COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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TRISHA UNDERWOOD, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-03-00061-CR Appeal from the County Court at Law of Ector County, Texas (TC# 02-1655) |
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MEMORANDUM OPINION
Trisha Underwood appeals her conviction for public lewdness by sexual contact under Tex. Pen. Code Ann. ' 21.07 (Vernon 2003). Among other points of error, she claims the evidence was legally insufficient to prove that she acted with the intent to arouse and gratify the sexual desire of undercover police officer J. Medrano. Agreeing that the evidence is legally insufficient, we reverse and render a judgment of acquittal.
Facts
On April 12, 2002, Trisha Underwood was employed as a dancer at Playmates, an adult cabaret in Ector County, Texas. The State charged that on that date, she engaged in lewd conduct by Aknowingly engag[ing] in an act of sexual contact by touching the genitals of J. Medrano with the intent to arouse and gratify the sexual desire of the J. Medrano in a public place . . . .@ Jordan Medrano of the Odessa Police Department was one of four officers who took part in an undercover operation at Playmates. Medrano testified that he was shocked, stunned, and alarmed when Underwood touched his genital area with her legs.
The operation=s supervising officer, Jesse Duarte, testified that over one and a half hours, he and his men consumed alcoholic drinks, bought lap dances, and gave tips to waitresses to create the appearance that they were typical customers. Two other officers also testified, but they, like Duarte, were unable to corroborate Officer Medrano=s assertion that Underwood committed the alleged act. Each testified that Medrano and Underwood were within eyeshot, but not in their direct line of sight.
Medrano testified that he consumed three or four beers but they did not impair his professional judgment. At his request, Underwood performed a private dance for him, for which he paid her $20. During the dance, he sat in an upholstered chair, which resembled a Acouch seat@ with his knees approximately eighteen inches apart. Underwood was required to dance within this eighteen-inch space. Medrano testified that during this private dance, Underwood touched his genital area with her knee and thigh, and again with her buttocks when she sat in his lap. He also testified that she got up on his thighs with her knees; when questioned about having a woman=s full weight kneeling on his thighs, he agreed that is was painful, but he withstood it Afor doing the operation.@
Medrano testified:
Q: And obviously, my client, if she was going to dance for you near you as a private dance, as you called it, had to dance within your legs; is that correct?
A: Yes, sir.
Q: Kind of--you kind of forced that situation, didn=t you?
A: No, sir.
Q: And you are saying her leg brushed your genital area?
A: Her legs touched my genital area, sir.
Q: What part of her leg?
A: Her knee and thigh.
Q: Her knee and thigh? And then she somehow--did she turn and show her backside to you during the dance?
A: Yes. She did.
Q: And did she sit down in your lap?
A: She sat down on my genital area, sir.
Q: And is that what you are claiming is the public--is the sexual contact is when her butt touched your genitals by her sitting down?
A: Her legs and butt, yes, sir.
The State presented no other evidence against Underwood proving public lewdness.
No evidence of intent to arouse and gratify
Underwood=s Point One urges the evidence was insufficient as a matter of law to prove that she did knowingly engage in an act of sexual contact, specifically that she intended her act to arouse or gratify Medrano=s sexual desire. The elements set out in the information accused Underwood of Aknowingly engage in an act of sexual contact by touching the genitals of J. Medrano with the intent to arouse and gratify the sexual desire of the J. Medrano in a public place . . . .@ In this reviewing legal sufficiency point, we review all evidence in the light most favorable to the verdict to decide whether a rational trier of fact could have found the elements of the alleged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davila v. State, 930 S.W.2d 641, 644 (Tex. App.--El Paso 1996, pet. ref=d).
Here the evidence consisted of the uncontroverted, but also uncorroborated, testimony of Officer Medrano. Detective Medrano testified he was Ashocked,@ and Astunned and alarmed@ when Underwood=s thighs and knees touched his genitals and she sat on his lap. He testified he Awithstood the pain@ when she balanced her knees on his thighs. None of this indicates arousal or gratification. We conclude Medrano=s testimony supplies no direct evidence of arousal or gratification.
Nevertheless, intent to arouse or gratify another=s sexual desire may be inferred from defendant=s conduct, remarks, and surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Balash v. State, 720 S.W.2d 878, 879 (Tex. App.--Houston [14th Dist.] 1986, pet. ref=d). Here, we find nothing from which the jury could infer that Underwood=s intent was arousal. Point One is sustained.
Conclusion
For these reasons, we reverse Trisha Underwood=s conviction and render a judgment of acquittal. We need not reach the remainder of Underwood=s claims.
SUSAN LARSEN, Justice
December 4, 2003
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
(Do Not Publish)