quash "only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed." DeVaughn, 749 S.W.2d at 67; Yanes v. State, 149 S.W.3d 708, 709 (Tex. App.-Austin 2004, pet. ref'd); cf. Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009) (charging instrument sufficient if it "charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense to which he is charged"). Upon the timely filing of a motion to quash, the trial court must analyze the information to determine whether, on its face, the information alleges the facts necessary to show that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense for which he is charged. DeVaughn, 749 S.W.2d at 67. A motion to quash will be allowed "if the facts sought are essential to giving notice." Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981) (op. on reh'g) (emphasis added). "[U]nless a fact is essential, the indictment need not plead evidence relied on by the State." Id. Appellant contends that "naming or identifying the alleged victim [in the information] is not optional." To support his argument, he relies on Texas Court of Criminal Appeals decisions: Goss v. State, 580 S.W.2d 587, 588 (Tex. Crim. App. 1979) (indictment for aggravated rape should allege to whom threat of imminent infliction of death was directed); Childs v. State, 547 S.W.2d 613, 615 (Tex. Crim. App. 1977) (same); King v. State, 594 S.W.2d 425, 426 (Tex. Crim. App. 1980) (name of victim was crucial to accused's preparation of defense to charge of capital murder); see also DeVaughn, 749 S.W.2d at 70 (involving capital murder charge with aggravating theft offense, accused entitled to have State specify the name of theft victim). He maintains that if the alleged victim is not named or identified, and the charging instrument is properly challenged through a motion to quash, the case must be reversed and remanded. The cases relied on by appellant, however, are inapplicable here. The crux of the offenses charged in those cases is the harm done to the victim or injured party. See Moallen v. State, 690 S.W.2d 244, 246 (Tex. Crim. App. 1985) (looking at gravamen of offense to determine whether indictment defective for failing to name victim); see generally Tex. Penal Code Ann. § 19.02 (West 2011) (murder); id. § 19.03 (West 2011) (capital murder); id. § 22.011 (sexual assault); id. § 31.03 (West 2011) (theft). Because such offenses necessarily involve a victim or injured party, it is logical to require identification of the alleged victim in the charging instrument to give sufficient notice to the accused. See, e.g., Ex parte Munoz, 657 S.W.2d 105, 107 (Tex. Crim. App. 1983) (op. on reh'g) (in theft of service case, holding indictment fundamentally defective because it did not allege owner or provider of services taken); Ex parte Lewis, 544 S.W.2d 430, 431 (Tex. Crim. App. 1976) (name of victim necessary requisite to valid indictment for offense of aggravated assault with deadly weapon); Ranch v. State, 5 Tex. Ct. App. 363 (1879) (name of victim "must be stated" in charging instrument for assaultive offenses). But here, appellant was not charged with an offense that necessarily involves a victim. He was charged under penal code section 43.24(b)(2), which provides: "A person commits an offense if, knowing that the material is harmful . . . he displays harmful material and is reckless about whether a minor is present who will be offended or alarmed by the display." Tex. Penal Code Ann. § 43.24(b)(2). The focus of that section is not on the harm done to the "minor," but rather on the mental state and conduct of the perpetrator. See, e.g., Yanes, 149 S.W.3d at 711 (offense of indecency with a child by exposure "centers on the mental state and actions of the perpetrator" and is not "a victim-oriented offense"). The statute does not require that a minor actually be present; it only requires that the perpetrator be "reckless" about whether a minor is present. See Tex. Penal Code Ann. § 43.24(b)(2). Because the section's focus is on the perpetrator's actions, namely, his recklessness, the minor to whom the harmful material is displayed, if any, is not an essential element of the offense of display of harmful material. Cf. Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim. App. 1977) (in indecent exposure case, "to whom the exposure is directed is not an essential element of the offense"); State v. York, 31 S.W.3d 798, 802 (Tex. App.-Dallas 2000, pet. ref'd) (in indecent exposure case, names of minors to whom defendant allegedly exposed himself to are "facts which are merely evidentiary in nature"). We therefore conclude the State was not required to include the name of a minor in the information to give appellant notice of the charged offense. See DeVaughn, 749 S.W.2d at 67; Thomas, 621 S.W.2d at 161; see also York, 31 S.W.3d at 802. Looking to the information in this case, we also conclude appellant had adequate notice to prepare his defense. The information tracks the language of the criminal statute under which appellant was charged. See Tex. Penal Code Ann. § 43.24(b)(2); Edmond, 933 S.W.2d at 127. The information also provides express details about when, where, and how appellant allegedly committed the offense, including the State's specific allegation of appellant's recklessness-"that he utilized a computer near the children's section of a public library." Accordingly, we overrule appellant's first issue.
Lesser Included Offense Instruction In his second issue, appellant complains the trial court erred in denying his request for a jury instruction on the lesser included offense of obscene display. See Tex. Penal Code Ann. § 43.22(a). He asserts he was entitled to such an instruction because there were "disputed facts regarding the recklessness of [appellant] with regards to children as well as who was the actual victim in this case." He bases this assertion on the fact the evidence showed three adults-the adult who reported the display to the police, officer Rhodes, and the library director-saw him watching the video and "could identify the obscene display of pornography" by him. When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of [the] defendant," which means there must be "some harm" to appellant from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). A defendant is entitled to an instruction on a lesser included offense when (1) the lesser included offense is included within the proof necessary to establish the charged offense and (2) there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser included offense. See Young v. State. 283 S.W.3d 854, 875 (Tex. Crim. App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015 (2009); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). Under the second prong, we must consider all of the evidence introduced at trial to make this determination. See Young, 283 S.W.3d at 875. "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The evidence must establish the lesser included offense as a valid and rational alternative to the charged offense. Hall, 225 S.W.3d at 536. The State disputes that obscene display is a lesser included offense of the offense under which appellant was charged. But we need not determine whether obscene display is included within the proof necessary to establish the charged offense, or the converse, because we conclude there is no evidence in the record that would permit a jury to find that if appellant was guilty, he was guilty only of obscene display. See id. at 535-36. One essential difference between display of harmful material to a minor and obscene display is the nature of the persons to whom defendant's reckless conduct is directed. Compare Tex. Penal Code Ann. § 43.24(b)(2), with id. § 43.22(a). Section 43.24(b)(2) addresses conduct that is reckless as to "minors," defined as "individual[s] younger than 18 years." Id. § 43.24(a)(1). Section 43.24(b)(2) requires that the defendant be "reckless about whether a minor is present who will be offended or alarmed by the display." Id. § 43.24(b)(2) (emphasis added). In contrast, section 43.22 addresses conduct directed at a broader group, namely "persons." Id. § 43.22(a). A defendant commits obscene display if he "intentionally or knowingly displays . . . an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display. . . ." Id. § 43.22(a) (emphasis added). The fact that three adults testified they saw appellant watching a pornographic video on the library computer does not constitute evidence that appellant is guilty only of obscene display. A.M., a minor, specifically testified she sat next to appellant and saw appellant looking at "gross things" on the computer. She also testified two other little boys were standing there when she first went over to use the computer. The jury heard several witnesses describe appellant's proximity to the children's section of the library, and appellant admitted he had seen children at the library playing games on the computers. Importantly, appellant offered no evidence contradicting A.M.'s testimony that she saw the pornographic video. Although appellant testified he did not see A.M. and that he had selected the particular computer because it was out of the way, he admitted he was caught up in what he was watching and that he was not really paying attention to his surroundings. Thus, considering the testimony from a specific individual younger than eighteen years who actually saw the harmful display and the evidence related to appellant's recklessness about whether other minors were present, there is no evidence in this record to show that if appellant was guilty, he was guilty only of obscene display. We therefore conclude the trial court did not err in denying appellant's request for an instruction on obscene display. We overrule appellant's second issue.
Conclusion Having resolved appellant's two issues against him, we affirm the trial court's judgment.