                                NO. 12-10-00242-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JOSHUA CLEM MILLER,                             §           APPEAL FROM THE 217TH
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §           ANGELINA COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Joshua Clem Miller appeals his conviction for indecency with a child, a third degree
felony, for which he was sentenced to imprisonment for ten years. In one issue, Appellant argues
that the evidence is insufficient to support his conviction. We affirm.


                                         BACKGROUND
       On May 5, 2009, M.G. was taking her twelve year old son to school when Appellant drove
up beside her. Appellant was driving a car, and M.G. was driving a pickup so M.G. could see into
Appellant’s car, and when she did, she saw that Appellant was masturbating. They made eye
contact, and Appellant smiled at M.G. M.G. saw that her son was witnessing Appellant’s conduct
so she tried to cover his eyes and asked him not to look. However, her son also made eye contact
with Appellant and saw that Appellant was masturbating. Both M.G. and her son saw Appellant’s
genitals. M.G. then drove toward her work. Appellant continued driving in close proximity to
M.G. for several minutes before driving away.
       Appellant was arrested and charged with indecency with a child. Appellant pleaded not
guilty, waived his right to trial by jury, and proceeded to trial before the court. The trial court
found Appellant guilty and sentenced him to imprisonment for ten years. This appeal followed.


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                                        EVIDENTIARY SUFFICIENCY
       In his sole issue, Appellant argues that the evidence is insufficient to support the trial
court’s judgment. Specifically, Appellant contends that the evidence is insufficient to prove that
he knowingly exposed himself to a child.
Standard of Review
       A reviewing court should apply the Jackson v. Virginia1 standard ―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.‖ Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(plurality opinion). When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at
315-16, 99 S. Ct. at 2786-87; Brooks v. State, 323 S.W.3d at 899. Under this standard, a
reviewing court does not sit as a thirteenth juror and may not substitute its judgment for that of the
fact finder by reevaluating the weight and credibility of the evidence. See Brooks, 323 S.W.3d at
899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court
defers to the fact finder’s resolution of conflicting evidence unless that resolution is not rational in
light of the burden of proof. See Brooks, 323 S.W.3d at 899–900. The duty of a reviewing court
is to ensure that the evidence presented actually supports a conclusion that the defendant
committed the crime. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that ―accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the defendant
is tried.‖ Id.
       To support Appellant’s conviction for indecency with a child, the State was required to
prove that Appellant, with the intent to arouse or gratify his sexual desire, exposed his genitals
knowing that a child younger than seventeen years of age was present. TEX. PENAL CODE ANN.
§ 21.11(a)(2)(A) (Vernon 2003 & Vernon Supp. 2010).


       1
           443 U.S. 307, 315B16, 99 S. Ct. 2781, 2786B87, 61 L. Ed. 2d 560 (1979).



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Analysis
       Appellant argues that the evidence is insufficient to establish that he exposed his genitals
knowing that a child younger than seventeen years old was present. Instead, he claims that he
merely acted recklessly. Appellant concedes that the evidence is sufficient to show that he
exposed himself to M.G., but he argues that the evidence does not show that he knew M.G.’s son
was present at the time. As support for Appellant’s lack of knowledge of the presence of the
child, Appellant points to two extraneous offenses referenced by two other adult women.
Approximately a week before his demonstration for M.G., Appellant drove by a woman in a
Target parking lot. The woman saw that Appellant was masturbating. Also, later in the day after
his demonstration for M.G., Appellant drove by a woman in a Lowe’s parking lot. Again, the
woman saw that Appellant was masturbating.
       Appellant is correct that the evidence shows that he may have been more interested, or
perhaps even only interested, in M.G.’s seeing his conduct. But the State presented evidence that
M.G.’s son witnessed Appellant’s conduct also and that Appellant knew it. First, Appellant was
driving beside M.G. for several minutes. M.G. was able to see that Appellant was alone. A fact
finder could reasonably infer that Appellant was able to see that M.G. was not. Second, M.G.’s
son testified that he made eye contact with Appellant. Third, M.G.’s son further testified that he
was sitting farther up than M.G., and thus, his view of Appellant’s conduct was better than M.G.’s
view. Appellant’s knowledge that the child was present can be inferred from this evidence. See
Casper v. State, 634 S.W.2d 39, 40 (Tex. App.—Tyler 1982, no pet.) (standing in front of open
window fondling exposed genitals in open view of children is attention-getting conduct from
which knowledge and intent can be inferred).
       Appellant also makes arguments about the configuration of the automobiles, the ability of
the child to see him, and, more importantly, his ability to know that the child was present. The
fact finder was in the best position to resolve these kinds of issues. Having examined the
aforementioned evidence in the light most favorable to the verdict, we conclude that the fact finder
could have determined beyond a reasonable doubt that Appellant committed the offense of
indecency with a child. See Williams, 235 S.W.3d at 750. Therefore, we hold that the evidence
is sufficient under the Jackson v. Virginia standard to support the trial court’s judgment. We
overrule Appellant=s sole issue.




                                                 3
                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                BRIAN T. HOYLE
                                                                      Justice


Opinion delivered May 11, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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