                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00093-CR



   TANAVIONNE MARCELL ROBERTSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 26412




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
        Tanavionne Marcell Robertson appeals his conviction for the offense of indecency with a

child by exposure. Robertson waived his right to a trial by jury and entered a plea of not guilty.

The trial court found Roberson guilty and sentenced him to five years’ confinement, but suspended

his sentence and placed him on community supervision. Robertson contends that the evidence is

legally insufficient to sustain his conviction because the State failed to show he exposed his

genitals to the complainant. Because we find the evidence was sufficient, we affirm the trial

court’s judgment.

I.      Background

        On August 18, 2015, A.B., who was eleven years old at the time, went to Taco Express

with her two cousins, Anna Wilson and Sarah Floyd.1 A.B.’s cousins were seeking employment

at the restaurant and were in the process of speaking to one of the Taco Express employees. While

her cousins were speaking to the employee, in the back of the building, A.B. was standing at the

back door of the restaurant where she had a view of the street. While standing there, A.B. saw

Robertson across the street on the parking lot of a church, and she noticed that he was moving

closer to her location. When asked what Robertson was doing, A.B. answered, “He had sat down

and he was -- I guess he was playing with hi[m]self.” A.B. explained that he was “[m]oving his

hands up and down.” A.B. stated, “[Robertson was] kind of a far distance, but then I recognized

what he was doing.” A.B. continued, “I didn’t see his private parts, but I [saw] his hands [were]



1
 We refer to the child complainant by her initials and to the remaining witnesses by fictitious names to protect the
privacy of the child. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).

                                                         2
over it.” A.B. testified that Robertson stated, “I thought you wanted me to do it, or something.”

Robertson then went back to his original location. A.B. explained that when she first saw

Robertson, his pants “were, like, up,” “like pants are supposed to be.” However, when Robertson

began walking in her direction, “they were down.” “When he sat on the wall they were, like,

down, like, unzipped.”2

        Floyd also testified at trial. At the time of the incident, Floyd was nineteen years of age.

Floyd testified that on the day of the incident, she was with “[her] cousin [Anna] and [her] little

cousin [A.B.] and at the time[, her] boss Cameron Prum.” She explained that she was speaking to

Prum about her job at Taco Express and that they were outside the restaurant at the back of the

building. Floyd testified that while she was speaking to Prum, she saw Robertson “sitting down

on the concrete, and [she saw] his hand moving up and down in his pants.” Floyd explained that

while Robertson was looking at A.B., his “hand [was] moving up and down inside of his pants.”

She told A.B. to go inside because she “felt like [Robertson] -- . . . was looking at her, and she’s

underage.”

        Wilson was seventeen at the time of the incident. Wilson testified that she was the last

person to exit the restaurant and that when she went outside, she saw Robertson walking back

across the street to his original location. Wilson stated that when Robertson sat down, his hands

were in his pants. Wilson explained that she believed Robertson was masturbating.




Following A.B.’s testimony, Robertson moved for a directed verdict arguing that because A.B. was unable to see
2

Robertson’s genitals, the State failed to prove a requisite element of its case. The trial court denied his request.
                                                         3
       Chris Widner, an officer with the Paris Police Department, testified that he was dispatched

to the restaurant and that when he arrived there, Robertson appeared to be masturbating. Widner

exited his vehicle and asked Robertson what he was doing. Robertson told Widner that he was

masturbating. Widner explained that Robertson was sitting down, leaning against a pillar, and that

Robertson’s hands remained inside of his pants. Widner stated, “[I] was able to see [Robertson’s]

penis at that time is what I was able to do, so he -- he was jacking off.” The State showed Widner

a photograph of Robertson and asked him if he recognized the person in the photograph, to which

Widner responded that he did. The date on the photograph corresponded with the date of the

incident. Widner explained that the photograph showed that Robertson’s pants were “pulled down

a little bit behind his buttocks.” Widner continued,

       It wasn’t always all the way around his waist or below his waist or anything like
       that. That’s kind of why it was a little bit more difficult when I first pulled up. And
       then when I made contact with him I could see that it was loose and they were
       down, so.

When asked if Robertson’s genitals were exposed, Widner responded, “Yes.” After Widner placed

Robertson in his patrol car, he spoke with A.B. and her cousins. Widner stated that after he placed

Robertson in his police vehicle, Robertson continued to masturbate in the backseat. “He was

actually turned looking the direction of where the females were at[,] masturbating.” Widner

explained that the three girls were still outside and that he believed A.B. was still within

Robertson’s view. On cross-examination, Widner was asked if he believed the girls could see

Robertson’s genitals while he was in the patrol vehicle, to which Widner responded, “In my

vehicle, no.” Widner stated that he believed an individual masturbates for “self-gratification.”

He continued, “I don’t know any other reason.”
                                                 4
       At this point in the trial, Robertson asked again for a directed verdict.

       The statute requires that he expose himself with the intent to gratify -- expose
       himself to an underage child with intent to gratify. Now, what we’ve got with
       Mr. Tanavionne is he was masturbating, but he didn’t -- there -- the evidence is
       unequivocal from all three witnesses that he didn’t expose himself to this child.
       This child didn’t see him, and he didn’t think she saw him. The -- the idea that we
       could get beyond a reasonable doubt that he exposed himself for the purpose of
       gratifying her even if she didn’t see it when the evidence is from all three witnesses
       that he didn’t expose himself, he -- his pants were up, they could tell what he was
       doing but they couldn’t see his penis, that’s not exposure. That’s all the evidence
       there is.
               And the fact that -- that she may have been looking away, first of all,
       requires that he be exposing himself and that he do it to -- with the intent to gratify
       and she see it.

After hearing from the State, the trial court denied Robertson’s motion for a directed verdict.

       Just before Robertson testified, he asked for a directed verdict for a third time. On that

occasion, Robertson argued that he did not expose his genitals to A.B. and that the only witness

who actually saw his genitals was Widner. The trial court denied Robertson’s third request for a

directed verdict.

       Robertson then testified that on the day of the incident he was homeless and was looking

for a place to masturbate. He stated that his pants were not down and that no one could see his

genitals. Robertson explained,

       Well, I was trying to find a private place to [masturbate] and I -- so -- and I couldn’t,
       so I sat in front of the church, and then the 19-year-old, she was just staring at me,
       so I started to walk across the street. But before I approached the 19-year-old, the
       19-year-old made [A.B.] go safely inside the burger shop, and she never came out
       until the police arrived.

Robertson repeatedly stated that A.B. was not present when he exposed himself. He claimed that

when A.B. was present, his hands were down by his side and that it was only after A.B. went back

                                                  5
inside the restaurant that he began to masturbate. According to Robertson, he only intended to

masturbate in the presence of the adults. Robertson admitted that he continued to masturbate after

he was placed in the police vehicle, however. He stated, “[B]ut the little girl couldn’t see my

[genitals] when I was masturbating in the back of the police car.” He stated that he was looking

back toward the scene and that he could see A.B., Floyd, and Wilson.

         I knew they was trying to identify me. That’s why I was turned around. And I
         wanted to -- and I wanted to admire them. That’s why I was turned around because
         I knew they was trying to identify me and I wanted to take advantage of them trying
         to identify me by admiring them.[3]

Robertson went on to admit that he was “[h]igh” on methamphetamine at the time the incident

occurred.

         After hearing testimony and closing arguments from both parties, the trial court found

Robertson guilty of indecency with a child by exposure and sentenced him to five years in prison,

but suspended his sentence and placed him on community supervision. This appeal followed.

         On appeal, Robertson contends there was insufficient evidence to support the trial court’s

judgment of conviction. Specifically, Robertson maintains that the State failed to prove that he

exposed himself in A.B.’s presence. We disagree.

II.      Standard of Review

         In evaluating legal sufficiency in this case, we must review all the evidence in the light

most favorable to the verdict to determine whether any rational fact-finder could have found,




3
 After Robertson completed his testimony, he asked the trial court for a directed verdict for the fourth time. “Now we
have it more conclusively than ever that his intent was not for the eleven-year-old to see him. He didn’t even -- he
was confident she wasn’t there.” Again, the trial court denied Robertson’s request.
                                                          6
beyond a reasonable doubt, that Robertson was guilty of indecency with a child by exposure. See

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (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) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks,

323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction

of the Brooks opinion, while giving deference to the responsibility of the fact-finder “to fairly

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

facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19). Legal sufficiency of the evidence is measured by the elements of the offense

as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

III.        Discussion

            Robertson was charged with indecency with a child by exposure.4 In order to prove

indecency with a child by exposure under Section 21.11 of the Texas Penal Code, the State must



4
    The State’s indictment against Robertson stated,

            [Robertson] on or about August 18, 2015 in the County of Lamar and the State of Texas, did then
            and there, with the intent to arouse or gratify the sexual desire of the Defendant, expose the
            defendant’s genitials [sic] knowing that [A.B.], a child younger than 17 years of age, was present.
                                                            7
prove the following: (1) the child was younger than seventeen years and not the spouse of the

accused; (2) the accused exposed any part of his genitals; (3) the accused knew the child was

present; and (4) the actions were taken with intent to arouse or gratify the sexual desire of any

person. TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011). Exposure means “[t]o deprive of

concealment; to disclose or unmask something criminal, shameful, or the like.” Balfour v. State,

993 S.W.2d 765, 769 (Tex. App.—Austin 1999, pet. ref’d) (quoting Miller v. State, 243 S.W.2d

175, 176 (Tex. 1951)). The necessary specific intent to arouse or gratify the sexual desire of any

person can be inferred from the defendant’s conduct, remarks, and all surrounding circumstances.

Claycomb v. State, 988 S.W.2d 922, 925 (Tex. App.—Texarkana 1999, pet. ref’d).

           In this case, Robertson contends that the State did not prove that he exposed his genitals to

A.B. and, thus, that the evidence is insufficient to support a finding of guilt. Robertson contends

that “there was no exposure in the presence of [A.B.] under any possible interpretation of the facts

presented to the trial court.” Robertson maintains that his conviction cannot stand because A.B.

was looking directly at him and saw nothing. In response, the State maintains that exposure in a

child’s presence does not require that the child to be aware of the exposure or see the exposed body

part. We agree.

           The Texas Court of Criminal Appeals explained in its Amador5 opinion that exposure in a

child’s presence does not require the child to be aware of the exposure or see the exposed body

part. In Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. 2011), the court explained:

           In Ex parte Amador, we established that indecency with a child by exposure does
           not depend upon the child suffering any harm from seeing the defendant’s genitals.

5
    Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010).
                                                        8
       Amador, 326 S.W.3d at 207, 208. “[I]t is the society that is ‘offended or alarmed’
       by the fact that its children should be subjected to such exposure.” Id. at 208. The
       child need only be “present” for the offense to be effectuated; the child does not
       even have to be aware of the exposure. As Judge Cochran stated in her concurring
       opinion, “The offense is based on the defendant’s actions and mental state, not the
       other person’s comprehension.” See id. at 209 (Cochran, J., concurring) (citing
       Uribe v. State, 7 S.W.3d 294, 297 (Tex. App.—Austin 1999, pet. ref’d) (upholding
       a conviction for indecency with a child by exposure even though the child did not
       see the defendant’s genitals)). Accordingly, the forbidden conduct of Section
       21.11(a)(2)(A) is the exposure of the defendant’s anus or genitals under the
       proscribed circumstances. As such, this factor suggests that the act of exposure is
       the unit of prosecution.

Harris, 359 S.W.3d at 631 (footnote omitted). All the statute requires is that the accused knew a

child was present and exposed his genitals with the intent of gratifying someone’s sexual desire.

Breckenridge v. State, 40 S.W.3d 118, 125 (Tex. App.—San Antonio 2000, pet. ref’d) (concluding

that the crime of indecency with a child by exposure concerns what the defendant exposed, not

what the victim saw).

       Although Robertson claims that he did not see A.B. and that A.B. did not see him at the

time he was masturbating, the remaining witnesses testified that A.B. was present during the

incident and that she was within Robertson’s view. In fact, Floyd told A.B. to go inside because

she believed Robertson was looking at A.B. She also testified that while Robertson was looking

at A.B., his hand was moving up and down inside his pants. A.B. testified that Robertson’s pants

were down “like unzipped” and that Robertson was “moving his hands up and down.” In addition,

Widner explained that when he arrived at the scene, he asked Robertson what he was doing and

that Robertson responded that he was masturbating. Widner also testified that during the time he

was speaking to Robertson, he could see his genitals. Widner stated that when Robertson was in

the police vehicle, he continued to masturbate while looking at all three of the girls. Moreover,
                                                9
Robertson conceded that he was masturbating prior to and after Widner’s arrival. He also admitted

that after being placed in the police vehicle, he could see all three of the girls, including A.B., and

that he continued to masturbate because “[he] wanted to take advantage of them trying to identify

[him] by admiring them.”

       In this case, the trial court was the fact-finder. The trier of fact “is the sole judge of the

credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267,

271 (Tex. Crim. App. 1999). The fact-finder may choose to believe or disbelieve any portion of

the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When a

reviewing court is faced with conflicting evidence, it must presume the trier of fact resolved

conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App.

1993). Thus, if any rational fact-finder could have found the essential elements of the crime

beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.

App. 1997).

       The fact that Robertson was masturbating during the incident is uncontested. As it relates

to whether A.B. was present while Robertson was masturbating, the trial court apparently believed

the State’s evidence rather than Robertson’s version of events. Moreover, contrary to Robertson’s

contention, there is no requirement that A.B. actually saw Robertson’s exposed genitals. We find

that the evidence was sufficient for the trial court to find Robertson guilty of indecency with a

child by exposure. We overrule Robertson’s point of error.




                                                  10
IV.   Conclusion

      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      December 1, 2016
Date Decided:        February 1, 2017

Do Not Publish




                                                11
