                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00337-CR

DONNIE LEROY KACHEL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-198-C1


                          MEMORANDUM OPINION


      A jury convicted Donnie Leroy Kachel of the offense of indecency with a child by

exposure and assessed his punishment at sixty years confinement after finding the

enhancement paragraphs to be true. On October 24, 2013, this Court issued an opinion

affirming Kachel’s conviction. Kachel filed a petition for discretionary review with the

Court of Criminal Appeals. The Court of Criminal Appeals reversed the judgment of this

Court and remanded the cause. We reverse and remand.
                                    Background Facts

        Katerina Jones testified that, on October 22, 2010, she arrived home from shopping

with her then nine-year-old daughter at or a little before 8:00 p.m. When she got to the

front porch her daughter said, “Mommy, there is a man, he’s naked.” Jones turned

around and saw a naked man, whom she later identified as Kachel, standing in the street.

She panicked, went inside, and locked the door. Jones called 9-1-1 and peeked out the

blinds. She stated that Kachel would walk around where his pickup truck was parked

across the street from their home and that he would also walk in the street. Jones stated

that Kachel clearly wanted her to see him and that he was touching his penis. Jones’s

husband’s cousin eventually arrived at Jones’s house and pulled into Jones’s driveway.

Kachel then left, and the police arrived shortly thereafter.       Jones’s daughter gave

substantially similar testimony.

        Waco Police Officer Daniel Kent testified that he soon located Kachel in the

parking lot of the Flying J truck stop. Kachel was in the driver’s seat of his truck trying

to put on his clothes. When Officer Kent approached, Kachel had on a pair of shorts and

socks. Officer Kent testified that he found women’s underwear and a pornographic

magazine in Kachel’s truck. Officer Kent and Officer D.J. Adams both testified that

Kachel’s explanation for the incident was that he was changing clothes.

        Don Marshall, an investigator with the McLennan County District Attorney’s

office, testified that he interviewed Kachel and that the interview was videotaped. A

portion of the videotaped interview was admitted into evidence. In the interview, Kachel

stated that he had stopped on the side of the road to change clothes. He saw the woman,

Kachel v. State                                                                      Page 2
but he did not see anyone else with her. When he saw the woman, he jumped into his

truck and went to the Flying J. Kachel stated that he was never exposed and that he had

his underwear on at all times.

                           Lesser-Included-Offense Instruction

        In his first issue, Kachel contends that the trial court erred by refusing to include

a requested jury-charge instruction on the lesser-included offense of indecent exposure.

We use a two-step analysis to determine whether an appellant was entitled to a lesser-

included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007);

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser offense

must be a lesser-included offense of the charged offense as defined by article 37.09 of the

Code of Criminal Procedure. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); see

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). Second, there must be some evidence

in the record that would permit a jury to rationally find that if the appellant is guilty, he

is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734,

741 (Tex. Crim. App. 2005); Rousseau v. State, 955 S.W.2d at 672-73.

        A defendant's own testimony that he committed no offense, or testimony which

otherwise shows that no offense occurred at all, is not adequate to raise the issue of a

lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). In his

statements, Kachel indicated that he only saw a woman; however, Kachel denied that he

ever exposed himself.      In our October 24 opinion, this Court found that Kachel’s

statement that no offense occurred at all was not adequate to raise the issue of a lesser-



Kachel v. State                                                                          Page 3
included offense.

          In its opinion, the Court of Criminal Appeals stated, “a defendant can point to his

or her own statements as evidence that he or she is guilty of only the lesser-included

offense, even if the defendant also denied committing any offense.” Kachel v. State, No.

PD-1649-13, slip op. at 7 (Tex. Crim. App. March 18, 2015). The Court of Criminal

Appeals stated that “although Kachel’s statements are inconsistent and contradictory, he

did make several general denials of any culpability” and that “Kachel consistently denied

that he ever saw a child.” Id at 8. The Court of Criminal Appeals found that:

          And because the jury is ‘permitted to believe or disbelieve any part’ of
          Kachel’s statements, a reasonable jury -- in light of all the evidence in the
          record – could have:
    (1)   disbelieved Kachel’s general denials of being on Richter Avenue;
    (2)   believed his admission to changing his clothes in the street on Richter
          Avenue;
    (3)   believed his admission to seeing an adult woman while he was changing;
    (4)   believed his denial of seeing any child while he was changing;
    (5)   disbelieved his denial that his genitals were covered by his thong
          underwear and blocked from the woman’s view by his truck; and
    (6)   disbelieved his denial that he made any sexual gestures.


Id. at 8-9. The Court of Criminal Appeals concluded that a reasonable juror could have

found Kachel guilty of only indecent exposure, and the trial court erred in denying his

request.     The Court of Criminal Appeals remanded the cause to this Court for a

determination of harm.

          The erroneous refusal to give a requested instruction on a lesser-included offense

is charge error subject to an Almanza harm analysis. Saunders v. State, 840 S.W.2d 390, 392

(Tex.Crim.App.1992). (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)).



Kachel v. State                                                                           Page 4
Under Almanza, we will reverse if the error in the court's charge resulted in some harm

to the accused. See Almanza v. State, 686 S.W.2d at 171. The harm from denying a lesser

offense instruction stems from the potential to place the jury in the dilemma of convicting

for a greater offense in which the jury has reasonable doubt or releasing entirely from

criminal liability a person the jury is convinced is a wrongdoer. Masterson v. State, 155

S.W.3d 167, 171 (Tex. Crim. App. 2005); Saunders v. State, 913 S.W.2d 564, 571

(Tex.Crim.App.1995). Ordinarily, if the absence of the lesser-included offense instruction

left the jury with the sole option either to convict the defendant of the charged offense or

to acquit him, some harm exists. Saunders v. State, 913 S.W.2d at 571. Because the jury

could have believed that Kachel committed the lesser-included offense of indecent

exposure, but was only given the option to convict him of the greater offense of indecency

with a child by exposure, the denial of the requested instruction caused Kachel some

harm. Kachel’s first issue on appeal is sustained.

                                       Conclusion

        We reverse the trial court’s judgment, and remand the case for a new trial.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reverse and remand
Opinion delivered and filed May 28, 2015
Do not publish
[CRPM]

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