Opinion by Justice Partida-Kipness

On Appeal from the County Court at Law No. 4 Collin County, Texas
Trial Court Cause No. 004-81103-2017

MEMORANDUM OPINION

Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness

Appellant, Douglas Stuart Malcolm, was charged by information with indecent exposure. A jury convicted Malcolm of the offense and assessed punishment at 180 days' confinement in jail and a $2,000 fine. The trial court suspended his sentence and placed him on community supervision for a period of twenty-four months. On appeal, Malcolm contends the trial court erred in forcing him to represent himself at trial and the evidence is insufficient to support the conviction. We affirm the trial court's judgment. Because the issues are settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.

BACKGROUND

On October 7, 2016, a little after 5:00 a.m., Salustia Maya was working in the bakery section of a Walmart in Plano, Texas when she noticed Malcolm touching his genitals inappropriately. Maya tried to avoid him but he kept walking near her. At one point, when she was putting merchandise in the lower part of the shelves, Malcolm squatted down, made eye contact with her, moved his shorts and pulled out his penis. The next day, Maya told the supervisor in charge of personnel about the incident. After the incident, Malcolm continued coming to the store and would "pass by" the place she was working. He was arrested on October 27, when a manager saw him in the store and called the police.

ANALYSIS

I. Malcolm's Election to Represent Himself.

In his first issue, Malcolm claims the trial court erred "in forcing [him] to represent himself at trial." The State argues Malcom knowingly and voluntarily waived his right to an attorney and exercised his right to represent himself fully aware of the dangers and disadvantages of self-representation. We agree with the State.

Malcolm was charged by information with the offense of indecent exposure. At his first appearance on March 16, 2017, Malcolm, along with three other defendants, appeared pro se after filling out a document entitled "Dangers and Disadvantages of Self-Representation" and indicated that he did not want an attorney. All four defendants replied affirmatively when the judge asked if they had read the document before signing it. During the hearing, Malcolm was advised of the charge against him and the maximum punishment for the charge. The judge admonished all the defendants about their right to represent themselves, discussed certain risks and disadvantages of self-representation, and pointed out some of the consequences they might not be aware of pertaining to the type of offense they were charged with.

Following his first appearance, Malcom hired attorney Jose Stewart to represent him. On August 18, 2017, attorney Stewart withdrew and attorney Mariola Michalska substituted in as Malcolm's counsel. On August 25, an agreed motion to withdraw filed by attorney Michalska was granted. During the hearing on the motion to withdraw, Malcolm told the trial court he wanted to release his attorney and represent himself because all three attorneys he had hired failed him and he felt "much more confident in Douglas Malcolm handling [the] trial. . ." The trial court admonished Malcolm that he would be doing himself a disservice by releasing his attorney. Malcolm rejected the trial court's suggestion that he represent himself but keep the attorney as a counselor.

After the hearing on August 25, Malcolm appeared at three more pre-trial proceedings in which he confirmed his desire to represent himself. At the hearing on the motion for continuance, the trial court explained the role of the court and the attorneys and again admonished Malcom that he would be held to the same standard as an attorney and have to understand the rules of evidence. In addition, the trial court questioned him about the steps he was taking to prepare for trial. At the bond reduction hearing, Malcolm requested that the case be set for trial. The trial court questioned him about whether he wanted a court appointed attorney to represent him or whether he wanted an attorney to be appointed to give him advice during the trial. And at the pretrial discovery hearing, the trial court asked Malcolm if he still persisted in his desire to represent himself.

Prior to the beginning of trial, the trial court explained voir dire to Malcolm and then explained each step of the trial. When Malcolm introduced himself to the jury panel, he told the panel, "I'm choosing to represent myself." During his voir dire of the jury panel, Malcolm spent a lot of time discussing his decision to fire his attorneys and represent himself. When asked by a panel member if he had reconsidered his options of retaining an attorney, he responded, "I feel comfortable with what has happened in the past right now." When the same panel member asked him if he was entitled to a public defender, he told the panel he had declined the trial court's offer to have an attorney appointed for him.

The Sixth Amendment to the United States Constitution and Article 1, Section 10, of the Texas Constitution provide that a defendant in a criminal trial has the right to the assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; Blankenship v. State, 673 S.W.2d 578, 582 (Tex. Crim. App. 1984); Fulbright v. State, 41 S.W.3d 228, 234 (Tex. App.—Fort Worth 2001, pet. ref'd). The Sixth Amendment also includes the reciprocal right to self-representation. Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008). In order to competently and intelligently choose self-representation, an accused "should be made aware of the dangers and disadvantages of self-representation so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989) (quoting Faretta v. California, 422 U.S. 806, 835 (1975). A trial court need not follow any "formulaic questioning" or particular "script" to assure itself that an accused who has asserted his right to self-representation does so with eyes open; it is only required that the record "contain proper admonishments concerning pro se representation and any necessary inquiries of the defendant so that the trial court may make "an assessment of his knowing exercise of the right to defend himself. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991) (quoting Faretta, 422 U.S. at 836 and Blakenship, 673 S.W.2d at 583). We conclude that the admonishments and inquiries in this case were sufficient to that end.

To support his claim that the trial court "forced him" to represent himself at trial, Malcolm refers to his testimony at the motion for new trial hearing in which he was questioned about representation during the proceedings and stated, "I never intended to have a trial and represent myself. I never wanted that." This testimony is contradicted not only by the waiver of counsel Malcolm admitted signing two weeks before trial, but by virtually every statement Malcolm made to the trial court each time he was questioned about representing himself, as well as the statements he made to the jury panel during voir dire while explaining his decision to represent himself. It is also contradicted by the statements he made in the letter he wrote to the trial court on September 14, less than a month before trial, wherein he told the court he had talked to three attorneys but were hesitant to hire any of them, stating "Douglas Malcolm has done a brilliant job of representing D. Malcolm. He also is a good investigator."

In light of the record, we cannot say that Malcolm's decision to proceed pro se was anything less than knowing and intelligent. Nor can we find anything in the record indicating that his decision was less than voluntary. The record shows that during the proceedings prior to trial, and at the trial itself, Malcolm never deviated from his persistence to represent himself. The record also shows the trial court advised Malcolm of the charge against him and the maximum punishment for the charge; that Malcolm signed and understood the written admonishments concerning the dangers and disadvantages of self-representation; that the trial court orally admonished Malcolm numerous times regarding the dangers of self-representation; and that the trial court gave Malcolm numerous opportunities to hire counsel or have counsel appointed to represent him or act as an advisor. Malcolm did everything required of him to waive counsel and assert his right to self-representation. Had the trial court forced counsel upon him, we are quite certain Malcolm would now be arguing that the trial court violated his right to self-representation. See Burgess, 816 S.W.2d at 431; Fulbright, 41 S.W.3d at 235. Malcolm's first issue is overruled.

II. Sufficiency of Evidence.

In Malcolm's second issue, he contends the evidence is insufficient to support the conviction because the State failed to prove he exposed his genitals with the intent to arouse or gratify the sexual desire of any person.

In reviewing the sufficiency of the evidence, we view all 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. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. Circumstantial evidence is as probative as direct evidence in establishing the guilt of the accused. Clayton, 235 S.W.3d at 778. Circumstantial evidence alone can be sufficient to establish guilt. Id.

To obtain a conviction for the offense of indecent exposure, the State had to prove that Malcolm exposed his generals with intent to arouse or gratify the sexual desire of any person and he did so while being reckless about whether another was present who would be offended or alarmed by his act. TEX. PENAL CODE ANN. § 21.08(a). Intent may be inferred from acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Shamam v. State, 280 S.W.3d 271, 277 (Tex. App.—Amarillo 2007, no pet.).

Maya testified that when Malcolm came into the bakery section, she noticed him picking up merchandise, looking around, and then touching his genitals inappropriately. She tried to avoid him and look away but he kept walking around where she was working. At one point, when she was putting merchandise in the lower part of the shelves, Malcolm came immediately across from her, squatted down, made eye contact with her, moved his shorts and pulled out his penis. Video surveillance of the incident was admitted into evidence and published to the jury. Detective Brian Pfahning of the Sex Crimes Unit of the Plano Police Department conducted the investigation and described Malcolm's repetitive and preparatory behavior on the video showing Malcolm pulling his shorts up very high, moving his shirt out of the way, reaching down between his legs and looking at his penis to make sure that it is going to "fall out." The video showed that Malcolm engaged in this preparatory behavior three times prior to actually exposing himself. The detective also noted that the video showed a difference in the way Malcolm squatted when he picked up merchandise off of the shelves, and how he squatted and spread his legs far apart before reaching down and exposing himself to Maya. Further, Detective Pfahning testified that during his interview, Malcolm admitted that he did it for his own gratification and that it was done out of compulsion and habit. Detective Pfahning testified that based on the totality of Malcolm's behavior, what happened in the store, and Malcolm's statements to him, he concluded Malcolm exposed himself with the intent to gratify his own sexual desire.

In arguing that the evidence is insufficient to prove Malcolm's intent to arouse or gratify his own sexual desire, Malcolm points to Malcolm's statements to Detective Pfahning that any exposure to another person was unintentional. He also points to Maya's testimony that although she saw Malcolm's genitals, he was not erect and was not masturbating, as well as the fact that their eye contact was fleeting and Malcolm did not say anything to her. The statute does not require the accused to intend that his exposure to the other party result in his sexual gratification, it merely requires that he actually expose himself while intending to arouse or gratify his or another's sexual desire. See Asemote v. State, 996 S.W.2d 322, 323 (Tex. App.—Houston [14th Dist.] 1999, no pet.). We conclude that a rational jury could have inferred from Malcolm's conduct and admissions that he intended to gratify his sexual desires. Malcolm's second issue is overruled.

CONCLUSION

We affirm the trial court's judgment.

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS

JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
171488F.U05

JUDGMENT

On Appeal from the County Court at Law No. 4, Collin County, Texas
Trial Court Cause No. 004-81103-2017.
Opinion delivered by Justice Partida-Kipness, Justices Whitehill and Pedersen, III participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19^th day of June, 2019.