                                    NUMBER 13-08-00598-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


GILBERT HINOJOSA,                                                             Appellant,

                                                        v.

THE STATE OF TEXAS,                                                           Appellee.


  On appeal from the 214th District Court of Nueces County, Texas.


                                MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      A jury convicted appellant, Gilbert Hinojosa, of indecency with a child by exposure.1

The trial court found that Hinojosa was a repeat felony offender, enhanced punishment

from a third-degree felony to a second-degree felony, and sentenced Hinojosa to




      1
          See T EX . P EN AL C OD E A N N . § 21.11(a)(2)(A) (Vernon 2003).
seventeen years' imprisonment.2 By one issue, Hinojosa contends that the evidence is

factually insufficient to sustain his conviction. We affirm.

                                           I. BACKGROUND

       At trial, the State presented the testimony of Andres Alvarez, Tanya Flores, Rose

Rosas, E.S., and Ricardo Jimenez. Hinojosa presented the testimony of his mother,

Imelda Ferritz.

       E.S. testified that she was seven years old and that she had witnessed a man

wearing an orange shirt and blue shorts in the park "doing the bad things." According to

E.S. the man was "letting his middle show," and she saw "the skin." The State asked E.S.

to circle the part of the body she called the "middle" on an illustration of an anatomically

correct male figure. E.S. complied, and the trial court admitted State's exhibit number two

into evidence—an illustration wherein E.S. circled the male figure's penis. After E.S.

circled the penis on the figure, the State asked, "Is that the part that you saw on the man

at the park?" and E.S. replied, "Yes." E.S. testified that a man named Ricardo showed her

some pictures, and she was able to find the picture that looked like the man that was

showing his "middle" in the park.

       Rosas, E.S.'s mother, testified that she took her son and E.S. to the park and was

sitting on a bench while the children played. According to Rosas, E.S. ran up to her, and

because E.S. "looked a little different," Rosas asked her "what had happened." E.S.

pointed at a man and claimed that he had his pants open showing his "private." When

Rosas asked E.S. if she saw the man's "private," E.S. responded, "Yes." According to

Rosas, E.S. sometimes refers to the penis as "a middle." Rosas stated that the man was


       2
           See id. § 12.42 (Vernon Supp. 2008).

                                                  2
wearing a red shirt. Rosas was able to identify the man from a photo lineup. On cross-

examination, Rosas clarified that she identified Hinojosa as the man her daughter pointed

to in the park. Rosas stated that they left and that she then attempted to call police, but

her "call wouldn't go through on [her] cell phone." Rosas testified that after a friend called

the police, an officer called her approximately ten minutes later.

       Officer Alvarez testified that he was dispatched to a playground at a local park to

investigate a report that a man wearing an orange shirt had exposed himself to a child. On

redirect examination, Officer Alvarez clarified that the investigation involved a male who

had exposed his genitals to a small child. When he arrived at the park, Officer Alvarez saw

Hinojosa, who matched the description given by dispatch. When Officer Alvarez made

contact with Hinojosa, Officer Alvarez informed him that a report was made that a man

matching Hinojosa's description was exposing himself to children. Hinojosa denied that

he had committed the offense. Officer Alvarez asked if Hinojosa had any children in the

park, and Hinojosa replied that he did not. As Officer Alvarez spoke to Hinojosa, he

noticed that "the zipper on [Hinojosa's] shorts was down a little further than halfway" and

stated, "You could see his underclothes, you know." Officer Alvarez asked, "[I]f you don't

have any children in the park, what were you doing in the playground and why are your

shorts unzipped?" Officer Alvarez testified that Hinojosa did not offer an explanation, and

instead stated, "I know this looks bad." Officer Alvarez stated that he contacted dispatch

asking if the complainant was still at the park; when dispatch informed him that she had

left, Officer Alvarez requested her phone number, called her, and spoke to her about the

incident.

       On cross-examination, Officer Alvarez testified that Hinojosa was cooperative,


                                              3
answered his questions, and did not attempt to flee. Officer Alvarez testified that neither

E.S. nor her mother returned to the park that day to identify Hinojosa. Officer Alvarez

stated that he did not know the exact location in the playground where the alleged incident

occurred.

        Detective Flores testified that she contacted Rosas and set up an appointment for

E.S. to be interviewed at the Child Advocacy Center (CAC). Detective Flores prepared a

photo array, including a picture of Hinojosa, which she provided to the forensic child

interviewer at the CAC. Detective Flores showed the lineup to Rosas, and Rosas identified

Hinojosa as the man she saw in the park.3

        Jimenez, a forensic interviewer at the CAC, testified that when he interviewed E.S.

she identified Hinojosa from a photo lineup. Jimenez stated that he asked E.S. to circle

the picture of the man who exposed his genitals at the park in a photo lineup, and she

circled Hinojosa's picture. The trial court admitted State's exhibit number three—a photo

array, wherein E.S. circled Hinojosa's picture.

                            II. STANDARD OF REVIEW AND APPLICABLE LAW

        In a factual sufficiency review, we view the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust or the jury's verdict is against the great weight and preponderance of the evidence.4

This Court will not reverse the jury's verdict unless we can say, with some objective basis

in the record, that the great weight and preponderance of the evidence contradicts the




        3
          The trial court adm itted into evidence State's exhibit num ber one— a photo lineup wherein Rosas
circled Hinojosa's picture.

        4
            W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006).

                                                      4
verdict.5

        Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge.6 "Such a charge would be one that

accurately 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."7 A

person commits the offense of indecency with a child by exposure if "with a child younger

than 17 years and not the person's spouse . . . the person . . . (2) with intent to arouse or

gratify the sexual desire of any person: (A) exposes . . . any part of the person's genitals,

knowing the child is present."8

                                                      III. DISCUSSION

        By his sole issue, Hinojosa contends that the evidence is factually insufficient to

prove his guilt beyond a reasonable doubt. As contrary evidence, Hinojosa points to the

following: (1) E.S. did not identify him at the scene of the offense; (2) he did not attempt

to flee when Officer Alvarez approached him; (3) he answered all of Officer Alvarez's

questions; (4) he "specifically denied that he exposed himself"; and (5) he was cooperative.

Hinojosa also asserts that "[i]t would not be fair to convict [him] on the single word of a

seven year old child."

        At trial, E.S. indicated that she saw a man expose his "middle" and saw his "skin"


        5
            Id. at 417.

        6
        Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997); Adi v. State, 94 S.W .3d 124, 131 (Tex.
App.–Corpus Christi 2002, pet. ref'd).

        7
            Malik, 953 S.W .2d at 240.

        8
         T   EX .   P EN AL C OD E A N N . § 21.11.

                                                            5
at a playground. E.S. circled the penis of an anatomically correct illustration of a male, and

testified that was the part of the body she called the "middle." Jimenez testified that E.S.

identified Hinojosa from a photo lineup as the man who exposed his penis at the

playground. Rosas testified that E.S. pointed at Hinojosa and told her that he had exposed

his penis to her. The State presented evidence that Rosas identified Hinojosa as the man

who exposed his penis to E.S. from a photo lineup. Officer Alvarez stated that he saw

Hinojosa walking away from the playground and that when he approached Hinojosa, he

noticed that his zipper was down and his underclothes were showing.

       After viewing the evidence in a neutral light, we cannot conclude that the evidence

supporting the verdict is so weak that the jury's verdict seems clearly wrong and manifestly

unjust.9 Furthermore, we cannot say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the verdict.10 We overrule

Hinojosa's sole issue.

                                           IV. CONCLUSION

       We affirm the trial court's judgment.




                                                     LINDA REYNA YAÑEZ,
                                                     Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 31st day of August, 2009.




       9
           See W atson, 204 S.W .3d at 414-15.

       10
            See id. at 417.

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