N OS

. 06

- 15 -00010- CR

I N THE S IXTH C OURT OF A PPEALS

AT T EXARKANA , T EXAS

_______________________

Larry Joe McNeal

, Appellant,

v.

The State of Texas, Appellee.

_______________________________ On Appeal from the County Court, Lamar County, Texas Hon. M. C. Superville, Presiding

_______________________________ A PPELLANT ’ S B RIEF

Don Biard

State Bar No. 24047755 Counsel for Appellant

ORAL ARGUMENT NOT REQUESTED ACCEPTED 06-15-00010-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/17/2015 3:00:48 PM DEBBIE AUTREY

CLERK1 I DENTITY OF P ARTIES AND C OUNSEL 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 1 st Street SE Paris, Texas 75460 Tel: (903)732

- 0030 Fax: ( 214)722

- 1373

Appellee in this Court

The State of Texas

C ounsel for Appellee: Gary Young Lamar County Attorney’s Office
119 N. Main Street Paris, Texas 75460 Tel: (903)737

- 2458 Fax: (903)737

- 2455T ABLE OF C ONTENTS

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 a nd Authoriti es...

......................... .................................... .. 9

- 14

Prayer.......................................................................................... 15

Certificate of Service.......................................................................... 16

Certificate of Compliance With Rule 9.4(i)(3)..........................

.... ..........................173 I NDEX OF A UTHORITIES

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, 5 01 S.W.2d 124 (Tex.Cr.App. 1973).

........................................ ...144 S UBJECT M ATTER OF I SSUE S P RESENT ED

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?

S UMMARY OF THE A RGUMENT

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 genit alia. 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.5 S TATEMENT OF THE C ASE

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.6 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

senten ced 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. 317 F ACTUAL 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 wa s 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. 728

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 s tate 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 photog raph 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 fr om Appellant when she saw

him. 15

12 RR, pg. 95

- 96

13 RR, pg. 101

14 RR, pg. 107

15 RR, pg. 1169 A RGUMENT AND A UTHORITIES

Issue No. 1 Restated: The evidence is insufficient to support the ju ry’s verdict

because there is insufficient evidence th at 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 wi tness 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

- 3510

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 genita lia. 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 co mplainant 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 complain ant’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 27211

Although it does not appear that this cou rt 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 geni tals 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 t oward her holding his penis out and staring at her. 26 Several

months later, the complainant again saw the appellant at the same park. She

testifie d 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 suff icient 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 54612

claim ed was mastu rbating nor could she ident ify 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 Ap pel lant’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 S t ate has failed to meet its burden.

There is insufficie nt 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 eight h 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 t he jury’s verdict.

28 RR, pg. 35

29 Metts at 546

30 Metts at 546

31 RR, pg. 6813

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 cou rt 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 grati fy 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
U nruh 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 31 8

– 19); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

34 CR, pg. 614

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 in formation 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 do ubt in order to convict. 38 Howe ver ,
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, 5 01 S.W.2d 124 (Tex.Cr.App. 1973).

37 Brunson at 755

38 CR, pg. 2415 Conclusion

The evidence is insufficient to support the jury’s verdict because there is

i nsuffic ient 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 Appellant16 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 e mail.

/s/ Don Biard

___________________________ Don Biard

Attorney for Appellee: Gary Young

Lamar Co unty Attorney’s Office17

C ERTIFICATE OF C OMPLIANCE P URSUANT TO T EXAS R ULE OF A PPELLATE
P ROCEDURE 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 compu ter

genera ted document that contains 2,5 4 8 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