Beasley v. State

OPINION

BURGESS, Justice.

Appellant was charged with the Class “B” misdemeanor offense of indecent exposure. The information alleged, in pertinent part, “... did then and there ... expose his penis and was reckless about whether another person ... who was present, would be offended or alarmed by his act,.... ” A jury convicted appellant. The judge assessed punishment at 180 days in jail and a fine of $1,500. Appellant urges three points of error. Point of error two challenges the sufficiency of the evidence concerning the element of the offense requiring a person expose any part of his genitals. We find it dispositive of this appeal.

The complainant had gone to a shopping center to leave some photographic film at a pharmacy for express processing. She was returning to her car when appellant drove his vehicle in front of the complainant’s car, effectively “pinning” her in. Appellant opened his door and asked: “Baby, do you want to get in the car?” On direct examination, the complainant initially testified:

Q What did you notice about him?
A That he didn’t have clothing on from the upper leg to the waist.
Q What do you mean by that he didn’t have clothing on from the upper leg to the waist?
A His pants and undergarments were pulled down to just above the knee.
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Q Tell the jury specifically what it was that you saw.
A I saw the upper portion of his legs. I saw all the way up to his waistline. His hand was—
Q His left hand?
A His left hand which was the closest hand to me. One hand was on the steering wheel. His left hand was used almost like a shield. It blocked my view of his penis. But it did not block my view of the fact that the man was nude from the waist to just above the knees.
Q [L]et me stop you right there because this is so important. How can you be sure his penis was exposed if you didn’t actually see it?
A Sir, anytime someone has their clothes off unless they are creating a miracle they are exposed. They are exposed to the elements. They are exposed to the air. They are exposed to the world.

Later, still on direct examination, the complainant testified:

Q Did he expose any part of his penis?
A No. He had — His hand shielded the penis area. That is all that was shielded of his body, though.
Q Okay. Now this is a very important distinction. When I say exposed it — When I asked you if he exposed it, we have to be absolutely clear. Did he expose it to the elements?
A He definitely had it exposed to the elements. I just was not able to see through his hand.
Q And what did he expose specifically?
A Upper leg. Lap. All the way to the waist.
Q What did he expose to the elements?
A His penis.

On cross-examination, the complainant testified:

*272Q You don’t know if his underwear were down or up? You really don’t know.
A Sir, he did not have anything on covering his body.
Q You testified here and you said in your statement, too, his hands were blocking your view. You couldn’t see. How would you know?
A One hand does not cover an entire body. And one hand does not cover a thigh. I could see part of his stomach. I could see the side of his legs, you know. The only thing I could not see was his penis which was shielded by his hand. If he had had on underwear that it would have shown from the side. It would have shown at the waist. It would have shown somewhere. He was down to bare flesh.
Q But the bottom line is you are presuming he was down to bare flesh. You don’t know if he had a G-string on or something covering it. You wouldn’t know if he had a fig leaf covering it because you didn’t see anything.
A I wouldn’t know if he had a fig leaf, piece of grass, or anything else covering it, sir.... I am saying, no, I didn’t go stick my head in the car to check it out.

The complainant’s statement to the police was introduced into evidence. The pertinent part stated:

I saw he had his pants fully undone and unzipped pulled down to his upper thigh area. I could see skin and that his pants were down but he had his left hand in the way blocking the view of his penis. I don’t know if he had his hand on his penis or if he was masturbating.

The complainant’s statement and testimony both clearly indicate she did not at any time see any part of appellant’s genitals.

McGee v. State, 804 S.W.2d 646 (Tex.App.—Houston [14th Dist.] 1991, no pet.) was an indecent exposure case where a store manager looked through a three or four inch gap in the curtain of a dressing room and saw the defendant masturbating. One of the questions on appeal was whether McGee had exposed himself to the store manager. The court stated that since there is no statutory definition of “expose”, the word should be given its ordinary meaning, quoting Webster’s Third New International Dictionary (1966) definition of “to lay open to view.” The court went on to hold there was sufficient evidence to find that “appellant’s genitals were exposed to view and that they were seen by....” McGee, 804 S.W.2d at 647.

Perhaps appellant was guilty of criminal attempt1 with regards to the indecent exposure. However, reviewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979); Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989), he did not commit the offense of indecent exposure in that he did not “expose” his penis. Using the complainant’s own words, “His left hand was used almost like a shield. It blocked my view of his penis.”, “His hand shielded the penis area.”, “The only thing I could not see was his penis which was shielded by his hand.” and “[H]e had his left hand in the way blocking the view of his penis.” There is no evidence appellant exposed his genitals. Since appellant effectively hid his genitals from view, as evidenced by the complainant’s testimony, there was no exposure within the meaning of the statute.

Having found the evidence insufficient, an acquittal must be ordered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The judgment is reversed and appellant is ordered acquitted.

REVERSED AND ACQUITTED.

. Tex.Penal Code Ann. § 15.01 (Vernon 1989).