ESPINAL v. STATE (2026)

OPINION

Appellant Kevin Miguel Espinal appeals the trial court's judgment by which he was convicted of continuous sexual abuse of a child under the age of fourteen, indecency with a child by contact, and indecency with a child by exposure.² He was sentenced to life imprisonment without the possibility of parole, life imprisonment with the possibility of parole to be served consecutively, and twenty years’ imprisonment to be served concurrently with his second life sentence, respectively. On appeal, he presents three issues for review concerning the sufficiency of the evidence, the trial court's admission of evidence, and the trial court's denial of his motion for mistrial. We reverse and render in part and affirm in part.

Background

Appellant was accused of having sexually assaulted C.R., his stepdaughter, over the course of many years, beginning when she was nine years old and continuing until the summer of 2022 when C.R., thirteen years old at the time, reported the abuse to her paternal aunt and her biological father, who immediately contacted police.

Third Issue: Sufficiency of the Evidence

Because Appellant's third issue would offer the greatest relief if sustained, we address that issue first. Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (en banc) (per curiam); Teal v. State, No. 02-24-00416-CR, 2025 WL 2492355, at *1 n.2, 2025 Tex. App. LEXIS 7001, at *1 n.2 (Tex. App.—Fort Worth Aug. 29, 2025, no pet.) (mem. op., not designated for publication). Here, Appellant maintains that the evidence was insufficient to support his conviction for indecency with a child by exposure.

In reviewing the sufficiency of the evidence, we consider all evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App. 2023).

The State's evidence relevant to indecency with a child by exposure centers on the evidence that Appellant sent to C.R. a digital image via messaging app that purported to be a photograph of his penis. Appellant maintains that such evidence is insufficient to establish exposure as contemplated by Section 21.11. See Tex. Penal Code § 21.11(a)(2)(A). The State maintains that such evidence is sufficient in that sending a digital image falls within a broad definition of exposure under the statute and is consistent with the legislative intent. We sustain Appellant's issue, reverse the judgment of guilt as to Count V, and render judgment that he be acquitted of said offense.

Though our review has failed to yield other Texas cases directly on point, authority, at least, suggests that the offense of indecency with a child contemplates exposure in the presence of a child. Indeed, the presence of the child—rather than the child's perception or awareness of the exposure—has been the focal point of case law exploring the boundaries of the proscribed conduct. See Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011) (“The child need only be ‘present’ for the offense to be effectuated.”).

Consistent with this understanding, several sister courts have spoken to the elements of the offense, requiring only that the child be in the defendant's presence. See Cantu v. State, 604 S.W.3d 590, 593–94 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd) (concluding that “[t]he child need only be in the accused's presence for the offense to be effectuated”). Characterizing the indecency-with-a-child-by-exposure provision as unambiguous, the Austin court of appeals delineated the essential elements of the offense as follows: (1) that the child was within the protected age group and not married to the accused, (2) that the accused was with the child, (3) that the accused had the intent to arouse or gratify someone's sexual desire, (4) that the accused knew that a child was present, and (5) that the accused exposed his anus or genitals. Uribe v. State, 7 S.W.3d 294, 296–97 (Tex. App.—Austin 1999, pet. ref'd); Yanes v. State, 149 S.W.3d 708, 710 (Tex. App.—Austin 2004, pet. ref'd) (adopting same elements). The State is required to prove an appellant acted “knowing a child [was] present.” Vann v. State, No. 05-10-00451-CR, 2011 WL 1734255, at *4, 2011 Tex. App. LEXIS 3417, at *10-11 (Tex. App.—Dallas May 6, 2011, no pet.) (mem. op., not designated for publication). We find similar stances in both this Court and the court from which this cause was transferred. See Mendoza v. State, No. 02-11-00197-CR, 2012 WL 43172, at *3, 2012 Tex. App. LEXIS 131, at *8 (Tex. App.—Fort Worth Jan. 5, 2012, no pet.) (per curiam) (mem. op., not designated for publication) (in discussing the sufficiency of the evidence concerning the presence of the child during exposure, concluding that “all the statute requires is that the offender knew a child was present and exposed his or her genitals with the intent of gratifying someone's sexual desire”); Montoya v. State, No. 07-02-0247-CR, 2003 WL 397766, at *2, 2003 Tex. App. LEXIS 1651, at *5-6 (Tex. App.—Amarillo Feb. 21, 2003, pet. ref'd) (mem. op.) (in reviewing sufficiency of the evidence, including element that “the accused knew a child was present”).

Based on our application of the general treatment of the offense by the Texas Court of Criminal Appeals and by the intermediate appellate courts, we conclude that sending a text message including a picture of one's genitalia, while, perhaps, criminalized elsewhere in the Texas Penal Code, does not fall within the conduct contemplated by Section 21.11(a)(2)(A) concerning indecency with a child by exposure. Evidence that Appellant sent such an image to C.R. is insufficient to support a conviction for indecency with a child by exposure. We sustain Appellant's issue, reverse the judgment only insofar as it finds him guilty of said offense by Count V, and render judgment that Appellant be acquitted of said offense.

First Issue: Admission of Prior Judgment

By his first issue, Appellant contends the trial court abused its discretion when it admitted State's Exhibit 4, a 2014 judgment out of Webb County which demonstrated that Appellant had been convicted of indecency with a child by contact and sentenced to two years’ imprisonment. Appellant contends admission was error because the items to which the fingerprint expert referred to arrive at the conclusion that Appellant is the person convicted by the Webb County judgment were offered into evidence for record purposes only, per the State's own offer. That being so, per Appellant's contention, State's Exhibit 4, the Webb County judgment, lacked a proper predicate because no evidence connected Appellant to the prior judgment. We disagree.

Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or if it is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). To the extent Appellant's objection simply to “predicate” would preserve error here, given the somewhat lengthy and developed arguments concerning admission of the judgment, Appellant's substantive position is unavailing.³

When a “defendant challenges the admissibility of evidence about a prior conviction, rather than the sufficiency of the evidence to prove the conviction, the issue is one of conditional relevancy.” Johnson v. State, 665 S.W.3d 902, 906 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (citing Tex. R. Evid. 104(b)). “Documents such as properly authenticated copies of a convicting court's judgment and sentence may be admissible although their relevance depends upon the introduction of evidence sufficient to support a finding that the defendant on trial is the same person as the one previously convicted.” Id.

State's Exhibit 4 is a certified copy of a prior judgment of conviction from Webb County. See Tex. R. Evid. 902(4) (listing certified copies of public records as type of evidence that is self-authenticating and does not require extrinsic evidence of authenticity to be admitted). Additionally, the defendant named in State's Exhibit 4 had the same first, middle, and last name as Appellant. This type of information was sufficient to support the preliminary finding that Appellant was the person previously convicted of the offense reflected in the self-authenticating State's Exhibit 4 and to support admission of the exhibit. See Johnson, 665 S.W.3d at 907.

It is, ultimately, the factfinder who is charged with looking at the totality of the evidence to determine whether the State proved beyond a reasonable doubt that (1) the prior conviction exists, and (2) the defendant is linked to that conviction. Paschall v. State, 285 S.W.3d 166, 174–75 (Tex. App.—Fort Worth 2009, pet. ref'd). Appellant has not challenged the factfinder's affirmative finding in this regard. The trial court did not abuse its discretion by admitting State's Exhibit 4, and we overrule this issue.

Second Issue: Denial of Motion for Mistrial

Finally, Appellant complains of error in the trial court's denial of his motion for mistrial. A mistrial is appropriate for only “highly prejudicial and incurable errors,” and a trial court's denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).

In a bench conference which preceded the complained-of questioning of the sexual abuse dynamics experts, the following exchange took place, suggesting the trial court and the State were concerned with two slightly different aspects of the expert testimony to be given by Gabi Hernandez:

DEFENSE COUNSEL: Yes. So, I'm not certain whether or not we're going into testimony involving an outcry for [K.D., another complainant]. My understanding of Ms. Gabi's role in this is that she was the forensic interviewer during [K.D.’s] outcry.

THE COURT: Okay.

DEFENSE COUNSEL: [K.D.] isn't a complaining witness in this case. My understanding of 38.072 is that the outcry exceptions are specific to the complaining witness in the Indictment, but not for [K.D.]. So I've got an objection as to going into any information about outcries for [K.D.].

Now, furthermore, Ms. Gabi wasn't the forensic interviewer for [C.R.]. That's still all hearsay. I just didn't know if that's where we were going with this.

STATE: I'm not asking any questions about what they said outside of this courtroom, any statements in which they said outside of this courtroom. My next question --

THE COURT: Well, first off, let me ask you something. How are you offering Ms. –

STATE: She is a designated expert.

THE COURT: In what capacity?

STATE: In sexual abuse dynamics.

THE COURT: Okay. She can testify only to dynamics only. She may not be testifying as a factual witness. Okay?

STATE: Right.

THE COURT: So do not relate to any other previous examinations. Do not relate to this particular, you know, victim in this case or any other victim.

STATE: Okay.

THE COURT: She is only going to talk -- and she's not testifying about -- about being a truth/lie detector.

STATE: Absolutely.

THE COURT: Lie detector.

STATE: I remember from last week.

THE COURT: I remember that, too, but I'm just reemphasizing. So do not relate it -- that to any other specific testimony that's already come before the jury. She's only testifying as a dynamics --

STATE: Yes, sir.

THE COURT: -- topic expert. Okay. Thank you very much, gentlemen.

The State continued its questioning of Hernandez. A short time later, the State elicited the following testimony:

Q. Lastly, you are not qualified to say who's telling the truth and who is not telling the truth, right? That's not your role?

A. No, sir.

Q. Okay. However, if there are red flags that you observe, is that something you make note of in a forensic interview?

A. If I have concerns with a child's statement in a forensic interview, at that point I will let the investigative parties know, which would be law enforcement or CPS.

Q. On review of the records, was there anything that was of concern to you?

A: No, sir.

Upon Appellant's objection, the trial court removed the jury from the courtroom and confronted the State with what it understood as a direct defiance of its ruling. The State responded, “Sir, I thought you were just discussing specific instances or what people said.” The trial court then confronted the State with attempting to elicit testimony regarding Hernandez's opinion on the truthfulness of the complainant, and the State expressed that it did not intend that and apologized to the trial court. The trial court sustained Appellant's objection, denied its motion for mistrial, and instructed the jury to disregard “the last comment and response” made by the witness.

A short while later, Appellant, too, would tread precariously near the topic on cross-examination when it asked Hernandez, “But those concerns could include that you believe children – that children are telling the truth, correct?” When the State pointed out its confusion on Appellant's having now delved into this matter, the trial court called the attorneys to the bench:

THE COURT: I specifically kept out exactly what you're asking about. And now you're asking her to comment about it.

MR. THOMSEN: I'm sorry. I'm talking generally. That's why I say the children.

THE COURT: I excluded them.

MR. THOMSEN: Okay.

THE COURT: Now you're going into it. Do you want to withdraw your question?

MR. THOMSEN: I do.

THE COURT: Okay. Then step back.

Appellant withdrew the question, though, we note, it had been answered.

The record suggests that both Appellant and the State were not certain what they wanted to get into evidence and what they wanted to keep out. And the trial court's ruling, though tailored to its understanding of the complaints, does not appear to have clearly conveyed to the attorneys the boundaries of permitted questioning.

What does seem clear is that both Appellant and the State elicited testimony that Hernandez was not there to testify on whether any child was telling the truth in a forensic interview; the jury was made aware that was not the purpose of her testimony. Instead, she testified as to dynamics of sexual abuse, and such is a permitted topic of inquiry. See Rojas v. State, No. 02-22-00039-CR, 2023 WL 4115863, at *11–12, 2023 Tex. App. LEXIS 4435, at *29-30 (Tex. App.—Fort Worth June 22, 2023, pet. ref'd) (mem. op., not designated for publication). When the State violated the trial court's ruling, albeit, seemingly, inadvertently, the trial court instructed the jury to disregard the complained-of question and answer. We presume that the jury did so in the absence of any evidence to suggest that it did not. Kirk v. State, 199 S.W.3d 467, 479 (Tex. App.—Fort Worth 2006, pet. ref'd). We overrule Appellant's issue.

Fines

Appellant also contends, in a footnote, that the judgments erroneously include fines. A fine is punitive in nature and is part of a defendant's sentence; as such, fines must be pronounced orally in the defendant's presence. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Gourley v. State, 710 S.W.3d 368, 379 (Tex. App.—Fort Worth 2025, pet. ref'd). Here, the $100 fines imposed by the judgments in Counts I and IV were not orally pronounced in the Appellant's presence. We, therefore, modify the judgments in Counts I and IV to delete the imposition of any fine. See Gourley, 710 S.W.3d at 379.

Conclusion

Having sustained Appellant's issue concerning the judgment of conviction for indecency with a child by exposure (Count V of the indictment), we reverse the judgment and render judgment of acquittal as to Count V only. As to the remaining judgments of conviction (Counts I and IV), we grant Appellant's request to modify the judgments to delete imposition of a fine. The judgments of conviction as to Counts I and IV are affirmed as modified herein.

FOOTNOTES

2.   Appellant was initially charged by one indictment with five counts, alleging continuous sexual abuse, two separate counts of aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. The jury's affirmative finding as to Count I, regarding continuous sexual abuse of a child, pretermitted the necessity of findings as to the separate counts lodged by Counts II and III. The jury additionally found Appellant guilty of indecency with a child by contact (Count IV) and indecency with a child by exposure (Count V).

3.   Error is not preserved when a party objects to an improper predicate but fails to inform the trial court of exactly how the predicate is deficient. Pinkston v. State, Nos. 02-22-00076-CR, 02-22-00077-CR, 2023 WL 3017661, at *7, 2023 Tex. App. LEXIS 2566, at *16 (Tex. App.—Fort Worth Apr. 20, 2023, pet. ref'd) (mem. op., not designated for publication).

Judy C. Parker, Chief Justice