Affirm and Opinion Filed July 12, 2013




                                           S  In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                        No. 05-12-00882-CR

                          ROBERTO ARNOLD BARRIENTOS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Criminal Court No. 3
                                    Dallas County, Texas
                           Trial Court Cause No. MB11-13388-C

                                             OPINION
                            Before Justices FitzGerald, Francis, and Lewis
                                    Opinion by Justice FitzGerald
       A jury convicted appellant of indecent exposure and the trial court sentenced him to 180

days’ confinement in the county jail. On appeal, appellant contends the evidence was insufficient

to establish appellant had the specific intent to arouse or gratify his sexual desire. We affirm the

trial court’s judgment.

                                             BACKGROUND

       On the afternoon of June 18, 2011, David Presley, a private security officer stationed at

Covenant Church, noticed a red truck parked in the church parking lot. Although the parking lot

is private property, it is open to the public. There were about fifty cars in the other area of the

parking lot at the time.
       Presley noticed that the vehicle was not running and had its windows down. He observed

the vehicle for a few minutes but did not see any movement. The officer then approached the

vehicle and saw appellant lying down in the seat of the truck. The officer testified:

               I observed him laying in the bench seat of his pickup truck, head facing
               the passenger window, feet at the driver‘s window, with his pants
               unzipped open and his penis in his right hand. He was masturbating, had a
               piece of fruit in his left hand, up to his mouth, sucking on it and moaning.

       Presley further indicated that appellant had an erection, was holding his penis in his right

hand in an up and down motion, and appeared to be gratifying his sexual desire. Presley

described appellant’s moans as sounding like moans of pleasure. Presley stated that he was able

to see appellant’s chest, belly, penis, and scrotum. Presley was alarmed and offended, and

testified that anyone who walked by the truck would have seen appellant masturbating.

       Appellant did not notice Presley’s presence. The officer observed “a bunch of carpenter

tools in the floorboard next to [appellant],” so he backed away and called the Carrollton police.

       Officer Kaiser from the Carrollton police department was dispatched to the scene. He

testified that appellant’s truck was parked in the northwest corner of the church parking lot, a

public place. When the officer approached the truck, he observed “a Hispanic male laying with

his head in the passenger’s seat and his feet toward the driver’s seat and floorboard and he had

his pants down and he had his right hand on his penis.” Officer Kaiser testified that he was able

to see all of appellant’s genitals, and had been able to see appellant from the back tailgate of the

truck as he approached. Appellant had an erection and appeared to be aroused. Officer Kaiser

was offended. The church and the parking lot were located in a high traffic area, and the officer

stated that anyone walking by would have been able to see appellant. According to Officer

Kaiser, appellant did not seem embarrassed when the officer got his attention, “just startled.”

Officer Kaiser placed appellant under arrest.



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       Appellant testified in his defense. He stated that he was fifty-six years old and had

stopped at the church to rest because he had “a little bit of pain on one of [his] testicles.”

Appellant testified that he has a hernia the size of a grapefruit, but has not received medical

treatment for the condition. According to appellant, his hand was touching the spot where his

hernia is, not his penis. Appellant denied moving his hand up and down on his penis. Appellant

also denied eating a piece of fruit and testified that if he was moaning, it was in pain. Appellant

testified that in order to relieve the pain from the hernia he will rest for ten to fifteen minutes

with his hand pushing his testicle back and in, towards his stomach. Appellant denied that his

pants were down and his genitals were exposed. He also denied that he was masturbating or

touching his penis.

       Upon conclusion of the trial, the jury found appellant guilty of indecent exposure, and the

trial court sentenced him to 180 days in the county jail. This appeal followed.

                                          DISCUSSION

       In a single issue, appellant argues the evidence is insufficient to support his conviction

because the evidence is insufficient to establish a specific intent to arouse and gratify his sexual

desire. We disagree.

       We review the sufficiency of the evidence under the standard of review set forth in

Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). Under the Jackson standard, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the

jury’s role as the sole judge of the witnesses’ credibility and the weight their testimony is to be

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve

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conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim App. 2007). When the record supports conflicting inferences, we presume the factfinder

resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443

U.S. at 326; Clayton, 235 S.W.3d at 778.

       Under section 21.08 of the penal code, an individual commits an offense 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 2012). The intent to arouse or gratify “can be inferred

from the conduct of, remarks by, and circumstances surrounding the acts.” Cate v. State, 124

S.W.3d 922, 931 (Tex. App.—Amarillo 2004, pet. ref’d); Martins v. State, 52 S.W.3d 459, 474

(Tex. App.—Corpus Christi 2001, no pet).

       Viewing the evidence in the light most favorable to the jury verdict, we find that a

rational trier of facts could have found beyond a reasonable doubt that appellant intended to

arouse or gratify his sexual desire. In that light, both officers testified that appellant had his hand

on his erect penis and was masturbating. Although appellant claimed he was attempting to

alleviate pain caused by a hernia, he admitted during cross-examination that his hand was around

his penis. Under these circumstances, a rational jury could have inferred appellant intended to

gratify his sexual desires. Appellant’s issue is resolved against him.




                                                 –4–
       The judgment of the trial court is affirmed.




                                                      /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120882F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERTO ARNOLD BARRIENTOS,                         On Appeal from the County Criminal Court
Appellant                                          No. 3, Dallas County, Texas
                                                   Trial Court Cause No. MB11-13388-C.
No. 05-12-00882-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Francis and Lewis participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this July 12, 2013




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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