NOS. 06-15-00010-CR

IN THE

SIXTH COURT OF APPEALS

AT TEXARKANA, TEXAS

_______________________ 

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

ACCEPTED

06-15-00010-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

6/17/2015 3:00:48 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 6/17/2015 3:00:48 PM DEBBIE AUTREY Clerk
1

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
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
3

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
4

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. 
5

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.
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 

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
7

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
8

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
9

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
10

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
11

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
12

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
13

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
14

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
15

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
16

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
17

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 computergenerated 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