Opinion
No. 05-09-00187-CR
Opinion issued March 23, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 3 Collin County, Texas, Trial Court Cause No. 003-89595-07.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Daniel Kenneth Bothun of indecent exposure, and the trial court assessed punishment at 180 days in the county jail and a fine of $2000. In two points of error, appellant argues the evidence was legally and factually insufficient to support his conviction. We affirm. Appellant is the half-brother of the forty-six-year-old complainant, V.R. V.R. testified she and appellant did not have a good relationship for several years, and, at the request of her mother, she was trying to improve it. In August 2007, she visited appellant at his home in Plano for several days. On the second night of her trip, she and appellant went to dinner with neighbors, and they each had three beers. After they returned home, appellant told her she looked tense. Appellant began rubbing V.R.'s shoulders and then started to fondle her breast. V.R. immediately got up and told appellant it was inappropriate. V.R. said she went to her bedroom, took her medication, and went to bed. The medication, Trazadone, prevented her from dreaming while asleep. She left the bedroom door open because she believed she had resolved the earlier situation. About an hour later, V.R. was awakened by movement on her bed. She rolled over and found appellant, unclothed, in bed next to her. He had put her hand around his penis, and his hand was over her hand. V.R. said she was "abruptly shocked" and could not recall if he was masturbating. She ordered appellant from her room and closed the bedroom door. During the remainder of her trip, she said she was uncomfortable around appellant but believed she could "control the situation" if something else happened. V.R. said she did not confront appellant because she was "scared" and did not want to "get into an argument with him." Over the next two days, she and appellant went to Six Flags and to visit their aunt, who testified V.R. appeared to have a "good time" and did not appear distressed or anxious. Although V.R. said she talked to her husband and visited with her aunt, she said she did not tell anyone what happened until she returned home to Austin. Once there, she said she fell into a deep depression and, within a couple of weeks, asked to be admitted to a mental hospital. Her hospital records at the time she admitted herself showed she was anxious, had increased suicidal thoughts and had been hearing voices telling her to kill herself. She told her therapist about the incident with appellant and then contacted the Plano police. V.R. said it took about three months for her condition to stabilize. She explained that she waited two weeks to report the incident after returning home because she was scared and embarrassed and was unsure what would happen once she made the report. Much of V.R.'s testimony, on both direct and cross-examination, focused on her mental health before and after the incident and the various psychotropic medications she was taking. V.R. said she had been diagnosed as bipolar and had previously been suicidal. At the time of the incident, however, V.R. said she was in "good health" because her condition was under control with medication that treated her anxiety and depression, stabilized her manic/depressive states, and prevented her from dreaming. She said none of the drugs caused her to have hallucinations or delusions or to make up stories. In addition to the drug therapy, V.R. was also voluntarily undergoing electroconvulsive therapy (ECT) in which she was sedated and a seizure induced to improve her depression. On cross-examination, she acknowledged that much of her medical record involved "self-reported" symptoms and history and was not the result of independent testing. She also acknowledged that while she denied having hallucinations, her record showed that she was prescribed Zyprexa to assist with sleep and auditory hallucinations. Additionally, she agreed that her medical records showed that one of the drugs (Klonopin) prescribed for her at the time of her Plano visit showed "vivid dreams" as a side effect, although she could not remember taking it. She also acknowledged telling the police that, on the night of the incident, she had awakened in a medicated, groggy state. Detective Chris Pyryt was assigned to V.R.'s case and contacted her by telephone. He said V.R. was "very distraught about this whole situation" but said she was not sure whether she wanted to go forward with the case. Pyryt mailed her a statement form, and after a few more contacts, V.R. gave a written statement. Pyryt said during the course of his investigation, V.R. was upset but "seemed levelheaded." On cross-examination, Pyryt said he knew V.R. had been in a mental hospital, but he did not obtain copies of her mental health records. Further, he said V.R. told him her medication made her "groggy," and he acknowledged that, "in some circumstances," mixing alcohol and drugs could affect a person's ability to narrate events. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. On a legal sufficiency challenge, this court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). To obtain a conviction for indecent exposure, the State had to prove appellant exposed his genitals with intent to arouse or gratify the sexual desire of any person, and he was reckless about whether another person was present who would be offended or alarmed by his act. See Tex. Penal Code Ann. § 21.08(a) (Vernon 2003). The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from an accused's conduct, remarks, and all surrounding circumstances. See Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. [Panel Op.] 1980); Martins v. State, 52 S.W.3d 459, 474 (Tex. App.-Corpus Christi 2001, no pet.). Appellant first asserts the evidence is legally and factually insufficient to prove he intended to gratify the sexual desire of any person. Specifically, he argues V.R. did not testify appellant made any sounds, moved in any certain way, or exhibited any specific demeanor. Additionally, he relies on V.R.'s testimony that she could not recall whether appellant was masturbating when he exposed his penis. We agree V.R. did not testify that appellant made any sounds or moved in any particular way and that she could not remember whether appellant masturbated. V.R. did, however, testify that appellant climbed naked into her bed, while she was sleeping, and placed her hand around his penis while his hand encased hers. This came on the heels of an incident only an hour earlier in which appellant attempted to fondle V.R.'s breast and was reprimanded by V.R. Given these circumstances, we conclude a rational jury could infer beyond a reasonable doubt that appellant's intent was to gratify his own sexual desire. Moreover, viewing this evidence in the light most favorable to appellant, it is not so weak that the verdict is clearly wrong wrong and manifestly unjust. Appellant next asserts the evidence is either so weak or is greatly outweighed by contrary evidence to prove the offense occurred at all. In particular, he asserts the State's case "hinged on the testimony of a witness suffering serious, long-term mental illness" and suggested the incident was the product a "fever dream" caused by her medications. Further, appellant argues that V.R. acted with "peculiar indifference" by continuing the visit and never mentioning the incident until two weeks after she returned to Austin. The jury heard extensive testimony regarding V.R.'s mental health, the various medications she took and their side effects, and their effects on V.R. The jury also had V.R.'s medical records, which covered the weeks before her trip to Plano as well as the time after she returned. In addition to this, the jury heard V.R.'s explanations as to why she continued the visit without telling anyone what had happened and why she waited to report the incident once she returned to Austin. After weighing this evidence, the jury believed V.R. Having considered all of the evidence presented, we cannot conclude it is so weak, nor the contrary evidence so overwhelming, that the verdict is clearly wrong and manifestly unjust. We overrule the first and second points of error. We affirm the trial court's judgment.