Dean, Nancy v. State

Affirmed and Memorandum Opinion filed December 21, 2004 Affirmed and Memorandum Opinion filed December 21, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00484-CR ____________ NANCY DEAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 11 Harris County, Texas Trial Court Cause No. 1152059 M E M O R A N D U M  O P I N I O N Nancy Dean was convicted of engaging in public lewdness. She was then sentenced to one year’s confinement in the Harris County Jail, probated through one year of community supervision, and assessed a $350.00 fine. On appeal, in a single point of error, she contends the evidence was legally insufficient to convict her because there was no evidence that she was the person the investigator saw engaged in an act of public lewdness. Because we find the record contains ample evidence of this fact, we affirm. On January 5, 2003, Texas Alcoholic Beverage Commission Agent Hindman went to St. James Caberet to check for liquor, and other state law, violations.[1] Once there, Agent Hindman went to a doorless room where he saw Nancy Dean on her knees in front of a man. At trial, Agent Hindman testified that he saw her touching the man’s penis with her hand. However, at one point during Agent Hindman’s testimony, he referred to the woman he saw as “Ms. Garcia.” Based upon this sole fact, appellant Dean contends the evidence was legally insufficient to prove she was the person Agent Hindman witnessed committing an act of public lewdness. In a legal sufficiency review, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc). Nancy Dean asserts the record is devoid of evidence that she was the person Agent Hindman saw engaged in an act of public lewdness simply because Agent Hindman once referred to her as “Ms. Garcia.” We reject her contention. Despite Agent Hindman’s mistake about her name,[2] there is ample evidence in the record from which a rational jury could find each of the elements of public lewdness. The indictment charges her with committing “an act of sexual contact with intent to arouse and gratify the sexual desire of Jose Garcia . . . [by] stroking the exposed penis of Jose Garcia in a public place, namely the St. James Caberet.” In a public lewdness prosecution, the “[i]ntent to arouse or gratify sexual desires may be inferred from the surrounding circumstances.” Gottschlich v. State, 05-01-00324-CR, 2001 WL 1467727, at *1 (Tex. App.—Dallas, Nov. 20, 2001, pet. ref’d) (not designated for publication) (citing Steinbach v. State, 979 S.W.2d 836, 842 (Tex.App.—Austin 1998, pet. ref'd); Balash v. State, 720 S.W.2d 878, 879 (Tex.App.—Houston [14th Dist.] 1986, pet. ref'd); Ryan v. State, 635 S.W.2d 159, 162 (Tex.App.—Houston [1st Dist.] 1982, no pet.)). At trial, Agent Hindman identified Dean as the woman he arrested at St. James Caberet. He also testified that St. James Caberet is a public place. Agent Hindman then testified that he saw Dean on her knees in front of a man (Mr. Garcia) sitting in a chair with his pants unzipped. According to Agent Hindman’s testimony, when he saw the two, Dean had her right hand on Mr. Garcia’s penis. Finally, Agent Hindman explained to the jury that he had investigated many other cases of public lewdness and, based upon his experience, he believed he had observed appellant in an act of public lewdness. From these facts, we conclude the jury could rationally find each element of public lewdness. See Jackson, 443 U.S. at 319. We overrule appellant’s sole point of error and affirm her conviction. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed December 21, 2004. Panel consists of Chief Justice Hedges and Justices Fowler and Seymore. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Appellant works at St. James Caberet, a topless bar located in Harris County, Texas, where Agent Hindman is assigned. [2] In the course of his testimony, Agent Hindman referred to Dean as “the defendant,” “Nancy Dean,” “Ms. Dean,” and, on one occasion, “Ms. Garcia.” The name ‘Garcia,’ however, is actually the surname of the man that Agent Hindman saw appellant with at St. James Caberet.