Affirmed and Memorandum Opinion on Remand filed November 29, 2012.




                                        In The

                         Fourteenth Court of Appeals

                                 NO. 14-09-00996-CR


                            PETER HENERY, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court at Law No. 4
                               Harris County, Texas
                          Trial Court Cause No. 1634586


       MEMORANDUM                     OPINION            ON     REMAND

      Appellant, Peter Henery, was convicted of misdemeanor indecent exposure. In
two issues, appellant contends the trial court (1) lacked jurisdiction to render judgment
against appellant and (2) erred by denying appellant’s motion to quash the information.
On original submission, a majority of this panel sustained appellant’s first issue and
reversed and remanded for the trial court to dismiss the cause. The Texas Court of
Criminal Appeals reversed the previous majority opinion and remanded the case to our
court. We affirm.
                                     I. BACKGROUND

       Appellant was charged by information with indecent exposure. Appellant filed a
motion to quash the information, which the trial court orally denied following a hearing.
Nevertheless, the trial court signed an order granting appellant’s motion to quash and
striking the information. Six days later, appellant pleaded “guilty” to the charged offense
pursuant to a plea bargain. The trial court accepted the plea and sentenced appellant to
sixty days’ confinement in county jail.

                            II. TRIAL COURT’S JURISDICTION

       In his first issue, appellant contends the trial court lacked jurisdiction to accept his
guilty plea, sentence him, and sign the judgment because the case was dismissed once the
court signed the order quashing the information.

       On original submission, a majority of this panel agreed, concluding the trial
court’s judgment was void for lack of jurisdiction and ordered the trial court to dismiss
the cause.   The Texas Court of Criminal Appeals granted the State’s petition for
discretionary review and reversed this panel’s majority opinion, determining that the case
should be abated for the trial court to clarify whether it intended to sign the motion to
quash. See generally Henery v. State, 364 S.W.3d 915 (Tex. Crim. App. 2012).

       On remand, we abated the appeal and remanded it to the trial court to address the
conflict between its oral denial of the motion to quash and subsequent written order
granting the motion. The trial court entered a nunc pro tunc order correcting its written
order on the motion to quash to reflect that the motion was denied. We reinstated this
appeal after receiving the trial court’s nunc pro tunc order. Because the trial court has
corrected its order on the motion to quash, it had jurisdiction to accept appellant’s guilty
plea, and enter the judgment. Accordingly, we overrule appellant’s first issue.

                     II. SUFFICIENCY OF CHARGING INSTRUMENT

       In his second issue, appellant contends the information did not allege with
reasonable certainty the acts the State relied upon to constitute recklessness.           The

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sufficiency of a charging instrument presents a question of law we review de novo. State
v. Barbernell, 257 S.W.3d 248, 251–52 (Tex. Crim. App. 2008).

       A person commits indecent 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(a) (West 2011) (emphasis added). When recklessness is part of
an offense, the State must allege the acts relied upon to constitute recklessness with
reasonable certainty. It is never sufficient for the State to merely allege that the accused
acted recklessly. Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009); Smith v. State, 309
S.W.3d 10, 14 (Tex. Crim. App. 2010).

       In its information, the State alleged appellant acted with recklessness as follows:

       “[Appellant], heretofore on or about OCTOBER 12, 2009, did then and
       there unlawfully expose his GENITALS to S. ROCCAFORTE 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: BY MASTURBATING IN PUBLIC.”

       In contending that the information is defective, appellant relies on the Court of
Criminal Appeals opinion in Smith. In Smith, the information contained the following
recklessness allegation:

       “[The defendant] did then and there unlawfully expose his GENITALS to
       S. FARQUHAR with intent to arouse and gratify the sexual desire of THE
       DEFENDANT, and the Defendant was reckless about whether another
       person was present who would be offended and alarmed by the act, to-wit:
       THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.”

309 S.W.3d at 12.      The Court of Criminal Appeals determined that the allegation
“exposed his penis and masturbated” did not inform the defendant with reasonable
certainty the acts relied upon to constitute recklessness because “there is nothing
inherently reckless about either exposing oneself or masturbating.”          Id. at 16; see
Gengnagel v. State, 748 S.W.2d 227, 228, 230 (Tex. Crim. App. 1988) (holding
allegation that defendant’s exposure of his genitals was reckless because he exposed his

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genitals to another person was insufficient to satisfy article 21.15), abrogated on other
grounds, Tex. Const. art. V, § 12; Tex. Code Crim. Proc. art. 1.14(b); see also State v.
Rodriguez, 339 S.W.3d 680, 684 n.17 (Tex. Crim. App. 2011) (explaining the
information in Gengnagel contained a tautology relative to recklessness because the State
merely alleged “the defendant recklessly exposed his genitals because he exposed his
genitals to ‘the complainant’”). The Smith court further explained: “The information
would have sufficiently apprised Smith of the act or acts constituting recklessness if the
State had alleged that Smith exposed his penis and masturbated in a public place.” 309
S.W.3d at 16 (emphasis added).

       Appellant contends the recklessness allegation in the State’s information is
deficient because it did not conform to the example provided in Smith, i.e., “exposed his
penis and masturbated in a public place.” Appellant argues that the State’s failure to
allege he exposed himself while masturbating is problematic because masturbation does
not necessarily involve exposure of genitals.

       “Masturbation” is defined as “erotic stimulation of the genital organs commonly
resulting in orgasm and achieved by manual or other bodily contact exclusive of sexual
intercourse . . . .” Webster’s Ninth New Collegiate Dictionary 732 (1991). Nothing in
this definition indicates, and logic does not dictate, that masturbation requires exposure of
the genitals.   However, the State alleged that appellant exposed his genitals to S.
Roccaforte and was reckless about whether another person was present who would be
offended and alarmed by appellant “MASTURBATING IN PUBLIC.” This allegation
necessarily denotes or describes appellant’s conduct as masturbating in public while
exposing his genitals. Although masturbating while exposing one’s genitals is not an act
inherently “reckless about whether another person is present who will be offended or
alarmed,” exposing one’s genitals while masturbating in public sufficiently describes the
behavior proscribed in the penal code. See Rodriguez, 339 S.W.3d at 683 (“[I]n Smith, an
indecent exposure case, we held that the State was required to plead the circumstances
under which the defendant exposed himself—such as ‘in a public place’—to indicate why

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his otherwise lawful act was reckless.”). For reasons outlined above, we conclude that
the State’s information sufficiently describes conduct proscribed by the penal code.
Accordingly, we hold the State alleged with reasonable certainty the act relied upon to
prove appellant engaged in conduct proscribed by the penal code. See Tex. Code Crim.
Proc. Ann. art. 21.15.1 The trial court did not err by denying appellant’s motion to quash.

        Appellant’s second issue is overruled and the trial court’s judgment is affirmed.




                                                /s/       Charles W. Seymore
                                                          Justice



Panel consists of Justices Seymore, Boyce, and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).




        1
          Appellant also argues the recklessness allegation is defective because the State used the phrase
“in public” instead of “in a public place,” as recommended in Smith. We reject this argument because
there is no discernible distinction between “public” and “public place” in this context.
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