Opinion issued October 8, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00538-CR
                           ———————————
                       RICARDO ROMANO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 6
                           Harris County, Texas
                       Trial Court Case No. 2167075


                         MEMORANDUM OPINION

      On an August morning in a remote part of Houston’s Memorial Park, a

police officer on mounted patrol with a body camera was intentionally concealing

himself and his horse behind bushes and trees as he observed the nearby park area

and a parking lot. Around noon, and with no park patrons visible, a car driven by
appellant Ricardo Romano exited the park road, entered the empty parking lot, and

parked at the back of the parking lot parallel to the roadway.

      Romano got out of his car, walked around the back of it, and opened the

front passenger door. The officer briefly observed Romano and then notified his

partner by radio that Romano was masturbating. The officer rode toward Romano,

handcuffed him, and told him that he was being arrested for indecent exposure.

Romano apologized and responded that he was just going to urinate because he had

been drinking a lot from a huge jug of water in his car and he “needed to pee.”

      Romano was charged by information that he unlawfully exposed his genitals

to the officer with the intent to arouse and gratify Romano’s sexual desire and that

Romano was reckless about whether another person was present who would be

offended and alarmed by the act, in that he masturbated in a public park. See TEX.

PENAL CODE § 21.08(a).

      At the conclusion of a bench trial, the court found Romano guilty of the

Class B misdemeanor offense of indecent exposure and assessed a sentence of

three days in county jail, as well as a $1,000 fine. Also, Romano was ordered to

register as a sex offender for ten years.

      Romano asserts three issues on appeal: (1) the evidence is insufficient to

support his conviction for indecent exposure; (2) the trial court erred in admitting

the testifying police officer’s personal opinion that Romano was masturbating; and


                                            2
(3) he was denied effective assistance of counsel at the guilt-innocence stage when

defense counsel mentioned, elicited, and failed to object to testimony about and

references to his inadmissible prior conviction.

      Because the evidence is insufficient, we reverse Romano’s conviction and

render a judgment of acquittal.

                                   Background

      The State’s evidence consisted of the testimony of Houston Police

Department Sergeant Ryan Gardiner and video footage from Gardiner’s body

camera. Romano testified on his own behalf.

      On the morning of Wednesday, August 23, 2017, Gardiner was on mounted

patrol in a part of Memorial Park known as the Picnic Loop. He, his partner, and

their horses had arrived there around 10:00 a.m. that morning. Gardiner and his

partner were stationary “for the most part” and were “mainly concealed.” Gardiner

was there to look for “certain crimes”; primarily, he looked for cars circling the

area and for cars parking in the back of the park. Gardiner estimated that he had

been concealed in the bushes and trees since around 10:30 a.m., and from then

until the time of Romano’s arrest at 12:10 p.m., he had not witnessed any crimes or

participated in any arrests.

      Around noon, Gardiner saw Romano drive into the parking lot that he had

been observing and park his car. Gardiner added that from where he was concealed


                                          3
in the trees and bushes, he had a good vantage point and line of sight toward the

parking lot. The video from Gardiner’s body camera shows that there was an

opening in the trees and bushes and that there was an open park area with some

picnic tables between Gardiner and the parking lot.

       At one minute and twenty-five seconds into Gardiner’s video, Romano’s car

can be seen exiting the park road and turning into the parking lot. At that point,

Gardiner raised his binoculars and looked toward Romano’s car for just four

seconds and then lowered his binoculars. On cross-examination, Gardiner admitted

that this four-second observation was the only time that he used his binoculars to

observe Romano.1 On the video, Romano’s car can be seen driving into the parking

lot for about fifteen seconds before bushes and trees obstruct the camera’s view of

the car.2

       The video shows that, after lowering his binoculars, Gardiner observed

Romano’s car and Romano for the next fifty-five seconds. Because the bushes and

trees were obstructing the camera’s view, Romano and Romano’s car cannot be

seen on the video in that time frame, which is when Gardiner testified that Romano
1
       Gardiner testified that he wrote in his report that he “also used binoculars to watch
       the suspect” but admitted that he did not watch Romano with binoculars while
       Romano was allegedly masturbating—the only time he used binoculars was before
       Romano got to the parking lot.
2
       According to Gardiner, Romano’s parking his car in the parking lot “was
       suspicious” because “there’s very few reasons to park back there.” Gardiner did
       not elaborate further on why a car’s parking in the parking lot of a public park at
       noon on a summer day was suspicious.
                                             4
got out of his car, walked around his car, and began masturbating. During that

fifty-five seconds of surveillance, no pedestrians or park patrons are visible. At the

video’s two-minute mark, Gardiner’s body camera’s audio came on.

      At two minutes and twenty-four seconds into the video, Gardiner summoned

his partner on his radio, telling him to “come this way” and that Romano was

masturbating. Gardiner’s partner was at a nearby location on the other side of the

parking lot and could not see Romano.

      Gardiner testified that, from his vantage point, after Romano parked his car,

he saw Romano get out and walk around the back of his car to the other side, open

the front passenger door, and then walk to the back of his car. Gardiner said that he

then saw Romano, who was wearing “jogging shorts,” pull down the top of his

shorts with one hand and start masturbating with his other hand.

      During Gardiner’s radio communication with his partner, Gardiner’s horse

begins to move forward toward Romano, and at two minutes and twenty-seven

seconds into the video, Romano’s parked car can be seen for the first time on the

video because the camera’s view of it is no longer being obstructed by the bushes

and trees. Gardiner’s horse then begins going at a trot or canter toward Romano,

who cannot be ascertained on the video until two minutes and forty seconds into




                                          5
the video because of the original distance between Gardiner and Romano and the

camera’s movement caused by the horse’s movements.3

      When Romano is first ascertainable on the video, he is on the passenger side

of his car with the front passenger door open and is standing near the open door.

The car’s passenger side is facing away from the roadway and parking lot and is

approximately ten feet from a dense area of bushes and trees.

      The video shows Gardiner stopping his horse approximately ten yards from

Romano’s car, dismounting, and walking up to Romano. Gardiner then tells

Romano to place his hands behind his back and begins to handcuff him. Romano

complies but asks, “What’s happening?” Gardiner responds, “You’re under arrest

for indecent exposure.” Romano then exclaims with an incredulous tone, “What?”

Gardiner replied, “I watched you from over there; I have a camera.” Romano then

exclaimed to Gardiner, “I was gonna pee. I’m sorry; I really needed to pee.” He

explained to Gardiner that there was a jug of water in his car and that he had been


3
      Gardiner did not testify what the distance was from his concealed location to
      Romano’s car. The elapsed time that it took for Gardiner’s horse, once it started
      walking and then trotting or cantering toward Romano, to come to a stop near
      Romano’s car was approximately eighteen seconds. Because of the quality of the
      video and the dearth of testimony on Gardiner’s distance from Romano, we would
      have to speculate about the distance, but we can say that it appears to be less than
      a football field (100 yards). Romano testified that the officer was fifteen to twenty
      feet away, but it is unclear whether that distance was where the officer was hidden
      in the trees and bushes or where the officer and horse were when Romano first
      noticed them. From our review of the video, we can say with certainty that the
      officer’s hiding place was much more than fifteen to twenty feet away from
      Romano’s location.
                                            6
drinking a lot of it, but Gardiner replied that he saw what Romano was “doing” and

then asked him why he did not use the park restroom across the street to urinate.

Romano replied that he did not like those restrooms and repeated that he “just

needed to pee” and kept apologizing while intermittently laughing incredulously.

Gardiner again said to him, “Well, I saw you from over there, and you weren’t

peeing.” Romano replied, “I was getting ready to and I saw your horse and I said,

‘Oh my god, what the hell is that?’”

      Gardiner then asked Romano why he was going to pee where he was: “So,

why are you doing that here, though?” Romano, who was compliant and

cooperative throughout the approximately thirty-four minutes he is on the video,

answered that he needed to pee, adding that the park restrooms are “smelly.”

Romano repeated that there was a huge jug of water in the front seat that he had

been drinking from. The video shows that when Gardiner searched the front of

Romano’s car, a large plastic water bottle is visible on the front passenger seat.

      Gardiner testified that he did not believe that Romano was urinating because

he saw him masturbating and because there was no urine on the ground. Gardiner

said that he was “sure” that Romano was masturbating. He admitted on cross-

examination that Romano did not have any lubricant on his hands or in his car.

Gardiner also did not find any aphrodisiacs or pornography in Romano’s car.




                                          7
      The video depicts that Gardiner, while making notes and questioning

Romano, stated to Romano, “So, I’m sitting over in the woods. I got a body

camera. I got binoculars, and I see . . . .” At that point, Romano interrupts Gardiner

and implores him three times within seven seconds to “please look at your body

camera.” Gardiner continued, “I saw you take it out and, like, kind of start messing

with it. It looked like you were masturbating.” Romano replied with an incredulous

tone, “No. By myself?”

      About forty seconds later, as Gardiner is walking away from him, Romano

again states, “But look at the video camera, please.” Gardiner replies, “I mean, it’s

gonna show what you did.” Because of the distance and the camera’s obstructed

view, the video does not show Romano at all when he is allegedly masturbating.

      Gardiner testified that he believed he was the only person who saw Romano

masturbating. On cross-examination, Gardiner stated that there was a bike trail

about a “hundred or so” feet in front of Romano’s parked car, but he admitted that

because of where Romano’s car was parked and with the passenger door open,

Romano’s car “may have blocked” a view of Romano from the bike trailhead.

      Also on cross-examination, Gardiner stated that no one other than Romano

was in the parking lot and that the nearest parking lot where someone might be

parked was an estimated quarter-mile away. He also later testified that, from his

hidden vantage point, he could not see any people in the area at the time that


                                          8
Romano was masturbating, and he admitted on re-cross-examination that no one

was on the street to have seen Romano masturbating. On further redirect

examination, Gardiner clarified that any pedestrians, cyclists, or motorists “could

have possibly had a vantage point” to see Romano where he was masturbating.

Gardiner had earlier testified on direct examination that there was a risk that

anyone could have seen Romano masturbating.

      Romano, who was age 48 at the time of trial, testified that he worked in

construction remodeling. He had bought a truck for his construction business, and

the truck needed license plates. He explained that he had just obtained bond papers

to be able to get the truck’s license plates, and before he went downtown to get the

license plates, he stopped in Memorial Park to read over the papers to make sure

that they were correct.

      Romano testified that he parked his car at the very edge of the parking lot,

parallel to some bushes and in the shade with nobody around, and that he decided

to urinate there between his car and the bushes. He admitted that he took out his

penis but said that he did so to urinate. Romano also admitted that when he got out

of his car and took out his penis, he saw movement in the bushes—he just saw

branches moving, not the horse—where Gardiner eventually came from, but he did




                                         9
not know what the movement was.4 He also testified that, while he “suspected”

someone was behind the moving bushes, nobody was around and he did not feel

like he was being reckless.

                              Sufficiency of the Evidence

      In his first issue, Romano asserts that the evidence is insufficient to support

the trial court’s guilty finding for two reasons. First, he contends that the evidence

is insufficient to establish that he exposed his genitals with intent to arouse or

gratify the sexual desire of any person; that is, he exposed his genitals not to

masturbate, but to urinate. Second, Romano argues that the evidence is insufficient

to establish that he was reckless about whether another was present who would be

offended or alarmed by the act.

      In reviewing the sufficiency of the evidence, we view all the evidence in the

light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex.

Crim. App. 2018). We determine whether a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Id. Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence


4
      The video depicts that, while Romano’s car is parking and he is getting out of his
      car, Gardiner’s horse is eating leaves on the branches of a small tree and causing
      the branches to move.
                                          10
conclusively establishes a reasonable doubt; and (4) the acts alleged do not

constitute the criminal offense charged. Johnson v. State, 425 S.W.3d 516, 519–20

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); Bounds v. State, 355 S.W.3d

252, 254 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

      As an appellate court, we do not weigh the evidence or assess its credibility.

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We give deference to

“the responsibility of the trier of fact 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) (quoting

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). “As a reviewing court, we may

not reevaluate the weight and credibility of the evidence in the record and thereby

substitute our own judgment for that of the factfinder.” Braughton, 569 S.W.3d at

608. But it is our role to determine “whether the necessary inferences made by the

trier of fact are reasonable, based on the cumulative force of all the evidence.” Id.

(quoting Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim App. 2011)). Also, a

factfinder “is not permitted to disregard undisputed objective facts that can support

only one logical inference.” Id. at 611.

      A person commits the offense of indecent exposure if he: (1) exposes his

anus or any part of his genitals; (2) with intent to arouse or gratify the sexual desire

of any person; and (3) is reckless about whether another is present who will be


                                           11
offended or alarmed by the act. TEX. PENAL CODE § 21.08(a); State v. York, 31

S.W.3d 798, 802 (Tex. App.—Dallas 2000, pet. ref’d).

      Romano does not dispute that he exposed his genitals. He admitted on the

video and at trial that he exposed his penis but that he did so because he was going

to urinate.5 But in admitting that he exposed his genitals—albeit to urinate—he

contends on appeal that he was not reckless in doing so.

      A person is reckless with respect to circumstances surrounding his conduct

or the result of his conduct when he is aware of but consciously disregards a

substantial risk that the circumstances exist or the result will occur. TEX. PENAL

CODE § 6.03(c). “The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person

would exercise under all the circumstances as viewed from the actor’s standpoint.”

Id.

      To determine whether conduct is reckless, we must look to:
      (1) whether the act, when viewed objectively at the time of its
      commission, created a “substantial and unjustifiable” risk of the type
      of harm that occurred, (2) whether that risk was of such a magnitude
      that disregard of it constituted a gross deviation from the standard of
      care that a reasonable person would have exercised in the same
      situation, (3) whether the defendant was consciously aware of that
      risk, and (4) whether the defendant consciously disregarded that risk.


5
      Cf. TEX. PENAL CODE § 42.01(a)(10) (providing that offense of disorderly conduct
      is committed if the person: (1) exposes his anus or genitals in a public place; and
      (2) is reckless about whether another is present who will be offended or alarmed
      by his act).
                                          12
Bounds, 355 S.W.3d at 256 (citing Williams v. State, 235 S.W.3d 742, 755–56

(Tex. Crim. App. 2007)). The objective standard of recklessness is viewed through

the eyes of the ordinary person standing in the defendant’s shoes. Hefner v. State,

934 S.W.2d 855, 857 (Tex. App.—Houston [1st Dist.] 1996, pet ref’d).

      Indecent exposure cases—especially those occurring in public parks—that

address the sufficiency of the evidence on the recklessness element involve a

common feature lacking in this case: the defendant’s knowledge or awareness of

another person’s presence. See McNeal v. State, No. 06-15-00010-CR, 2015 WL

5145228, at *3 (Tex. App.—Texarkana Sept. 2, 2015, no pet.) (mem. op., not

designated for publication) (holding evidence sufficient on recklessness where

defendant was masturbating in public park in presence of other people and

complainant, who was jogging nearby in plain sight); Jenson v. State, No. 14-07-

00093-CR, 2008 WL 3833806, at *6–7 (Tex. App.—Houston [14th Dist.] Aug. 19,

2008, pet. ref’d) (mem. op., not designated for publication) (holding that

defendant’s intentional exposure of his genitals to undercover officer in unsecluded

wooded area near public restroom in Memorial Park, just moments after two males

had walked by, was sufficient evidence of recklessness); Young v. State, 976

S.W.2d 771, 774 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (holding

evidence of recklessness was sufficient where defendant exposed his penis to

police officer behind public rest area, testimony indicated that trails in park area


                                        13
behind rest area were trampled, and defendant admitted another man walked

behind rest area while defendant was “back there” and he spoke with man);

Hefner, 934 S.W.2d at 856–58 (holding evidence on recklessness was sufficient

where defendant placed his penis in hole in wall at adult theater booth, knowing

that someone was in adjoining booth, because a rational factfinder “could have

concluded that appellant was reckless because, as far as he knew, the other person

was present simply to watch a movie, not to see his body”); see also Smith v. State,

309 S.W.3d 10, 12 (Tex. Crim. App. 2010) (addressing sufficiency of

information’s recklessness allegation in case where undercover officer was

conducting sting operation in Houston’s Memorial Park, and defendant exposed his

penis and began masturbating in front of officer after he looked around to make

sure they were alone); McCoslin v. State, 558 S.W.3d 816, 821 (Tex. App.—

Houston [14th Dist.] 2018, pet. ref’d) (“By requesting that the complainant [hotel

clerk] enter the hotel room where appellant exposed his genitals and masturbated,

appellant was reckless as to the presence of another person who would be offended

or alarmed by appellant’s act.”).

      The evidence in this case differs from the above cases in several significant

respects. See Friedsam v. State, 373 S.W.3d 817, 820–21 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (comparing other cases in which evidence was sufficient

to support conviction for same offense and then reversing for insufficient


                                        14
evidence); Johnson, 425 S.W.3d at 521–24 (same). It is undisputed that Romano

parked his car in an empty parking lot in a remote part of Memorial Park and that

there were no other persons visible or present, except for Gardiner, who was

intentionally concealing himself from Romano’s view. Romano got out of his car

and walked around the back of it to the passenger side, opened the front passenger

door, and then walked toward the back of his car.

      Romano testified that he parked his car at the very edge of the parking lot,

parallel to some bushes and in the shade with nobody around. The video confirms

this testimony. Romano testified that his car, as well as the car door, was shielding

him from areas where pedestrians and other cars may have passed by. Gardiner

testified that there was a bike trail about a “hundred or so” feet in front of

Romano’s parked car and admitted that because of where Romano’s car was

parked and with the open passenger door, Romano’s car “may have blocked” a

view of Romano from the bike trailhead.

      During Gardiner’s fifty-five seconds of surveillance of Romano, no

pedestrians or park patrons are visible on the video. Gardiner testified that no one

other than Romano was in the parking lot and that the nearest parking lot where

someone might be parked was an estimated quarter-mile away. He also testified

that, from his hidden vantage point, he could not see any people in the area at the

time that Romano was exposing himself, and he admitted that no one was on the


                                         15
street to have seen Romano. Gardiner, who was admittedly hiding from Romano,

believed that he was the only person who saw Romano expose himself.

      The undisputed, objective evidence is that Romano made deliberate efforts

to shield himself from the view of others and that Romano was unaware that

Gardiner was hiding a good distance away in the trees and bushes.6 A person who

makes deliberate efforts to go to a remote area and shield himself from public view

cannot be said to be acting recklessly. See Hines v. State, 906 S.W.2d 518, 522

(Tex. Crim. App. 1995) (affirming appellate court’s reversal of public lewdness

conviction because State did not prove appellant was reckless about presence of

another, as “appellant had deliberately selected an isolated spot, ‘deep in the

woods,’ where his conduct would not be observed by others.”). A factfinder “is not

permitted to disregard undisputed objective facts that can support only one logical

inference.” Braughton, 569 S.W.3d at 611. We conclude that the evidence of

Romano’s making deliberate efforts to shield himself from the view of others, his

unawareness of the hidden Gardiner, and the absence of any other person is

undisputed, objective evidence that supports only one logical inference—that

Romano was not disregarding a substantial risk that someone might see him

6
      Romano speculated that, when he took out his penis, someone might be behind the
      moving branches where Gardiner eventually came from, but he did not know what
      the movement was, and he emphasized that nobody was around and that he did not
      feel like he was being reckless. We cannot say that this speculative possibility is
      the evidentiary equivalent of a conscious disregard of a substantial risk that
      another person was present.
                                          16
expose himself. See Hines, 906 S.W.2d at 522; Bounds, 355 S.W.3d 255–57

(reversing conviction because evidence did not support reasonable inference that

defendant was reckless); Simpson v. State, No. 01-11-00718-CR, 2012 WL

1249524, at *3 (Tex. App.—Houston [1st Dist.] Apr. 12, 2012, no pet.) (mem. op.,

not designated for publication) (same); see also Johnson, 425 S.W.3d at 524

(reversing conviction because evidence did not support reasonable inference that

defendant had intent to defraud). Therefore, we conclude that a rational trier of fact

could not have found beyond a reasonable doubt that Romano was reckless about

whether another was present who would be offended or alarmed by Romano’s

exposure of his genitals. We sustain in part Romano’s first issue. Having sustained

in part Romano’s first issue, which requires rendition of a judgment of acquittal,

we need not address the remainder of Romano’s first issue or his other two issues.

See TEX. R. APP. P. 47.1.

                                    Conclusion

      We reverse the trial court’s judgment of conviction and render a judgment of

acquittal.


                                                Richard Hightower
                                                Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).


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