Joseph Denver Smith v. State ( 2008 )

Opinion issued November 20, 2008  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00860-CR

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JOSEPH DENVER SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1447260

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MEMORANDUM OPINION

          Appellant, Joseph Denver Smith, appeals from a judgment convicting him of indecent exposure, for which he was sentenced to 180 days in jail, suspended for 18 months of community supervision, and fined $500.00. See Tex. Penal Code Ann. § 21.08 (Vernon 2003). In his sole issue, appellant asserts that the trial court erred by denying his motion to quash because the information is fundamentally defective for failing to allege, with reasonable certainty, the acts relied upon to constitute recklessness, an element of the offense. We hold the information is not fundamentally defective. We affirm.

Background

          On April 12, 2007, a Houston police officer was working in an undercover capacity in response to reports of sexual activity occurring in Memorial Park. Using an unmarked vehicle, the officer parked and waited in a Memorial Park parking lot. The officer then observed appellant drive up and park in a lot nearby. After appellant stared at and gestured toward the officer, the officer left his vehicle and walked to the patio area of a bathroom building in the park. Appellant followed the officer, who acted as though he was masturbating himself. Appellant then began to masturbate, eventually exposing his penis. Shortly thereafter, the officer identified himself as a police officer and arrested appellant for indecent exposure.

          Appellant was charged by information with indecent exposure. The information alleged, in pertinent part, the following:

[I]n Harris County, Texas JOSEPH DENVER SMITH, hereafter styled the Defendant heretofore on or about APRIL 12, 2007, did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.

          Appellant filed a Motion to Quash, complaining that the information failed to allege with reasonable certainty the acts relied upon to constitute recklessness. The trial court denied appellant’s motion. Appellant pleaded not guilty, was found guilty by the jury, and sentenced by the court.

Motion to QuashIn his sole point of error, appellant claims that the information is fundamentally defective in that it fails to allege, with reasonable certainty, the acts relied upon to constitute recklessness, an element of indecent exposure. See Tex. Penal Code Ann. § 21.08. Specifically, appellant claims that the information failed to allege circumstances indicating that appellant was aware of the risk that another person was present who would be offended by the act of exposing himself and that appellant acted in conscious disregard of that risk. See Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). While appellant purports to challenge the information as fundamentally defective, appellant’s actual complaint is that the trial court denied his motion to quash the information for failing to give sufficient notice as to how he was reckless.

          A. Law of Indecent Exposure

          “A person commits an offense [of indecent exposure] if he exposes his anus or any part of his genitals with 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). The Texas Penal Code specifies that:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Id. § 6.03(c).                                                  B. Standard of Review

          We review a trial court’s ruling on a motion to set aside an information on an abuse-of-discretion standard. See State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App.— Houston [1st Dist.] 2000, pet. ref’d). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles by acting arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).C. Sufficient Allegation of Reckless Act

          Whenever recklessness is an element of an offense, the information must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness. Tex. Code Crim. Proc. Ann. art. 21.15. It is insufficient for the information to only state that the accused acted recklessly. Id.; Galliford v. State, 101 S.W.3d 600, 603 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). To allege recklessness, an information charging indecent exposure must allege (1) the act relied on to constitute recklessness, and (2) an act or circumstances that indicate the defendant acted in a reckless manner. See Gengnagel v. State, 748 S.W.2d 227, 229–30 (Tex. Crim. App. 1988) (holding information insufficient by failing to allege “any act or circumstances” to show exposure was done in a reckless manner).

          The information in this case sufficiently describes the acts relied upon to constitute recklessness. The information meets the first requirement by alleging that appellant exposed his penis and masturbated. See id at 229. The second requirement, that the pleading allege an act or circumstance that indicates appellant acted in a reckless manner, is met by the assertion that appellant “exposed his penis and masturbated” while he was “reckless about whether another person was present who would be offended and alarmed by the act.” See Galliford, 101 S.W.3d at 602, 604 (holding information sufficient by pleading Galliford exposed “PART OF HIS GENITALS, NAMELY HIS PENIS . . . with intent to arouse and gratify the sexual desire of JEONTE WARREN and BRET MATTHEW GALLIFORD, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: MASTURBATING HIS PENIS”); Vasquez v. State, 9 S.W.3d 839, 840 (Tex. App.—San Antonio 1999, pet ref’d) (holding information sufficient by pleading Vasquez exposed “PART OF DEFENDANT’S GENITALS with intent to arouse and gratify the sexual desire of SAID DEFENDANT and did so recklessly about whether another person was present who would be offended and alarmed by defendant’s act, to wit: THE SAID DEFENDANT MASTURBATED HIS PENIS IN THE PRESENCE OF THE SAID COMPLAINANT”).

          We conclude that the information alleged, with reasonable certainty, the acts relied upon to constitute recklessness. We hold that the trial court did not err by denying appellant’s motion to quash the information.

Conclusion  

          We affirm the judgment of the trial court.   

                                                                        Elsa Alcala

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Alcala. 

Do not publish. See Tex. R. App. P. 47.2(b).