                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00010-CR



           LARRY JOE MCNEAL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



            On Appeal from the County Court
                 Lamar County, Texas
                Trial Court No. 61963




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                MEMORANDUM OPINION
        After work in early 2014, Kelli Unruh went for a jog in a public park in Paris, Texas. Her

experience that day, however, caused her to telephone, first, her husband and, second, 9-1-1. As

she completed her two-mile jog that late afternoon, she noticed a man, later identified as Larry Joe

McNeal, standing by a white Sports Utility Vehicle, partially screened by its open door but facing

her and making continuous hand movements leading her to conclude that he was masturbating in

her general direction. As a result of this event, McNeal was charged with, and convicted of,

indecent exposure and sentenced to 120 days in jail.

        On appeal, McNeal complains of the legal insufficiency of the evidence on two points:

first, that McNeal actually exposed himself and, second, that the complainant was alarmed or

offended by McNeal’s exposure. We affirm the trial court’s judgment, because (1) there is legally

sufficient evidence that McNeal exposed his genitals, and (2) there is legally sufficient evidence

that McNeal was reckless about whether another was present who would be offended or alarmed

by his act.

        To properly consider a claim that evidence is legally insufficient, we consider all evidence

and reasonable inferences therefrom “in the light most favorable to the verdict and determine

whether a rational fact-finder could have found the essential elements of the offense beyond a

reasonable doubt.” IslasMartinez v. State, 452 S.W.3d 874, 877 (Tex. App.—Dallas 2014, pet.

ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Wise v. State, 364 S.W.3d 900,

902 (Tex. Crim. App. 2012)). It is the role of the fact-finder, not the court on appeal, to resolve

evidentiary conflicts, determine credibility, and weigh the various bits of evidence. Id. (citing


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Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)); see Winfrey v. State, 393 S.W.3d

763, 768 (Tex. Crim. App. 2013).

        We measure the sufficiency of the evidence against the challenged elements of the offense

using a hypothetically correct jury charge applicable to the case. See Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997). That hypothetical charge “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 was tried.” Id.

        McNeal was charged with indecent exposure, which offense has the following elements:

(1) a person, (2) exposes his anus or any part of his genitals, (3) with intent to arouse or gratify the

sexual desire of any person, and (4) he is reckless about whether another is present who will be

offended or alarmed by his act. TEX. PENAL CODE ANN. § 21.08 (West 2011); see Wallace v. State,

550 S.W.2d 89, 91 (Tex. Crim. App. 1977); Swire v. State, 997 S.W.2d 370 (Tex. App.—

Beaumont 1999, no pet.). Just two of those elements are challenged by McNeal on appeal, whether

McNeal exposed himself as required by the statute and whether he was reckless concerning the

presence of another who would be offended or alarmed. We address each in turn.

(1)     There Is Legally Sufficient Evidence that McNeal Exposed His Genitals

        McNeal argues that, because Unruh did not see McNeal’s genitals, he did not expose

himself within the meaning of the statute. We disagree.




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           The cases interpreting the statutory meaning of “expose” are pretty consistent that the

victim need not actually see genitals for there to be “exposure.”

           Just a few years ago, the Texas Court of Criminal Appeals ruled that indecent exposure

under Section 21.08 of the Texas Penal Code is a lesser-included offense of indecency with a child

by exposure under Section 21.11(a)(2)(A). It reasoned that the exposure element is identical under

the two statutes, that the added element of proof is the presence of a child, and that the other

apparent difference, recklessness concerning the presence of another who would be offended or

alarmed, is implied in the case of a child victim.1 See Ex parte Amador, 326 S.W.3d 202, 207

(Tex. Crim. App. 2010). Later, that court explained its Amador opinion by stating that exposure

in a child’s presence does not require the child to be aware of the exposure or see the exposed

offending body part.2 See Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011). Because

the element of exposure is the same in each offense, cases that interpret “exposure” under either

statute support our analysis.




1
 “The law in effect presumes that all children are or should be ‘offended or alarmed’ by such exposure. Thus, there
is no need to require the State to show that a given child was in fact ‘offended or alarmed’ by a defendant’s act of
exposure.” Ex parte Amador, 326 S.W.3d 202, 207 (Tex. Crim. App. 2010).
2
    The court explained:

           In Ex parte Amador, we established that indecency with a child by exposure does not depend upon
           the child suffering any harm from seeing the defendant’s genitals. Amador, 326 S.W.3d at 207,
           208. . . . The child need only be “present” for the offense to be effectuated; the child does not even
           have to be aware of the exposure. As Judge Cochran stated in her concurring opinion, “The offense
           is based on the defendant’s actions and mental state, not the other person’s comprehension.” See
           id. at 209 (Cochran, J., concurring) (citing Uribe v. State, 7 S.W.3d 294, 297 (Tex. App.—Austin
           1999, pet. ref’d) (upholding conviction for indecency with child by exposure even though child did
           not see defendant’s genitals)).

Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011).
                                                             4
       Cases with similarities to the present case hold that direct exposure to the victim is not

required. Where a victim testified that a defendant was naked from the waist down and was

masturbating as he looked at her, though she never actually saw his genitals, the conviction for

indecent exposure was affirmed. See Metts v. State, 22 S.W.3d 544 (Tex. App.—Fort Worth 2000,

pet. ref’d).   And, where a video recording showed a defendant uncovering his penis and

masturbating as he watched his neighbor, that conviction for indecent exposure was upheld, though

the neighbor did not know what he was doing at the time and did not see his genitals. See Swire,

997 S.W.2d at 372.

       Other precedents on this point under both statutes generally agree that the victim’s direct

view of the key body part is not required. See Breckenridge v. State, 40 S.W.3d 118, 124–25 (Tex.

App.—San Antonio 2000, pet. ref’d) (“[S]ection 21.11(a) does not require a showing that the

victim actually saw the accused’s genitals.”); Wilson v. State, 9 S.W.3d 852, 856 (Tex. App.—

Austin 2000, no pet.) (two child victims, two charges, only one child saw defendant’s genitals);

Uribe v. State, 7 S.W.3d 294, 297 (Tex. App.—Austin 1999, pet. ref’d); Balfour v. State, 993

S.W.2d 765, 769 (Tex. App.—Austin 1999, pet. ref’d); see also Amador, 326 S.W.3d at 209

(Cochran, J., concurring); Miller v. State, 243 S.W.2d 175, 176 (Tex. Crim. App. 1951) (exposure

does not require “exposed to sight”); McGee v. State, 804 S.W.2d 546, 547 (Tex. App.—Houston

[14th Dist.] 1991, no pet.) (defendant masturbating in store dressing room supported conviction,

without proof appellant intended another to see his genitals but with proof they were open to view).

       McNeal cites a case with an apparently contrary proposition. In that case, a defendant’s

lower body was naked and visible, but he covered his penis with his hand so the victim could not

                                                 5
see it; our sister court held there was no exposure of his genitals within the terms of the statute.

See Beasley v. State, 906 S.W.2d 270 (Tex. App.—Beaumont 1995, no pet.). We distinguish

Beasley, in that its evidence suggested no exposure of Beasley’s genitals to anyone or generally,

given that his hand completely covered his private parts. We would also note that the same court

has also subsequently distinguished Beasley on its facts and ruled consistently with our holding

today. See Swire, 997 S.W.2d at 372 n.1.

            Though Unruh unequivocally testified that, because of the screening position of the

vehicle’s door, she never actually saw McNeal’s genitals, Unruh believed she saw McNeal

masturbating, based on his hand motions, which she observed taking place continually for

approximately two minutes as she was walking on the track while calling and talking with her

husband and then 9-1-1 personnel. Unruh described McNeal’s position as being behind the door

of his vehicle but facing the track area where she was running and walking. From her description,

it is a reasonable conclusion that McNeal’s genitals were exposed to plain view, just not directly

to Unruh’s view, based on her vantage point.

            We overrule this point of error.

(2)         There Is Legally Sufficient Evidence that McNeal Was Reckless about Whether Another
            Was Present Who Would Be Offended or Alarmed by His Act

            McNeal also argues that, because there was no proof that he exposed himself to Unruh,

there is also no proof that she was offended by his exposure. The State perceives McNeal’s

argument to be that there is no proof that Unruh was offended or alarmed.3 To the contrary,



3
    There is, in fact, testimony that Unruh was alarmed.
                                                           6
McNeal argues that the failure of proof is that the offense or alarm of Unruh was because of

exposure by McNeal. We review, however, a third option—the only viable argument relative to

this element of the offense—that McNeal was reckless about whether another was present who

would be offended or alarmed by his exposure. That is the relevant element of proof called for by

the hypothetically correct jury charge, as we have mentioned above.

       In an indecent exposure case, to allege this element, the State must allege circumstances

indicating that the defendant was aware of the risk that another person was present who would be

offended by his act of exposing himself and that the defendant acted in conscious disregard of that

risk. State v. York, 31 S.W.3d 798, 801 (Tex. App.—Dallas 2000, pet. ref’d). Actual offense or

alarm by a victim is not required. Id. at 802. McNeal was standing in a public park in the presence

of other people, including Unruh, who was jogging on the public track in the area, in plain sight.

He was standing by his car, and Unruh observed him for approximately two minutes doing hand

motions causing her to conclude that he was masturbating. Legally sufficient evidence supports

the fact-finding on this element of proof. We overrule this point of error.

       We affirm the judgment of the trial court.



                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:        August 31, 2015
Date Decided:          September 2, 2015

Do Not Publish



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