Robert Eugene Elliott v. The State of Texas--Appeal from County Crim Court No 1 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-150-CR

ROBERT EUGENE ELLIOTT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court

Dallas County, Texas

Trial Court # MA93-25019-A

O P I N I O N

This is an appeal by Appellant Elliott from his conviction for indecent exposure for which he was sentenced to 180 days in the Dallas County jail.

Appellant appeals on one point: "The evidence is insufficient to sustain Appellant's conviction for indecent exposure."

On September 7, 1993, Marie Henrequez's niece was playing with Elva Alfonso's children on the balcony of Ms. Henrequez's second floor apartment. While on the balcony, Mrs. Alfonso's daughter saw Appellant sitting in his car wearing panties and white panty hose. Ms. Henrequez's niece called out to her and she went out to the balcony. Ms. Henrequez saw Appellant sitting in his car with windows rolled down. When Ms. Henrequez observed Appellant, he was naked from the waist down. Ms. Henrequez's balcony was about six meters from Appellant's vehicle. Appellant then moved his car backward.

Ms. Henrequez testified that she was offended by Appellant's actions. Ms. Alfonso and Mrs. Henrequez then observed Appellant heading in the direction of a park. Ms. Alfonso also saw Appellant staring up at the balcony as he slowly drove past it. When Appellant saw Ms. Alfonso, he sped up and drove past the apartment. Ms. Alfonso took down Appellant's license number and then called the police.

Officer Robinson responded to the call. He found Appellant standing next to his car pulling up a pair of jeans over panty hose. Appellant told Officer Robinson he was washing his car but there was no water present. He then told Officer Robinson he was visiting a friend, but he did not know where the friend lived. Officer Robinson testified that inside Appellant's vehicle he saw a dress with a hole cut out of the crotch area, panties, bras, two false breasts and a wig.

Article 21.08, Texas Penal Code, provides in pertinent part:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

Appellant contends that the State did not prove intent to arouse or gratify the sexual desires of any person, and did not prove he was reckless about whether another was present who would be offended.

Where there is a claim of insufficient evidence to support a verdict in the a criminal case, the reviewing court should determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, S.Ct. 1979; Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

When determining sufficiency issues in indecent exposure and indecency with a child cases, the fact finder may infer intent from the conduct of, remarks, and all circumstances surrounding the accused's acts. Branson v. State, 825 S.W.2d 162, 168 (Tex. App. Dallas 1992); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Bowles v. State, 550 S.W.2d 84, 85-86 (Tex. Crim. App. 1977); Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. 1980).

The elements of indecent exposure and indecency with a child are identical except that indecency with a child requires that the defendant know that a child is present; whereas, indecent exposure requires only that defendant is reckless with regard to the presence of other persons. Briceno v. State, 580 S.W.2d 843 (Tex. Crim. App. 1979).

After reviewing all of the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt the essential elements of indecent exposure.

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 27, 1995

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