Jason F. Tarr v. State

Opinion issued October 7, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00280-CR ____________ JASON F. TARR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Walker County, Texas Trial Court Cause No. 02-368 MEMORANDUM OPINION A jury found appellant, Jason F. Tarr, guilty of the offense of disorderly conduct and assessed punishment at a fine of $350. In two points of error, appellant contends that the trial court erred in denying appellant’s motion for new trial and that the evidence was legally and factually insufficient to sustain his conviction. We affirm. Factual Background Huntsville Police Officer D. Warner testified that, while he was on patrol during the early morning hours of July 20, 2001, he saw appellant standing in a public parking lot outside of a bar on Sam Houston Avenue in Huntsville. Appellant’s legs were “somewhat spread” and he was facing away from the road. Although appellant was not facing Warner, and he could not see appellant’s hands, Warner saw appellant’s “elbows and arms hanging down in front” of appellant and “what appeared to be a stream of urine coming from in front of [appellant].” Warner then drove into the parking lot to investigate the situation. Upon his arrival, Warner saw appellant “zipping up” and “buttoning” his pants. Warner then got out of his marked patrol car, walked toward appellant, and identified himself as a police officer. Warner saw a puddle of liquid on the ground which, based on his experience, “smelled like urine.” Warner testified that appellant was not holding a cup or any other container which could have been a potential source of the liquid on the ground. Warner admitted that he did not see appellant’s genitals; however, he believed that the circumstantial evidence indicated that appellant’s genitals had been exposed when he was urinating. Based on what he observed, Warner issued appellant a citation for disorderly conduct. Appellant testified that, after leaving the bar, he was in the process of changing his shirt in the parking lot because a drink had been spilled on him inside the bar. Appellant stated that he was tucking in his shirt and closing his pants just as Officer Warner arrived. Appellant also testified that Emily Drummel, his date that evening, had accompanied him to the parking lot as he changed his shirt. Appellant stated that, prior to Warner’s arrival, Drummel had urinated on the ground in the same area where appellant was standing. Appellant testified that Drummel was the source of the urine that Warner had observed on the ground. However, appellant did not mention this to Warner at any time prior to or after receiving the citation, and he explained that he did not do so because he “didn’t want [Drummel] to get in trouble.” Two of appellant’s friends, Eric Delacruz and Christine Valentine, testified that they were within appellant’s immediate vicinity when the incident occurred. Delacruz testified that Drummel was the source of the urine that Warner had seen on the ground, not appellant. Delacruz also stated that appellant had recently changed his shirt and was in the process of zipping up his pants when Warner arrived. Valentine testified that she too saw appellant changing his shirt and zipping up his pants upon Warner’s arrival. Valentine did not know the source of the urine on the ground. Sufficiency of the Evidence In his second point of error, appellant argues that the evidence was legally and factually insufficient to support the jury’s verdict because “the legislature clearly intended that the [entire] genitals, and not just part of the genitals, be exposed in the instant case in order for the conviction to stand” and that “the record is devoid of evidence that any part of the Appellant’s genitals were [sic] exposed within the contemplation of the statute.” In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the verdict to 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, all of the evidence as a whole must be reviewed neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). A factual sufficiency review asks 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 whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 11. A person commits the offense of disorderly conduct if he intentionally or knowingly “exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed” by this conduct. Tex. Pen. Code Ann. § 42.01(a)(10) (Vernon Supp. 2004-2005). Because there is no statutory definition of “expose,” we give the word its ordinary meaning: “to lay open to view.” McGee v. State, 804 S.W.2d 546, 547 (Tex. App.—Houston [1st Dist.] 1991, no pet.). Here, the State was only required to prove that appellant’s genitals were “open to view,” not that a person actually saw his genitals. See Wilson v. State, 9 S.W.3d 852, 856 (Tex. App.—Austin 2000, no pet.). Appellant’s legal sufficiency argument is based on a false premise. Section 42.10(a)(10) does not expressly require that a person must expose his or her genitals, in their entirety, to commit an offense. Tex. Pen. Code Ann. § 42.01(a)(10). In construing the word “genitals,” “Texas courts have treated a specific area of the genitals synonymously with the genitals as a whole.” Claycomb v. State, 988 S.W.2d 922, 925 (Tex. App.—Texarkana 1999, pet. ref’d) (holding evidence legally sufficient where indictment alleged that defendant “exposed his genitals” and State proved that defendant exposed his penis). Here, Officer Warner testified that he saw appellant urinating in a public parking lot and that, from this, he concluded that appellant had, therefore, knowingly exposed himself in a public place. It is reasonable for the jury to have concluded that, for appellant to have been zipping up his pants after urinating in a public parking lot—creating a stream of urine between his legs, as Officer Warner testified that he observed—at least some portion of appellant’s genitals would have been “open to view.” The testimony was undisputed that the parking lot was an open, public place, was located next to a major thoroughfare, and that various other persons were present or walking to their vehicles as they left the adjacent bar. At trial, there was no evidence contradicting Officer Warner’s testimony concerning appellant’s recklessness with regard to whether any persons were present who would have seen and would have been offended or alarmed by his conduct. Accordingly, we hold that the evidence was legally sufficient to prove the essential elements of disorderly conduct beyond a reasonable doubt. As noted above, appellant did not contest the issue of his alleged recklessness with regard to whether any persons were present who would have been offended or alarmed by his conduct. Rather, in his defense, he asserted that he had not urinated and that his date, Drummel, had been the source of the urine in the parking lot. In support of his argument that the evidence was factually insufficient to support the jury’s verdict, appellant relies on his own testimony, as well as that of Delacruz and Valentine. Appellant testifed that his date, Drummel, created the puddle of urine observed by Warner and that, at the time that Warner arrived at the parking lot, appellant was merely changing his shirt. Delacruz testified that Drummel had urinated on the ground and that appellant was merely closing his pants after having changed his shirt. Valentine also testified that appellant was closing his pants after having changed his shirt. Under both a legal and a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). A jury’s resolution of conflicting testimony and evidence against a party does not make the jury’s finding “clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). As the fact finder, the jury was entitled to judge the credibility of the witnesses and to determine what weight to give to their testimony. See id. Here, the jury apparently chose to believe the testimony of Officer Warner, and not that of appellant and the defense witnesses, concerning whether appellant had urinated in the parking lot. Based on the record presented, and viewing all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination and that the proof of guilt, although adequate if taken alone, was not greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. We overrule appellant’s second point of error.Motion for New Trial In his first point of error, appellant argues that the trial court erred in denying his motion for new trial because the evidence was insufficient to support the jury’s verdict. Having held that the evidence was legally and factually sufficient to support the jury’s verdict, we further hold that the trial court did not err in denying appellant’s motion for new trial on this ground. See McCall v. State, 113 S.W.2d 479, 480 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“We apply the same standard of review to a trial court’s denial of a motion for new trial brought on the basis of insufficient evidence as we do to appellate review of challenges to the legal sufficiency of the evidence.”). We overrule appellant’s first point of error.Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Bland. Do not publish. See Tex. R. App. P. 47.2(b).