Opinion issued March 28, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                        ————————————
                            NO. 01-12-00143-CR
                            NO. 01-12-00144-CR
                          ———————————
                        OSCAR GARCIA, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee




            On Appeal from County Criminal Court at Law No. 1
                          Harris County, Texas
                Trial Court Case Nos. 1455269 & 1455271



                        MEMORANDUM OPINION

     A jury found appellant Oscar Garcia guilty of two separate misdemeanor

offenses of indecent exposure. Appellant was sentenced to 120 days in jail for
each offense, with the sentences to run concurrently. On appeal, appellant raises

one issue contending that the evidence was insufficient to support his conviction.

      We affirm.

                                   Background

      In May 2007, high school student A.P. worked at a snow cone shop. The

shop had a drive-through window where a customer could purchase snow cones

from his car. When serving a customer from the window, the shop employee can

see into the customer’s vehicle.

      In early May 2007, A.P. was working alone at the snow cone shop.

Appellant pulled up to the drive-through window in a truck. A.P. recognized him

as a regular customer. A.P. took appellant’s order. When she returned to the

window with appellant’s snow cone and change, A.P. saw that appellant, who was

still in his truck, had taken his penis out, and she saw that it was erect. A.P. gave

appellant his snow cone and change; she then closed the window.

      On May 15, 2007, A.P. was again working alone at the snow cone shop

when appellant returned. This time appellant was driving a green car. When she

approached the window, A.P. recognized appellant and refused him service. A.P.

called the police. The police made a report but no arrest was made at that time.

      On May 20, 2007, appellant returned to the snow cone shop. He again drove

up to the window in a green car. At the time, high school students G.R. and F.H.

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were working. G.R. and F.H. had been warned about appellant and knew to keep a

look out for a green car.

      F.H. went near the window, but it was G.R. who handed appellant his snow

cone and change. G.R. noticed that appellant was smirking and looking down

below his waist at his genital area. G.R. observed that appellant was not wearing

any pants. He was wearing only a white t-shirt. The girls wrote down appellant’s

license plate number. Appellant left quickly, driving over the grass and almost

hitting a sign. The girls called the police. About 15 minutes later, Deputy R.

Montes with the Harris County Sheriff’s Department arrived. He had also been the

officer who had responded the previous week to A.P.’s call.

      Deputy Montes learned that the license plate number belonged to a green car

owned by appellant’s wife. The officer went to appellant’s home where he saw

appellant next to a green car bearing the same license plate number as had been

provided by G.R. and F.H.. Appellant matched the description of the man given by

the girls. Appellant was detained and placed in the back of a patrol car.

      In the meantime, G.R. and F.H. had contacted A.P. and told her to come to

the shop. The police drove appellant back to the snow cone shop where the three

girls identified appellant as the man that each had seen in the drive through

wearing no pants.




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         Appellant was charged in two separate informations with indecent exposure.

In the first information, associated with trial court cause number 1455269, G.R. is

listed as the complainant. The second information, associated with trial court

cause number 1455271, names A.P. as the complainant.

         The cases were tried together to a jury. A.P., G.R., and F.H. testified at trial.

Each testified that she had seen appellant at the snow cone shop on the day of the

alleged offenses wearing no pants. A.P. testified that she had seen appellant’s

exposed, erect penis. G.R. also indicated in her testimony that she had seen

appellant’s penis. Although she had not seen appellant’s penis, F.H. testified that

appellant was wearing no pants and no underwear.

         G.R. testified that, when he was looking at her, appellant had a smirk on his

face. She stated that appellant was looking at her and then looking down at his

genital area, indicating that he wanted her to look there. At trial, each girl again

identified appellant as the man each had seen at the snow cone shop wearing no

pants.

         Deputy Montes also testified.           In describing the events surrounding

appellant’s detention and arrest, the deputy stated that appellant had admitted to

being at the snow cone shop that same day but denied exposing himself.

         Appellant testified in his own defense at trial. He stated that he never told

Deputy Montes that he had been at the snow cone shop earlier that day. He

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testified that he had been at home working on a car at the time G.R. and F.H. said

he was at the shop. Appellant testified that he had never gone through the drive

through wearing no pants and had not exposed himself to the girls.

      Appellant also offered the testimony of a number of witnesses, including

family members, a friend, and a neighbor. They each provided testimony to

support appellant’s claim that he was at home at the time of the incident.

      After hearing all of the evidence, the jury found appellant guilty of two

misdemeanor offenses of indecent exposure. The trial court sentenced appellant to

120 days in jail, to be served concurrently. These appeals followed.

                                 Sufficiency of the Evidence

       Appellant identifies one issue in his briefing. We construe the issue to be a

challenge to the sufficiency of the evidence supporting the judgment in each

appellate cause. 1



1
       Appellant has filed one brief bearing both appellate cause numbers. Trial court
cause number 1455269, in which G.R. is the complainant, corresponds to appellate cause
number 01–12–00143–CR. Trial court cause number 1455271, in which A.P. is the
complainant, corresponds to appellate cause number 01–12–00144–CR. In the brief,
appellant expressly challenges the sufficiency of the evidence to support his conviction in
appellate cause number 01–12–00143–CR. Appellant also discusses the elements of the
offense and the evidence with respect to the indecent exposure offense for which he was
convicted in appellate cause number 01–12–00144–CR.                   We liberally construe
appellant’s brief to raise a sufficiency of the evidence challenge to the judgment of
conviction in each appellate cause. See TEX. R. APP. P. 38.9 (supporting liberal
construction of briefs because briefs “are meant to acquaint the court with the issues in a
case and to present argument that will enable the court to decide the case, [thus]
substantial compliance with [briefing rules] is sufficient . . . .”).
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A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).           This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We can hold evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.

Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

                                        6
      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Analysis

      1.     Exposure Element

      In Appellate Cause No. 01–12–00143–CR (Trial Court Cause No. 1455269),

appellant contends that the evidence was insufficient to show that he exposed his

genitals because the evidence does not show that either G.R. or F.H. saw his penis.

Under Penal Code Section 21.08, a person commits the offense of indecent

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exposure if he exposes his anus or any part of his genitals with intent to arouse or

gratify the sexual desire of any person, and he is reckless about whether another is

present who will be offended or alarmed by his act. TEX. PENAL CODE ANN.

§ 21.08 (Vernon 2011).

      The information in Appellate Cause No. 01–12–00143–CR provides as

follows:

      [O]n or about May 20, 2007, [appellant] did then and there unlawfully
      expose his genitals to [G.R.] with intent to arouse and gratify the
      sexual desire of [appellant], and [appellant] was reckless about
      whether another person was present who would be offended and
      alarmed by the act, to-wit: [appellant] was in a vehicle and exposed
      his genitals while at a drive thru [sic] window.

      G.R. indicated in her testimony that she saw appellant’s penis. G.R. gave

the following testimony on direct examination by the State:

Q. [D]o you remember what he was wearing?

A. Just a white tee shirt.

Q. Did he have any pants on?

A. No, ma’am.

Q. And when he came up, he drove up?

A. Through the drive-through.

Q. Okay. And when was the first time that you noticed that he only had a tee shirt
on?

A. He looked at me, and he looked down—

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Q. Okay.

A.—whenever he asked me for a snow cone—whenever I gave him his snow cone
and was going to take the money.

Q. Okay. And so you went to hand him his snow cone and his change?

A. Uh-huh.

Q. All right. Then can you kind of explain to us what he did? You said he looked

at you?

A. Yes, ma’am.

Q. Did he look at you normal?

A. Like a—with a smirk on his face.

Q. All right. Then after he looked at you, where did he look?

A. Down, below his—like, below his waist, down there, I guess.

Q. And, like, in his—the area where his genitals are?

A. Yes, ma’am.

Q. Okay. And did—do you remember if he spread his legs or anything?

A. The way he looked—the way somebody drives, I guess. Like, your legs [have]
to be open a little bit.

Q. All right. And then how—were you able to tell that he was—what was he
gesturing with his eyes for you to look at?

....

A. I have no idea. Like, I felt like that he was—I don’t know. Like, for me to
look at him down there. I don’t know.

                                        9
Q. So he wanted—you think he wanted you to look at his penis?

A. Yes.

Q. All right. Did you look?

A. Yes.

Q. All right. And was he—there any question in your mind there was anything
there other than his penis?

A. Excuse me?

Q. Did you think—did you see anything else besides his penis?

A. No.

Q. And he had no other clothes on except for that white tee shirt?

A. The white tee shirt.

      G.R.’s testimony indicating that she had not seen anything other than

appellant’s penis was evidence that she saw appellant’s genitals. Other evidence

also indicated that appellant exposed his penis. Both G.R. and F.H. testified that

appellant was not wearing any pants. They each testified that he was wearing only

a white t-shirt. Although she indicated that she could not actually see appellant’s

penis because he had it “somewhat covered up,” F.H. was clear in her testimony

that appellant was not wearing pants or any underwear. In addition, G.R. testified

that appellant gestured with his eyes for her to look at his genitals. From the

evidence, the jury could have determined that appellant exposed his genitals.


                                        10
      In Appellate Cause No. 01–12–00144–CR (Trial Court Cause No. 1455271),

the allegations contained in the information are the same as those contained in

Trial Court Cause No. 1455269. The only difference is that A.P. is the named

complainant in Trial Court Cause No. 1455271. In that case, A.P. unequivocally

testified that she saw appellant’s penis while he was at the drive-through window.

Thus, with respect to the offense in that case, the jury heard direct evidence that

appellant exposed his genitals.

      2.     Intent to Arouse or Gratify

      In Appellate Cause No. 01–12–00143–CR (Trial Court Cause No. 1455269),

appellant contends that the evidence is insufficient to show that he exposed himself

with the intent to arouse or gratify any person. He points out that neither G.R. nor

F.H. testified that she saw the “condition” of his penis; in other words, neither girl

testified that she saw that appellant’s penis was erect. Appellant also asserts,

“[T]here was no evidence presented of, or testimony from [G.R. or F.H.],

regarding masturbation, actions consistent with masturbation, actions consistent

with sexual arousal or gratification, peculiar sounds made by Appellant, possession

of sexual aides, or that the alleged exposure was sexually motivated.”

      Under the language of Penal Code section 21.08, and the allegations made in

the information, the State was not required to prove that appellant was actually

aroused or that appellant actually gratified his sexual desire. See TEX. PENAL CODE

                                           11
ANN. § 21.08. Rather, the State was required only to prove that appellant exposed

his penis with the intent to arouse and gratify his sexual desire. See id.; Shamam v.

State, 280 S.W.3d 271, 278 (Tex. App.—Amarillo 2007, no pet.) (rejecting

appellant’s argument that there was no express evidence that either he or the

complainant were aroused or gratified by appellant’s indecent exposure because

“the offense requires that the exposure occurs with intent to arouse or gratify the

sexual desire of any person”); see also Gregory v. State, 56 S.W.3d 164, 171 (Tex.

App.—Houston [14th Dist.] 2001, pet. dism’d) (concluding, in prosecution for

indecency with a child case, that appellant’s argument pointing to lack of evidence

showing that appellant’s penis was erect, that appellant masturbated, or that he

ejaculated during any of the encounters with the complainants was without merit

because intent element of the offense did not require the State to prove that the

“male offender’s penis be erect”); Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.

App.—Corpus Christi 2000, pet. ref’d) (quoting Caballero v. State, 927 S.W.2d

128, 130–31 Tex. App.—El Paso 1996, pet. ref’d) (“The indecency [with a child]

offense includes the requirement of ‘intent to arouse or gratify the sexual

desire’. . . . The offense, however, does not require that the arousal or gratification

actually occur.”)).

      It is well established that the requisite specific intent to arouse or to gratify

the sexual desire of any person can be inferred from an accused’s conduct,

                                          12
remarks, and all surrounding circumstances. See Turner v. State, 600 S.W.2d 927,

929 (Tex. Crim. App. [Panel Op.] 1980); Martins v. State, 52 S.W.3d 459, 474

(Tex. App.—Corpus Christi 2001, no pet.). With respect to the offense in No. 01–

12–00143–CR, the evidence showed that appellant drove, without pants or

underwear, to the drive through at the snow cone shop. Testimony showed that

whoever was working at the window could see into the customer’s vehicle.

      The evidence established that appellant exposed himself while two teenage

girls, F.H. and G.R., were working at the drive through. Appellant had also

exposed himself earlier that month to high school junior, A.P., at the drive through

window. Significantly, G.R. testified that, when she brought his snow cone and

change to the window, appellant looked at her with a smirk on his face and

gestured with his eyes for her to look at his genitals. Given these circumstances,

we conclude that, with respect to the offense in No. 01–12–00143–CR (Trial Court

Cause No. 1455269), a rational jury could have justifiably inferred that appellant’s

intent was to gratify his own sexual desire.

      In Appellate Cause No. 01–12–00144–CR (Trial Court Cause No. 1455271),

A.P. testified she saw that appellant’s penis was erect. From this, the jury could

have determined that appellant exposed himself with the intent to arouse or to

gratify his own sexual desire. See TEX. PENAL CODE ANN. § 21.08.




                                         13
      Viewing all the evidence in the light most favorable to the jury verdicts, we

conclude that a rational fact finder could have found, beyond a reasonable doubt,

all of the essential elements of the charged offense of indecent exposure in each

case. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We hold that the evidence is

sufficient to support the judgments of conviction.

      We overrule appellant’s sole issue in each appeal.

                                       Conclusion

      We affirm the judgment in each appellate cause.




                                              Laura Carter Higley
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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