Larry Joe McNeal v. State

ACCEPTED
06-15-00010-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/17/2015 3:00:48 PM
DEBBIE AUTREY
CLERK
NOS. 06-15-00010-CR
IN THE FILED IN
6th COURT OF APPEALS
SIXTH COURT OF APPEALS TEXARKANA, TEXAS
6/17/2015 3:00:48 PM
AT TEXARKANA, TEXAS
DEBBIE AUTREY
_______________________ Clerk
Larry Joe McNeal,
Appellant,
v.
The State of Texas,
Appellee.
_______________________________
On Appeal from the
County Court, Lamar County, Texas
Hon. M. C. Superville, Presiding
_______________________________
APPELLANT’S BRIEF
Don Biard
State Bar No. 24047755
Counsel for Appellant
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court
Larry Joe McNeal
Counsel for Appellant:
Don Biard (on appeal)
State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Email: dbiard@att.net
Jerry Coyle (at trial)
State Bar No. 04966700
117 1st Street SE
Paris, Texas 75460
Tel: (903)732-0030
Fax: (214)722-1373
Appellee in this Court
The State of Texas
Counsel for Appellee:
Gary Young
Lamar County Attorney’s Office
119 N. Main Street
Paris, Texas 75460
Tel: (903)737-2458
Fax: (903)737-2455
1
TABLE OF CONTENTS
Identity of Parties and Counsel………………..........………………………………1
Table of Contents………………………..........…………………………………….2
Index of Authorities………………......………………………………………….....3
Issues Presented…………………………………………………………….………4
Summary of the Argument........................................................................................4
Statement of the Case………………………………….…………………………...5
Procedural History………………………....…………………………………….....6
Facts…………...…………..……………………………………………………..7-8
Argument and Authorities……………………......…………………….…….....9-14
Prayer……………………..……………………………………………………….15
Certificate of Service…………………......…………………………………..…...16
Certificate of Compliance With Rule 9.4(i)(3)........................................................17
INDEX OF AUTHORITIES
Caselaw
Beasley v. State, 906 S.W.2d 270, 271 (Tex. App. — Beaumont 1995)................10
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ..........................9,13
Brunson v. State, 211 S.W.2d 755 (Tex. Crim. App. 1948)....................................14
Butler v. State, 429 S.W.2d 497 (Tex.Cr.App. 1968)..............................................14
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)..........................9,13
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet.
ref’d).....................................................................................................................9,13
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...............................9,13
Jackson v. Virginia, 443 U.S. 307, 319 (1979)....................................................9,13
Metts v. State, 22 S.W.3d 544, 547 (Tex. App. — Fort Worth 2000)................11,12
Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App. 1973)............................................14
3
SUBJECT MATTER OF ISSUES PRESENTED
I. Whether the evidence is insufficient to support the jury’s verdict because
there is insufficient evidence that Appellant actually exposed himself?
II. Whether the evidence is insufficient to support the jury’s verdict because
there is insufficient evidence that the complainant was alarmed or offended by
Appellant’s act of exposure?
SUMMARY OF THE ARGUMENT
Neither of the state’s two witnesses saw Appellant expose his genitalia in
public. While one state’s witness testified that she saw Appellant’s abdomen,
she specifically testified that she did not see his genitalia. Accordingly, the
evidence is insufficient to support the jury’s verdict.
Additionally, because the complainant did not see Appellant’s genitalia,
the state failed to prove that she was alarmed or offended by Appellant’s
exposure of his genitalia.
4
STATEMENT OF THE CASE
Nature of the Case: Plea of Not Guilty to an information charging one
count of Indecent Exposure
Trial Court: The Honorable M. C. Superville
County Judge, Lamar County, Texas
Trial Court Disposition: A jury convicted Appellant of the charged offense
and the trial court sentenced Appellant to 120 days
in jail.
5
PROCEDURAL HISTORY
On July 10, 2014, Appellant was charged by information with the Class B
misdemeanor offense of indecent exposure in violation of Tex. Pen. Code §21.08.
On August 28, 2014, Appellant was appointed trial counsel.1 On January 6, 2015,
jury selection began and the case proceeded to trial on January 7, 2015.2
Appellant pled not guilty to the charged offense but the jury found Appellant
guilty.3 Appellant elected to have the trial court assess punishment and the judge
sentenced Appellant to serve 120 days in jail.4 Appellant timely filed notice of
appeal on January 8, 2015.5
1
CR, pg. 12
2
RR, Vols. 3,4,5
3
RR, pg. 27
4
CR, pg. 29
5
CR, pg. 31
6
FACTUAL BACKGROUND
Kelli Unruh testified at trial that she got off work around 4:30 p.m. on
February 13, 2014 and went to a public park and walking track in Paris, Texas.6
Unruh ran two miles at the track and then began walking back to her car.
While walking back to her car, Unruh testified she saw a man standing next
to a white SUV approximately 100 to 150 feet away. Other testimony later
established that the distance between Unruh and this man was approximately 655
feet.7 Unruh testified that the man was standing next to his open car door and she
believed he was masturbating.8 However, Unruh testified that she never saw the
man’s genitalia.9
After seeing this man, Unruh called her husband on her cell phone and then
called 911. After placing the call to 911, Officer Mayfield with the Paris Police
Department was dispatched to the scene.10
Officer Mayfield testified that he arrived at the park and found Appellant
exiting the driver’s door of a white SUV. Officer Mayfield saw Appellant bend
down and then walk around to open the driver’s side back door of the SUV.11
6
RR, pg. 22 (All references are to Vol. 4 of the Reporter’s Record unless otherwise specified.)
7
RR, pg 116
8
RR, pg. 28
9
RR, pgs. 60-61, 68
10
RR, pg. 69
11
RR, pg. 72
7
Officer Mayfield did not see Appellant expose his genitalia in any way. 12 Officer
Mayfield interviewed Appellant and then left the scene.13
After the close of the state’s case, the defense made a motion for a directed
verdict on the basis that the state had failed to prove that Appellant had exposed his
genitals or anus.14 However, the trial court denied the motion and the trial
continued.
The defense called Shane Grissom, an engineer with the City of Paris.
Grissom produced a scaled aerial photograph of the park where Unruh believed she
saw Appellant. Grissom was able to show that, according to Unruh’s testimony,
she would have been approximately 655 feet away from Appellant when she saw
him.15
12
RR, pg. 95-96
13
RR, pg. 101
14
RR, pg. 107
15
RR, pg. 116
8
ARGUMENT AND AUTHORITIES
Issue No. 1 Restated: The evidence is insufficient to support the jury’s verdict
because there is insufficient evidence that Appellant actually exposed himself.
Standard of Review
In evaluating the sufficiency of the evidence, this court must review all the
evidence in the light most favorable to the trial court’s judgment to determine
whether any rational jury could have found the essential elements of the crime
beyond a reasonable doubt.16 This court must conduct a rigorous sufficiency
review focusing on the quality of the evidence presented while giving deference to
the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.17
Analysis
At trial, the State’s primary witness was Kelli Unruh. Unruh testified that
she saw a man standing next to a white SUV with his abdomen exposed making a
hand motion as if he were masturbating.18 She was approximately 655 feet away
16
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,
pet. ref’d).
17
Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007)).
18
RR, pg. 30-35
9
from this man when she saw this.19 Importantly, Unruh testified explicitly that she
never saw the man’s genitalia.20
Officer Mayfield was the only other person who testified he saw Appellant
that day. Officer Mayfield also specifically told the jury that he did not see
Appellant’s genitalia.21
The Beaumont Court of Appeals has addressed a much closer question than
that presented in our case. In Beasley v. State, the defendant pulled his car up to
the complainant, opened his door, and asked, “Baby, do you want to get in the
car?”22 The complainant testified that she saw Beasley’s legs all the way up to his
abdomen but that his hand blocked her view of his penis.23
The court held that the evidence was insufficient to support Beasley’s
conviction for indecent exposure, writing, “The complainant’s statement and
testimony both clearly indicate she did not at any time see any part of appellant’s
genitals.”24
As in Beasley, Unruh’s testimony in our case clearly indicates she did not at
any time see any part of Appellant’s genitals.
19
RR, pg. 116
20
RR, pg. 61
21
RR, pg. 95-96
22
Beasley v. State, 906 S.W.2d 270, 271 (Tex. App. — Beaumont 1995).
23
Id.
24
Id. at 272
10
Although it does not appear that this court has considered this exact issue,
the Fort Worth Court Appeals has declined to follow the logic in Beasley. In Metts
v. State, the Fort Worth Court held that the, “State is only required to prove that the
appellant’s genitals were exposed. The victim’s perception is not an element of the
offense.”25 However, the court’s holding must be considered in light of the facts in
Metts.
In Metts, the complainant testified that she was out jogging at a park when
the appellant came toward her holding his penis out and staring at her.26 Several
months later, the complainant again saw the appellant at the same park. She
testified that as she was returning to her car, she saw the appellant naked from the
waist down and he appeared to be masturbating. She testified that she did not
actually see his penis on this occasion but that she surmised it was exposed
because she saw his bare buttocks and he appeared to be masturbating. Based on
this, the Fort Worth Court found the evidence sufficient to convict Metts of
indecent exposure for this second incident.
Several facts differentiate Metts from our case. First, the complainant in
Metts saw the same man who had exposed himself to her earlier a second time
engaged in similar conduct.27 Here, Unruh had never before seen the man she
25
Metts v. State, 22 S.W.3d 544, 547 (Tex. App. — Fort Worth 2000).
26
Id. at 546
27
Metts at 546
11
claimed was masturbating nor could she identify Appellant as the man she had
seen at the track that day.28
Second, the distance between the complainant and Metts appears to have
been substantially closer than in our case. The complainant saw him in the parking
lot as she was returning to her car.29 Here, Unruh was approximately 655 feet —
nearly one-eighth of a mile — away from the man when she saw him.
Third, in Metts the complainant actually saw Metts’s exposed buttocks.30
Here, Unruh did not testify that she saw any part of Appellant’s buttocks, genitalia,
or groin region. In fact, Unruh specifically testified that although Appellant was
turned toward her, Appellant’s “genitals were never exposed” to her.31
Even applying the rationale in Metts, the State has failed to meet its burden.
There is insufficient evidence to allow a rational juror to conclude beyond a
reasonable doubt that “the appellant’s genitals were exposed.” The only evidence
suggesting they were was the testimony of a witness standing nearly an eighth of a
mile away who did not see his genitals.
Because the record reflects insufficient evidence that Appellant actually
exposed his genitalia, the evidence is insufficient to support the jury’s verdict.
28
RR, pg. 35
29
Metts at 546
30
Metts at 546
31
RR, pg. 68
12
Issue No. 2 Restated: The evidence is insufficient to support the jury’s verdict
because there is no evidence that Kelly Unruh was offended or alarmed by
Appellant’s act of exposure.
Standard of Review
In evaluating the sufficiency of the evidence, this court must review all the
evidence in the light most favorable to the trial court’s judgment to determine
whether any rational jury could have found the essential elements of the crime
beyond a reasonable doubt.32 This court must conduct a rigorous sufficiency
review focusing on the quality of the evidence presented while giving deference to
the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.33
Analysis
The information by which Appellant was charged reads in part:
One Larry Joe McNeal late of said County and State, anterior to the
presentment of this information, did then and there, with intent to
arouse or gratify the sexual desire of the defendant, expose his
genitals, and the defendant was reckless about whether another was
present who would be offended or alarmed by his act in that he was
masturbating with his penis exposed in a public parking lot, and Kelli
Unruh was present and offended or alarmed by said act of exposure.34
32
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,
pet. ref’d).
33
Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007)).
34
CR, pg. 6
13
Descriptive averments in the charging instrument must be proved.35
The State is bound by its allegations in its charging instrument and must
prove them beyond a reasonable doubt.36 Writing nearly 70 years ago, the
Court of Criminal Appeals stated, “There is perhaps no rule of law more
firmly established in this State than that which requires the State to establish
the descriptive averments contained in the State's pleading.”37
The information in this case contains the descriptive averment that
Kelli Unruh was offended or alarmed by Appellant’s act of exposure. The
jury charge correctly instructed the jury that they must find the State proved
this allegation beyond a reasonable doubt in order to convict.38 However,
the stated failed to prove that Unruh was offended or alarmed by Appellant’s
act of exposure.
As discussed above, Unruh never actually saw Appellant expose
himself. It would not have been possible for Unruh to have been offended or
alarmed by an act which she did not witness. Therefore, there can be no
evidence that Unruh was so offended. Accordingly, the evidence is
insufficient to support the jury’s verdict.
35
Brunson v. State, 211 S.W.2d 755 (Tex. Crim. App. 1948).
36
Butler v. State, 429 S.W.2d 497 (Tex.Cr.App. 1968); Seiffert v. State, 501 S.W.2d 124
(Tex.Cr.App. 1973).
37
Brunson at 755
38
CR, pg. 24
14
Conclusion
The evidence is insufficient to support the jury’s verdict because there is
insufficient evidence that Appellant actually exposed himself in public. Further,
the evidence is also insufficient to support the jury’s verdict because there is no
evidence that Kelli Unruh was alarmed or offended by Appellant’s act of exposure.
Prayer
Appellant respectfully requests this court reverse the conviction below and render a
judgment of acquittal.
Respectfully Submitted,
/s/ Don Biard
____________________________
Don Biard
State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Email: dbiard@att.net
Counsel for Appellant
15
CERTIFICATE OF SERVICE
I certify that on June 17, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by email.
/s/ Don Biard
___________________________
Don Biard
Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office
16
CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
PROCEDURE 9.4(i)(3)
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
Counsel for Appellant files this certification that Appellant’s brief is a computer-
generated document that contains 2,548 words. Counsel further certifies that he
relied on the word count of the computer program used to prepare this document.
Respectfully submitted,
___/s/Don Biard___________________________
DON BIARD
State Bar No. 24047755
McLaughlin, Hutchison & Biard
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Counsel for Appellant
17