                                                                           ACCEPTED
                                                                       06-15-00010-CR
                                                            SIXTH COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                                                  6/17/2015 3:00:48 PM
                                                                      DEBBIE AUTREY
                                                                                CLERK

                     NOS. 06-15-00010-CR

                              IN THE                  FILED IN
                                               6th COURT OF APPEALS
                    SIXTH COURT OF APPEALS       TEXARKANA, TEXAS
                                               6/17/2015 3:00:48 PM
                     AT TEXARKANA, TEXAS
                                                   DEBBIE AUTREY
                   _______________________             Clerk


                         Larry Joe McNeal,
                             Appellant,

                                v.

                      The State of Texas,
                           Appellee.
                 _______________________________
                      On Appeal from the
               County Court, Lamar County, Texas
                Hon. M. C. Superville, Presiding
              _______________________________
                      APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court

Larry Joe McNeal

Counsel for Appellant:
     Don Biard                             (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Jerry Coyle                          (at trial)
      State Bar No. 04966700
      117 1st Street SE
      Paris, Texas 75460
      Tel: (903)732-0030
      Fax: (214)722-1373


Appellee in this Court

The State of Texas

Counsel for Appellee:
     Gary Young
     Lamar County Attorney’s Office
     119 N. Main Street
     Paris, Texas 75460
     Tel: (903)737-2458
     Fax: (903)737-2455


                                                           1
                                         TABLE OF CONTENTS


Identity of Parties and Counsel………………..........………………………………1

Table of Contents………………………..........…………………………………….2

Index of Authorities………………......………………………………………….....3

Issues Presented…………………………………………………………….………4

Summary of the Argument........................................................................................4

Statement of the Case………………………………….…………………………...5

Procedural History………………………....…………………………………….....6

Facts…………...…………..……………………………………………………..7-8

Argument and Authorities……………………......…………………….…….....9-14

Prayer……………………..……………………………………………………….15

Certificate of Service…………………......…………………………………..…...16

Certificate of Compliance With Rule 9.4(i)(3)........................................................17
                                             INDEX OF AUTHORITIES

                                                        Caselaw

Beasley v. State, 906 S.W.2d 270, 271 (Tex. App. — Beaumont 1995)................10

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ..........................9,13

Brunson v. State, 211 S.W.2d 755 (Tex. Crim. App. 1948)....................................14

Butler v. State, 429 S.W.2d 497 (Tex.Cr.App. 1968)..............................................14

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)..........................9,13

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet.
ref’d).....................................................................................................................9,13

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...............................9,13

Jackson v. Virginia, 443 U.S. 307, 319 (1979)....................................................9,13

Metts v. State, 22 S.W.3d 544, 547 (Tex. App. — Fort Worth 2000)................11,12

Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App. 1973)............................................14




                                                                                                                              3
                    SUBJECT MATTER OF ISSUES PRESENTED

I. Whether the evidence is insufficient to support the jury’s verdict because
there is insufficient evidence that Appellant actually exposed himself?

II. Whether the evidence is insufficient to support the jury’s verdict because
there is insufficient evidence that the complainant was alarmed or offended by
Appellant’s act of exposure?



                          SUMMARY OF THE ARGUMENT

Neither of the state’s two witnesses saw Appellant expose his genitalia in

public. While one state’s witness testified that she saw Appellant’s abdomen,

she specifically testified that she did not see his genitalia. Accordingly, the

evidence is insufficient to support the jury’s verdict.

      Additionally, because the complainant did not see Appellant’s genitalia,

the state failed to prove that she was alarmed or offended by Appellant’s

exposure of his genitalia.




                                                                                  4
                           STATEMENT OF THE CASE


Nature of the Case:          Plea of Not Guilty to an information charging one
                             count of Indecent Exposure

Trial Court:                 The Honorable M. C. Superville
                             County Judge, Lamar County, Texas

Trial Court Disposition:     A jury convicted Appellant of the charged offense
                             and the trial court sentenced Appellant to 120 days
                             in jail.




                                                                                 5
                              PROCEDURAL HISTORY

On July 10, 2014, Appellant was charged by information with the Class B

misdemeanor offense of indecent exposure in violation of Tex. Pen. Code §21.08.

On August 28, 2014, Appellant was appointed trial counsel.1 On January 6, 2015,

jury selection began and the case proceeded to trial on January 7, 2015.2

       Appellant pled not guilty to the charged offense but the jury found Appellant

guilty.3 Appellant elected to have the trial court assess punishment and the judge

sentenced Appellant to serve 120 days in jail.4 Appellant timely filed notice of

appeal on January 8, 2015.5




1
  CR, pg. 12
2
  RR, Vols. 3,4,5
3
  RR, pg. 27
4
  CR, pg. 29
5
  CR, pg. 31
                                                                                     6
                                  FACTUAL BACKGROUND

       Kelli Unruh testified at trial that she got off work around 4:30 p.m. on

February 13, 2014 and went to a public park and walking track in Paris, Texas.6

Unruh ran two miles at the track and then began walking back to her car.

       While walking back to her car, Unruh testified she saw a man standing next

to a white SUV approximately 100 to 150 feet away. Other testimony later

established that the distance between Unruh and this man was approximately 655

feet.7 Unruh testified that the man was standing next to his open car door and she

believed he was masturbating.8 However, Unruh testified that she never saw the

man’s genitalia.9

       After seeing this man, Unruh called her husband on her cell phone and then

called 911. After placing the call to 911, Officer Mayfield with the Paris Police

Department was dispatched to the scene.10

       Officer Mayfield testified that he arrived at the park and found Appellant

exiting the driver’s door of a white SUV. Officer Mayfield saw Appellant bend

down and then walk around to open the driver’s side back door of the SUV.11




6
  RR, pg. 22 (All references are to Vol. 4 of the Reporter’s Record unless otherwise specified.)
7
  RR, pg 116
8
  RR, pg. 28
9
  RR, pgs. 60-61, 68
10
   RR, pg. 69
11
   RR, pg. 72
                                                                                                   7
Officer Mayfield did not see Appellant expose his genitalia in any way. 12 Officer

Mayfield interviewed Appellant and then left the scene.13

         After the close of the state’s case, the defense made a motion for a directed

verdict on the basis that the state had failed to prove that Appellant had exposed his

genitals or anus.14 However, the trial court denied the motion and the trial

continued.

         The defense called Shane Grissom, an engineer with the City of Paris.

Grissom produced a scaled aerial photograph of the park where Unruh believed she

saw Appellant. Grissom was able to show that, according to Unruh’s testimony,

she would have been approximately 655 feet away from Appellant when she saw

him.15




12
   RR, pg. 95-96
13
   RR, pg. 101
14
   RR, pg. 107
15
   RR, pg. 116
                                                                                         8
                             ARGUMENT AND AUTHORITIES

Issue No. 1 Restated: The evidence is insufficient to support the jury’s verdict

because there is insufficient evidence that Appellant actually exposed himself.

                                   Standard of Review

        In evaluating the sufficiency of the evidence, this court must 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 crime

beyond a reasonable doubt.16 This court must conduct a rigorous sufficiency

review focusing on the quality of the evidence presented 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 facts.17

                                          Analysis

       At trial, the State’s primary witness was Kelli Unruh. Unruh testified that

she saw a man standing next to a white SUV with his abdomen exposed making a

hand motion as if he were masturbating.18 She was approximately 655 feet away




16
   Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (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).
17
   Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring); 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)).
18
   RR, pg. 30-35
                                                                                              9
from this man when she saw this.19 Importantly, Unruh testified explicitly that she

never saw the man’s genitalia.20

       Officer Mayfield was the only other person who testified he saw Appellant

that day. Officer Mayfield also specifically told the jury that he did not see

Appellant’s genitalia.21

       The Beaumont Court of Appeals has addressed a much closer question than

that presented in our case. In Beasley v. State, the defendant pulled his car up to

the complainant, opened his door, and asked, “Baby, do you want to get in the

car?”22 The complainant testified that she saw Beasley’s legs all the way up to his

abdomen but that his hand blocked her view of his penis.23

       The court held that the evidence was insufficient to support Beasley’s

conviction for indecent exposure, writing, “The complainant’s statement and

testimony both clearly indicate she did not at any time see any part of appellant’s

genitals.”24

       As in Beasley, Unruh’s testimony in our case clearly indicates she did not at

any time see any part of Appellant’s genitals.




19
   RR, pg. 116
20
   RR, pg. 61
21
   RR, pg. 95-96
22
   Beasley v. State, 906 S.W.2d 270, 271 (Tex. App. — Beaumont 1995).
23
   Id.
24
   Id. at 272
                                                                                      10
         Although it does not appear that this court has considered this exact issue,

the Fort Worth Court Appeals has declined to follow the logic in Beasley. In Metts

v. State, the Fort Worth Court held that the, “State is only required to prove that the

appellant’s genitals were exposed. The victim’s perception is not an element of the

offense.”25 However, the court’s holding must be considered in light of the facts in

Metts.

         In Metts, the complainant testified that she was out jogging at a park when

the appellant came toward her holding his penis out and staring at her.26 Several

months later, the complainant again saw the appellant at the same park. She

testified that as she was returning to her car, she saw the appellant naked from the

waist down and he appeared to be masturbating. She testified that she did not

actually see his penis on this occasion but that she surmised it was exposed

because she saw his bare buttocks and he appeared to be masturbating. Based on

this, the Fort Worth Court found the evidence sufficient to convict Metts of

indecent exposure for this second incident.

         Several facts differentiate Metts from our case. First, the complainant in

Metts saw the same man who had exposed himself to her earlier a second time

engaged in similar conduct.27 Here, Unruh had never before seen the man she


25
   Metts v. State, 22 S.W.3d 544, 547 (Tex. App. — Fort Worth 2000).
26
   Id. at 546
27
   Metts at 546
                                                                                        11
claimed was masturbating nor could she identify Appellant as the man she had

seen at the track that day.28

       Second, the distance between the complainant and Metts appears to have

been substantially closer than in our case. The complainant saw him in the parking

lot as she was returning to her car.29 Here, Unruh was approximately 655 feet —

nearly one-eighth of a mile — away from the man when she saw him.

       Third, in Metts the complainant actually saw Metts’s exposed buttocks.30

Here, Unruh did not testify that she saw any part of Appellant’s buttocks, genitalia,

or groin region. In fact, Unruh specifically testified that although Appellant was

turned toward her, Appellant’s “genitals were never exposed” to her.31

       Even applying the rationale in Metts, the State has failed to meet its burden.

There is insufficient evidence to allow a rational juror to conclude beyond a

reasonable doubt that “the appellant’s genitals were exposed.” The only evidence

suggesting they were was the testimony of a witness standing nearly an eighth of a

mile away who did not see his genitals.

       Because the record reflects insufficient evidence that Appellant actually

exposed his genitalia, the evidence is insufficient to support the jury’s verdict.




28
   RR, pg. 35
29
   Metts at 546
30
   Metts at 546
31
   RR, pg. 68
                                                                                     12
Issue No. 2 Restated: The evidence is insufficient to support the jury’s verdict

because there is no evidence that Kelly Unruh was offended or alarmed by

Appellant’s act of exposure.

                                   Standard of Review

        In evaluating the sufficiency of the evidence, this court must 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 crime

beyond a reasonable doubt.32 This court must conduct a rigorous sufficiency

review focusing on the quality of the evidence presented 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 facts.33

                                              Analysis

       The information by which Appellant was charged reads in part:

       One Larry Joe McNeal late of said County and State, anterior to the
       presentment of this information, did then and there, with intent to
       arouse or gratify the sexual desire of the defendant, expose his
       genitals, and the defendant was reckless about whether another was
       present who would be offended or alarmed by his act in that he was
       masturbating with his penis exposed in a public parking lot, and Kelli
       Unruh was present and offended or alarmed by said act of exposure.34

32
   Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (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).
33
   Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring); 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)).
34
   CR, pg. 6
                                                                                             13
       Descriptive averments in the charging instrument must be proved.35

The State is bound by its allegations in its charging instrument and must

prove them beyond a reasonable doubt.36 Writing nearly 70 years ago, the

Court of Criminal Appeals stated, “There is perhaps no rule of law more

firmly established in this State than that which requires the State to establish

the descriptive averments contained in the State's pleading.”37

       The information in this case contains the descriptive averment that

Kelli Unruh was offended or alarmed by Appellant’s act of exposure. The

jury charge correctly instructed the jury that they must find the State proved

this allegation beyond a reasonable doubt in order to convict.38 However,

the stated failed to prove that Unruh was offended or alarmed by Appellant’s

act of exposure.

       As discussed above, Unruh never actually saw Appellant expose

himself. It would not have been possible for Unruh to have been offended or

alarmed by an act which she did not witness. Therefore, there can be no

evidence that Unruh was so offended. Accordingly, the evidence is

insufficient to support the jury’s verdict.



35
   Brunson v. State, 211 S.W.2d 755 (Tex. Crim. App. 1948).
36
   Butler v. State, 429 S.W.2d 497 (Tex.Cr.App. 1968); Seiffert v. State, 501 S.W.2d 124
(Tex.Cr.App. 1973).
37
   Brunson at 755
38
   CR, pg. 24
                                                                                           14
                                     Conclusion

      The evidence is insufficient to support the jury’s verdict because there is

insufficient evidence that Appellant actually exposed himself in public. Further,

the evidence is also insufficient to support the jury’s verdict because there is no

evidence that Kelli Unruh was alarmed or offended by Appellant’s act of exposure.

                                       Prayer

Appellant respectfully requests this court reverse the conviction below and render a

judgment of acquittal.




                                               Respectfully Submitted,


                                               /s/ Don Biard
                                               ____________________________
                                               Don Biard
                                               State Bar No. 24047755
                                               38 First Northwest
                                               Paris, Texas 75460
                                               Tel: (903)785-1606
                                               Fax: (903)785-7580
                                               Email: dbiard@att.net
                                               Counsel for Appellant




                                                                                      15
                         CERTIFICATE OF SERVICE

I certify that on June 17, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by email.



                                                 /s/ Don Biard
                                                 ___________________________
                                                 Don Biard


Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office




                                                                                16
   CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
                         PROCEDURE 9.4(i)(3)



TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 2,548 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                ___/s/Don Biard___________________________
                                DON BIARD
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Counsel for Appellant




                                                                                  17
