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


                  No. 06-16-00140-CR



           WAYLON SPARKMAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



     On Appeal from the Criminal District Court No. 2
                  Tarrant County, Texas
               Trial Court No. 1429443D




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        Waylon Sparkman was convicted by a jury of the third degree felony offense of indecency

with a child and was sentenced to eight years’ imprisonment. See TEX. PENAL CODE ANN.

§ 21.11(a)(2) (West 2011). Claiming that the evidence is legally insufficient to support his

conviction, Sparkman appeals.1 Because the evidence is legally sufficient for a reasonable jury to

conclude beyond a reasonable doubt that Sparkman committed the offense of indecency with a

child, we affirm the trial court’s judgment.

I.      Standard of Review

        In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate




1
 Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by the
Texas Supreme Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV’T CODE ANN.
§ 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that
of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

                                                       2
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury charge is “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 was tried.” Id.

II.         Analysis

            The indictment in this case alleged that Sparkman intentionally exposed his genitals,

knowing a child younger than seventeen years-of-age was present, with the intent to arouse or

gratify Sparkman’s sexual desire. Sparkman committed the offense of indecency with a child “if,

with a child younger than 17 years of age, whether the child is of the same or opposite sex,” he

(1) exposed any part of his genitals, (2) knowing the child was present, (3) with the intent to arouse

or gratify his sexual desire. TEX. PENAL CODE ANN. § 21.11(a)(2)(A). We review the evidence in

light of Sparkman’s point of error.

            In the summer of 2015, fifteen-year-old Candace and her sixteen-year-old brother, Chris,2

along with their mother, moved into an apartment shared by thirty-one-year-old Sparkman, his

sister, and her two children. When their mother moved out after approximately one month,

Candace and Chris decided to stay. Over the summer, Sparkman and Candace began spending


2
    We refer to the minor victim and her brother by pseudonyms to protect their identities. See TEX. R. APP. P. 9.10.
                                                             3
time alone together, and family members began to suspect there was something going on between

the two. Chris noticed that Candace had become protective of Sparkman.

       On August 9, 2015, Chris awoke during the early morning hours to discover that Candace

and Sparkman were not in the apartment. After searching for the pair around the apartment

complex, Chris discovered Candace and Sparkman on the building’s roof where he saw Candace

covered by a blanket. Judging by the movement of the blanket, Chris suspected someone was with

Candace. Chris began to scream at Candace and asked her what she was doing. As he approached

Candace, Chris saw that Sparkman was with her. Chris assumed they were having sex, and, after

a slight struggle, removed the blanket. When he did, Chris saw Sparkman on his back with his

pants down, with his erect penis exposed. Candace was in the process of pulling her pants up.

Sparkman apologized and told Chris that Chris could beat him up, and he would not fight back.

Rather than attack Sparkman, Chris returned to the apartment and called his mother. When their

mother arrived, Chris and Candace returned home with her.

       Candace admitted that, over the summer, she grew close to Sparkman. She referred to

Sparkman as a father figure who was always there for her, and she sported a tattoo on her wrist

that said “Sparkman” placed there by Sparkman during the summer. Candace said Sparkman made

her feel special because he saw her like nobody else did. She eventually admitted that she saw

Sparkman as more than a father figure and used the phrase “[w]e were talking” to describe their

relationship. It is apparent, however, that the relationship had evolved past talking, as evidenced

by a photograph depicting a nude Candace about to kiss Sparkman and as evidenced by a second

photograph of Sparkman and Candace kissing.          Candace reluctantly admitted that she and

                                                4
Sparkman had been intimate with each other. Her description of the events of August 9, however,

stood in stark contrast to Chris’ testimony.

        Candace testified that she awoke early that morning and went to the roof of the apartment

complex to look at the stars. She discovered that Sparkman was already on the roof, and they just

sat and talked. According to Candace, she and Sparkman were lying on the roof when Chris

arrived. Candace stated that neither she nor Sparkman lowered their pants and that both remained

fully clothed at all times. She did not recall Chris removing the blanket, but she stated that he was

angry and he punched her in the face. Candace was subpoenaed to testify and stated that she did

not “want to be [in court].”3

        Sparkman points to Chris’ testimony that Sparkman’s genitals were covered by a blanket

and were only exposed when Chris removed the blanket. He, therefore, contends the evidence is

insufficient to support his conviction because he did not expose his genitals, as contemplated by

the statute. In support of this proposition, Sparkman relies on Beasley v. State, 906 S.W.2d 270

(Tex. App.—Beaumont 1995, no pet.). In Beasley, the complainant testified that she saw Beasley

in his car and that “he didn’t have clothing on from the upper leg to the waist.” Id. at 271. The

complainant could not see Beasley’s penis because “[h]is hand shielded the penis area.” Id.

Consequently, the court determined that Beasley did not commit the offense of indecent exposure

because he did not “expose” his penis. Id.




3
 After she returned with Chris to their mother’s home, Candace ran way and returned to Sparkman that same month
and repeated that sequence again in September. When she was removed from Sparkman’s apartment for the second
time, Candace was placed in two different drug abuse and suicide prevention facilities.
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         Our sister court has declined to follow Beasley. Metts v. State, 22 S.W.3d 544, 547 (Tex.

App.—Fort Worth 2000, pet. ref’d). In Metts, the complainant saw Metts standing with his truck

door open and his buttocks exposed while engaging in an act of self-gratification. Id. at 546.

Although there was no evidence that the complainant actually saw his genitals, the court

determined that the State only had to prove that Metts’ genitals were exposed, not that the

complainant perceived them. Id. at 547 (citing Wilson v. State, 9 S.W.3d 852, 856 (Tex. App.—

Austin, no pet.) (upholding conviction for indecency with a child by exposure where victim did

not see appellant’s genitals)).4

         In a case involving the exposure of the appellant’s “private parts” to a boy under the age

of sixteen years, the Texas Court of Criminal Appeals stated that in the context of discussing the

term “expose,” it would be “very difficult to find any single word in the English language that is

used in a wider sense and is more flexible than this particular word.” Miller v. State, 243 S.W.2d

175, 175 (Tex. Crim. App. 1951). The court recognized that the term “expose” was not defined in

the statute pursuant to which Miller was prosecuted—just as it remains undefined in the current

statute. Consequently, the court looked to the common meaning generally in use and concluded

that the term “need not be limited to the meaning ‘exposed to sight[,’] as contended for by

appellant.” Id. at 176.

         In more recent decisions, courts have recognized that the offense of indecency with a child

by exposure “is based on the defendant’s actions and mental state, not the other person’s


4
 While Beasley and Metts involved convictions for indecent exposure, our sister court recognized, “The statute under
which appellant was charged, like indecency with a child by exposure, is based on the accused’s actions and mental
state, not the victim’s comprehension,” and concluded, “Because we cannot agree that section 21.08 requires that the
victim of the offense see the accused’s genitals, we respectfully decline to follow Beasley.” Metts, 22 S.W.3d at 547.
                                                          6
comprehension.” Ex parte Amador, 326 S.W.3d 202, 209 (Tex. Crim. App. 2010) (Cochran, J.,

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

(upholding a conviction for indecency with a child by exposure even though the child did not see

the defendant’s genitals)); 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 proof that the victim actually

saw the accused’s genitals.”). In spite of this authority, though, Sparkman claims that his genitals

were never exposed, as they were at all times covered with a blanket. Based on the foregoing

authority, we reject this argument and hold that the evidence is legally sufficient to support

Sparkman’s conviction.

III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        March 16, 2017
Date Decided:          April 28, 2017

Do Not Publish




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