David Sidwell Jenson v. State

Affirmed and Memorandum Opinion filed August 19, 2008

Affirmed and Memorandum Opinion filed August 19, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00093-CR

____________

DAVID SIDWELL JENSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 6

Harris County, Texas

Trial Court Cause No. 1402367

M E M O R A N D U M   O P I N I O N

Appellant, David Sidwell Jenson, was indicted on the misdemeanor offense of indecent exposure.  The jury returned a guilty verdict, and the trial court sentenced appellant to 180 days= confinement in the Harris County Jail and a $2,000 fine, but suspended the sentence and placed appellant on community supervision for two years.  Appellant retained new counsel, and thereafter filed a motion in arrest of judgment and a motion for new trial.  After an evidentiary hearing, the trial court denied both motions. In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction, and  the trial court=s denial of his motion for new trial and his motion in arrest of judgment.  We affirm.

Factual and Procedural Background

On September 11, 2006, Officers Daniel Leal and Matthew Dexter of the Houston Police Department were working undercover as vice officers on a public indecency investigation in Memorial Park.  According to Officer Leal=s testimony, he and Officer Dexter were driving around the circular drive in the park in separate, unmarked vehicles.  At approximately 2:00 p.m., Officer Leal noticed that a silver Volvo sedan was following him, Aturning the same way as [he] was turning.@ Observing this, Officer Leal turned into a nearby parking lot and parked his vehicle.

Appellant, driving the silver Volvo sedan, followed Officer Leal into the parking lot, and parked his vehicle next to Officer Leal=s.  Officer Leal made eye contact with appellant, who then began to grab and massage his genital area. Officer Leal testified that appellant continued to massage his genital area for two to three minutes while maintaining eye contact with Officer Leal, at which time appellant got out of the Volvo, approached the driver=s-side window of Officer Leal=s vehicle, and asked Officer Leal if he wanted to sit in appellant=s car.  Officer Leal declined, and indicated that he would rather go into the wooded area next to the parking lot.  Appellant agreed, and the two then walked approximately fifteen to twenty feet into the wooded area.

Once there, appellant began to massage Officer Leal=s chest over his t-shirt, and then pulled up Officer Leal=s shirt, exposing his abdomen.  Officer Leal testified that appellant then stopped massaging Officer Leal=s chest and started undoing his own pants, but quickly stopped when he saw two men on one of the nearby walking trails.  Appellant then zipped up his pants and started tucking in his shirt.  Officer Leal then suggested that the two walk over to a set of nearby public restrooms, and appellant agreed. 

Once outside the restrooms, appellant began massaging his genitals, and stated, AI don=t think I can get hard.@ Appellant then pointed to Officer Leal=s genitals and stated, ALet me see,@ to which Officer Leal responded, AYou let me see.@ Appellant then unzipped his pants and pulled down his underwear past his testicles.  Officer Leal testified that, at this point, he could see appellant=s penis, pubic hair, and testicles.  Appellant then began to grab his penis and pull it out further with his hand.  Officer Leal then pulled out his badge, identified himself as a Houston police officer, and arrested appellant.

On September 12, 2006, an information was filed against appellant for the misdemeanor offense of indecent exposure.  He pleaded Anot guilty,@ and retained an attorney to defend him at trial. The jury returned a Aguilty@ verdict, and the trial court sentenced appellant to 180 days= confinement in the Harris County Jail and a $2,000 fine, but suspended the sentence and placed appellant on community supervision for two years.  After sentencing, appellant filed a motion to substitute a different attorney as his lawyer of record, which the trial court granted.

Appellant then filed a motion in arrest of judgment and a motion for new trial.  In his motion in arrest of judgment, appellant contended that the information was substantively defective because the State failed to allege, with reasonable certainty, the act or acts relied upon to constitute recklessness.  Pursuant to Texas Rule of Appellate Procedure 22, appellant argued that the trial court should arrest the judgment due to this defect in the information.  In his motion for new trial, appellant asserted that the evidence in support of the jury=s verdict is legally and factually insufficient to support the statutory elements of intent and recklessness.  Appellant further contended that his trial attorney  rendered ineffective assistance by, among other things, failing to file a motion to quash the informationCwhich contained the substantive defectCand by opening the door to the State=s elicitation of testimony from Officer Leal Aconcerning prior indecency investigations in the woods of a park.@

The trial court held an evidentiary hearing on both motions.  At the hearing, appellant further asserted that his trial attorney rendered ineffective assistance by failing to discover or adduce evidence of the size of appellant=s Aabnormally small@ penis, and presented the testimony of Dr. Robert Cornell, a board-certified adult urologist, regarding appellant=s penis size.  Appellant and his trial attorney also testified at the hearing. The trial court denied both motions.  This appeal followed.

Issues on Appeal

In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction, and the trial court=s denial of his motion for new trial and his motion in arrest of judgment.  In his first and second issues, appellant contends that the evidence is legally and factually insufficient to prove (1) that he intended to arouse or gratify his sexual desire; or (2) that he was reckless about whether another person was present who would be offended and alarmed by his act.  In his third issue, appellant asserts that, because his trial attorney (1) failed to quash the information, which allegedly contained a substantive defect; (2) failed to discover or adduce evidence regarding the size of appellant=s flaccid penis, whichCaccording to appellantCis only 2.8 inches long and Ahalf the normal size@; and (3) opened the door to the elicitation of testimony by the State regarding prior indecency investigations in Memorial Park, the trial court abused its discretion in denying appellant=s motion for new trial based on the ineffective assistance of counsel.  In his final issue, appellant argues that, because the information was substantively defective and therefore subject to a motion to quash, the trial court erred in denying his motion in arrest of judgment.

Analysis of Appellant=s Issues

I.        The Evidence Supporting Appellant=s Conviction is Legally and Factually Sufficient.

In his first and second issues, appellant contends that the evidence is legally and factually insufficient to prove (1) that he intended to arouse or gratify his sexual desire; or (2) that he was reckless about whether another person was present who would be offended and alarmed by his act.  We disagree with appellant that the evidence is legally and factually insufficient to prove these elements of the charged offense.

A.      Standards of Review and Applicable Law

When reviewing challenges to both the legal and factual sufficiency of the evidence supporting the verdict, we first review the legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  While we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

A person commits the offense of indecent exposure Aif 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. Penal Code _ 21.08.  With the essential elements of the offense in mind, we now turn to appellant=s specific arguments.

B.      Appellant=s Specific Challenges to the Sufficiency of the Evidence

1.       Intent to Arouse or Gratify Appellant=s Sexual Desire

First, appellant contends that the evidence is legally and factually insufficient to prove that he intended to arouse or gratify his sexual desire.^[1]  

a.       Legal Sufficiency

With respect to his legal sufficiency challenge, appellant asserts that Officer Leal never testified that appellant actually masturbated, was erect, or was aroused in any way.  Appellant argues that, at most, Officer Leal=s testimony establishes that appellant held his genitals in his hand, and therefore no evidence exists that would have allowed a rational trier of fact to find beyond a reasonable doubt that appellant intended to arouse or gratify himself.

Conversely, the State argues that the evidence is legally sufficient to show that appellant intended to gratify his sexual desire, and asserts that appellant=s comment, AI don=t think I can get hard,@ demonstrates that appellant was, in fact, attempting to become aroused.  The State further asserts that appellant began to massage his genitals immediately after making eye contact with Officer Leal, and later massaged Officer Leal=s chest and exposed himself, and argues that it was therefore rational for the jury to infer that appellant intended to gratify his own sexual desire.

As a preliminary matter, while we agree with appellant that Officer Leal never testified that appellant=s penis was erect, the State was not required to prove that appellant was actually aroused or that appellant actually gratified his sexual desire. See Tex. Penal Code _ 21.08. Rather, under the language of section 21.08 and the allegations made within the information, the State was merely required to prove that appellant exposed his penis to Officer Leal with the intent to arouse and gratify appellant=s sexual desire. See id.; Shamam v. State, C S.W.3d C , No. 07-06-0213-CR, 2007 WL 2349689, at *5 (Tex. App.CAmarillo Aug. 17, 2007, no pet.) (rejecting appellant=s argument that there was no express evidence that either he or the complainant were aroused or gratified by appellant=s indecent exposure, because Athe offense requires that the exposure occurs with intent to arouse or gratify the sexual desire of any person@) (emphasis in original); see also Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d) (rejecting appellant=s argument in prosecution for indecency with a child that there was no evidence that appellant=s penis was ever erect, that appellant masturbated or that he ejaculated during any of the encounters with the complainants, because the intent element of the offense did not require the State to prove that the Amale offender=s penis be erect@).^[2] Furthermore, it is well-established that the requisite specific intent to arouse or gratify sexual desire can be inferred from the conduct of, remarks by, and circumstances surrounding the acts engaged in by an accused.  See Martins v. State, 52 S.W.3d 459, 474 (Tex. App.CCorpus Christi 2001, no pet.) (citing Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. 1980)); see also Claycomb v. State, 988 S.W.2d 922, 925 (Tex. App.CTexarkana 1999, pet. ref=d) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981)). 

Viewing the evidence in the light most favorable to the jury verdict, we find that a rational trier of facts could have found beyond a reasonable doubt that appellant intended to arouse or gratify his sexual desire.  In that light, the evidence establishes that immediately before appellant exposed his penis to Officer Leal, appellant (1) massaged his own genitals; (2) communicated his belief to Officer Leal that he could not get Ahard@; and (3) requested to see Officer Leal=s genitals.  This evidence is legally sufficient to support the finding of intent to arouse or gratify appellant=s sexual desire. See Martins, 52 S.W.3d at 474B75 (finding evidence legally sufficient to support finding of intent to arouse or gratify where the appellant exposed himself to the victim and invited her to give him Alittle kisses@ while pointing to his exposed penis); Barker v. State, 931 S.W.2d 344, 347 (Tex. App.CFort Worth 1996, pet. ref=d) (finding evidence legally sufficient to support conviction for indecency with a child where the appellant exposed his penis to two girls in front of school); see also Claycomb, 988 S.W.2d at 926 (finding evidence legally sufficient to support finding of intent to arouse or gratify where the appellant exposed his erect penis and made eye contact with woman and daughter who walked by).

b.       Factual Sufficiency

With respect to his factual sufficiency challenge, appellant asserts that the contrary evidence at trialCnamely, Officer Leal=s testimony that appellant=s penis was not erect, and appellant=s denial of the allegations that he exposed his genitals to Officer Leal, or that he was aroused or gratifiedCrenders the verdict clearly wrong or manifestly unjust, or against the great weight and preponderance of the evidence. 

The State contends that the evidence is factually sufficient to support the verdict, despite conflicts in the testimony.  The State asserts that the evidence supporting the verdict is not so weak to justify the finding of guilt beyond a reasonable doubt, because Officer Leal=s testimony established that appellant followed him into the parking lot at Memorial Park, made eye contact with him, and exposed himself near the public restrooms.  The State further asserts that the contrary evidence was not so overwhelming to preclude a finding of guilt, because appellant=s testimony regarding the sequence of events that led himself and Officer Leal to the public restroom area where the exposure occurred was Adubious at best,@ and the jury was therefore entitled to disregard that testimony, and was rationally justified in convicting appellant.

Viewing the evidence in a neutral light, we find that the evidence is factually sufficient to support a finding of intent to arouse or gratify appellant=s sexual desire.  Although appellant denied (1) massaging his genitals after parking next to Officer Leal=s vehicle; (2) massaging Officer Leal=s chest over his t-shirt, or initiating physical contact with Officer Leal in any way; (3) pulling up Officer Leal=s shirt to expose his abdomen; (4) stating, AI don=t think I can get hard@; (5) requesting to see Officer Leal=s genitals; or (6) exposing his penis or testicles to Officer Leal, there was also testimony that appellant  massaged his own genitals,  indicated his belief that he could not get Ahard,@ requested to see Officer Leal=s genitals, and exposed his penis to Officer Leal.  The juryCas the trier of factCis the sole judge of the credibility of the witnesses, and we must exercise appropriate deference to the jury=s credibility determinations. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Prince v. State, 192 S.W.3d 49, 60B61 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). The jury was entitled to disbelieve appellant=s testimony and believe that appellant exposed himself to Officer Leal with the intent to gratify his own sexual desire. See Young v. State, 976 S.W.2d 771, 774B75 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d).

Therefore, we conclude the evidence that appellant exposed his penis to Officer Leal with the intent to gratify appellant=s sexual desire is not so weak that the verdict is clearly wrong and manifestly unjust.  We further conclude that the jury=s verdict was not against the great weight and preponderance of the contrary evidence at trial.  Thus, we hold that the evidence is factually sufficient to establish the intent element of the charged offense.

2.       Reckless About Whether Another Person Who Would Be Offended and Alarmed By His Act Was Present

Next, appellant contends that the evidence is legally and factually insufficient to prove that he was reckless about whether another person who would be offended and alarmed by his act was present. 

a.       Legal Sufficiency

With respect to his legal sufficiency challenge, appellant asserts that only Officer Leal was present during the alleged exposure, and that Officer Leal=s testimonyCthat he was offended because he was married with a childClacked any credibility because Officer Leal had worked undercover in vice for at least a year and a half.  Appellant therefore argues no evidence credibly showed that appellant was reckless about whether another person was present who would be offended and alarmed.

Conversely, even though section 21.08 does not require that a defendant actually offend another person, the State contends that Officer Leal was present when appellant exposed his penis and was actually offended by appellant=s actions.  The State further contends that under section 21.08, the court should employ an objective standard to determine whether the defendant acted recklessly.  The State further argues that under the circumstances, when viewed from appellant=s standpoint, there was a substantial risk someone would witness appellant=s actions when he exposed himself to another man near the public restrooms at Memorial Park.

Viewing the evidence in the light most favorable to the jury verdict, we find a rational trier of facts could have found beyond a reasonable doubt that appellant was reckless about whether another was present who would be offended or alarmed by his act.  Appellant misses the point by arguing that Officer Leal was not or could not be offended by appellant=s alleged indecent exposure because Officer Leal is an undercover vice officer.  The statute does not require that appellant offend Officer Leal. See Tex. Penal Code _ 21.08; Hefner v. State, 934 S.W.2d 855, 857 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).  Rather, the issue is whether appellant=s conduct in exposing his penis to another male outside a set of public restrooms in Memorial Park was reckless. See McGee v. State, 804 S.W.2d 546, 548 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (framing the issue as whether appellant=s act of masturbation in a public dressing room was reckless, even if done behind a closed curtain); Hefner, 934 S.W.2d at 857 (defining the relevant issue as whether appellant was reckless about whether another was present who would be offended, not whether the officer who witnessed appellant=s exposure was offended).

With the issue properly framed, we begin with definition of recklessness as provided by section 6.03(c) of the Penal Code:

A person acts recklessly, or 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 and unjustifiable risk that the circumstances exist or the result will occur.  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.

Tex. Penal Code _ 6.03(c).  This objective standard is viewed through the eyes of the ordinary person standing in appellant=s shoes. Hefner, 934 S.W.2d at 857.

When viewed in the light most favorable to the jury verdict, the evidence establishes that (1) appellant exposed his penis, pubic hair, and testicles to Officer Leal while the two stood outside a set of public restrooms in Memorial Park; (2) Officer Leal was alarmed and offended by the act of appellant=s exposure; (3) the wooded area surrounding the public restrooms where appellant exposed himself is not very secluded; and (4) in the moments before appellant exposed himself, both appellant and Officer Leal observed two males on the walking trails located near the public restrooms.  This evidence is legally sufficient to support the finding that appellant was reckless about whether another was present who would be offended and alarmed by his act. See Young, 976 S.W.2d at 774 (finding the evidence legally sufficient to support a finding of recklessness where appellant exposed his penis to a police officer behind a public rest area, testimony indicated that the trails in the park area behind the rest area were trampled, and appellant admitted that another man walked behind the rest area while appellant was Aback there,@ and that he spoke with that man); King v. State, No. 05-96-01496-CR, 1998 WL 474070, at *1 (Tex. App.CDallas July 29, 1998, no pet.) (not designated for publication) (finding the evidence legally sufficient to support a finding of recklessness where appellant exposed his penis to an undercover police officer in a public park, the location where appellant exposed himself was on a walking trail that led into a more densely wooded area of the park, and the officer testified that he was offended and alarmed by appellant=s actions).

b.       Factual Sufficiency

With respect to his factual sufficiency challenge, appellant contends that the contrary evidence at trialCnamely, appellant=s testimony about the sequence of events that led Officer Leal and himself to the restroom area, including his denial of the allegations that he exposed his genitals to Officer LealCsimilarly render the verdict clearly wrong or manifestly unjust, or against the great weight and preponderance of the evidence.  Appellant asserts that the facts of this case stand in stark contrast to those in King v. State, 1998 WL 474070, at *1, in which the court of appeals held that the evidence was legally and factually sufficient because it was the appellant=s idea to Amove deeper into the woods@ and Athe officer did not ask [King] to expose himself.@

The State contends that, despite the conflicting evidence, the evidence is factually sufficient to support the verdict, and repeats the same arguments it made in response to appellant=s factual sufficiency challenge to the intent element of the charged offense.

Viewing the evidence in a neutral light, we find that the evidence is factually sufficient to support the finding that appellant was reckless about whether another was present who would be offended or alarmed by his act.  With respect to the contrary evidence at trial, it is true appellant denied exposing his penis or testicles to Officer Leal.  In addition, appellant further testified that (1) he and Officer Leal approached each other in the parking lot; (2) it was Officer Leal=s idea to go for a walk in the wooded area next to the parking lot; (3) Officer Leal requested appellant to pull up his shirt and show him his chest and abdomen; (4) it was Officer Leal=s idea to go into the area behind the public restrooms; and (5) once there, Officer Leal again requested appellant to show him his chest and abdomen.  However, Officer Leal testified that (1) appellant exposed his penis and testicles to Officer Leal outside a set of public restrooms at Memorial Park; (2) he was alarmed and offended by the act of appellant=s exposure; (3) the wooded area surrounding those public restrooms is not very secluded; and (4) both appellant and Officer Leal observed two males on the walking trails located near those public restrooms just before the exposure occurred.  The jury was entitled to disbelieve appellant=s testimony and believe Officer Leal=s testimony. See Young, 976 S.W.2d at 774B75.

Giving due deference to the jury=s conclusion, we find that the evidence that appellant was reckless about whether another was present who would be offended or alarmed by his act is not so weak that the verdict is clearly wrong and manifestly unjust.  We further conclude that the jury=s verdict was not against the great weight and preponderance of the contrary evidence at trial.  Thus, the evidence is factually sufficient to establish the recklessness element of the charged offense.  We therefore overrule appellant=s first and second issues.

II.       The Trial Court Did Not Abuse Its Discretion in Denying Appellant=s Motion for New Trial.

In his third issue, appellant asserts that the trial court abused its discretion in denying his motion for new trial based on the ineffective assistance of counsel because his trial attorney (1) failed to take appropriate action to quash the information, which allegedly contained a substantive defect; (2) failed to discover or adduce evidence regarding the size of appellant=s flaccid penis, whichCaccording to appellantCis only 2.8 inches long and Ahalf the normal size@; and (3) opened the door to the elicitation of testimony by the State regarding prior indecency investigations in Memorial Park.  We disagree.

A.      Standard of Review and Applicable Law

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, _ 10; Tex. Code Crim. Proc. art. 1.05.  The right to counsel necessarily includes the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).  The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. See id. at 687.  First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688B92.  Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 687.  Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s professional errors, the result of the proceeding would have been different. See id. at 688, 694; see also Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Appellate review of defense counsel=s representation is highly deferential, and we presume that counsel=s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  It is appellant=s burden to rebut this presumption, by a preponderance of the evidence, illustrating why trial counsel did what he did. Id.  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).  Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691.  Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500.  Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813.

We review the trial court=s denial of a motion for new trial based on ineffective assistance of counsel under an abuse of discretion standard. State v. Gill, 967 S.W.2d 540, 541 (Tex. App.CAustin 1998, pet. ref=d).  Therefore, we do not apply the aforementioned  Strickland test de novo. Id. at 542. Rather, we review the trial court=s application of the Strickland test under the abuse-of-discretion standard. Id.

The test for abuse of discretion A>is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.=@ State v. Herndon, 215 S.W.3d 901, 907B08 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)).  We do not substitute our judgment for that of the trial court. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).  We review the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable factual findings that could have been made against the losing party were so made. Id.  Only when no reasonable view of the record could support the trial court=s ruling do we conclude that the trial court abused its discretion in denying the motion for new trial. Id.  

Furthermore, when no findings of fact or conclusions of law are made by the trial court, we uphold the judgment if any appropriate ground exists to support it. Gill, 967 S.W.2d at 541.  We now turn to appellant=s specific claims.

B.      Appellant=s Claims of Ineffective Assistance of Counsel

1.       The Trial Attorney=s Alleged Failure to Move the Trial Court to Quash the Information

First, appellant contends that his trial attorney was ineffective because he failed to move the trial court to quash the information, which appellant alleges contains a substantive defect.^[3] Appellant asserts that his trial attorney never discussed a motion to quash with him, nor did his trial attorney independently research the pleading sufficiency of the information.  Appellant further asserts that his trial attorney=s excuses for not filing a motion to quashCthat he did not want to delay prosecution of the case or have an information filed with more inflammatory contentsCare not the result of any trial strategy, and argues that his trial attorney=s performance was therefore deficient.  Appellant further argues that he was prejudiced by his trial attorney=s failure to move to quash the information because doing so would have (1) possibly resulted in the dismissal of his case; (2) given notice of the precise offense so he could better prepare a defense; and (3) assisted him in making a legal and factual sufficiency argument due to the information=s greater specificity.  Appellant contends that his motion for new trial should therefore have been granted.

The State concedes that the information was substantively defective, but contends nonetheless that the trial court properly denied appellant=s motion for new trial.  The State argues that the trial attorney=s failure to file a motion to quash the information was the product of sound trial strategyCand was therefore not deficientCbecause (1) it was his understanding that appellant did not want to do anything that would delay prosecution of the case, and a motion to quash would not have ended the case; and (2) if the State had refiled the information, it would have amended the allegations of recklessness with more prejudicial language, and it was reasonable to prefer the generic language in the information to the more explicit descriptions that might have been included in the information, as amended.  The State further argues that, even if the trial attorney=s performance was deficient, appellant failed to prove prejudice, as the State would have either refiled the case or would have amended the information.  The State therefore argues that the outcome of the case would have been no different had the trial attorney successfully moved to quash the information.

We agree with the State that the trial court did not abuse its discretion in denying appellant=s motion for new trial on this first ground.  Because the State concedes that the information was substantively defective, we will assume without deciding that the information was substantively defective and subject to a motion to quash, and proceed with our analysis.

a.       The trial court reasonably could have concluded that the trial attorney=s failure to move to quash the information was the product of sound trial strategy, and therefore not deficient.

From the testimony presented at the hearing on appellant=s motion for new trial, the trial court reasonably could have concluded that the trial attorney=s failure to move to quash the information was the product of sound trial strategy and therefore not deficient.  At the hearing, the trial attorney testified that he met with appellant four to five times before appellant=s trial commenced, and that through their discussion of the facts of the case at each of these meetings, he developed a strategy as to how to proceed at trial.  The trial attorney testified that appellant flatly denied ever exposing himself to Officer Leal, and that appellant communicated to him that Ahe did not want to do anything that would delay the case because of certain aspects of his personal life that were around.@  The trial attorney further testified that appellant Adid not want to delay the proceedings in any way,@ that appellant Awanted things to be done fast not slow,@ and that appellant Adidn=t want [the case] to be dragged out.@ 

The trial attorney also testified that he discussed motions generally with appellantCincluding motions to suppress and motions for discoveryCbut that they did not specifically discuss a motion to quash.  He explained that, although he knew it was possible to file a motion to quash in appellant=s case, he never considered filing a motion to quash the information because he felt Astrategy-wise that we would probably be better off trying the case or getting it dismissed through other means.@  He further explained that he never considered filing a motion to quash because (1) based on appellant=s denial of the act of exposure and how the State pleaded the offense in the information, Ait would be a problem for [the State] to prove recklessness@; (2) appellant wanted to expedite the case, and a motion to quash  Awouldn=t have ended the case,@ and Aprobably would have resulted, in [the trial attorney=s] opinion, based on [the trial attorney=s] experience, in [the State] refiling the case@ and having appellant Ago through a bond again on a new charge with new allegations@; and (3) if the State had refiled the information with an amended allegation of recklessness, it would have resulted in the invitation of more inflammatory facts before the jury that might have been more harmful to appellant in his case.

Viewing this evidence in the light most favorable to the trial court=s ruling, we cannot conclude that the trial court abused its discretion in denying appellant=s motion for new trial on this first ground.  From the testimony at the hearing on appellant=s motion for new trial, the trial court reasonably could have concluded that the trial attorney=s failure to quash the information was the product of sound trial strategy, and therefore not deficient.  Although appellant testified at the hearing that (1) his trial attorney told him that he Acouldn=t find anything wrong with the charge@ and that Athere were no options for dismissal@; (2) he wished he had been given the choice of whether or not to file a motion to quash; and (3) he never said, and it would make no sense to say, to his trial attorney ADon=t do something that might help me if it=s going to prolong the case,@ appellant also testified that he Awanted to have [the charge] undone as quickly as possible,@ and the trial court was free to believe or disbelieve any or all of appellant=s testimony at the hearing on appellant=s motion. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); see also Brown v. State, 960 S.W.2d 772, 778 (Tex. App.CDallas 1997, pet. ref=d) (stating that, in determining whether to grant a motion for new trial, the trial court considers all the evidence presented, judges the credibility of the witnesses, and resolves conflicts in the evidence).

Therefore, we cannot conclude that the trial court abused its discretion in denying appellant=s motion for new trial on this first ground.  Appellant=s showing under the second prong of the Strickland test also fails, as we explain below.

b.       The trial court could reasonably have concluded that appellant failed to prove that his defense was prejudiced by the trial attorney=s failure to quash the information.

From the evidence presented at the hearing on appellant=s motion for new trial, the trial court could reasonably have concluded that the trial attorney and appellant were aware of the specific details of the charge being pursued by the State, and therefore appellant did not show that his defense was prejudiced by the trial attorney=s failure to move to quash the information.

At the hearing, the trial attorney testified that he had access to the State=s complete file in appellant=s case, including the offense report itself.  He further testified that he examined appellant=s offense report and took notes, and reviewed those notes with appellant to develop a strategy as to how to proceed at trial.  The offense reportCintroduced into evidence by appellant at the motion-for-new-trial hearingCrecites that appellant AWAS ARRESTED FOR INDECENT EXPOSURE AFTER EXPOSING HIS GENITALS TO AN UNDERCOVER POLICE OFFICER INSIDE A CITY PARK,@ and further provides specific narrative details of the offense and Officer Leal=s investigation.  In addition, the ADIMS report@^[4]Calso introduced into evidence by appellant at the hearingCrepeats the allegations made within the information and additionally provides:

ON 09-11-06 AT APPROX 1400 HRS, OFFICER D LEAL AND OFFICER M DEXTER OF THE HOUSTON POLICE DEPT VICE DIVISION CONDUCTED A VICE INVESTIGATION IN THE 100 BLOCK OF PICNIC CIRCLE IN MEMORIAL PARK.  BOTH OFFICERS WERE DRESSED IN PLAIN CLOTHES AND DRIVING UNMARKED VEHICLES.  OFFICER LEAL PARKED IN A LOT SURROUNDED BY WOODS.  THE DEFENDANT PARKED NEXT TO THE OFFICER AND WAS RUBBING HIS CLOTHED GENITALS WHILE MAKING EYE CONTACT WITH THE OFFICER.  THE DEFENDANT THEN FOLLOWED THE OFFICER INTO THE WOODS A SHORT DISTANCE.  THE [sic] THEN STOOD FACE TO FACE WITH THE OFFICER AND UNZIPPED HIS PANTS.  HE PULLED HIS UNDERWEAR DOWN PASSED [sic] HIS TESTICLES EXPOSING HIS PENIS.  THE OFFICER THEN IDENTIFIED HIMSELF AND ARRESTED THE DEFENDANT WITHOUT INCIDENT.

Viewing the evidence in the appropriate light, we cannot conclude that the trial court abused its discretion in denying appellant=s motion for new trial on this ground.  The trial attorney testified that he had access to the State=s complete file, which included the offense report and the DIMS report, that he took notes from the offense report, and that he shared these notes with appellant.  Thus, there is some indication that both the trial attorney and appellant were aware of the specific details of the charge being pursued by the State.  And, based upon the evidence presented at the motion-for-new-trial hearing, the trial court could reasonably have concluded that appellant failed to demonstrate that his defense was prejudiced by his trial attorney=s failure to quash the information. See Curry v. State, 861 S.W.2d 479, 483 (Tex. App.CFort Worth 1993, pet. ref=d) (rejecting appellant=s ineffective assistance of counsel claim because appellant failed to demonstrate that his defense was prejudiced by trial counsel=s failure to object to the indictment; trial counsel engaged in extensive discovery and was aware of what the State=s evidence showed in terms of the offense); see also Lilly v. State, No. 06-03-00157-CR, 2003 WL 22881800, at *2 (Tex. App.CTexarkana Dec. 8, 2003, no pet.) (mem. op., not designated for publication) (rejecting appellant=s ineffective assistance of counsel claim because appellant failed to demonstrate that his defense was prejudiced by trial counsel=s failure to quash the indictment; trial counsel was aware of charge being pursued by the State, and there would have been Ano point@ in complaining about the indictment). 

Although appellant (1) testified that his trial attorney Adidn=t actually know all the facts of the case@ and never showed appellant his notes from the offense report; and (2) argued that his trial attorney actually took notes from the DIMS report, and not the offense report, the trial court was entitled to believe or disbelieve any or all of this testimony and resolve any conflicts in the evidence. See Lewis, 911 S.W.2d at 7; Brown, 960 S.W.2d at 778.  Additionally, appellant cites us to no authority in support of his proposition that a trial court abuses its discretion in denying a motion for new trial based on the ineffective assistance of counsel where trial counsel failed to quash an indictment that contains a substantive defect.^[5]

Thus, the trial court could reasonably have concluded that appellant failed to meet his burden to demonstrate that his defense was prejudiced by his trial attorney=s failure to move to quash the information.  We therefore overrule appellant=s third issue as it pertains to the trial attorney=s failure to move to quash the information.

2.       The Trial Attorney=s Alleged Failure to Discover or Adduce Evidence of the Size of Appellant=s Penis

Next, appellant contends that his trial attorney was ineffective because he failed to discover or adduce evidence regarding the size of appellant=s flaccid penis, whichCaccording to appellantCis only 2.8 inches long and Ahalf the normal size.@ Appellant asserts that he informed his trial attorney about his Aabnormally small@ penis and the trial attorney did not consider it relevant.  Appellant further asserts that, even if the trial court did not abuse its discretion in disbelieving appellant=s testimony that he informed his trial attorney about the size of his penis, the trial attorney=s performance was deficient because (1) the trial attorney still had a duty to reasonably investigate and should have asked about appellant=s penis size; and (2) appellant relied on his trial attorney, as defense counsel, to conduct a reasonable investigation into relevant matters, and appellant=s Aunusually small@ penis was relevant and even exculpatory.  Appellant further argues that his trial attorney=s failure to investigate and adduce evidence about appellant=s small penis prejudiced him because (1) appellant did not have the opportunity to tell the jury that, given his embarrassment over his Aminiature@ penis, he would never have exposed himself to Officer Leal; and (2) neither appellant nor an expert witness had an opportunity to explain to jurors how it would have been impossible for Officer Leal to see appellant=s penis if his hand were wrapped around it.

Conversely, the State contends that the trial court did not abuse its discretion in denying appellant=s motion for new trial on this second ground.  The State asserts that, because the trial attorney testified that appellant denied having any physical abnormalities, and because appellant Aseemed to treat the size of his penis as a >condition= that had >affected him throughout [his] life,=@ the trial court could have found that the trial attorney=s inquiry into the issue of potential abnormalities was professionally adequate. The State further asserts that, even if the trial attorney=s performance was deficient in this respect, evidence of the size of appellant=s penis would not have affected the outcome of the trial because (1) Officer Leal testified that he had seen appellant=s penis, pubic hair, and testicles before appellant grabbed his penis with his hand; (2) even if appellant=s hand completely obscured his Adiminuitive member@ after he grabbed it, the exposure had already occurred; and (3) appellant=s expert, Dr. Cornell, testified that appellant=s penis and pubic hair would have been visible to Officer Leal.  The State argues that appellant therefore failed to prove prejudice, and the trial court properly denied appellant=s motion for new trial.

We agree with the State that the trial court did not abuse its discretion in denying appellant=s motion for new trial on this second ground.  From the testimony presented at the hearing on appellant=s motion for new trial, the trial court could reasonably have concluded that the trial attorney=s performance was not deficient.  Furthermore, the trial court could have reasonably concluded that, even if the trial attorney=s performance was deficient, evidence regarding the size of appellant=s penis would not have affected the outcome of the trial.

a.       The trial court could reasonably have concluded that the trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis was not deficient.

From the testimony presented at the hearing on appellant=s motion for new trial, the trial court could reasonably have concluded that the trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis was not deficient.  At the hearing, the trial attorney testified that (1) during the initial stages of trial preparation, he had asked appellant whether he had any Aabnormalities@ with respect to his penis, to which appellant responded that he Adidn=t have anything abnormal@; (2) appellant never informed him at any time during their discussions that he had a Asmall or abnormally small@ penis; (3) he and appellant never discussed the size of appellant=s penis; and (4) he and appellant had no discussions about taking photographs of appellant=s penis to show to the jury.  Although appellant testified that he told his trial attorney about the Acondition@ that he had regarding his Aabnormally small@ penis at their very first meeting, and that his trial attorney responded that Athat=s something that would be demeaning to bring up in court,@ and Athis case is about exposure not about size and it wouldn=t make any difference,@ the trial court was entitled to disbelieve appellant=s testimony and reconcile any conflicts in the evidence presented at the hearing on appellant=s motion for new trial. See Lewis, 911 S.W.2d at 7; Brown, 960 S.W.2d at 778.

Viewing this evidence in the appropriate light, we cannot say that the trial court abused its discretion in denying appellant=s motion for new trial on this second ground.  From the above testimony, the trial court could have concluded that the trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis was due to appellant=s intentional withholding of the information, and therefore not deficient. See Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (refusing to hold counsel ineffective when the defendant failed to impart sufficient information to permit trial counsel to determine the identity of supposedly key witnesses); Rodriguez v. State, 74 S.W.3d 563, 569 (Tex. App.CAmarillo 2002, pet. ref=d) (A[A] client has a duty to disclose information pertinent to his defense.  Should the client withhold same, then he may not complain about the effect his own evasive conduct had upon the performance of counsel.@); Hernandez v. State, 885 S.W.2d 597, 601B02 (Tex. App.CEl Paso 1994, no pet.) (recognizing that the defendant=s failure to provide his attorney with relevant information defeats a later claim of ineffective assistance because the attorney failed to obtain particular information).  We next examine appellant=s showing under the second prong of the Strickland test.

b.       The trial court could reasonably have concluded that appellant failed to prove that his defense was prejudiced by his trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis.

Again, from the evidence presented at the hearing on appellant=s motion for new trial, the trial court could reasonably have concluded that appellant did not show that his defense was prejudiced by his trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis.  At the hearing, Dr. Cornell testified regarding the size of appellant=s penis.  He related that he examined appellant=s penis before the hearing on appellant=s motion for new trial, and that appellant=s flaccid penis measured 7 centimetersCor 2.8 inchesCin length, which he explained is Aabout half the size of normal.@  Dr. Cornell further testified that he measured the width of appellant=s palm, which was 11 centimeters in length, and that appellant=s penis would approximate the middle of his palm only.  He explained that, since it was not physically possible for appellant=s penis to extend beyond the width of his palm, the Amasturbatory gesture@ made by appellant that Officer Leal described in his testimony Aisn=t possible with a penis that measures less than the width of his palm,@ because Aif he were to have the penis in the palm of his hand . . . closing the hand would completely obscure the penis,@ such that it Awould not be visible [to Officer Leal].@

However, Dr. Cornell also explained that, notwithstanding the size of appellant=s penis and the impossibility of the masturbatory gesture allegedly made by appellant, Officer Leal would have been able to see appellant=s penis and pubic hair from a distance of Aa foot and a half to two feet,@ as Officer Leal testified at trial.  Because the offense of indecent exposure merely requires exposure of any part of the defendant=s genitals, see Tex. Penal Code _ 21.08(a), and because the evidence adduced at the hearing on appellant=s motion for new trial did not refute Officer Leal=s trial testimony that he saw appellant=s penis, pubic hair, and testicles before appellant grabbed his penis with his hand or made any masturbatory gesture, the trial court could have reasonably concluded that evidence of the size of appellant=s penis would not have affected the outcome of the trial.

Moreover, although appellant argues that he was prejudiced because he did not have the opportunity to tell the jury that he would never have exposed himself to Officer Leal due to his embarrassment over his Aminiature@ penisCand presented testimony to that effect at the motion-for-new-trial hearing^[6]Cthe trial court was entitled to disbelieve any or all of appellant=s testimony and reconcile any conflicts in the evidence. See Lewis, 911 S.W.2d at 7; Brown, 960 S.W.2d at 778.  The trial court could reasonably have concluded that appellant failed to show that he was prejudiced by the trial attorney=s failure to discover or adduce information of the size of appellant=s penis.

Viewing the evidence in the appropriate light, we cannot conclude that the trial court abused its discretion in denying appellant=s motion for new trial.  We therefore overrule appellant=s third issue as it pertains to the trial attorney=s failure to discover or adduce evidence of the size of appellant=s penis.

3.       The Trial Attorney=s Alleged Opening the Door to Testimony Regarding Prior Indecency Investigations in Memorial Park

Finally, appellant contends that his trial attorney was ineffective because he opened the door to the elicitation of testimony by the State regarding prior indecency investigations in Memorial Park, despite trial counsel=s motion in limine and objections made during trial.  Appellant asserts that this evidence was Ainflammatory because it suggested parks such as Memorial Park were popular locations for lewd or indecent behavior,@ and argues that the prejudicial nature of this evidence far outweighed the relevance of the type of vehicle Officer Leal was driving.  Appellant further suggests that this evidence was inadmissible, and argues that A[c]ourts have not hesitated in finding ineffective assistance of counsel when defense counsel opens the door to otherwise inadmissible evidence.@^[7]

Appellant=s contention is without merit.  From our review of the record, we do not find that the State elicited any testimony from Officer Leal suggesting that Memorial Park is a popular location for lewd or indecent behavior, as appellant contends.^[8] Rather, based upon Officer Leal=s testimony that he used different vehicles, as well as tape recorders, in previous investigations, the State inquired whether Officer Leal had Agone into the woods@ in Aprevious investigations,@ to which Officer Leal responded, Asometimes we conduct our investigations in the woods.  We=re physically walking through trails.  We encounter suspects inside the walking trails.  So, it=s not uncommon to get out of your vehicle and walk into the woods.@  Furthermore, and more importantly, appellant provides no argument or authority supporting his assertion that this testimony is inadmissible; it is not ineffective assistance to Aopen the door@ to admissible testimony. See Moore v. State, 983 S.W.2d 15, 21 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (A[A]n attorney=s failure to object to admissible testimony does not constitute ineffective assistance.@); see also Rogers v. State, No. 14-95-0812-CR, 1999 WL 47416, at *3 (Tex. App.CHouston [14th Dist.] Feb. 04, 1999, pet. ref=d) (not designated for publication) (AAn attorney=s failure to object to admissible testimony, and by analogy, to solicit it, does not constitute ineffective assistance.@).

Viewing the evidence in the appropriate light, we cannot conclude that the trial court abused its discretion in denying appellant=s motion for new trial on this third ground.  The trial court could have reasonably concluded (1) the above testimony elicited by the State was admissible, and therefore the trial attorney=s performance was not deficient; or (2) if the testimony was, in fact, inadmissible, the trial attorney=s performance did not prejudice appellant=s defense.  We overrule appellant=s third issue as it pertains to the trial attorney=s opening the door to the elicitation of allegedly inadmissible testimony by the State.

III.      The Trial Court Did Not Err in Denying Appellant=s Motion in Arrest of Judgment.

In his final issue, appellant contends that the trial court erred in denying his motion in arrest of judgment.  Appellant repeats his assertion that the information was substantively defective and therefore subject to a motion to quash, and argues that, under Rule 22.1 of the Texas Rules of Appellate Procedure, the trial court was required to grant his motion in arrest of judgment.

A motion in arrest of judgment is a defendant=s oral or written suggestion to the trial court that the judgment rendered was contrary to law. Tex. R. App. P. 22.1.  The motion may be based on the ground that the information is subject to an exception on substantive grounds, that in relation to the information a verdict is substantively defective, or that the judgment is invalid for some other reason. Tex. R. App. P. 22.2.  However, the Texas Court of Criminal Appeals has made it clear that, under article 1.14(b) of the Code of Criminal Procedure, a defect in a charging instrument is waived unless raised before trial. See Teal v. State, 230 S.W.3d 172, 177B78 (Tex. Crim. App. 2007).  Therefore, a party may not raise an objection to a substantive defect in an information for the first time in a motion in arrest of judgment.^[9] See Tex. Code Crim. Proc. art. 1.14(b); Teal, 230 S.W.3d at 178; see also Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990).

It is undisputed that appellant did not file a pre-trial motion to quash the information.  Therefore, under article 1.14(b), he may not raise the substantive defect he complains of for the first time in his motion in arrest of judgment. See Tex. Code Crim. Proc. art. 1.14(b); Teal, 230 S.W.3d at 178; Studer, 799 S.W.2d at 273; see also Sullivan v. State, No. 04-07-00214-CR, 2008 WL 506230, at *3 (Tex. App.CSan Antonio Feb. 27, 2008, no pet.) (mem. op., not designated for publication) (holding that appellant could not raise the complaint that the information was substantively defective for failing to allege with reasonable certainty the act or acts relied upon to constitute recklessness for the first time in a motion in arrest of judgment).  Thus, the trial court did not abuse its discretion in denying appellant=s motion in arrest of judgment.  We therefore overrule appellant=s final issue.

Conclusion

Having addressed and overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 19, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not PublishC Tex. R. App. P. 47.2(b).

---

^[1]  Section 21.08 of the Texas Penal Code provides that a person commits the offense of indecent exposure Aif he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person . . . .@ Tex. Penal Code _ 21.08 (emphasis added).  Here, the information alleged that appellant Aunlawfully expose[d] his PENIS to D. LEAL with intent to arouse and gratify the sexual desire of [appellant] . . . .@  This allegation was descriptive of the intent element of the offense, and the State was therefore required to prove that appellant exposed his penis with the intent to arouse and gratify his sexual desire. See Curry v. State, 30 S.W.3d 394, 400 & n.33 (Tex. Crim. App. 2000); see also Smith v. State, No. 06-00-00136-CR, 2001 WL 1266058, at *4 (Tex. App.CTexarkana Oct. 24, 2001, pet. ref=d) (not designated for publication).

^[2]  See also Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.CEl Paso 1996, pet. ref=d) (AThe intent element [of the offense of indecency with a child] goes only to the purpose of the contact, not to any result therefrom.@); Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.CCorpus Christi 2000, pet. ref=d) (quoting Caballero, 927 S.W.2d at 130B31) (AThe indecency [with a child] offense includes the requirement of >intent to arouse or gratify the sexual desire= . . . . The offense, however does not require that the arousal or gratification actually occur.@).

^[3]  Specifically, appellant asserts that the information failed to allege with reasonable certainty the act or acts relied upon to constitute recklessness, and cites Gengnagel v. State, 748 S.W.2d 227, 228B30 (Tex. Crim. App. 1988), and article 21.15 of the Texas Code of Criminal Procedure in support of his contention.  However, as we explain below, because the State concedes that the information is substantively defective, we will not address the pleading sufficiency of the information here.

^[4]  The ADIMS report@ appears to be a summary of the offense report. Appellant contends that his trial attorney actually reviewed and took notes from the DIMS report, not the offense report.  However, based upon our review of both reports, we find that the trial court could have concluded thatCbased upon the trial attorney=s access to and review of either the offense report or the DIMS reportChe was aware of the specific details of the charge being pursued by the State, and that appellant therefore failed to prove that his defense was prejudiced by his trial attorney=s failure to move to quash the information.

^[5]  Appellant cites Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991), for the proposition that his trial attorney=s failure to move to quash the information prejudiced his defense in a manner sufficient to satisfy the second prong of the Strickland test.  However, that case is distinguishable from the facts of the present case.  In Drinkert, appellant was charged by indictment with two counts of murder. Id. at 955.  The first count of the indictment was valid, while the second count was void because it was based upon an invalid theory of felony murder. Id.  The jury charge authorized conviction under either count of the indictment, and appellant=s trial counsel failed to object to either the indictment or the jury charge. Id. The jury returned a general verdict, so that Ait [was] impossible to determine upon which count the conviction [was] based.@ Id.  The Court of Criminal Appeals held that when an indictment alleges two counts of an offense, the first of which is correct and the second of which is void, and the jury returns a general verdict of guilt, it is ineffective assistance when trial counsel fails to object to the indictment and the  jury charge. See id. at 956.  The Court explained that, A[b]y failing to object to the indictment and to the jury charge, the trial counsel permitted an invalid theory to be submitted to the jury,@ and A[t]here exists a reasonable probability that the jury may not have convicted appellant had trial counsel objected and that theory not been submitted.@ Id.  Here, unlike Drinkert, an invalid theory of guilt was not submitted to the jury, so the Court=s conclusion in that case regarding the second prong of the Strickland test is inapposite.

^[6]  Specifically, appellant testified that (1) he did not expose himself to Officer Leal; (2) he would never have exposed himself due to the psychological issues he has had his whole life with his small genitals; (3) he actually refused Officer Leal=s request to show him his genitals; and (4) he wanted the jury to hear testimony regarding his refusal and his embarrassment over his small genitals.

^[7]  Appellant cites Brown v. State, 974 S.W.2d 289 (Tex. App.CSan Antonio 1998, pet. ref=d), and Doles v. State, 786 S.W.2d 741 (Tex. App.CTyler 1989, no pet.), in support of his contention that opening the door to otherwise inadmissible evidence constitutes ineffective assistance of counsel.  However, these cases are distinguishable. In Brown, trial counsel opened the door, elicited, and failed to object to extraneous offense evidence that appellant Aused cocaine on a regular basis, drank to excess, and was promiscuous.@ Brown, 974 S.W.2d at 293.  The court of appeals held that trial counsel=s opening the door to and elicitation of this extraneous offense evidence constituted ineffective assistance of counsel. Id. at 294B95.  In Doles, trial counsel introduced part of the written statement of appellant=s stepdaughter, which enabled the State to introduce the entire contents of the written statement. Doles, 786 S.W.2d at 746. The written statement contained allegations that appellant had sexually abused victims other than the complainant, as well as allegations that appellant Adrank a lot and physically abused [his stepdaughter].@ Id. at 744B45. The court of appeals held that trial counsel=s actions in enabling the State to introduce the entirety of the written statement of appellant=s stepdaughter constituted ineffective assistance of counsel. Id. at 747.  Contrary to the situation in Brown and Doles, the testimony appellant complains of here is not extraneous offense evidence, and appellant provides us with no other authority for his contention that testimony regarding prior indecency investigations in Memorial Park is inadmissible.  Therefore, to the extent that Brown and Doles stand for the proposition that trial counsel is ineffective by opening the door to the introduction of evidence of extraneous offenses committed by the defendant, they are distinguishable.

^[8]  Even if the State had elicited testimony that Memorial Park is Aa popular location for lewd or indecent behavior,@ or that it is a Ahigh crime area,@ such evidence is admissible under Rule 404(b) of the Texas Rules of Evidence. See Revada v. State, 761 S.W.2d 426, 428 (Tex. App.CHouston [14th Dist.] 1988, no pet.).  The State is entitled to elicit testimony on the facts and circumstances surrounding the commission of the offense, and this testimony describes the circumstances surrounding the commission of the offense  for in which appellant was convicted. See id. (citing Wilkerson v. State, 736 S.W.2d 656, 661 (Tex. Crim. App. 1987); Sifford v. State, 741 S.W.2d 440, 441 (Tex. Crim. App. 1987); Hoffert v. State, 623 S.W.2d 141, 144 (Tex. Crim. App. 1981)).

^[9]  This result is in accord with the principle that, when a conflict arises between the Code of Criminal Procedure and the Rules of Appellate Procedure, the rules must yield to the legislative enactment. See Tex. Code Crim. Proc. art. 44.33(a); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Furthermore, this result comports with our sister court=s observation:

AA motion in arrest of judgment is essentially a post-trial motion to quash the indictment.  With the advent of [Texas Code of Criminal Procedure article 1.14(b)], requiring that objections to the indictment be raised prior to the date of trial or be waived, however, a motion in arrest of judgment now appears to be confined to reurging complaints about indictments made by timely objection prior to trial.@

See Crittendon v. State, 923 S.W.2d 632, 634 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (internal citations omitted).  Thus, while appellant is correct in his observation that nothing in the plain language of Texas Rule of Appellate Procedure 22.1 compels this result, article 1.14(b) of the Code of Criminal Procedure actually controls this case.