Alfred L. Mojica v. State of Texas--Appeal from County Court at Law No 12 of Bexar County

No. 04-00-00570-CR
Alfred L. MOJICA,

Appellant

v.

STATE of Texas,

Appellee

From County Court at Law No. 12, Bexar County, Texas

Trial Court No. 742481

Honorable Michael E. Mery, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 25, 2001

REVERSED AND REMANDED

Alfred L. Mojica was convicted of indecent exposure. On appeal, Mojica challenges the constitutionality of Tex. Pen. Code Ann. 21.08 (Vernon 1994) and complains the trial court erred in admitting evidence of his 1989 indecent exposure offense. Holding the admission of Mojica's prior offense constitutes reversible error, we reverse and remand.

Background

Mojica and another individual followed an undercover park ranger down a pathway in McAllister Park. After the men arrived at a secluded location, Mojica unbuckled his pants and began massaging himself. It is disputed whether Mojica exposed his penis. The undercover park ranger arrested Mojica and the other individual, charging them with indecent exposure. A jury found Mojica guilty, and he was sentenced to 30 days in jail and a $1,000.00 fine.

Constitutionality of Section 21.08

In points of error ten and eleven, Mojica complains section 21.08 is unconstitutionally vague and discriminates on the basis of sexual orientation. Section 21.08 establishes the offense of Indecent Exposure:

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). When considering the constitutionality of a statute, the reviewing court presumes the provision is valid, and the provision's challenger bears the burden of proving unconstitutionality. Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App. - San Antonio 2000, pet. ref'd) (citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). If we can arrive at an interpretation that facilitates the drafters' intent while satisfying constitutional guarantees, we must uphold the provision. Id. (citing Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979)).

Vagueness

In his tenth point of error, Mojica claims section 21.08 is vague as applied to him. A statute is unconstitutionally vague if it forbids conduct in terms so vague that individuals of common intelligence must speculate regarding its meaning. Id. However, a statute is not unconstitutionally vague merely because all words or terms are not 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). We have previously held and maintain that section 21.08 gives individuals of ordinary intelligence fair notice of the forbidden conduct. Ex parte Ports, 21 S.W.3d at 446. We overrule Mojica's tenth point of error.

Equal Protection Guarantees

In his eleventh point of error, Mojica claims section 21.08 unconstitutionally discriminates on the basis of sexual orientation. A statute classifying individuals on bases other than race, sex, or national origin is presumed constitutional so long as it is rationally related to achieving a legitimate governmental interest. Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App. 1994). In determining whether a statute impermissibly discriminates, the threshold issue is: (1) whether the statute, on its face, singles out individuals; or (2) if the statute is facially-neutral, whether it is motivated by discriminatory animus and its application results in a discriminatory effect. See Lawrence v. State, 41 S.W.3d 349, 353 (Tex. App.-Houston [14th Dist.] 2001, pet. filed) (en banc) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)). If the threshold issue is satisfied, the reviewing court considers whether the individuals singled out constitute a recognized "suspect class" or should be considered a "suspect class." Id.

On its face, section 21.08 does not prohibit the conduct of a specified class, but rather, regulates the conduct of all individuals. Compare Tex. Pen. Code Ann. 21.08 (forbidding any person from exposing himself), with Tex. Pen. Code Ann. 21.06 (Vernon 1994) (criminalizing sodomy only among same sex partners). See also Lawrence, 41 S.W.3d at 357 (holding section 21.06 constitutional); State v. Morales, 826 S.W.2d 201, 204 (Tex. App. - Austin 1992) (invalidating section 21.06), reversed on other grounds, 869 S.W.2d 941 (Tex. 1994). Further, even if section 21.08 disproportionately affects homosexuals, neither the United States Supreme Court, the Texas Supreme Court, nor the Texas Court of Criminal Appeals has labeled sexual orientation as a suspect classification. (1) Because we hold section 21.08 is rationally related to a legitimate governmental interest, we overrule Mojica's eleventh point of error.

Mojica's 1989 Indecent Exposure Offense

In 1989, Mojica was arrested and received deferred adjudication for indecent exposure. Mojica argues in his sixth point of error the trial court erred in admitting the 1989 offense to rebut Mojica's "extensive testimony that he had no intent, no motive" to commit the current offense. Although the State argued at trial the 1989 offense was relevant to prove motive and intent, the State's appellate brief argues only that Mojica waived this complaint by failing to preserve error. (2) The discretion of a trial court to admit evidence is subject to the constraints of the rules of evidence, statutes, and state and federal constitutions. Tex. R. Evid. 101(c); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). An appellate court will reverse a trial court ruling outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

A. Admission of Prior Acts

It is improper to try a defendant for being a criminal. Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995). "Because extraneous offense evidence carries with it the inherent risk that a defendant may be convicted because of his propensity for committing crimes generally - i.e., his bad character - rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual's prior bad acts or extraneous offenses." Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Texas Rule of Evidence 404(b) expressly prohibits the use of prior acts to demonstrate the defendant acted in conformity on the date in question:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Tex. R. Evid. 404(b). Upon a timely objection, the State must demonstrate the prior act is relevant apart from showing the defendant acted in conformity. Montgomery, 810 S.W.2d at 391.

In this case, the trial court found Mojica's 1989 offense relevant to prove motive and intent. Importantly, "motive is not an essential element of a criminal offense and need not be proved to establish the commission of the offense." Zuliani v. State, 903 S.W.2d 812, 826 (Tex. App. - Austin 1995, pet. ref'd) (citing Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982)). Generally, prior acts are admissible to prove motive in two instances: (1) a prior act similar to the current offense and committed against the same complainant or class of complainants; (3) and (2) a prior act unlike the current offense but demonstrative of the individual's motivation for committing the current offense. (4) However, when the extraneous act mirrors the offense in question and does not relate to the same victim, courts generally find the act serves no purpose other than to prove conformity. See, e.g., Booker v. State, 929 S.W.2d 57, 65-66 (Tex. App.-Beaumont 1996, pet. ref'd) (holding the admission of a defendant's previous murder attempts against others during an attempted murder trial was reversible error); Zuliani, 903 S.W.2d at 826 (holding evidence of a defendant's prior assaults of others was erroneously admitted during trial for serious bodily injury to a child);Lazcano v. State, 836 S.W.2d 654, 660 (Tex.App.-El Paso 1992, pet. ref'd) (holding trial court committed reversible error by admitting evidence of defendant's previous choking of an individual in a case where defendant was accused of strangling another woman).

In this case, the 1989 offense mirrors the offense in question but "does not pertain to the same victim, nor does it tend to show Appellant's animosity toward a particular class of persons. The evidence merely tends to show Appellant's propensity to [commit the same crime]. Such an inference is precisely the type of character conformity evidence that Rule 404(b) does not allow." Lazcano, 836 S.W.2d at 660. Further, because Mojica's intent could be inferred from his statements and conduct on the day in question, his 1989 offense was not necessary or relevant to prove intent. Zuliani, 903 S.W.2d at 826 (holding "[e]xtraneous-offense evidence is admissible as an exception to the general rule to prove scienter if the requisite guilty intent cannot be inferred from the act itself"); Castillo, 910 S.W.2d at 127; Kiser v. State, 893 S.W.2d 277, 282 (Tex.App. -Houston [1st Dist.] 1995, pet. ref'd.); Garcia v. State, 827 S.W.2d 27, 30-31 (Tex.App.-Corpus Christi 1992, no pet.). We hold the trial court erred by admitting evidence of Mojica's 1989 offense.

Harmless Error Analysis

Because we hold the trial court improperly admitted the 1989 offense, we conduct a harmless error analysis. Avila v. State, 18 S.W.3d 736, 741 (Tex.App.-San Antonio 2000, no pet.). In this analysis, we reverse unless we find, beyond a reasonable doubt, the error made no contribution to the conviction. Burks v. State, 876 S.W.2d 877, 905 (Tex. Crim. App. 1994). An appellate court does not determine harm by examining whether the remaining evidence overwhelmingly supports a verdict of guilt; rather, the court calculates the error's probable impact on the jury in light of the existence of other evidence. Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991). Factors to consider in this analysis are: (1) the source, nature, and degree of the error; (2) its collateral implications; (3) how much weight a juror would place upon the erroneously admitted evidence; and (4) whether declaring the error harmless would foster repetition of the error by the State with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).

Mojica's 1989 offense was the same as the offense for which Mojica was currently charged. Evidence of a previous incident of indecent exposure would impact heavily on a jury's verdict since it was the very charge for which Mojica was being tried. See Booker, 929 S.W.2d at 66. The 1989 offense tended to show Mojica acted with a character propensity to expose himself in public places, and Mojica's guilt or innocence turned on whether he exposed his penis at the park. Evidence of that fact was disputed because Mojica and the other individual present testified Mojica did not expose his penis while Park Ranger Wilson testified he did. During the conclusion of its closing argument, the State used Mojica's 1989 offense to argue conformity:

Then remember Officer Casas's testimony, that in 1989 . . . he arrested Mr. Mojica for masturbating in his car in McAllister Park. The defendant was guilty then, and he is guilty now of indecent exposure. And we ask that you go back and you bring a verdict of guilty.

See Kiser, 893 S.W.2d at 284-85 (holding erroneous admission of prior offense harmless because, inter alia, when State discussed prior act, it discussed it in reference to proving identity rather than conformity); Lester v. State, 889 S.W.2d 592, 594 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd) (holding erroneous admission of extraneous offense harmless because, inter alia, State did not emphasize extraneous offense during closing argument). Considering the Harris factors, we cannot hold beyond a reasonable doubt that evidence of Mojica's 1989 offense did not affect the conviction. We sustain Mojica's sixth point of error.

Conclusion Holding the trial court committed reversible error in admitting evidence of Mojica's 1989 offense, we reverse the conviction and remand for a new trial. Because we reverse on this point, we do not reach Mojica's other issues.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Romer v. Evans, 517 U.S. 620, 631-32 (1996); Watkins v. United States Army, 847 F.2d 1329, 1349 (9th Cir. 1988), withdrawn, 875 F.2d 699, 711 (9th Cir.1989) (withdrawing its holding that homosexuals represent a suspect class); see, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir.1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

2. Although the State argues Mojica waived his complaint by failing to object when the park ranger testified regarding Mojica's 1989 offense, we hold Mojica's objections and arguments made during a bench conference and immediately before the park ranger's testimony were sufficient to preserve error.

3. Hernandez v. State, 900 S.W.2d 835, 838 (Tex. App.-Corpus Christi 1995, no pet.) (prior acts of sexually abusing child were admissible in defendant's trial for abusing the same child); see Foy v. State, 593 S.W.2d 707, 708-09 (Tex. Crim. App. 1980); Dillard v. State, 477 S.W.2d 547, 551 (Tex. Crim. App. 1971) (holding evidence of defendant's prior violent acts against African-Americans were relevant to show motive); Page v. State, 819 S.W.2d 883, 887 (Tex.App. - Houston [14th Dist.] 1991, pet. ref'd); Bevers v. State, 811 S.W.2d 657, 662 (Tex.App. - Fort Worth 1991, pet. ref'd).

4. Knox v. State, 934 S.W.2d 678, 683 (Tex. Crim. App. 1996) (holding evidence of defendant's prior drug use was relevant to show his motive for robbing a pharmacy); Porter v. State, 623 S.W.2d 374, 385-86 (Tex. Crim. App. 1981) (holding evidence that defendant had committed a robbery eleven days earlier was relevant to show his motive for murdering the police officer apprehending him); DeLeon v. State, 937 S.W.2d 129, 136 (Tex.App. - Waco 1996, pet. ref'd) (holding evidence that defendant had previously stolen the car admissible to show his motive for assaulting the police officer stopping him for speeding).