                                 NO. 07-02-0247-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                FEBRUARY 21, 2003

                        ______________________________


                     ALBERT DUANE MONTOYA, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 43,981-E; HONORABLE ABE LOPEZ, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                              MEMORANDUM OPINION


      In presenting four issues for our decision, Albert Duane Montoya challenges his

conviction after a bench trial for the felony offense of indecency with a child and the



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).
resulting punishment of five years confinement in the Institutional Division of the

Department of Criminal Justice. He contends that the answer to each of the issues would

mandate reversal of his conviction. Disagreeing, we affirm the judgment of the trial court.


       Appellant’s challenges are that 1) the trial court erred in allowing the State to

present witnesses when it had not complied with a pretrial ruling requiring it to produce a

witness list, 2) the trial court erred in allowing witnesses to testify after a violation of Rule

of Evidence 614, the witness sequestration rule, 3) the evidence is factually insufficient to

support the court’s finding that appellant exposed his genitals to gratify his sexual desire,

and 4) the evidence is factually insufficient to show that appellant knew a child younger

than 17 years was present at the time of the incident in question.


       In the indictment charging appellant in this cause, it was alleged that on June 18,

2001, appellant did “with intent to arouse and gratify the sexual desire of the defendant,

intentionally and knowingly expose [his] genitals to Cindy Swaim, a child younger than 17

years of age and not the spouse of the said defendant, knowing said child was present.”

At a pretrial hearing, the trial court granted a defense motion seeking production of a list

of the names and addresses of all witnesses the prosecution intended to call at any stage

of the proceedings.


       Over appellant’s objections, the State was allowed to present the testimony of

Regina, John and Cynthia Swaim, Linda Lyons, and Amarillo Police Officer Gregg Putnam.

Regina Swaim testified that she was in Ellwood Park in Amarillo to watch a series of

volleyball games in which her children were participating. She was seated in the bleachers

                                               2
with her daughter Cynthia when she and other spectators noticed appellant lying by a tree

about 15 feet away. His penis was exposed and he was “playing with himself.” She

averred that appellant had an erection and was watching two girls practicing on a nearby

sidewalk. She and some others confronted appellant at the scene.


       The State’s next witness was John Swaim, Regina’s husband and Cynthia’s father.

He was sitting on the lawn by the bleachers watching volleyball games. Regina called to

him and pointed to a tree. When he turned to look, he saw appellant “jacking off right

behind me” at an estimated distance of ten yards. Appellant was looking at two nearby

girls, one of whom Swaim identified as 16-year-old “Collie.” He averred that he could

clearly see appellant stroking his erect penis in view of Cynthia from where she was sitting

in the bleachers. He was one of the spectators who told appellant to stop what he was

doing, and he was still there when the police arrived about five minutes later.


       Cynthia Swaim testified that she was 15 at the time of the incident. While she was

watching a volleyball game, her sister motioned for her to come to the volleyball court,

pointing toward the tree where Cynthia said she saw appellant “playing with his penis.”


       The State’s next witness was Linda Lyons. Linda testified that Regina told her to

look in the area where appellant was located. She averred that she was about 15 feet from

appellant and saw him “masturbating looking at my daughter.” Her daughter was 16-year-

old Collie Lyons, one of the girls practicing on the sidewalk near appellant.




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       The State’s final witness was Amarillo Police Officer Putnam, who arrested

appellant. The officer said that when he arrived, there were several people around

appellant, who was lying by a tree with his belt and pants unfastened. It was his opinion

that appellant was intoxicated.


       Appellant testified that he had been drinking vodka and beer most of the day, had

smoked marijuana, and had taken a medication which was similar in its effect to Valium.

In the early evening, he said, he needed to go to the bathroom but found two men engaged

in oral sex in the bathroom. After waiting some time for them to emerge, he decided to

urinate where he was. He swore that he was unaware of any nearby volleyball game and

denied that he was exposing himself to gratify his sexual desires.


       We initially address appellant’s third and fourth issues in which he challenges the

factual sufficiency of the evidence.2 In conducting a factual sufficiency review, we must

consider all of the evidence to determine whether the judgment is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The trier of fact evaluates the credibility and

demeanor of the witnesses and determines the weight to be given their testimony. Cain

v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We may not reweigh the

evidence but rather, must defer to the trier of fact’s findings, particularly those based upon




       2
       As appellant does not challenge the legal sufficiency of the evidence, he has
waived any claim of error on that basis.

                                              4
credibility determinations. See King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000);

Cain, 958 S.W.2d at 407-09.


          To prove indecency with a child by exposure, the State must establish beyond a

reasonable doubt: 1) the accused knew a child was present; and 2) the accused’s intent

to arouse or gratify someone’s sexual desire. See Tex. Pen. Code Ann. § 21.11(a)(2)(A)

(Vernon Supp. 2003); Uribe v. State, 7 S.W.3d 294, 296 (Tex. App.–Austin 1999, pet.

ref’d).


          The gist of appellant’s argument under this point is that although the jury could well

have found that appellant was aware of the girls on the sidewalk, there is nothing to

connect appellant with Cynthia Swaim, the child actually named in the indictment, or that

appellant was aware of her.3 In advancing his argument, he cites and relies upon the

truism expounded by the court in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979),

that the statute requires a defendant know of the presence of a child when he is engaged

in his act. Id. at 844.


          However, in considering appellant’s argument, active attention-getting conduct is not

requisite to a conviction for indecency and further, the requisite specific intent to arouse

or gratify the sexual desire of any person can be inferred from the defendant’s conduct, as

well as all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.




          3
       Appellant does not challenge the fact that Cynthia Swaim is the same girl as the
Cindy Swaim referred to in the indictment.

                                                5
Crim. App. 1981); Turner v. State, 600 S.W.2d 927, 930-31 (Tex. Crim. App. 1980);

Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.–San Antonio 2000, pet. ref’d).


       The determinative question in this appeal is whether appellant’s exposure to Cynthia

was knowing, within the purview of the statute, and with the intent to gratify his sexual

desires. The evidence in this case was sufficient to justify a factfinder’s conclusion that

appellant’s genitals were exposed in a public place and in close proximity to Cynthia, as

well as numerous other minors. That evidence was sufficient to sustain a conclusion that

appellant’s genitals were exposed to Cynthia as well as other children. See and compare

Uribe, 7 S.W.3d at 295, 297 (evidence sufficient where the acused exposed his penis and

masturbated in his automobile, which was parked next to the automobile in which the victim

sat as a passenger, even though there was no proof the child actually saw his penis);

Turner, 600 S.W.2d at 931 (jury could infer a defendant’s awareness of a child when he

drove past her as she walked, stopped, and exposed himself in his automobile); Strain v.

State, 934 S.W.2d 424, 425 (Tex. App.–Amarillo 1996, no pet.) (evidence that naked

defendant stood in the door of his residence and masturbated facing the victim and her

friends who stood in the yard was sufficient to establish intent to expose); Wilcox v. State,

672 S.W.2d 12, 13-14 (Tex. App.–Houston [14th Dist.] 1984, no pet.) (evidence was

sufficient to show awareness and intent when the accused stood by a gap in a backyard

fence and dropped his pants close to where the victims played).


       With regard to the question as to appellant’s intent to gratify himself sexually, all of

the witnesses present, with the exception of appellant, testified that his penis was erect


                                              6
when it was exposed. The jury was also entitled to consider Regina Swaim’s testimony

that appellant had a “sick” expression as he faced the girls and masturbated, as well as

Linda Lyon’s testimony that she would “never forget the look on his face” as he looked at

the girls and masturbated. The evidence about appellant’s erection and the surrounding

circumstances were amply sufficient to establish his intent to gratify himself sexually.

Accordingly, appellant’s third and fourth issues are overruled.


       In his first issue, appellant posits that the trial court reversibly erred by allowing

witnesses to testify who were not on the written list of witnesses furnished by the State

pursuant to a pretrial motion. The record reveals that on December 18, 2001, some time

prior to the April 16, 2002 bench trial, the trial court had granted appellant’s motion for

discovery of the State’s intended witnesses, with the exception of rebuttal witnesses. At

the outset of the trial, when the State called Regina Swaim, its first witness, it developed

that the State had not delivered a witness list to appellant and counsel objected to the

witness being permitted to testify. In the ensuing colloquy between the court and the

attorneys, the State responded to the objection by arguing that the omission was by

oversight, and that the witnesses’ names had been shown on the State’s subpoena list to

which appellant had access. The prosecutor also represented to the court that the

secretary of appellant’s counsel had made copies of the State’s entire file, he believed,

which would have included the State’s application for witness subpoenas. As is apparent

from this appeal, appellant’s objections were overruled and the witnesses permitted to

testify. No request for continuance was made, nor does the record show that appellant’s

counsel asked for an opportunity to interview the witnesses before they testified.

                                             7
Additionally, appellant’s trial objection was limited to the failure to file the witness list, and

he did not claim unfair surprise. Parenthetically, the witness list was filed on the morning

the trial commenced.


       In this appeal, appellant argues that the State was guilty of bad faith in not filing the

witness list and the fact that the names of the witnesses might have been on the subpoena

list did not cure the failure. This is true, he posits, because attempting to ascertain which

of the persons on the list might actually be called by the State was an improper and

impossible burden on him. He also reasons that he would have been put to the burden of

constantly monitoring the subpoena list pending the trial date, which would be an

impossible burden.


       It is established that notice of the State’s intended witnesses should be given upon

proper request. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993), cert. denied,

512 U.S. 1246, 114 S.Ct.2765, 129 L.Ed.2d 879 (1994). If a witness whose name is not

on a witness list is permitted to testify, the standard of review is whether the trial court

abused its discretion by allowing the witness to testify. Stoker v. State, 788 S.W.2d 1, 15

(Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990).

In determining whether a trial court abused its discretion in permitting the testimony of

witnesses in a situation such as this, among the factors the appellate court should consider

is whether there is a showing of bad faith on the part of the State in failing to disclose

ahead of time the names of witnesses it intends to call. Additionally, another factor to be

considered is whether the defendant could reasonably anticipate that the witness would


                                                8
testify, even though the name is not on a witness list. Nobles v. State, 843 S.W.3d 503,

514 -15 (Tex. Crim. App. 1992). Moreover, the extreme sanction of exclusion of otherwise

relevant testimony of a witness should not be imposed absent bad faith or willfulness on

the part of the prosecution. Pena v. State, 864 S.W.2d 147, 149 (Tex. App.–Waco 1993,

no pet.).


       In this case, there is nothing in the record to indicate that there was bad faith in the

State’s failure to file its witness list prior to the day of trial. From the dialogue, the trial court

would be justified in considering the open file policy of the State and the uncontroverted

statement of the prosecutor that appellant had the opportunity to examine the State’s entire

file. It is also significant that appellant’s trial counsel never told the court of any surprise

testimony because the witness list was not filed earlier and counsel did not ask for a

continuance or a recess to have the opportunity to talk to the witnesses. See Barnes v.

State, 876 S.W.2d 316, 328 (Tex. Crim. App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174,

130 L.Ed.2d 110 (1994) (failure to move for a continuance or object on the basis of

surprise failed to preserve matter for appellate review even though court had ordered

witness name to be furnished prior to trial). Appellant does not contest the fact that the

witnesses were on the subpoena list, presumably some time previous to the trial date. See

Shavers v. State, 985 S.W.2d 284, 290 (Tex. App.–Beaumont 1999, pet. ref’d). Moreover,

this was a bench trial. In sum, under this record, the trial court did not abuse its discretion

in its evident conclusion that appellant was not unfairly surprised by the testimony.

Additionally, because of all the surrounding circumstances, the failure to timely file the



                                                  9
witness list was not sufficient to deprive appellant of a substantial right. See Tex. R. App.

P. 44.2(b). Appellant’s first issue is overruled.


       In his second issue, appellant contends the trial court reversibly erred in allowing

witnesses, who had been in the courtroom and heard another witness testify, to testify

although the witness sequestration rule had been invoked. The circumstances giving rise

to this issue occurred after the testimony of Regina Swaim, the State’s first witness. The

State’s subsequent witnesses, John Swaim, Cynthia Swaim, Linda Lyons, and Gregg

Putnam were present in the courtroom during Regina’s testimony.


       Among appellant’s pretrial motions was one invoking the witness sequestration rule

(the Rule). That motion was presented at the December 18, 2001 pretrial hearing. The

prosecutor stated that he did not oppose the motion and, without specifically granting the

motion, the trial judge commented, “I don’t have a problem with [the motion].” Although the

court’s statement is somewhat ambiguous, for the purpose of our discussion, we will

assume that the motion was granted.


       Appellant made no reference to the Rule, nor did his counsel remind the court that

the Rule had been invoked until after Regina Swaim had completed her testimony and the

State had called John Swaim, its second witness. At that time, appellant objected to

Regina’s testimony on the basis that it would violate the Rule. The trial court immediately

instructed each of the remaining witnesses as to the obligations of the Rule and excused

them from the courtroom until called. With the comment to appellant’s counsel that she

should have made the court aware of the Rule’s invocation before the trial began, the trial

                                             10
judge overruled each of her objections to the subsequent witnesses and permitted them

to testify.


        The Rule is contained within Texas Rule of Evidence 614. In pertinent part, it

provides that at the request of a party, the court “shall” order witnesses excluded so they

cannot hear the testimony of other witnesses. The Rule does not mention what, if any,

sanctions a trial judge may exact for a violation of the Rule. However, it is well established

that a trial court’s action in allowing testimony from such a witness is measured by the

abuse of discretion standard and, until the contrary has been shown, it is presumed on

appeal that the court’s discretion was properly exercised. Bell v. State, 938 S.W.2d 35, 50

(Tex. Crim. App. 1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997).

Two criteria that have been suggested in determining whether improper injury or prejudice

to the defendant resulted are a) whether the defendant actually conferred with or heard

other witnesses’ testimony, and b) whether the witness contradicted testimony of a witness

from the other side or corroborated testimony of a witness he had heard. Id. In this case,

the witnesses were present and heard Regina’s testimony and their testimony largely

corroborated hers. However, those suggested criteria are merely matters to be considered

in deciding whether the trial judge abused his discretion in allowing the testimony.


        Appellant’s counsel did not remind the trial judge of the invocation of the Rule.

Rather, his trial counsel sat mute until the State’s first witness had testified. It is a general

rule that appellate courts will not consider any error which counsel for an accused could

have called, but did not call, to the attention of the trial court at a time when the error could


                                               11
have been avoided or corrected. Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App.

1981) (opinion on State’s second motion for rehearing). This is certainly one of those

instances. Moreover, the witnesses’ testimony was based upon their own experience and

presence. Nothing in the record indicates that having heard Regina’s testimony colored

their testimony. Bell, 938 S.W.2d at 51. Under this record, the trial court did not abuse its

discretion in allowing the witnesses to testify. Additionally, our examination of the record

convinces us that the trial court’s action did not deprive appellant of a substantial right.

Tex. R. App. P. 44.2(b). Appellant’s second issue is overruled.


       In summary, all of appellant’s issues are overruled, and the judgment of the trial

court is affirmed.



                                                  John T. Boyd
                                                  Senior Justice


Do not publish.




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