Affirmed and Opinion filed August 28, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00489-CR

                STEVEN DOUGLAS MCCOSLIN, Appellant
                                      V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the County Court at Law No. 2
                         Fort Bend County, Texas
                  Trial Court Cause No. 15-CCR-183403A

                                OPINION
      A jury convicted appellant Steven Douglas McCoslin of the offense of
indecent exposure. On appeal, appellant seeks to set aside his conviction on the
grounds that the trial court should have granted either his motion to quash the
charging instrument for insufficient notice or his motion to suppress evidence
relating to appellant’s identity. Concluding that appellant has waived any error
regarding both motions, we affirm.
                                    Background

      The Fort Bend County District Attorney charged appellant by information
with the offense of indecent exposure. The State alleged that appellant, with intent
to arouse or gratify his sexual desire, exposed his genitals and masturbated; and that
appellant was reckless about whether another was present who would be offended
or alarmed by his act, in that he left his hotel room door ajar and requested the
complainant enter the room. Appellant pleaded not guilty.

      On the day of trial, appellant moved to quash the information, arguing that the
information did not provide sufficient notice as to the specific acts of recklessness,
which is an element of the charged offense. Appellant also moved to suppress
evidence of his identity, arguing that the police unlawfully obtained evidence of his
identity without a warrant. After a hearing, the trial court denied both motions.

      At trial, the State presented evidence of the following facts:

      Appellant was a guest at a hotel in Stafford, Texas. He stopped by the front
desk, where the complainant was working as the night shift clerk. Appellant asked
the complainant to bring food to appellant’s room. After heating the food, the
complainant brought the food to appellant’s room, where the door was left slightly
ajar. The complainant knocked on appellant’s door, and appellant responded that
the complainant could enter the room. The complainant entered the room. Appellant
initially was lying in bed with the comforter covering his body.           After the
complainant placed the food on appellant’s nightstand, appellant removed the
comforter.   The complainant saw that appellant’s genitals were exposed and
appellant was masturbating.




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       The jury found appellant guilty of indecent exposure as alleged in the
information. The trial court assessed punishment of 180 days’ confinement, which
was probated for fifteen months, and imposed a $1,000 fine.

       Appellant appeals his conviction.

                                           Analysis

       Appellant challenges his conviction on the grounds that his motion to quash
or motion to suppress should have been granted. We address each motion in turn.

A.     Motion to Quash

       In two interrelated issues, appellant argues that the trial court erroneously
denied his motion to quash the information based on the insufficiency of the
allegations therein.1 According to appellant, there are two charging instruments
regarding the offense: an original information and an amended, second information.
In his first issue, appellant argues that the State did not obtain leave to amend the
“original information,” as required by article 28.10 of the Code of Criminal
Procedure, so the “second information” is void and we must constrain our review of
his appellate complaints to the original information. In his second issue, appellant
claims that, regardless which information we consider, neither information provided
sufficient notice of the nature of the charge against him.2

       1
         “A motion to quash challenges whether the charging instrument alleges ‘on its face the
facts necessary to show that the offense was committed, to bar a subsequent prosecution for the
same offense, and to give the defendant notice of precisely what he is charged with.’” Laurent v.
State, 454 S.W.3d 650, 653 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting DeVaughn v.
State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988)).
       2
         Only one information is included in our record, and it is the information filed in cause
number 15-CCR-183403A, which is the instant case. The information’s arrest date states
“REFILE,” which, in the trial court, appellant construed to mean that the State refiled the
information after dismissing charges in cause number 15-CCR-183403. Based on our disposition,
however, we need not decide whether the State properly or improperly amended or refiled the
charging instrument.

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      The State responds that appellant waived any complaint about the charging
instrument’s sufficiency by not timely asserting it in the trial court. The Code of
Criminal Procedure requires a defendant to object to a defect, error, or irregularity
of form or substance in an information “before the date on which the trial on the
merits commences.” Tex. Code Crim. Proc. art. 1.14(b). If a defendant fails to
timely object, he “waives and forfeits the right to object to the defect, error, or
irregularity and he may not raise the objection on appeal.” Id.

      The Court of Criminal Appeals has not expressly determined the meaning of
the phrase “the date on which the trial on the merits commences.” See Sanchez v.
State, 138 S.W.3d 324, 329 & n.6 (Tex. Crim. App. 2004) (discussing article
45.019(f), which is similarly worded to article 1.14(b)). Some courts of appeals have
addressed the question and held that trial on the merits commences under article
1.14(b) when a jury is impaneled and sworn. See, e.g., Parker v. State, No. 09-16-
00061-CR, 2017 WL 1424946, at *3 (Tex. App.—Beaumont Apr. 19, 2017, no pet.)
(mem. op., not designated for publication) (holding that motion to quash filed on
same day that jury was impaneled and sworn was untimely); White v. State, No. 12-
07-00025-CR, 2007 WL 2447235, at *1 (Tex. App.—Tyler Aug. 30, 2007, no pet.)
(mem. op., not designated for publication).

      The holdings in Parker and White are consistent with those of other appellate
courts standing for the proposition, in other contexts, that “trial on the merits” begins
when the jury is impaneled and sworn. See Garner v. State, 523 S.W.3d 266, 276
(Tex. App.—Dallas 2017, no pet.) (for purposes of article 54.306(b), trial begins
when the jury is impaneled and sworn; interpreting Sanchez v. State as standing for
the proposition that trial on the merits commences when jury impaneled and sworn);
Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.—Corpus Christi 1994, no pet.)
(“We hold that[, for purposes of article 28.10,] trial on the merits commences at the

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time that the jury is impaneled and sworn, i.e., at the same time that jeopardy
attaches.”); Westfall v. State, 970 S.W.2d 590, 592 (Tex. App.—Waco 1998, pet.
ref’d) (same); Carpenter v. State, 952 S.W.2d 1, 6 (Tex. App.—San Antonio 1997)
(same), aff’d, 979 S.W.2d 633 (Tex. Crim. App. 1998); Dixon v. State, 932 S.W.2d
567, 569-70 (Tex. App.—Tyler 1995, no pet.) (same).

      Under the United States Constitution, double jeopardy attaches when the jury
is impaneled and sworn. See, e.g., Crist v. Bretz, 437 U.S. 28, 38 (1978); State v.
Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009).

      Consistent with the constitutional principle that jeopardy attaches when the
jury is impaneled and sworn, and consistent with the opinions of numerous appellate
courts cited above, we hold that for purposes of article 1.14(b), the date on which
the trial on the merits commences is the date the jury is impaneled and sworn.

      Applying this holding, the date on which the trial on the merits in the instant
case commenced was May 23, 2017 because the court impaneled and swore a jury
that day. Because the date the trial commenced was May 23, 2017, appellant’s
motion to quash was required to be filed by May 22, 2017. Appellant filed the
motion to quash on May 23, 2017. It was therefore untimely. Accordingly, appellant
waived the right to complain on appeal that the charging instrument is insufficient.

      Even if appellant had preserved his complaint, we would still conclude that
the information was sufficient. The State charged appellant with indecent exposure.
A person commits the offense of indecent exposure if he exposes any part of his
genitals with intent to arouse or gratify the sexual desire of any person, and he is
reckless about whether another person is present who will be offended or alarmed
by his act. Tex. Penal Code § 21.08(a). When, as here, recklessness is an element
of an offense, the information must allege, with reasonable certainty, the act or acts
relied upon to constitute recklessness. Tex. Code Crim. Proc. art. 21.15. It is not
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sufficient for the State merely to allege that the accused “acted recklessly.” Henery
v. State, No. 14-09-00996-CR, 2012 WL 5964394, at *1 (Tex. App.—Houston [14th
Dist.] Nov. 29, 2012, no pet.) (mem. op., not designated for publication). It is also
not sufficient, in cases of indecent exposure, for the State to allege that the accused
“exposed his penis and masturbated,” because “there is nothing inherently reckless
about either exposing oneself or masturbating.” Smith v. State, 309 S.W.3d 10, 16
(Tex. Crim. App. 2010). Rather, the State allege something about the setting or
circumstances under which the accused exposed himself to indicate why his
otherwise lawful act was reckless regarding whether another is present who would
be offended or alarmed. See id. at 15-16; see also State v. Rodriguez, 339 S.W.3d
680, 683 (Tex. Crim. App. 2011).

      Appellant argues that the State did not allege any circumstance that would
indicate that appellant was aware of the risk that another person was present who
would be offended by his act of exposing himself. We disagree.

      The information alleged that appellant was reckless about whether another
was present who would be offended or alarmed by appellant’s act of exposing his
genitals and masturbating, “in that [appellant] left his hotel room door ajar and
requested that [complainant] enter.” By requesting that the complainant enter the
hotel room where appellant exposed his genitals and masturbated, appellant was
reckless as to the presence of another person who would be offended or alarmed by
appellant’s act. See, e.g., Graves v. State, No. 01-13-00041-CR, 2014 WL 4113012,
at *3 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, no pet.) (mem. op., not
designated for publication) (allegation that inmate exposed his penis “while facing
the station from which jail personnel monitor jail inmates” sufficiently described
circumstances indicating that appellant was aware of risk that another person was
present who would be offended by his act of exposing himself).

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       For the foregoing reasons, we overrule appellant’s first two issues.

B.     Motion to Suppress

       In his third issue, appellant contends that the trial court erred in denying his
motion to suppress the hotel receipt the police obtained from the complainant
establishing appellant’s identity. According to appellant, the complainant gave the
police a receipt for appellant’s hotel room, which showed appellant’s name. 3
Appellant asserts that he has a constitutionally protected expectation of privacy in
the personal information he provided to the hotel, and that this privacy interest was
violated when the police obtained the information without a warrant or appellant’s
consent. According to appellant, the trial court therefore should have suppressed the
evidence of identity. Appellant argues that without the hotel receipt, the police
would not have been able to identify appellant as the suspect in the alleged offense,
and the trial court would have been required to dismiss the charge.

       The State responds that appellant waived the issue or, alternatively, that
appellant’s argument is meritless. The State contends that appellant waived his
complaint in two, independent respects: (1) the facts underlying appellant’s motion
to suppress differed from the evidence adduced at trial, thus necessitating a trial
objection that appellant failed to make; or, alternatively, (2) appellant waived his
complaint because appellant—not the prosecutor—introduced the challenged
evidence at trial. After reviewing the record and analogous case law, we agree with



       3
          In his written motion to suppress, appellant identified, but did not attach, a hotel receipt
as the evidence he sought to suppress. At the pretrial hearing on the motion to suppress, the parties
argued whether the State needed a warrant before asking the clerk to search the hotel computer
records for appellant’s driver’s license information. In his appellate brief, appellant challenges
admission of his “identity information” generally and does not cite to any specific evidence that
should have been suppressed. For clarity’s sake, we refer to the evidence identifying appellant as
the “hotel receipt.”

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the State’s second contention. Because we find the waiver issue dispositive, we do
not reach the merits of appellant’s argument.

      Generally, a sufficiently specific motion to suppress will preserve error in the
admission of evidence if the motion is overruled by the court following a pretrial
hearing, and a defendant need not later object at trial to the same evidence. See
Thomas v. State, No. 14-16-00355-CR, 2017 WL 4679279, at *2 (Tex. App.—
Houston [14th Dist.] Oct. 17, 2017, pet. ref’d) (mem. op., not designated for
publication). Consistent with this principle, during the hearing on appellant’s
motion to suppress, appellant’s counsel and the trial court agreed that appellant
would not waive his complaint by not re-urging the motion to suppress if the State
offered the receipt into evidence at trial.

      During trial, appellant offered the receipt into evidence, which was admitted
without objection by the State.          We conclude that appellant’s affirmative
introduction of the identity evidence at issue constituted a waiver of the arguments
previously asserted in his motion to suppress. An evidentiary objection otherwise
preserved by an adverse ruling on a motion to suppress may be later waived in certain
circumstances.    For example, if the State offers the subject evidence and the
defendant affirmatively voices “no objection,” then the defendant will have waived
any error in admission of the evidence. See Swain v. State, 181 S.W.3d 359, 368
(Tex. Crim. App. 2005) (“The affirmative acceptance of this previously challenged
evidence waived any error in its admission.”); see also Moraguez v. State, 701
S.W.2d 902, 904 (Tex. Crim. App. 1986) (holding that defendant preserves objection
to introduction of evidence in pretrial motion to suppress but waives that error when
he affirmatively states “no objection” to introduction of same evidence at trial). It
is only when the record as a whole plainly demonstrates that the defendant did not
intend, nor did the trial court construe, a statement of “no objection” to constitute

                                              8
abandonment of a claim of error that the reviewing court may not find waiver. See
Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013).

      The trial court’s ruling on the motion to suppress may have obviated
appellant’s need to renew his objection if the State introduced the evidence at trial.
See id. at 881. Consistent with the above cases, appellant would have waived error
had the State offered the receipt and appellant stated “no objection.” Affirmatively
introducing the receipt himself is certainly no less a waiver, and we see nothing in
the record indicating that the court and the parties agreed that appellant could
introduce the challenged evidence without waiving his earlier-preserved complaint.
Appellant’s affirmative introduction of evidence that he previously sought to
exclude “serve[s] as an unequivocal indication that a waiver was both intended and
understood.” Id. at 886.

      We conclude that appellant waived any error in the trial court’s failure to
suppress the evidence of appellant’s identity.

      We overrule appellant’s third issue.

                                    Conclusion

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.


                                       /s/       Kevin Jewell
                                                 Justice



Panel consists of Justices Jamison, Wise, and Jewell.
Publish — Tex. R. App. P. 47.2(b).



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