Ex Parte Roger D. Buchhorn--Appeal from County Court at Law No 8 of Bexar County

No. 04-00-00606-CR
EX PARTE Roger D. BUCHHORN
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. No. 750432
Honorable Karen Crouch, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: April 18, 2001

AFFIRMED

Roger Buchhorn was charged by information and complaint with the offense of indecent exposure. Buchhorn challenged the constitutionality of the statute prohibiting indecent exposure as unconstitutionally vague through a writ of habeas corpus. The trial court denied Buchhorn's application and Buchhorn appeals.

Section 21.08 of the Texas Penal Code prohibits indecent exposure, stating in 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." Tex. Pen. Code Ann. 21.08 (Vernon 1994) (emphasis added). Buchhorn argues that because the Penal Code does not define the terms "offended" or "alarmed," section 21.08 is unconstitutionally vague. Buchhorn further argues that without definitions, the decision of what constitutes "offend" and "alarm" rests solely, and impermissibly, with law enforcement officers, prosecutors, judges and juries.

There is a presumption in favor of a statute's constitutionality, with a reviewing court giving deference to the Legislature. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). When determining the constitutionality of a statute, it is further presumed that the Legislature has not acted unreasonably or arbitrarily, and that the statute is valid. Id. As a rebuttable presumption, the burden rests on the challenging party to demonstrate a statute's unconstitutionality. Id. The court will uphold the statute if it can determine a reasonable construction which will render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). A statute which forbids an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application is unconstitutionally vague. Id. A statute is not rendered unconstitutionally vague merely because all words or terms are not specifically defined. Powell v. State, 538 S.W.2d 617, 619 (Tex. Crim. App. 1976), rev'd on other grounds, Gardner v. State, 699 S.W.2d 831 (Tex. Crim. App. 1985).

This court recently decided in Ex parte Port, that this same statute was not unconstitutional for failing to define the terms "offended" and "alarmed." Ex parte Port, 21 S.W.3d 444, 446 (Tex. App.-San Antonio 2000, pet. refused). Where undefined in the applicable statute, terms are to be given their plain and ordinary meaning. Courtemanche v. State, 507 S.W.2d 545, 546 (Tex. Crim. App. 1974); Ex parte Port, 21 S.W.3d at 446. Words found defined in dictionaries and with such well known meanings as to be understood by persons of ordinary intelligence will not be considered vague and indefinite. Powell, 538 S.W.2d at 619. The terms "offended" and "alarmed" are words with meanings well known by people of ordinary intelligence. Ex parte Port, 21 S.W.3d at 446. Though there are some acts that one could commit and still be unaware of the potential for alarming or offending others, exposing one's anus or genitals with the intent to arouse or gratify one's sexual desire is not such an act. Such an exposure is the type of conduct that is, by its very nature, often calculated to alarm or offend. Even if the actor were to believe such conduct acceptable, the State is not required to prove that the person present at the time of the conduct was alarmed or offended. Ex parte Port, 21 S.W.3d 446. The State must instead prove that the actor was "reckless about whether another person is present who will be offended or alarmed." Tex. Pen. Code Ann. 21.08; Ex parte Port, 21 S.W.3d at 446. Whether a person is present who would be alarmed or offended is not an element of the crime, but is instead relevant to the recklessness of the actor's conduct. Ex parte Port, 21 S.W.3d at 446. Consequently, section 21.08 gives people of ordinary intelligence fair notice that such conduct is forbidden, regardless of the lack of definitions for the terms "alarmed" or "offended." Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1985); Ex parte Port, 21 S.W.3d at 446.

This court finds that the statute gives fair notice of the prohibition against the proscribed conduct. We further find that section 21.08 is not unconstitutionally vague, and affirm the trial court's order denying Buchhorn's application for writ of habeas corpus.

Phil Hardberger, Chief Justice

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