Gerald Elmer Chapman v. The State of Texas--Appeal from 228th District Court of Harris County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00923-CR

GERALD ELMER CHAPMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 991726

MEMORANDUM OPINION

A jury found appellant, Gerald Elmer Chapman, guilty of indecency with a child and, having found true the enhancement paragraphs alleging prior convictions for indecency with a child and auto theft, assessed punishment at 75 years confinement. Tex. Pen. Code Ann. 21.11 (a)(2)(A) (Vernon 2005). In two issues, appellant contends that the evidence is legally and factually insufficient to sustain his conviction because the State failed to prove that appellant knew a child was present at the time he exposed his genitals. We affirm.

Background

On June 21, 2004, the 11-year-old complainant, E.A., visited the Sterling Municipal Library in Baytown, Texas, along with her grandmother and her two younger sisters. While she was reading on the floor of an aisle in the children s section, the complainant looked to her side and, through a space in the bookshelves, saw a man in the next aisle grabbing his penis and moving his hand up and down. The complainant testified that she could not see the man s face, but that she was able to see that he was wearing a tan shirt and denim shorts. It was not until the complainant was leaving the library that she told her grandmother what she had observed, at which point her grandmother took her back into the library to inform the staff of the incident.

Denise Fischer, the Director of the Sterling Municipal Library, testified that, after speaking with the complainant, she went to the children s section of the library and observed the man the complainant described. Fischer saw him lying on the floor with his head propped against the bookshelves. At the time, the man had an oversized children s picture book across his lap and was laughing as he moved the picture book back and forth. Fischer estimated the man s location to be approximately 10 feet from the children s play area. Her testimony further indicated that the incident occurred during one of the library s busiest months, as school was out for the summer and the children s summer reading program was active.

Fischer returned to her office and called 911. Before police could respond, however, the man attempted to leave the library. The complainant, who was standing with her grandmother in Fischer s office, pointed the man out and stated [t]here he is. Despite Fischer s request that he stay in the library, the man fled on foot. A library patron followed the man and was able to direct police to his location in a nearby public restroom. At trial, Fischer identified appellant as the man she had observed in the library. The testimony of the arresting officer indicated that, from where both appellant and the complainant were sitting, there was a clear view into each other s aisle through the bookshelves. A series of photographs, admitted into evidence by the trial court, confirmed that it was possible to see into the next aisle from where appellant and the complainant were seated. Furthermore, in opening and closing arguments, appellant admitted that he had exposed himself in the library and he argued only that he be found guilty of the lesser offense of indecent exposure because he was not aware of the complainant s presence at the time that he exposed his genitals. //

Sufficiency of the Evidence

In his first and second issues, appellant contends that the evidence was legally and factually insufficient to support his conviction for indecency with a child because the State failed to prove that he had knowledge of the complainant s presence at the time that he exposed his genitals. We disagree.

Standard of Review

In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime s essential elements beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the conflicting evidence is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is clearly wrong or manifestly unjust simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408 09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.

Analysis

The indictment alleges that appellant unlawfully, with intent to arouse and gratify [his] sexual desire . . . , intentionally and knowingly expose[d] [his] genitals, knowing that [E.A.], a child younger than seventeen years of age and not the spouse of the [appellant] was present. The requisite elements of knowledge and intent may be inferred from the conduct of, remarks by, and circumstances surrounding the acts engaged in by an accused. See Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. 1980) (holding the evidence that defendant maneuvered his car into the vision of a 12-year-old before exposing himself above the console sufficient to infer knowledge and intent); see also Allen v. State, 478 S.W.2d 946, 947 (Tex. Crim. App. 1972) (inferring knowledge and intent from the appellant s motions and gestures and the surrounding circumstances); State v. Uribe, 7 S.W.3d 294, 295 97 (Tex. App. Austin 1999, pet. ref d) (holding that evidence was sufficient where appellant exposed his penis and masturbated in his car while parked next to a car in which a child was a passenger); Strain v. State, 934 S.W.2d 424, 425 (Tex. App. Amarillo 1996, no pet.) (holding that evidence was sufficient where appellant exposed his penis and masturbated in the doorway of his home while the complainant and other children were in the yard); Wilcox v. State, 672 S.W.2d 12, 13 14 (Tex. App. Houston [14th Dist.] 1984, no pet.) (holding that evidence was sufficient to show knowledge and intent where appellant stood in front of a gap in a fence and dropped his pants while a group of children played on the other side of the fence).

Here, appellant concedes that he exposed his genitals in the Sterling Municipal Library and argues only that he did not know that the complainant was present at the time. The evidence viewed in the light most favorable to the verdict shows that, because school was out for the summer, the library was in one of its busiest months. Appellant exposed himself in the children s section of the library, at a distance of approximately 10 feet from the children s play area. At trial, the arresting officer testified that he had assumed both appellant s position and the complainant s position in the library and that there was a clear view through the shelves into each other s aisle. The photographic evidence confirms that both the complainant and appellant could see through the bookshelves. In addition, appellant s flight from the library following his confrontation with Fischer is some indication of appellant s consciousness of guilt. See Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979). From this evidence, a rational jury could have inferred that appellant was aware of the complainant s presence at the time that he exposed his genitals. As a result, we hold that the evidence is legally sufficient to sustain the jury s finding of guilt, and we overrule appellant s first issue.

To support his claim that the evidence is factually insufficient to show that he had knowledge of the complainant s presence at the time that he exposed himself, appellant disputes the photographic evidence demonstrating that the complainant was within his line of sight and suggests that, because he stayed in the same spot in the library for a significant period of time after the incident occurred, he could not have known that the complainant was present. In other words, appellant argues that, had he known the complainant was present when he exposed himself, he would have fled the library sooner. The sum of this evidence, according to appellant, supports a finding of a reckless mental state, rather than one that is knowing or intentional. It cannot be said, however, that this evidence renders the verdict clearly wrong or manifestly unjust, nor can it be said that the great weight and preponderance of the evidence contradicts the jury s finding that appellant knew the complainant was present. As a result, we hold that the evidence is factually sufficient to sustain appellant s conviction, and we overrule appellant s second issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.