Opinion issued October 8 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00538
- CR

——————————— RICARDO ROMANO , Appella nt

V. THE STATE O F T EXAS , Appell e e
On Appeal from the Co unty Crim inal C our t at Law No . 6

Harris Co unty, Texas Trial Court Ca se No. 2167075

MEMORANDUM OPIN ION On an August mor ning in a remote part of Houston ’ s Memorial Pa rk , a police officer on mou nted pa trol w i t h a body ca m era was intentionally concealing
himself and h is horse behind bu shes and trees as he observed the nearby park area and a parking lot. A r ound noon, and with no park patron s visible, a car driven by2

appellant Ricardo Romano exited the park ro a d , ent e red the empty parking lot , and parked at the back of the parking lot parallel to the r oadway. Romano got out of his c ar, walked around the back of it , and opened the front pas senger door

. The officer br iefly observed Romano and then notified his
par t n er by radio that Romano was mast urbating. The officer rode toward Romano , handcuffed him, a nd told him that he was being arrested for indecent ex p osure . Romano apologized and respond ed tha t he was just going to urinate because he had been dri nking a lot from a huge jug of water in his car and he “ nee ded to pe e. ” Romano was charged by information that he unlawfully exposed his genitals
to the officer with the intent to arouse and gratify Romano ’ s sexual desire an d that
Romano was reckless about whether another person was p res ent who wou ld be offended and alarmed by the act, in that he masturbated in a public park

. See T EX
. P ENAL C ODE § 21.08(a). At the conclusion of a bench trial, the court found Romano guilty of t he
C lass B misdeme anor offense of indecent exposure and as s ess ed a sentence of three days in county jail , as well as a $1 , 000 fine

. Also , Romano was ordered to register as a sex offender for ten years. Romano asserts three issues on appeal : (1) t he evid e n ce is insufficient to support his conviction for indecent e xpo sur e ; (2) t he trial court erred in admitting the testifying poli ce officer ’s personal opinion that Romano was masturbating ; and3

(3) h e was denied effective assistance of counsel at the guilt

- i n n ocence stage when defense counsel mentioned , elicited, and fai led to object to testimony about and
references to his inadmissible prior conviction

. Because the evidence is insufficient , w e reverse Romano’s conviction and render a ju d g ment of acquittal

. Background The State ’ s evidence consisted of the te stimony of Hou ston Police Department Se rgeant Ryan Gardiner and video footage from Ga r diner ’ s body

camera. Romano testified on his own be half

. On the m o rning of Wednesday , August 23, 2017, Gardiner was on mou nted
pa tro l in a part of Memorial Park known as the Pi c nic Lo op. He , his partner, and their horses had arrived there around 10: 00 a. m. that m orning. Gardiner and his partner w ere stati onary “ for the most part ” and were “ mainly conc ealed

. ” Gardiner

wa s t here to look for “ certain crimes ” ; pr imarily, he loo ked for c a rs circling the

ar ea and for cars parking in the back of the par k. Gardin er e stimated that he had
been concealed in the bushes and t rees since around 10: 3 0 a.m. , and from the n until the time of R oma no ’ s a rrest at 12:10 p .m. , he had not witnessed any c rime s or participate d in any arres ts. Around n oon , Ga rdiner saw Ro mano drive i n to th e parking lot that he had been observing and par k his car

. Gar di ner added th a t from where he was conc eal ed4

in the tr ee s and bushes, he had a good van ta ge point and line of sight to ward the parking lot. The v ideo from Gardiner ’ s body ca m era shows that the re was an opening in the tre es and bus hes and that th ere was an open park area with some picnic tables be t ween Gardine r and t he parking lot. At one minute and twen ty

- five seconds int o Gardiner ’ s v ideo , Romano ’ s car

can be seen exiting the park road and tur ning into the parking lot. At that point,
Gar diner raised his binocu lars and l o ok e d toward Romano ’ s car for just four seconds and then lowered his binoculars. On cross

- examina tion, Gard i ner admitt ed that this four

- second ob servation was the only time t hat he used his b in oculars to observe Romano. 1 On the video , Ro mano ’ s car c an be se e n dri ving into t he p arki ng lot for a bout fifteen seconds before bushes and trees ob stru ct the camera ’ s view of the car

. 2
T he video sho w s t hat , a f ter lowering his bin o culars , Ga rdiner observed
Romano ’ s car and Romano for the next fifty

- fiv e seconds. Becaus e the bushes and trees were ob str

uc ting the ca mera ’ s view, R oman o and Romano ’ s car canno t be

seen on the v ideo in that time frame , which is when Gardiner testified that Roma no

1 Gardi ner t estified that he wrote in h is r eport that he “ a l so used bin ocula rs to wat ch the suspect ” but adm itted that he did not watch Rom ano with bin oculars wh ile Romano was allegedly mast urbating

— t he only time he used bin o c ulars was before Romano g ot t o the parking lot.

2 According to G ar d iner , Romano ’ s p arking his car in the parkin g lot “ was suspiciou s ” because “ there ’ s very few reasons to park back there. ” Gar diner did not elabo ra te further on why a car ’ s pa rking in the parking lot of a pub lic par k at noon on a summer day was sus piciou s.5

g ot out of his car, walked around his car, and began mast urbating

. During that
f i fty

- five sec ond s of surveillance, n o pedestrians or park pa trons are visible

. At the

v i d eo ’ s two

- minute mark, Gardiner ’ s bo dy camera ’ s audio cam e on . At two minutes and twe nty

- f our secon ds into the video, Gardiner summoned his partner on hi s radio , tell ing h im to “ come t his way ” and that Romano was

mas tu rbating. Gardiner ’ s partner w as at a nearby location on the other side of the parking lot and could not see Roman o. Gardin er t es tified that , from his van tage point, aft er Romano parked his car , he s aw Romano get out and walk around the bac k of his car to the other side , ope n the front passe nger door , and then walk to the back of his car. Ga r di ner said that he then saw Roma no, who was wearing “ jogging shorts, ” pull down t he top of his shorts with one hand and start m asturbating with his othe r hand. During Gardiner ’ s radio communication w ith his partner , Gar diner ’ s horse begins to m ov e forward toward Roman o , a nd at tw o m inutes and twenty

- seven seconds into the v ideo, Roman o ’ s parked car can be seen for the first tim e on the vid eo b ecause the c a mera ’ s view of it is no longer being obs tructed by the bushes and trees

. Gardiner ’ s horse then begins going at a trot or canter tow ard Ro mano , who cannot be ascertained on the video u ntil two minutes and fort y seconds in to6

the v ideo because of the orig in a l distance be tween Gardiner and Ro ma no and the

came r a ’ s movement caused by the ho r se ’ s movements

. 3
When Romano is first ascertainabl e o n t he v ideo , he is on the passe nger side of his c ar with the front passenger door open and is s tandin g nea r the open doo r . T he car ’ s passen ger side is facing awa y f rom the roadway and parking lot and is approxima tely ten fee t from a den se area of bushes and t rees . T he v ideo shows Gardiner stopping his h orse ap proximat ely ten ya rds from
Romano ’ s c ar , dism o un ting, and walkin g up to R omano . G ar d iner then tells Romano to p l ace his hands behin d his back and be gins to hand cuff him . Romano compl i es but asks, “ What ’ s hap pening ? ” Gar diner respon ds, “ You ’ re under arr est for indec ent exposure. ” Romano the n e xc laims wi t h an incredulous tone, “ What? ”
Gar d iner replied, “ I watched you from over there; I have a camera. ” Romano then

ex cl aimed to G ar di ner, “ I was gonna p ee . I ’ m sor ry ; I really needed to pee. ” He explained to Ga rdiner that there was a jug of wate r in his ca r and that he had been

3 Gardiner did not testi fy what the distan ce was from his conc e aled location to Romano ’s car. The elap sed time that it took for Gar di ner ’s ho r s e, on ce it started wal king and then t rotting or cantering towa rd Roma n o, to come to a s top near Romano ’s car w as approximately eighteen second s. Because of the quality o f the video and the dearth of testimony on Gardiner ’s distance from Romano , we would have to speculate ab o ut th e distance , but we c an say that it app e ars to be less than a football field (100 y ar ds ). Romano testifi ed that the officer was fift een to twenty feet a way, but it is unclear whe ther th at distance was where the officer was hi d den in the trees and bushes or where the of fic e r a nd horse were when Rom ano f ir st noticed them. From our revie w of the video, we can say with certainty that t he officer ’ s hiding place was mu ch more than fifteen to twenty feet away from Romano ’ s location.7

drin king a lot of it , but Ga r diner replied that he saw what Romano was “ doing ” and then a sked him why h e did not use the pa rk restr oom a cro ss t he street to urinate

. Romano replied that he did n o t like th ose restrooms and repe ated th at he “ just needed to pee ” and kept apolo giz ing w hile intermittently la u ghing incre dulously. Gardiner ag ain sai d to him, “ Well, I s aw you from over there , and y ou wer en ’ t peei ng. ” Romano replied, “ I was getti n g ready to and I sa w your horse and I said,

‘ Oh my god, what the hell is that? ’ ”
Gar di ne r then asked Roman o w hy he w a s going to pee where he was : “ S o , why are you doin g th at here, though? ” Rom ano , who was c ompliant and

c ooperative th rough out the approx imately th irty

- four minutes he is on the video,

a nswered that he needed to pee , adding that the park restrooms are “ smel l y. ”
Romano repeated that there was a huge jug of water in the f ront seat that he had
been drin kin g from

. T he v ideo shows that when Gardiner searched the front of
Romano ’ s car, a large p lastic water bottle is visi ble on the front passe nger seat

. Gardiner testif

i ed that he did not bel ieve that Romano was urin ating beca use he sa w him masturbating and be cau se there was no ur ine on the g round. Gardi ner said that he was “ sure ” that Romano w as mast urbating

. H e admitted on cross exami nation that Romano did not have any lubri ca nt on his hands or i n his car

. G ardiner also did not find any ap h rodi siacs or pornograph y in Romano ’ s car.8

The video depicts that Gar diner, w hile making notes and que st ioning Romano, stated to Romano, “ So, I ’ m sit ting over in th e woo ds

. I got a body

ca m e ra . I got b in oculars , and I see

. . . . ” At that point, Ro ma n o interrupts Gardi ner and impl ores him thr ee times within seven s econd s to “ please look at your body

camer a . ” Gar diner cont inued, “ I saw you take i t out and , li ke, kind of s tart messing with it. It looked like you were mast urbating. ” Romano r e plied with an incredulous
tone, “ No. By mys elf? ” About forty seconds later, as Gardiner is walking away from him, Romano

a gain states, “ But look at the video ca me ra, please. ” Gar diner replies, “ I mean, i t ’ s
g onna show what you did. ” Because of the distance and the camera ’ s obstructed

v i ew, the vid eo doe s not s how Romano at al l when h e is allegedly masturbating

. Gardiner te s tified that he believed he was the only person who saw R omano
mast urbating

. O n cross - e x a m i nation , Gardi ner s tated th at there was a bike tr ail about a “ hundred or so ” feet in fron t of Romano ’ s pa rked car , but he a dmit ted that because o f where Romano ’ s car was parked and w ith the passenger door open,
Romano ’ s car “ may have bloc ked ” a view of R omano from the bike t railhead. Also o n cro ss - e xaminatio n, Gardiner s tated that no one othe r t ha n Romano was in the parking lo t and that the nea rest p arking lot where someone mi ght be parked was a n est imated quarter

- mile away. He also later t estifi e d that , from his hidden vanta ge point, he could not see any people in the area at the time that9

Ro mano was mast urbating , and he ad mitted o n re - cross - examin ation that n o one was on the street to have seen Romano mastu rbating. O n furth er re direct
exami n ation , Gardi ner c larif ied that any ped estrians, cy clists, or mo tor ists “ c ould have possibl y had a vanta ge point ” to see Romano whe re he was masturbat ing

. Gard iner had earli er test if ied on direct exam ination that there was a risk that
anyone cou ld hav e seen Romano mast urbating.
Romano , who was age 48 at the time of trial , testified that he worke d i n
constru cti on remodeling . He had bought a truck for his constr uction business , a nd the truck needed license pl a tes . He explained that he had just obtained bond papers to be able to get the truck ’s license pla tes, and before he went do wnto wn to get the lic en se plat es, he stopped in Memorial Park to read over th e papers to make sure that they were correct

. Romano testified that he pa r ked his car at the very edge of the parking lot , parallel to some bu shes and in the shade w ith nobody around , and that he d e ci de d
to ur inate there between h is car and the bushes. H e admitted that he took out his penis but said that he did so to ur i nate. Ro mano a lso ad mitted that when he got out of his car and took out his penis, he saw mov ement in the bushes

— he just saw br an ch es movi ng, n ot the hor se

— where Gar diner eventua lly came f rom, but he did10

n o t know what the movement was. 4 He also testified that , while he “ sus pecte d ” someone was behind the mo ving bushes, nobody was around and he did not feel
li ke he was being reckless. Su fficiency of the Evi dence In his first issue, Rom ano asserts that the evid ence is insufficient to support the trial court’s guilty finding f o r two reasons . First, he contends that the evidence is insufficien t to establish that he exposed his genitals wit h intent to arouse or gratify the sexual desire of any person ; that is , he exposed his gen itals not to
mast ur bate, but to urinate . Second, Roma no argues that the evidence is insufficient
to establish that he was r eckless about whether another wa s present w ho would be offended or alarmed by the act.
In rev i e wing the sufficiency of the evidence , we view all the evidence in the light most favorable t o the verdict. Braughton v. State , 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). We determine whe ther a rational t r ier of fac t could have found the es sential elemen ts of the offense beyo nd a reason able doubt. Id

. Evidence is
insuff icient under this standar d in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the reco rd c o ntains a mere

“ modicum ” of ev id ence probative of an element of the o ffe nse; (3) the evidence

4 The v ideo depicts that , while Romano ’ s c ar is pa rking and he is getting out o f his car, G ardiner ’ s ho rse is eating le aves on the b ra nc hes of a s mall t ree and causing the bran ches to m ove.11

conclusi vely establi shes a reasonable doubt; an d (4) the acts alleged do not constitute the criminal offense charged. Johnson v. State , 425 S.W.3d 516, 519

– 20 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref ’ d); Bounds v. State , 355 S.W.3d 252, 254 (Tex. App.

— Houston [1st Dist.] 2011, no pet.)

. As an appellate court, we do not weigh the evidence or a ssess its credibility.
Isassi v. State , 33 0 S.W.3d 633, 638 (Tex. Crim. App. 2010 ). We give deference to “the responsibility of the trier of fact to fa ir ly res olve conflicts in testimony, to weigh the evidence, and to draw reasona ble inferen ces from basi c fa cts to ultimate facts.” Hooper v. State , 2 14 S.W.3d 9, 1 3 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia , 443 U.S. 307, 318

– 19 (1979)). “ As a review ing court, we may not reevaluate the weight and credibility of the evidence in the record and thereby substitute our own judgment for that of the f actfinder. ” Braught on , 569 S.W. 3d at
608

. But it is ou r role to determine “ whether the necessary inferences m ade by the trier of fact are reas onable, based on the cumulative force of a ll the evidence. ” I d. (quoting Adam e s v. State , 353 S.W.3d 854, 860 (T ex . Crim App. 2011)). Also, a fac t finder “ is not permitted to disregard undisputed objective facts that can sup port only one logical inference. ” I d. at 611. A person commit s the offense of indecent exp osure if he : (1) expose s his
anus or any p art of his g en itals ; (2) with int ent to arous e or gratify the sexual desire of any person ; and (3) is reckless about whether an other is present who will be12

offended or alarmed by the act. T EX
. P ENAL C ODE § 21.0 8(a) ; State v. York , 31 S.W.3d 798, 802 (Tex. App.

— Dallas 20 00, pet. r ef ’ d)

. Ro mano does no t dispute that he exposed his genitals . H e admitted on the

v ideo and at trial that he exposed his p enis but that he did so because he was goin g to urinate. 5 But i n admittin g th at he exposed his ge nital s

— albe it to urinate

— he

con tends on appeal t hat he was n ot reckless in doing so. A person is reckless with respect to circumstances surroundi ng his conduct or the result of his conduct when he is aware of but consciously disregards a substa ntial risk th at the ci rcumstances exist or the result will occu r. T EX
. P ENAL C ODE § 6.03 (c ). “ The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of car e that an ordinary person would exe rcise under all the circumstanc es as viewed from th e ac t or ’ s standpo int

. ” Id.
To determine whether conduct is reckless, we must look to: (1) whether the act, when viewed objectively at the time of its commission, created a “substantial and unjustifiable” risk of the type of harm that oc curred, (2) whether that risk was of such a magni tude that disregard of it constituted a gross deviation from the standard of care that a reasonable person w ould have exercised in the same situation, (3) whether the defendant was consciously aware of that risk, and (4) whether the defendant c onsciously d isregarded that risk

.

5 C f. T EX
. P ENAL C ODE § 42 .01(a)(1 0 ) (providi ng that offense of disor derly conduc t is commi tted if t h e per son : (1) expose s his anus or genital s in a public place ; and ( 2 ) is reckless a bout whether another is present who will be offended or alarmed by his act )

.13

Bounds , 355 S.W.3d at 256 (citing Williams v. St ate , 235 S.W.3d 742, 755

– 56 (Tex. Crim. App. 2007)). The objective standard of recklessness is viewed through the eyes of the ordinary p erson standing in the defendant ’s sho es. Hefner v . State , 934 S. W.2d 855, 857 (Tex. App.

— Hous t on [1st Dist.] 1996, pet ref’d).
I nde cent exposure c ases

— especially those occurring in public parks

— that
address the suffic iency of the ev idence on the reck lessness element in vol ve a

common feature lacking in t his case : the defend an t ’ s kn owled ge or awareness of another per son ’ s presence. Se e McNeal v. State , N o. 06

- 15

- 00010

- CR, 2015 WL 5145228, at * 3 (Tex. App.

— Texarkana Sept. 2, 2 015, no pet.) (mem. op., not d esignated for publication) ( hol ding evid ence suffici ent on reck lessness where de fendant was masturbating in public park in prese nce of o ther p eople and complainant, who was jog ging nearby in plain si ght); Jenson v. State , No. 14

- 07

- 00093

- CR, 2008 WL 3833806, at * 6

– 7 (Tex. App.

— Houston [14 th Dist .] Aug. 19, 2008, pet. ref ’ d) (mem. op., not d esignated for publication) ( ho lding that defendant ’ s intentional exposure o f his gen itals to undercover officer in unsecluded wooded area near public restroom in Memorial Park , just m oments afte r two ma les had walked b y, was sufficient ev i dence o f reck lessn ess ) ; Young v. State , 976 S.W.2 d 771 , 7 74 (Tex. App.

— Houston [1st Dist. ] 1998, pet. ref’d) ( hold ing evidence of r ecklessness was sufficient where defenda n t exposed his penis to police officer behind public res t area, testimony indicated that tra ils in park area14

behind rest area were trampled, and defendant admitted another man walked behind rest area while defendant was “back there ” and he spoke with man) ; Hefner , 934 S.W.2d at 856

– 58 (holding evidence on reckl essness was sufficient

w her e defen d a nt placed his penis in hole in wa ll a t ad ult theater booth , know ing that someone was in adjoining booth , bec aus e a rational fact finder “ cou ld have concluded that appellant was reckless because , as fa r as he kn ew, the oth er pers on
was pres ent simply to watch a movie, not to see his body ” ) ; s ee also Smith v. State , 309 S.W.3d 10, 12 (Tex. Crim. App. 2010) ( addressin g sufficiency of information ’s reck less ness allega tion in case w here undercover officer was conducting sting o pe ration in Houston ’s Memorial Park , and defendant expose d his penis and began mast urbating in front of officer after he looked a round to make sure they were alon e ) ; McCoslin v. State , 558 S.W.3d 816, 821 (Tex. App.

— Houston [14th Dist.] 2018, pet. ref ’d) ( “ By r eque sting that the comp lainant [hot el clerk] enter the ho tel room where appellant exposed his gen itals and masturbated, appellant was reckless as to the presence of another person who would b e off ended
or al armed by appellant ’ s act. ” )

. The evidence in this case differs from the above ca se s in several signifi ca nt respect s. See Friedsam v. State , 373 S.W.3d 817, 820

– 21 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) ( comparing other cases in which evidence w as su fficient to support con viction f or same o ffense and then reversing for insuffic ie nt15

evid ence); Joh nson , 4 25 S.W.3d at 521

– 24 (s ame). I t is undis puted that Romano
pa rked his car in an empty parking l ot in a remote part of Me morial P ark and that there wer e no o ther persons visible or present, excep t for Gardiner, who was int entionally co n cealing himself f rom Romano ’ s view. Romano g ot out of hi s car and walk ed around the back of it to the passenger side , ope n ed the front passe nger door , and then walk ed to ward the back of his car.
Romano testified th at he pa r ked his car at the very edge of the parking lot , para llel to some bu shes and in the shade w ith nobody around

. The video confirms this testimony. Romano testified that his car, as well as the car door, was shi elding him from areas where pedestrians and other cars may have passed by. Gardi ner testified th at the re was a bike t r ail about a “ hundred or so ” feet in front of
Romano ’ s pa rked car and a dmit ted that because o f where Romano ’ s car was parked and w i th the ope n passenger door , Romano ’ s car “ may h ave bloc ked ” a view of Romano from the bi ke t railhead. During Gar diner ’ s fifty

- five sec onds of surveillance of Romano , n o pedestrians or park pa trons a r e visible on the v ideo. Gardiner testified that no one oth er t han Romano was in the parking lo t and that the nea rest p arking lot where someone mi g ht be parke d was a n est imat ed quarter

- mile away. He also t estified
that , from his hidden vanta ge point, he could not see any people in the area at the time that Romano was exposing h ims elf, and he ad mitted that no one was on the16

s treet to have seen Romano

. Gardiner , who was ad mitted ly hiding from Romano, b elieved that he was the only person who saw R omano expose him self

. The undisputed , objective ev iden ce is that Romano made deliberate eff orts to shie ld himse lf f

ro m the view of others and that Romano was un aware that Gardiner was hi ding a good distance awa y in the trees and b ushes. 6 A person who makes deliberate efforts to go to a remote area and shield him self from public view cannot be said to be acting reck lessly

. S ee Hines v. Sta te , 906 S .W.2d 518, 5 22 (Tex. Crim. App. 1995) ( aff irming appellat e court ’ s reversal of public lewdness conviction because State did not prove appellant was rec kle ss a b out presence of another, as “ appellant had deliberately se lected an is olated spo t , ‘ deep in the woods, ’ w her e h is co nduct w ould not be obse rv ed by others. ” ). A fact finder “ is not permitted to disregard undisputed objective facts that can sup port only one logical
inference. ” Braughton , 569 S.W.3d at 611. We conclude that the evidence of
Romano ’s making deliberate eff orts to sh ie ld himse lf f

ro m the view of others , his

un aware ness of the hidden Gardiner , and the absence of any other p erson is undisputed , objective evidence that supports only one logical inference

— that
Romano was not disregar ding a substantial risk that someone mi gh t see him

6 Ro mano specula ted that , when he took out his p enis, someone migh t be behind the mo ving br an ches where Gar diner eventua lly came f rom, b ut he did n o t know what the movement was , and he emphasized that nobody was a round and that he did not feel li ke he was being reckless. We cannot say that this spe culative possibility is the evidentiary equivalent of a conscious disregard of a substantial ri sk that another per son was present.17

expo se himself

. S ee Hines , 906 S .W.2d at 5 22 ; Bounds , 355 S.W.3d 255

– 5 7 (reversing con victio n because evidence did not supp ort reasonable inference that defendant was reckless); Simp son v. Sta te , No. 01

- 11

- 00718

- CR, 20 12 WL 1249524 , a t * 3 (Tex. App.

— Houston [1st Dist.] Apr. 12, 2012 , no pet.) (mem. op., not d esi gnated for publication) (same); see also Johnson , 425 S.W.3d at 524 ( reversing con victio n because evidence did not supp ort reasonable i nference that defendant had intent to defr a ud )

. Ther efore , w e conclude that a rat ional tri er of fact

co uld not have found beyond a reasonable doubt that Romano was reckless about wh ether another was present who would be offended or alarmed by Roma no ’ s
expo sure o f his gen itals. We s ustain in part R omano ’ s fi rst issue. Having sustained in part Roman o ’ s first issue, which requires rendition of a judgment of acquittal, we need not address the remainder of Romano ’s first issue or his other two issues.
See T E X
. R

. A PP
. P. 47

. 1. C oncl usion We reverse the t rial co urt ’ s judgment of conviction and render a ju dgmen t of acquittal.
Richard Hightower Justic e Pan el consist s of Justices Kelly, Hightower , and Coun t iss

. Do not publish. T EX
. R. A PP
. P. 47.2(b)

.