PATRICK BERNARD INGRAM v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

PATRICK BERNARD INGRAM, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00973–CR

Decided: January 12, 2012

Before Justices FitzGerald, Murphy, and Myers

MEMORANDUM OPINION

Opinion by Justice Murphy

Patrick Bernard Ingram appeals his two convictions for indecency with a child by exposure.   See Tex. Pen.Code Ann. § 21.11(a)(2)(A) (West 2011).   Appellant claims in three issues that the evidence is legally insufficient to support his convictions, that his thirty-five-year concurrent sentences are excessive, and that the trial court erroneously excluded testimony from a police officer during the guilt-innocence phase of the trial.   We affirm.

BACKGROUND

Appellant was tried in a single proceeding on two indictments charging him with exposing his genitals to two children with the intent to arouse or gratify his sexual desire.   See id.   The State called multiple witnesses, including two young girls who were on the grounds of an elementary school on a Sunday afternoon.   The girls saw a man from a distance of about fifteen to twenty-five feet smiling at them and masturbating.   The thirteen-year-old testified that the man's pants were “unbuttoned” and that she could see that the man was touching his “dick.”   She did not remember what the man was wearing except for “seeing” glasses.   The ten-year-old testified that the man was wearing blue jeans, a white muscle shirt with a “light blue jacket or something” and dark glasses.   The girls ran to the thirteen-year-old's apartment and her mother called 911 after hearing the younger girl's description of the man and the incident.   The thirteen-year-old's brother, who was about fourteen, also heard the description and chased the man by bicycle.

Dallas Police Officers Bryant and Oviedo were on patrol in the area and arrived quickly in response to the 911 call.   They saw the brother on his bicycle, who pointed across the street to the man described by the younger girl.   Bryant testified that the man matched the general description received by the officers as a result of the 911 call.   The man ran when he saw the officers approach him, and the officers chased him on foot.   The younger girl testified that, from the apartment window, she saw the same man she had seen masturbating and he was running from the police.   When the officers caught the man, later identified as appellant, his pants were unzipped.   The officers handcuffed appellant, arrested him, and took him to the police station.   When appellant's handcuffs were removed at the police station, he zipped his pants.   Approximately twelve minutes elapsed from the time the girls saw a man masturbating and appellant's arrest.   Neither girl was asked at trial to identify appellant as the man they saw masturbating.

LEGAL SUFFICIENCY

Appellant claims in his first issue that the evidence is legally insufficient to support his conviction because appellant was not identified in open court as the man seen masturbating and the “circumstantial evidence was as limited as it was in this case.”   Appellant primarily argues on appeal, as he did at the guilt-innocence phase of trial in a motion for directed verdict and in his closing jury arguments, that the State failed to prove that he was the person the girls saw masturbating on the elementary school grounds.1

In reviewing the sufficiency of the evidence to support a conviction, we view all of 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 crime beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979).   This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”   See id.   This standard recognizes that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony.   See id. at 326.

Viewed in the light most favorable to the jury's verdict, the evidence shows that within a period of twelve minutes appellant was arrested as the person seen by two girls on elementary school grounds exposing himself to them.   The girls immediately ran to the apartment where one of the girls lived, one gave a description, the mother called 911, and the brother of one girl chased the man on a bicycle and directed the police officers to the man when they arrived.   The man, identified as appellant, ran from the police officers and was arrested with his trousers unzipped.   A jury reasonably could find from the testimony that appellant, who ran from the officers and was arrested with unzipped trousers, was the same man seen by the girls minutes earlier exposing himself to them.   This evidence is also sufficient to support a finding beyond a reasonable doubt that appellant exposed his genitals to the girls with the intent to arouse or gratify his sexual desire.   See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981) (requisite intent to arouse or gratify sexual desire inferred from conduct, remarks, and surrounding circumstances).   We overrule appellant's first issue.

SENTENCES

Appellant claims in his second issue that the trial court abused its discretion in sentencing him to thirty-five years in each case without considering the full range of punishment and the mitigating evidence presented by the defense.   Appellant argues that twenty-five-year minimum sentences “would have more than accomplished the goals of sentencing” set out in the penal code and that “a brief exposure of genitals does not call for a high sentence.”

Appellant's sentences for these offenses were enhanced with two prior felony convictions for attempted murder and for injury to a child, which was reduced by a plea from indecency with a child by contact.   Appellant therefore was facing a punishment range of twenty-five to ninety-nine years or life.   See Tex. Pen. Code Ann. § 12.42(d) (West 2011).   After the parties presented their evidence and closing arguments during the punishment phase, the trial court took a ten-minute recess before sentencing appellant to thirty-five years in each case.   Appellant did not object to these sentences.   Accordingly, appellant failed to preserve any claim that his sentences are excessive or otherwise improper.   See Tex. R. App. P. 33.1(a)(1)(A).   Additionally, nothing in this record suggests that the trial court did not consider the full range of punishment and the mitigating evidence that appellant presented.   We overrule appellant's second issue.

EXCLUSION OF TESTIMONY

Appellant claims in his third issue that the trial court erroneously excluded a statement made by appellant to Bryant at the time of his arrest following the officers' foot chase.   Bryant would have testified that appellant, who was still breathing hard from the chase, told the officer he ran because he thought he had outstanding “warrants” or “tickets.”   The trial court sustained the State's hearsay objection when appellant sought to elicit the testimony during cross-examination of Bryant.   Appellant's only basis asserted for admission of the testimony was the “excited-utterance exception” to the hearsay rule.   An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  Tex. R. Evid. 803(2).   After the trial court sustained the State's objection, appellant elicited the following testimony from Bryant:

Q. You asked him why he was running;  is that correct?   Why he ran?

A. Yes.

Q. Correct. And without telling me what he said exactly, did he answer your question?

A. Yes.

Q. And it had nothing to do with the reason behind the call that had you there in the first place did it?

A. No.

Appellant argues on appeal that the excluded testimony was admissible under the excited-utterance exception to the hearsay rule because appellant “protested to police, as he was being arrested, that he was running because he had warrants and he made this protest immediately upon the heels of a long foot chase, when he was undoubtedly out of breath and excited by the confrontation.”

We review a trial court's decision admitting or excluding evidence under an abuse of discretion standard, and a trial court abuses its discretion only when its decision lies “outside the zone of reasonable disagreement.”  Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.2007).   Here, the only basis for admission urged by appellant at the trial court and on appeal is the excited-utterance exception to the hearsay rule.   We therefore address only that argument.

The rationale for the excited-utterance exception to the hearsay rule is that statements made in excitement, without reflection, generally are trustworthy and reliable.   See Fischer v. State, 252 S.W.3d 375, 378–79 (Tex.Crim.App.2008).   Given the circumstances under which appellant's statement to Bryant was made, we conclude the trial court reasonably could have found the exception to be inapplicable.   Specifically, the trial court could have concluded appellant knew he was being chased under the suspicion of exposing himself to young girls on a playground, giving appellant enough time to think about his story.   See id. at 379 (exceptions apply to out-of-court statements “made without any reflection, thought process, or motive to fabricate or exaggerate”);  see also United States v. Sewell, 90 F.3d 326, 327 (8th Cir.1996) (when “incriminating evidence is discovered in one's possession, it requires only the briefest reflection to conclude that a denial and plea of ignorance is the best strategy,” which “hardly comports with the spirit of disinterested witness which pervades the [excited-utterance] rule”).   With “excited utterance” as appellant's only argument for admission of his statement to Bryant, and given the circumstances under which appellant was apprehended, we cannot say the trial court's decision to exclude appellant's out-of-court statement to Bryant was outside the zone of reasonable disagreement.

In addition, assuming the trial court abused its discretion in excluding appellant's out-of-court statement to Bryant, any error in excluding the statement was harmless.   The exclusion of the statement did not effectively preclude appellant from presenting a defense, so we apply the rule 44.2(b) harm standard for non-constitutional error.  Tex. R. App. P. 44.2(b);  Walters, 247 S.W.3d at 219 (erroneous exclusion of evidence generally constitutes non-constitutional error unless exclusion effectively precluded defendant from presenting defense).   This rule requires an appellate court to disregard non-constitutional errors that do not affect substantial rights.   Tex.R.App. P. 44.2(b).

In this case, appellant was able to present to the jury the beneficial aspects of his out-of-court statement to Bryant when Bryant testified before the jury that appellant provided a non-incriminating reason for running from the police.   Appellant's explanation that he was running because of “warrants” or “tickets” may have been less helpful than Bryant's actual testimony that appellant provided a non-incriminating reason for running from the officers.   We overrule appellant's third issue and affirm the trial court's judgment.

FOOTNOTES

FN1. Appellant testified at the punishment phase and admitted he was on the elementary school grounds “going to the bathroom” at the time the girls claimed they saw someone matching appellant's general description smiling at them and masturbating.   We do not consider appellant's punishment-phase admission in our legal-sufficiency analysis.   See Leday v. State, 983 S.W.2d 713, 719–26 (Tex.Crim.App.1998) (discussing the “cruel trilemma” faced by defendants such as appellant if there were legal consequences flowing from their punishment-phase admissions)..  FN1. Appellant testified at the punishment phase and admitted he was on the elementary school grounds “going to the bathroom” at the time the girls claimed they saw someone matching appellant's general description smiling at them and masturbating.   We do not consider appellant's punishment-phase admission in our legal-sufficiency analysis.   See Leday v. State, 983 S.W.2d 713, 719–26 (Tex.Crim.App.1998) (discussing the “cruel trilemma” faced by defendants such as appellant if there were legal consequences flowing from their punishment-phase admissions).

MARY MURPHY JUSTICE

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