Giesie, Logan Ray v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00710-CR ____________ LOGAN RAY GIESIE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 12 Harris County, Texas Trial Court Cause No. 1040895 O P I N I O N A jury found appellant guilty of the misdemeanor offense of indecent exposure. The court assessed punishment at 180 days in jail, but suspended the sentence and placed appellant on community supervision for two years. In two issues presented for our review, appellant argues the evidence was legally and factually insufficient to support his conviction. We affirm. BACKGROUND Houston Police Officer B.T. Surginer, working undercover, entered the Gulf Freeway News and Video Store. The store had a large stock of x-rated movies for sale. It also contained an adult arcade, which was made up of several plywood booths, each with a bench and a television monitor for customers to view the x-rated movies. Each booth had a door with a lock. Officer Surginer walked through the arcade and saw appellant "in one of the booths" watching an x-rated movie and rubbing his genitals from the outside of his clothing. The door to appellant's booth was open, and as Officer Surginer walked by, appellant made eye contact with him. Appellant continued to rub his genitals and stare at Surginer. Surginer moved closer to the booth and stood in its doorway. Appellant then unzipped his pants, removed his penis, and masturbated as he stared at Surginer. Surginer then closed the door to appellant's booth, identified himself as a peace officer, and placed appellant under arrest for indecent exposure. DISCUSSION In his first point of error, appellant argues that the evidence was legally insufficient to prove that he "was reckless about whether a person might be present who would have been offended or alarmed when he exposed his penis." In his second point of error, appellant argues that the evidence is factually insufficient to prove he was reckless. In reviewing the evidence on legal sufficiency grounds, we view 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the evidence on factual sufficiency grounds, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563. We must avoid substituting our judgment for that of the fact finder. Id. A person commits the offense of indecent exposure if he exposes his anus or any part of his genitals with the 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. Pen. Code Ann. § 21.08(a) (Vernon 1994). The statute does not require that another person actually be offended for a person to commit the crime of indecent exposure. Broussard v. State, 999 S.W.2d 477, 483 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd.) The person to whom the exposure is directed is not an essential element. Id. Recklessness is based on an objective standard viewed through the eyes of the ordinary person standing in appellant's shoes. Hefner v. State, 934 S.W.2d 855, 857 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant argues that, because Officer Surginer knew appellant was masturbating through his clothing and continued to make eye contact with appellant and move towards the booth, the evidence was legally and factually insufficient to show that appellant acted recklessly about whether a person might be present who would have been offended or alarmed when he exposed his penis. Appellant further argues that, because the incident took place in a "dark adult bookstore where a video depicting sexual intercourse was being broadcast," he did not act recklessly. We find, after reviewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant acted recklessly about whether a person might be present who would have been offended or alarmed when appellant exposed his penis. Furthermore, we find that the evidence on this point was not so weak as to undermine confidence in the jury's determination nor was it greatly outweighed by contrary proof. See King, 29 S.W.3d at 563. CONCLUSION We affirm the judgment of the trial court. Sam Nuchia Justice Panel consists of Justices Nuchia, Jennings, and Radack. Do not publish. Tex. R. App. P. 47.