David Sidwell Jenson v. State

Affirmed and Memorandum Opinion filed August 19, 2008

Affirmed and Memorandum Opinion filed August 19, 2008.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00093-CR

____________

DAVID SIDWELL JENSON , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the County

Criminal Court at Law No. 6

Harris County, Texas

Trial Court Cause No. 1402367

M E M O R A N D U M O P I N I O N

Appellant, David Sidwell Jenson, was indicted on the

misdemeanor offense of indecent exposure. The jury returned a guilty verdict,

and the trial court sentenced appellant to 180 days = confinement in

the Harris County Jail and a $2,000 fine, but suspended the sentence and placed

appellant on community supervision for two years. Appellant retained new

counsel, and thereafter filed a motion in arrest of judgment and a motion for

new trial. After an evidentiary hearing, the trial court denied both motions.

In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting

his conviction, and the trial court = s

denial of his motion for new trial and his motion in arrest of judgment. We

affirm.

Factual and Procedural Background

On September 11, 2006, Officers Daniel Leal and

Matthew Dexter of the Houston Police Department were working undercover as vice

officers on a public indecency investigation in Memorial Park. According to

Officer Leal = s testimony, he and Officer

Dexter were driving around the circular drive in the park in separate, unmarked

vehicles. At approximately 2:00 p.m., Officer Leal noticed that a silver Volvo

sedan was following him, A turning

the same way as [he] was turning. @

Observing this, Officer Leal turned into a nearby parking lot and parked his

vehicle.

Appellant, driving the silver Volvo sedan,

followed Officer Leal into the parking lot, and parked his vehicle next to

Officer Leal = s. Officer Leal made eye

contact with appellant, who then began to grab and massage his genital area.

Officer Leal testified that appellant continued to massage his genital area for

two to three minutes while maintaining eye contact with Officer Leal, at which

time appellant got out of the Volvo, approached the driver = s-side window of Officer Leal = s

vehicle, and asked Officer Leal if he wanted to sit in appellant = s car. Officer Leal declined, and indicated that he would

rather go into the wooded area next to the parking lot. Appellant agreed, and

the two then walked approximately fifteen to twenty feet into the wooded area.

Once there, appellant began to massage Officer

Leal = s chest over his t-shirt, and then pulled up Officer Leal = s shirt, exposing his abdomen. Officer Leal testified that

appellant then stopped massaging Officer Leal = s

chest and started undoing his own pants, but quickly stopped when he saw two

men on one of the nearby walking trails. Appellant then zipped up his pants

and started tucking in his shirt. Officer Leal then suggested that the two

walk over to a set of nearby public restrooms, and appellant agreed.

Once outside the restrooms, appellant began

massaging his genitals, and stated, A I don = t think I can get hard. @

Appellant then pointed to Officer Leal = s

genitals and stated, A Let me

see, @ to which Officer Leal responded, A You let me see. @

Appellant then unzipped his pants and pulled down his underwear past his

testicles. Officer Leal testified that, at this point, he could see appellant = s penis, pubic hair, and testicles. Appellant then began

to grab his penis and pull it out further with his hand. Officer Leal then

pulled out his badge, identified himself as a Houston police officer, and

arrested appellant.

On September 12, 2006, an information was filed

against appellant for the misdemeanor offense of indecent exposure. He pleaded

A not guilty, @ and

retained an attorney to defend him at trial. The jury returned a A guilty @

verdict, and the trial court sentenced appellant to 180 days = confinement in the Harris County Jail and a $2,000 fine,

but suspended the sentence and placed appellant on community supervision for

two years. After sentencing, appellant filed a motion to substitute a

different attorney as his lawyer of record, which the trial court granted.

Appellant then filed a motion in arrest of

judgment and a motion for new trial. In his motion in arrest of judgment,

appellant contended that the information was substantively defective because

the State failed to allege, with reasonable certainty, the act or acts relied

upon to constitute recklessness. Pursuant to Texas Rule of Appellate Procedure

22, appellant argued that the trial court should arrest the judgment due to

this defect in the information. In his motion for new trial, appellant

asserted that the evidence in support of the jury = s

verdict is legally and factually insufficient to support the statutory elements

of intent and recklessness. Appellant further contended that his trial

attorney rendered ineffective assistance by, among other things, failing to

file a motion to quash the information C which

contained the substantive defect C and by

opening the door to the State = s

elicitation of testimony from Officer Leal A concerning

prior indecency investigations in the woods of a park. @

The trial court held an evidentiary hearing on

both motions. At the hearing, appellant further asserted that his trial

attorney rendered ineffective assistance by failing to discover or adduce

evidence of the size of appellant = s A abnormally small @

penis, and presented the testimony of Dr. Robert Cornell, a board-certified

adult urologist, regarding appellant = s

penis size. Appellant and his trial attorney also testified at the hearing.

The trial court denied both motions. This appeal followed.

Issues on Appeal

In four issues, appellant challenges the legal

and factual sufficiency of the evidence supporting his conviction, and the

trial court = s denial of his motion for new

trial and his motion in arrest of judgment. In his first and second issues,

appellant contends that the evidence is legally and factually insufficient to

prove (1) that he intended to arouse or gratify his sexual desire; or (2) that

he was reckless about whether another person was present who would be offended

and alarmed by his act. In his third issue, appellant asserts that, because

his trial attorney (1) failed to quash the information, which allegedly

contained a substantive defect; (2) failed to discover or adduce evidence

regarding the size of appellant = s

flaccid penis, which C according

to appellant C is only 2.8 inches long and A half the normal size @ ; and

(3) opened the door to the elicitation of testimony by the State regarding

prior indecency investigations in Memorial Park, the trial court abused its

discretion in denying appellant = s

motion for new trial based on the ineffective assistance of counsel. In his

final issue, appellant argues that, because the information was substantively

defective and therefore subject to a motion to quash, the trial court erred in

denying his motion in arrest of judgment.

Analysis of Appellant = s

Issues

I. The

Evidence Supporting Appellant = s

Conviction is Legally and Factually Sufficient.

In his first and second issues, appellant

contends that the evidence is legally and factually insufficient to prove (1)

that he intended to arouse or gratify his sexual desire; or (2) that he was

reckless about whether another person was present who would be offended and

alarmed by his act. We disagree with appellant that the evidence is legally

and factually insufficient to prove these elements of the charged offense.

A. Standards

of Review and Applicable Law

When reviewing challenges to both the legal and

factual sufficiency of the evidence supporting the verdict, we first review the

legal sufficiency challenge. See Clewis v. State , 922 S.W.2d 126, 133

(Tex. Crim. App. 1996). In reviewing the legal sufficiency of the evidence, we

look at 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); Vasquez v. State , 67 S.W.3d 229, 236 (Tex. Crim. App.

2002). This standard of review applies to cases involving both direct and

circumstantial evidence. King v. State , 895 S.W.2d 701, 703 (Tex. Crim.

App. 1995). Although we consider all evidence presented at trial, we may not

re-weigh the evidence and substitute our judgment for that of the jury. King

v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the

exclusive judge of the credibility of witnesses and of the weight to be given

their testimony, and it is the exclusive province of the jury to reconcile

conflicts in the evidence. Mosley v. State , 983 S.W.2d 249, 254 (Tex.

Crim. App. 1998).

In reviewing the factual sufficiency of the

evidence, we view all of the evidence in a neutral light. See Cain v. State ,

958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis , 922 S.W.2d at 134 .

We may set the verdict aside if (1) the evidence is so weak that the verdict is

clearly wrong and manifestly unjust; or (2) the verdict is against the great

weight and preponderance of the evidence. Watson v. State , 204 S.W.3d

404 , 414 B 15 (Tex. Crim. App. 2006) (citing Johnson v. State ,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). While we may disagree with the jury = s conclusions, we must exercise appropriate deference to

avoid substituting our judgment for that of the jury, particularly in matters

of credibility. Drichas v. State , 175 S.W.3d 795, 799 (Tex. Crim. App.

2005); see also Watson , 204 S.W.3d at 414 (stating that an appellate

court should not reverse a verdict it disagrees with unless it represents a

manifest injustice, though supported by legally sufficient evidence). Thus,

while we are permitted to substitute our judgment for that of the jury when

considering credibility and weight determinations, we may do so only to a very

limited degree. Marshall v. State , 210 S.W.3d 618, 625 (Tex. Crim. App.

2006).

A person commits the offense of indecent

exposure A 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. Penal Code _

21.08. With the essential elements of the offense in mind, we now turn to

appellant = s specific arguments.

B. Appellant = s Specific Challenges to the Sufficiency of the

Evidence

1. Intent

to Arouse or Gratify Appellant = s

Sexual Desire

First, appellant contends that the evidence is

legally and factually insufficient to prove that he intended to arouse or

gratify his sexual desire. [1]

a. Legal

Sufficiency

With respect to his legal sufficiency

challenge, appellant asserts that Officer Leal never testified that appellant

actually masturbated, was erect, or was aroused in any way. Appellant argues

that, at most, Officer Leal = s

testimony establishes that appellant held his genitals in his hand, and

therefore no evidence exists that would have allowed a rational trier of fact

to find beyond a reasonable doubt that appellant intended to arouse or gratify

himself.

Conversely, the State argues that the evidence

is legally sufficient to show that appellant intended to gratify his sexual

desire, and asserts that appellant = s

comment, A I don = t think I can get hard, @

demonstrates that appellant was, in fact, attempting to become aroused. The

State further asserts that appellant began to massage his genitals immediately

after making eye contact with Officer Leal, and later massaged Officer Leal = s chest and exposed himself, and argues that it was

therefore rational for the jury to infer that appellant intended to gratify his

own sexual desire.

As a preliminary matter, while we agree with

appellant that Officer Leal never testified that appellant = s penis was erect, the State was not required to prove that

appellant was actually aroused or that appellant actually gratified his sexual

desire. See Tex. Penal Code _ 21.08 .

Rather, under the language of section 21.08 and the allegations made within the

information, the State was merely required to prove that appellant exposed his

penis to Officer Leal with the intent to arouse and gratify appellant = s sexual desire. See id. ; Shamam v. State , C S.W.3d C , No.

07-06-0213-CR, 2007 WL 2349689 , at *5 (Tex. App. C Amarillo

Aug. 17, 2007, no pet.) (rejecting appellant = s

argument that there was no express evidence that either he or the complainant

were aroused or gratified by appellant = s

indecent exposure, because A the

offense requires that the exposure occurs with intent to arouse or

gratify the sexual desire of any person @ )

(emphasis in original); see also Gregory v. State , 56 S.W.3d 164, 171

(Tex. App. C Houston [14th Dist.] 2001,

pet. dism = d) (rejecting appellant = s argument in prosecution for indecency with a child that

there was no evidence that appellant = s

penis was ever erect, that appellant masturbated or that he ejaculated during

any of the encounters with the complainants, because the intent element of the

offense did not require the State to prove that the A male offender = s

penis be erect @ ). [2]

Furthermore, it is well-established that the requisite specific intent to

arouse or gratify sexual desire can be inferred from the conduct of, remarks

by, and circumstances surrounding the acts engaged in by an accused. See

Martins v. State , 52 S.W.3d 459, 474 (Tex. App. C Corpus Christi 2001, no pet.) (citing Turner v. State ,

600 S.W.2d 927, 929 (Tex. Crim. App. 1980)); see also Claycomb v. State ,

988 S.W.2d 922, 925 (Tex. App. C Texarkana

1999, pet. ref = d) (citing McKenzie v.

State , 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981)).

Viewing the evidence in the light most

favorable to the jury verdict, we find that a rational trier of facts could

have found beyond a reasonable doubt that appellant intended to arouse or

gratify his sexual desire. In that light, the evidence establishes that

immediately before appellant exposed his penis to Officer Leal, appellant (1)

massaged his own genitals; (2) communicated his belief to Officer Leal that he could

not get A hard @ ; and

(3) requested to see Officer Leal = s

genitals. This evidence is legally sufficient to support the finding of intent

to arouse or gratify appellant = s

sexual desire. See Martins , 52 S.W.3d at 474 B 75 (finding evidence legally sufficient to support finding

of intent to arouse or gratify where the appellant exposed himself to the

victim and invited her to give him A little

kisses @ while pointing to his exposed penis); Barker v. State ,

931 S.W.2d 344, 347 (Tex. App. C Fort

Worth 1996, pet. ref = d)

(finding evidence legally sufficient to support conviction for indecency with a

child where the appellant exposed his penis to two girls in front of school); see

also Claycomb , 988 S.W.2d at 926 (finding evidence legally sufficient to

support finding of intent to arouse or gratify where the appellant exposed his

erect penis and made eye contact with woman and daughter who walked by).

b. Factual

Sufficiency

With respect to his factual sufficiency

challenge, appellant asserts that the contrary evidence at trial C namely, Officer Leal = s

testimony that appellant = s

penis was not erect, and appellant = s

denial of the allegations that he exposed his genitals to Officer Leal, or that

he was aroused or gratified C renders

the verdict clearly wrong or manifestly unjust, or against the great weight and

preponderance of the evidence.

The State contends that the evidence is

factually sufficient to support the verdict, despite conflicts in the

testimony. The State asserts that the evidence supporting the verdict is not

so weak to justify the finding of guilt beyond a reasonable doubt, because

Officer Leal = s testimony established that

appellant followed him into the parking lot at Memorial Park, made eye contact

with him, and exposed himself near the public restrooms. The State further

asserts that the contrary evidence was not so overwhelming to preclude a

finding of guilt, because appellant = s testimony

regarding the sequence of events that led himself and Officer Leal to the

public restroom area where the exposure occurred was A dubious at best, @ and

the jury was therefore entitled to disregard that testimony, and was rationally

justified in convicting appellant.

Viewing the evidence in a neutral light, we

find that the evidence is factually sufficient to support a finding of intent

to arouse or gratify appellant = s

sexual desire. Although appellant denied (1) massaging his genitals after

parking next to Officer Leal = s

vehicle; (2) massaging Officer Leal = s

chest over his t-shirt, or initiating physical contact with Officer Leal in any

way; (3) pulling up Officer Leal = s

shirt to expose his abdomen; (4) stating, A I don = t think I can get hard @ ; (5)

requesting to see Officer Leal = s

genitals; or (6) exposing his penis or testicles to Officer Leal, there was

also testimony that appellant massaged his own genitals, indicated his belief

that he could not get A hard, @ requested to see Officer Leal = s genitals, and exposed his penis to Officer Leal. The

jury C as the trier of fact C is the

sole judge of the credibility of the witnesses, and we must exercise

appropriate deference to the jury = s

credibility determinations. See Santellan v. State , 939 S.W.2d 155, 164

(Tex. Crim. App. 1997); Prince v. State , 192 S.W.3d 49 , 60 B 61 (Tex. App. C Houston

[14th Dist.] 2006, pet. ref = d).

The jury was entitled to disbelieve appellant = s

testimony and believe that appellant exposed himself to Officer Leal with the

intent to gratify his own sexual desire. See Young v. State , 976 S.W.2d

771 , 774 B 75 (Tex. App. C Houston

[1st Dist.] 1998, pet. ref = d).

Therefore, we conclude the evidence that

appellant exposed his penis to Officer Leal with the intent to gratify

appellant = s sexual desire is not so weak

that the verdict is clearly wrong and manifestly unjust. We further conclude

that the jury = s verdict was not against the

great weight and preponderance of the contrary evidence at trial. Thus, we

hold that the evidence is factually sufficient to establish the intent element

of the charged offense.

2. Reckless

About Whether Another Person Who Would Be Offended and Alarmed By His Act Was

Present

Next, appellant contends that the evidence is

legally and factually insufficient to prove that he was reckless about whether

another person who would be offended and alarmed by his act was present.

a. Legal

Sufficiency

With respect to his legal sufficiency

challenge, appellant asserts that only Officer Leal was present during the

alleged exposure, and that Officer Leal = s

testimony C that he was offended because

he was married with a child C lacked

any credibility because Officer Leal had worked undercover in vice for at least

a year and a half. Appellant therefore argues no evidence credibly showed that

appellant was reckless about whether another person was present who would be

offended and alarmed.

Conversely, even though section 21.08 does not

require that a defendant actually offend another person, the State contends

that Officer Leal was present when appellant exposed his penis and was actually

offended by appellant = s

actions. The State further contends that under section 21.08, the court should

employ an objective standard to determine whether the defendant acted

recklessly. The State further argues that under the circumstances, when viewed

from appellant = s standpoint, there was a

substantial risk someone would witness appellant = s

actions when he exposed himself to another man near the public restrooms at

Memorial Park.

Viewing the evidence in the light most

favorable to the jury verdict, we find a rational trier of facts could have

found beyond a reasonable doubt that appellant was reckless about whether

another was present who would be offended or alarmed by his act. Appellant

misses the point by arguing that Officer Leal was not or could not be offended

by appellant = s alleged indecent exposure

because Officer Leal is an undercover vice officer. The statute does not

require that appellant offend Officer Leal. See Tex. Penal Code _

21.08; Hefner v. State , 934 S.W.2d 855, 857 (Tex. App. C Houston [1st Dist.] 1996, pet. ref = d). Rather, the issue is whether appellant = s conduct in exposing his penis to another male outside a

set of public restrooms in Memorial Park was reckless. See McGee v. State ,

804 S.W.2d 546, 548 (Tex. App. C Houston

[14th Dist.] 1991, no pet.) (framing the issue as whether appellant = s act of masturbation in a public dressing room was

reckless, even if done behind a closed curtain); Hefner , 934 S.W.2d at

857 (defining the relevant issue as whether appellant was reckless about

whether another was present who would be offended, not whether the officer who

witnessed appellant = s

exposure was offended).

With the issue properly framed, we begin with

definition of recklessness as provided by section 6.03(c) of the Penal Code:

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.

Tex. Penal Code _

6.03(c). This objective standard is viewed through the eyes of the ordinary

person standing in appellant = s

shoes. Hefner , 934 S.W.2d at 857 .

When viewed in the light most favorable to the

jury verdict, the evidence establishes that (1) appellant exposed his penis,

pubic hair, and testicles to Officer Leal while the two stood outside a set of

public restrooms in Memorial Park; (2) Officer Leal was alarmed and offended by

the act of appellant = s

exposure; (3) the wooded area surrounding the public restrooms where appellant

exposed himself is not very secluded; and (4) in the moments before appellant

exposed himself, both appellant and Officer Leal observed two males on the

walking trails located near the public restrooms. This evidence is legally

sufficient to support the finding that appellant was reckless about whether

another was present who would be offended and alarmed by his act. See Young ,

976 S.W.2d at 774 (finding the evidence legally sufficient to support a finding

of recklessness where appellant exposed his penis to a police officer behind a

public rest area, testimony indicated that the trails in the park area behind

the rest area were trampled, and appellant admitted that another man walked

behind the rest area while appellant was A back

there, @ and that he spoke with that man); King v. State ,

No. 05-96-01496-CR, 1998 WL 474070 , at *1 (Tex. App. C Dallas July 29, 1998, no pet.) (not designated for

publication) (finding the evidence legally sufficient to support a finding of

recklessness where appellant exposed his penis to an undercover police officer

in a public park, the location where appellant exposed himself was on a walking

trail that led into a more densely wooded area of the park, and the officer

testified that he was offended and alarmed by appellant = s actions).

b. Factual

Sufficiency

With respect to his factual sufficiency

challenge, appellant contends that the contrary evidence at trial C namely, appellant = s

testimony about the sequence of events that led Officer Leal and himself to the

restroom area, including his denial of the allegations that he exposed his

genitals to Officer Leal C similarly

render the verdict clearly wrong or manifestly unjust, or against the great

weight and preponderance of the evidence. Appellant asserts that the facts of

this case stand in stark contrast to those in King v. State , 1998 WL

474070 , at *1, in which the court of appeals held that the evidence was legally

and factually sufficient because it was the appellant = s idea to A move

deeper into the woods @ and A the officer did not ask [King] to expose himself. @

The State contends that, despite the

conflicting evidence, the evidence is factually sufficient to support the

verdict, and repeats the same arguments it made in response to appellant = s factual sufficiency challenge to the intent element of

the charged offense.

Viewing the evidence in a neutral light, we

find that the evidence is factually sufficient to support the finding that

appellant was reckless about whether another was present who would be offended

or alarmed by his act. With respect to the contrary evidence at trial, it is

true appellant denied exposing his penis or testicles to Officer Leal. In

addition, appellant further testified that (1) he and Officer Leal approached

each other in the parking lot; (2) it was Officer Leal = s idea to go for a walk in the wooded area next to the

parking lot; (3) Officer Leal requested appellant to pull up his shirt and show

him his chest and abdomen; (4) it was Officer Leal = s idea to go into the area behind the public restrooms; and

(5) once there, Officer Leal again requested appellant to show him his chest

and abdomen. However, Officer Leal testified that (1) appellant exposed his

penis and testicles to Officer Leal outside a set of public restrooms at

Memorial Park; (2) he was alarmed and offended by the act of appellant = s exposure; (3) the wooded area surrounding those public

restrooms is not very secluded; and (4) both appellant and Officer Leal

observed two males on the walking trails located near those public restrooms

just before the exposure occurred. The jury was entitled to disbelieve

appellant = s testimony and believe

Officer Leal = s testimony. See Young ,

976 S.W.2d at 774 B 75.

Giving due deference to the jury = s conclusion, we find that the evidence that appellant was

reckless about whether another was present who would be offended or alarmed by

his act is not so weak that the verdict is clearly wrong and manifestly

unjust. We further conclude that the jury = s

verdict was not against the great weight and preponderance of the contrary

evidence at trial. Thus, the evidence is factually sufficient to establish the

recklessness element of the charged offense. We therefore overrule appellant = s first and second issues.

II. The

Trial Court Did Not Abuse Its Discretion in Denying Appellant = s Motion for New Trial.

In his third issue, appellant asserts that the

trial court abused its discretion in denying his motion for new trial based on

the ineffective assistance of counsel because his trial attorney (1) failed to

take appropriate action to quash the information, which allegedly contained a

substantive defect; (2) failed to discover or adduce evidence regarding the

size of appellant = s

flaccid penis, which C according

to appellant C is only 2.8 inches long and A half the normal size @ ; and

(3) opened the door to the elicitation of testimony by the State regarding

prior indecency investigations in Memorial Park. We disagree.

A. Standard

of Review and Applicable Law

Both the United States and Texas Constitutions

guarantee an accused the right to assistance of counsel. U.S. Const . amend. VI; Tex. Const . art. I, _ 10; Tex. Code Crim. Proc. art. 1.05. The

right to counsel necessarily includes the right to the effective assistance of

counsel. Strickland v. Washington , 466 U.S. 668, 686 (1984). The United

States Supreme Court has established a two-prong test to determine whether

counsel is ineffective. See id. at 687 . First, appellant must

demonstrate counsel = s

performance was deficient and not reasonably effective. Id. at 688 B 92. Second, appellant must demonstrate the deficient

performance prejudiced the defense. Id. at 687 . Essentially, appellant

must show that his counsel = s

representation fell below an objective standard of reasonableness, based on

prevailing professional norms, and there is a reasonable probability that, but

for his counsel = s

professional errors, the result of the proceeding would have been different. See

id. at 688, 694 ; see also Valencia v. State , 946 S.W.2d 81, 83 (Tex.

Crim. App. 1997).

Appellate review of defense counsel = s representation is highly deferential, and we presume that

counsel = s actions fell within the wide range of reasonable and

professional assistance. See Bone v. State , 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). We presume counsel = s

actions and decisions were reasonably professional and that they were motivated

by sound trial strategy. Jackson v. State , 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994). It is appellant = s

burden to rebut this presumption, by a preponderance of the evidence,

illustrating why trial counsel did what he did. Id. Any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Thompson v. State , 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

If appellant proves his counsel = s representation fell below an objective standard of

reasonableness, he must still affirmatively prove prejudice as a result of

those acts or omissions. Strickland , 466 U.S. at 693 ; McFarland v.

State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other

grounds by Mosley v. State , 983 S.W.2d 249, 263 (Tex. Crim. App.

1998). Counsel = s

errors, even if professionally unreasonable, do not warrant setting the

conviction aside if the errors had no effect on the judgment. Strickland ,

466 U.S. at 691 . Appellant must prove that counsel = s errors, judged by the totality of the representation,

denied him a fair trial. McFarland , 928 S.W.2d at 500 . Failure to make

the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim. Thompson , 9 S.W.3d at 813 .

We review the trial court = s denial of a motion for new trial based on ineffective

assistance of counsel under an abuse of discretion standard. State v. Gill ,

967 S.W.2d 540, 541 (Tex. App. C Austin

1998, pet. ref = d). Therefore, we do not

apply the aforementioned Strickland test de novo. Id. at 542.

Rather, we review the trial court = s

application of the Strickland test under the abuse-of-discretion

standard. Id.

The test for abuse of discretion A > is not whether, in the opinion

of the reviewing court, the facts present an appropriate case for the trial

court = s action; rather, it is a question of whether the trial

court acted without reference to any guiding rules or principles, and the mere

fact that a trial court may decide a matter within its discretionary authority

differently than an appellate court does not demonstrate such an abuse. = @ State v. Herndon , 215

S.W.3d 901 , 907 B 08

(Tex. Crim. App. 2007) (quoting Howell v. State , 175 S.W.3d 786, 792

(Tex. Crim. App. 2005)). We do not substitute our judgment for that of the

trial court. Charles v. State , 146 S.W.3d 204, 208 (Tex. Crim. App.

2004). We review the evidence in the light most favorable to the trial court = s ruling and presume that all reasonable factual findings

that could have been made against the losing party were so made. Id. Only

when no reasonable view of the record could support the trial court = s ruling do we conclude that the trial court abused its

discretion in denying the motion for new trial. Id.

Furthermore, when no findings of fact or

conclusions of law are made by the trial court, we uphold the judgment if any

appropriate ground exists to support it. Gill , 967 S.W.2d at 541 . We

now turn to appellant = s

specific claims.

B. Appellant = s Claims of Ineffective Assistance of Counsel

1. The

Trial Attorney = s

Alleged Failure to Move the Trial Court to Quash the Information

First, appellant contends that his trial

attorney was ineffective because he failed to move the trial court to quash the

information, which appellant alleges contains a substantive defect. [3]

Appellant asserts that his trial attorney never discussed a motion to quash

with him, nor did his trial attorney independently research the pleading

sufficiency of the information. Appellant further asserts that his trial

attorney = s excuses for not filing a motion to quash C that he did not want to delay prosecution of the case or

have an information filed with more inflammatory contents C are not the result of any trial strategy, and argues that

his trial attorney = s

performance was therefore deficient. Appellant further argues that he was

prejudiced by his trial attorney = s

failure to move to quash the information because doing so would have (1)

possibly resulted in the dismissal of his case; (2) given notice of the precise

offense so he could better prepare a defense; and (3) assisted him in making a

legal and factual sufficiency argument due to the information = s greater specificity. Appellant contends that his motion

for new trial should therefore have been granted.

The State concedes that the information was

substantively defective, but contends nonetheless that the trial court properly

denied appellant = s

motion for new trial. The State argues that the trial attorney = s failure to file a motion to quash the information was the

product of sound trial strategy C and

was therefore not deficient C because

(1) it was his understanding that appellant did not want to do anything that

would delay prosecution of the case, and a motion to quash would not have ended

the case; and (2) if the State had refiled the information, it would have

amended the allegations of recklessness with more prejudicial language, and it

was reasonable to prefer the generic language in the information to the more

explicit descriptions that might have been included in the information, as

amended. The State further argues that, even if the trial attorney = s performance was deficient, appellant failed to prove

prejudice, as the State would have either refiled the case or would have

amended the information. The State therefore argues that the outcome of the

case would have been no different had the trial attorney successfully moved to

quash the information.

We agree with the State that the trial court

did not abuse its discretion in denying appellant = s

motion for new trial on this first ground. Because the State concedes that the

information was substantively defective, we will assume without deciding that

the information was substantively defective and subject to a motion to quash,

and proceed with our analysis.

a. The

trial court reasonably could have concluded that the trial attorney = s failure to move to quash the information was

the product of sound trial strategy, and therefore not deficient.

From the testimony presented at the hearing on

appellant = s motion for new trial, the

trial court reasonably could have concluded that the trial attorney = s failure to move to quash the information was the product

of sound trial strategy and therefore not deficient. At the hearing, the trial

attorney testified that he met with appellant four to five times before

appellant = s trial commenced, and that

through their discussion of the facts of the case at each of these meetings, he

developed a strategy as to how to proceed at trial. The trial attorney

testified that appellant flatly denied ever exposing himself to Officer Leal,

and that appellant communicated to him that A he did

not want to do anything that would delay the case because of certain aspects of

his personal life that were around. @ The

trial attorney further testified that appellant A did not

want to delay the proceedings in any way, @ that

appellant A wanted things to be done fast

not slow, @ and that appellant A didn = t want

[the case] to be dragged out. @

The trial attorney also testified that he

discussed motions generally with appellant C including

motions to suppress and motions for discovery C but

that they did not specifically discuss a motion to quash. He explained that,

although he knew it was possible to file a motion to quash in appellant = s case, he never considered filing a motion to quash the

information because he felt A strategy-wise

that we would probably be better off trying the case or getting it dismissed

through other means. @ He

further explained that he never considered filing a motion to quash because (1)

based on appellant = s

denial of the act of exposure and how the State pleaded the offense in the

information, A it would be a problem for [the

State] to prove recklessness @ ; (2)

appellant wanted to expedite the case, and a motion to quash A wouldn = t have

ended the case, @ and A probably would have resulted, in [the trial attorney = s] opinion, based on [the trial attorney = s] experience, in [the State] refiling the case @ and having appellant A go

through a bond again on a new charge with new allegations @ ; and (3) if the State had refiled the information with an

amended allegation of recklessness, it would have resulted in the invitation of

more inflammatory facts before the jury that might have been more harmful to

appellant in his case.

Viewing this evidence in the light most

favorable to the trial court = s

ruling, we cannot conclude that the trial court abused its discretion in

denying appellant = s

motion for new trial on this first ground. From the testimony at the hearing

on appellant = s motion for new trial, the

trial court reasonably could have concluded that the trial attorney = s failure to quash the information was the product of sound

trial strategy, and therefore not deficient. Although appellant testified at

the hearing that (1) his trial attorney told him that he A couldn = t find

anything wrong with the charge @ and

that A there were no options for dismissal @ ; (2) he wished he had been given the choice of whether or

not to file a motion to quash; and (3) he never said, and it would make no

sense to say, to his trial attorney A Don = t do something that might help me if it = s going to prolong the case, @

appellant also testified that he A wanted

to have [the charge] undone as quickly as possible, @ and the trial court was free to believe or disbelieve any

or all of appellant = s

testimony at the hearing on appellant = s

motion. See Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995);

see also Brown v. State , 960 S.W.2d 772, 778 (Tex. App. C Dallas 1997, pet. ref = d)

(stating that, in determining whether to grant a motion for new trial, the

trial court considers all the evidence presented, judges the credibility of the

witnesses, and resolves conflicts in the evidence).

Therefore, we cannot conclude that the trial

court abused its discretion in denying appellant = s

motion for new trial on this first ground. Appellant = s showing under the second prong of the Strickland test

also fails, as we explain below.

b. The

trial court could reasonably have concluded that appellant failed to prove that

his defense was prejudiced by the trial attorney = s failure to quash the information.

From the evidence presented at the hearing on

appellant = s motion for new trial, the

trial court could reasonably have concluded that the trial attorney and

appellant were aware of the specific details of the charge being pursued by the

State, and therefore appellant did not show that his defense was prejudiced by

the trial attorney = s

failure to move to quash the information.

At the hearing, the trial attorney testified

that he had access to the State = s

complete file in appellant = s

case, including the offense report itself. He further testified that he

examined appellant = s

offense report and took notes, and reviewed those notes with appellant to

develop a strategy as to how to proceed at trial. The offense report C introduced into evidence by appellant at the

motion-for-new-trial hearing C recites

that appellant A WAS

ARRESTED FOR INDECENT EXPOSURE AFTER EXPOSING HIS GENITALS TO AN UNDERCOVER

POLICE OFFICER INSIDE A CITY PARK, @ and

further provides specific narrative details of the offense and Officer Leal = s investigation. In addition, the A DIMS report @ [4] C also introduced into evidence by appellant at the hearing C repeats the allegations made within the information and

additionally provides:

ON 09-11-06 AT APPROX

1400 HRS, OFFICER D LEAL AND OFFICER M DEXTER OF THE HOUSTON POLICE DEPT VICE

DIVISION CONDUCTED A VICE INVESTIGATION IN THE 100 BLOCK OF PICNIC CIRCLE IN

MEMORIAL PARK. BOTH OFFICERS WERE DRESSED IN PLAIN CLOTHES AND DRIVING

UNMARKED VEHICLES. OFFICER LEAL PARKED IN A LOT SURROUNDED BY WOODS. THE

DEFENDANT PARKED NEXT TO THE OFFICER AND WAS RUBBING HIS CLOTHED GENITALS WHILE

MAKING EYE CONTACT WITH THE OFFICER. THE DEFENDANT THEN FOLLOWED THE OFFICER

INTO THE WOODS A SHORT DISTANCE. THE [sic] THEN STOOD FACE TO FACE WITH THE

OFFICER AND UNZIPPED HIS PANTS. HE PULLED HIS UNDERWEAR DOWN PASSED [sic] HIS

TESTICLES EXPOSING HIS PENIS. THE OFFICER THEN IDENTIFIED HIMSELF AND ARRESTED

THE DEFENDANT WITHOUT INCIDENT.

Viewing the evidence in the appropriate light,

we cannot conclude that the trial court abused its discretion in denying

appellant = s motion for new trial on this

ground. The trial attorney testified that he had access to the State = s complete file, which included the offense report and the

DIMS report, that he took notes from the offense report, and that he shared

these notes with appellant. Thus, there is some indication that both the trial

attorney and appellant were aware of the specific details of the charge being

pursued by the State. And, based upon the evidence presented at the

motion-for-new-trial hearing, the trial court could reasonably have concluded

that appellant failed to demonstrate that his defense was prejudiced by his trial

attorney = s failure to quash the information. See Curry v. State ,

861 S.W.2d 479, 483 (Tex. App. C Fort

Worth 1993, pet. ref = d)

(rejecting appellant = s

ineffective assistance of counsel claim because appellant failed to demonstrate

that his defense was prejudiced by trial counsel = s

failure to object to the indictment; trial counsel engaged in extensive

discovery and was aware of what the State = s

evidence showed in terms of the offense); see also Lilly v. State , No.

06-03-00157-CR, 2003 WL 22881800 , at *2 (Tex. App. C Texarkana Dec. 8, 2003, no pet.) (mem. op., not designated

for publication) (rejecting appellant = s

ineffective assistance of counsel claim because appellant failed to demonstrate

that his defense was prejudiced by trial counsel = s

failure to quash the indictment; trial counsel was aware of charge being

pursued by the State, and there would have been A no

point @ in complaining about the indictment).

Although appellant (1) testified that his trial

attorney A didn = t actually know all the facts of the case @ and never showed appellant his notes from the offense

report; and (2) argued that his trial attorney actually took notes from the

DIMS report, and not the offense report, the trial court was entitled to

believe or disbelieve any or all of this testimony and resolve any conflicts in

the evidence. See Lewis , 911 S.W.2d at 7 ; Brown , 960 S.W.2d at

778 . Additionally, appellant cites us to no authority in support of his

proposition that a trial court abuses its discretion in denying a motion for

new trial based on the ineffective assistance of counsel where trial counsel

failed to quash an indictment that contains a substantive defect. [5]

Thus, the trial court could reasonably have

concluded that appellant failed to meet his burden to demonstrate that his

defense was prejudiced by his trial attorney = s

failure to move to quash the information. We therefore overrule appellant = s third issue as it pertains to the trial attorney = s failure to move to quash the information.

2. The

Trial Attorney = s

Alleged Failure to Discover or Adduce Evidence of the Size of Appellant = s Penis

Next, appellant contends that his trial

attorney was ineffective because he failed to discover or adduce evidence

regarding the size of appellant = s

flaccid penis, which C according

to appellant C is only 2.8 inches long and A half the normal size. @

Appellant asserts that he informed his trial attorney about his A abnormally small @ penis

and the trial attorney did not consider it relevant. Appellant further asserts

that, even if the trial court did not abuse its discretion in disbelieving

appellant = s testimony that he informed

his trial attorney about the size of his penis, the trial attorney = s performance was deficient because (1) the trial attorney

still had a duty to reasonably investigate and should have asked about

appellant = s penis size; and (2)

appellant relied on his trial attorney, as defense counsel, to conduct a

reasonable investigation into relevant matters, and appellant = s A unusually

small @ penis was relevant and even exculpatory. Appellant

further argues that his trial attorney = s

failure to investigate and adduce evidence about appellant = s small penis prejudiced him because (1) appellant did not

have the opportunity to tell the jury that, given his embarrassment over his A miniature @

penis, he would never have exposed himself to Officer Leal; and (2) neither

appellant nor an expert witness had an opportunity to explain to jurors how it

would have been impossible for Officer Leal to see appellant = s penis if his hand were wrapped around it.

Conversely, the State contends that the trial

court did not abuse its discretion in denying appellant = s motion for new trial on this second ground. The State

asserts that, because the trial attorney testified that appellant denied having

any physical abnormalities, and because appellant A seemed to treat the size of his penis as a > condition = that

had > affected him throughout [his] life, = @ the trial court could have

found that the trial attorney = s

inquiry into the issue of potential abnormalities was professionally adequate.

The State further asserts that, even if the trial attorney = s performance was deficient in this respect, evidence of

the size of appellant = s

penis would not have affected the outcome of the trial because (1) Officer Leal

testified that he had seen appellant = s

penis, pubic hair, and testicles before appellant grabbed his penis with his

hand; (2) even if appellant = s hand

completely obscured his A diminuitive

member @ after he grabbed it, the exposure had already occurred;

and (3) appellant = s

expert, Dr. Cornell, testified that appellant = s

penis and pubic hair would have been visible to Officer Leal. The State argues

that appellant therefore failed to prove prejudice, and the trial court

properly denied appellant = s

motion for new trial.

We agree with the State that the trial court

did not abuse its discretion in denying appellant = s

motion for new trial on this second ground. From the testimony presented at

the hearing on appellant = s

motion for new trial, the trial court could reasonably have concluded that the

trial attorney = s performance was not

deficient. Furthermore, the trial court could have reasonably concluded that,

even if the trial attorney = s

performance was deficient, evidence regarding the size of appellant = s penis would not have affected the outcome of the trial.

a. The

trial court could reasonably have concluded that the trial attorney = s failure to discover or adduce evidence of the

size of appellant = s

penis was not deficient.

From the testimony presented at the hearing on

appellant = s motion for new trial, the

trial court could reasonably have concluded that the trial attorney = s failure to discover or adduce evidence of the size of

appellant = s penis was not deficient. At

the hearing, the trial attorney testified that (1) during the initial stages of

trial preparation, he had asked appellant whether he had any A abnormalities @ with

respect to his penis, to which appellant responded that he A didn = t have

anything abnormal @ ; (2)

appellant never informed him at any time during their discussions that he had a

A small or abnormally small @

penis; (3) he and appellant never discussed the size of appellant = s penis; and (4) he and appellant had no discussions about

taking photographs of appellant = s

penis to show to the jury. Although appellant testified that he told his trial

attorney about the A condition @ that he had regarding his A abnormally

small @ penis at their very first meeting, and that his trial

attorney responded that A that = s something that would be demeaning to bring up in court, @ and A this

case is about exposure not about size and it wouldn = t make any difference, @ the

trial court was entitled to disbelieve appellant = s

testimony and reconcile any conflicts in the evidence presented at the hearing

on appellant = s motion for new trial. See

Lewis , 911 S.W.2d at 7 ; Brown , 960 S.W.2d at 778 .

Viewing this evidence in the appropriate light,

we cannot say that the trial court abused its discretion in denying appellant = s motion for new trial on this second ground. From the

above testimony, the trial court could have concluded that the trial attorney = s failure to discover or adduce evidence of the size of

appellant = s penis was due to appellant = s intentional withholding of the information, and therefore

not deficient. See Cannon v. State , 668 S.W.2d 401, 403 (Tex. Crim. App.

1984) (refusing to hold counsel ineffective when the defendant failed to impart

sufficient information to permit trial counsel to determine the identity of

supposedly key witnesses); Rodriguez v. State , 74 S.W.3d 563, 569 (Tex.

App. C Amarillo 2002, pet. ref = d) ( A [A] client has a duty to disclose information pertinent to

his defense. Should the client withhold same, then he may not complain about

the effect his own evasive conduct had upon the performance of counsel. @ ); Hernandez v. State , 885 S.W.2d 597 , 601 B 02 (Tex. App. C El

Paso 1994, no pet.) (recognizing that the defendant = s failure to provide his attorney with relevant information

defeats a later claim of ineffective assistance because the attorney failed to

obtain particular information). We next examine appellant = s showing under the second prong of the Strickland test.

b. The

trial court could reasonably have concluded that appellant failed to prove that

his defense was prejudiced by his trial attorney = s failure to discover or adduce evidence of the

size of appellant = s

penis.

Again, from the evidence presented at the

hearing on appellant = s

motion for new trial, the trial court could reasonably have concluded that

appellant did not show that his defense was prejudiced by his trial attorney = s failure to discover or adduce evidence of the size of

appellant = s penis. At the hearing, Dr.

Cornell testified regarding the size of appellant = s

penis. He related that he examined appellant = s

penis before the hearing on appellant = s

motion for new trial, and that appellant = s

flaccid penis measured 7 centimeters C or 2.8

inches C in length, which he explained is A about half the size of normal. @ Dr. Cornell further testified that he measured the width

of appellant = s palm, which was 11

centimeters in length, and that appellant = s

penis would approximate the middle of his palm only. He explained that, since

it was not physically possible for appellant = s

penis to extend beyond the width of his palm, the A masturbatory gesture @ made

by appellant that Officer Leal described in his testimony A isn = t

possible with a penis that measures less than the width of his palm, @ because A if he

were to have the penis in the palm of his

hand . . . closing the hand would completely obscure the

penis, @ such that it A would

not be visible [to Officer Leal]. @

However, Dr. Cornell also explained that,

notwithstanding the size of appellant = s

penis and the impossibility of the masturbatory gesture allegedly made by

appellant, Officer Leal would have been able to see appellant = s penis and pubic hair from a distance of A a foot and a half to two feet, @ as Officer Leal testified at trial. Because the offense

of indecent exposure merely requires exposure of any part of the defendant = s genitals, see Tex.

Penal Code _ 21.08(a), and because the

evidence adduced at the hearing on appellant = s

motion for new trial did not refute Officer Leal = s

trial testimony that he saw appellant = s

penis, pubic hair, and testicles before appellant grabbed his penis with his

hand or made any masturbatory gesture, the trial court could have reasonably

concluded that evidence of the size of appellant = s

penis would not have affected the outcome of the trial.

Moreover, although appellant argues that he was

prejudiced because he did not have the opportunity to tell the jury that he

would never have exposed himself to Officer Leal due to his embarrassment over

his A miniature @ penis C and presented testimony to that effect at the

motion-for-new-trial hearing [6] C the trial court was entitled to disbelieve any or all of

appellant = s testimony and reconcile any

conflicts in the evidence. See Lewis , 911 S.W.2d at 7 ; Brown , 960

S.W.2d at 778 . The trial court could reasonably have concluded that appellant

failed to show that he was prejudiced by the trial attorney = s failure to discover or adduce information of the size of

appellant = s penis.

Viewing the evidence in the appropriate light,

we cannot conclude that the trial court abused its discretion in denying

appellant = s motion for new trial. We

therefore overrule appellant = s

third issue as it pertains to the trial attorney = s

failure to discover or adduce evidence of the size of appellant = s penis.

3. The

Trial Attorney = s

Alleged Opening the Door to Testimony Regarding Prior Indecency Investigations

in Memorial Park

Finally, appellant contends that his trial

attorney was ineffective because he opened the door to the elicitation of

testimony by the State regarding prior indecency investigations in Memorial

Park, despite trial counsel = s

motion in limine and objections made during trial. Appellant asserts that this

evidence was A inflammatory because it

suggested parks such as Memorial Park were popular locations for lewd or

indecent behavior, @ and

argues that the prejudicial nature of this evidence far outweighed the

relevance of the type of vehicle Officer Leal was driving. Appellant further

suggests that this evidence was inadmissible, and argues that A [c]ourts have not hesitated in finding ineffective

assistance of counsel when defense counsel opens the door to otherwise

inadmissible evidence. @ [7]

Appellant = s contention

is without merit. From our review of the record, we do not find that the State

elicited any testimony from Officer Leal suggesting that Memorial Park is a

popular location for lewd or indecent behavior, as appellant contends. [8]

Rather, based upon Officer Leal = s

testimony that he used different vehicles, as well as tape recorders, in

previous investigations, the State inquired whether Officer Leal had A gone into the woods @ in A previous investigations, @ to

which Officer Leal responded, A sometimes

we conduct our investigations in the woods. We = re

physically walking through trails. We encounter suspects inside the walking

trails. So, it = s not

uncommon to get out of your vehicle and walk into the woods. @ Furthermore, and more importantly, appellant provides no

argument or authority supporting his assertion that this testimony is

inadmissible; it is not ineffective assistance to A open the door @ to

admissible testimony . See Moore v. State, 983 S.W.2d 15, 21 (Tex. App. C Houston [14th Dist.] 1998, no pet.) ( A [A]n attorney = s

failure to object to admissible testimony does not constitute ineffective

assistance. @ ); see also Rogers v. State ,

No. 14-95-0812-CR, 1999 WL 47416 , at *3 (Tex. App. C Houston [14th Dist.] Feb. 04, 1999, pet. ref = d) (not designated for publication) ( A An attorney = s

failure to object to admissible testimony, and by analogy, to solicit it, does

not constitute ineffective assistance. @ ).

Viewing the evidence in the appropriate light,

we cannot conclude that the trial court abused its discretion in denying

appellant = s motion for new trial on this

third ground. The trial court could have reasonably concluded (1) the above

testimony elicited by the State was admissible, and therefore the trial

attorney = s performance was not deficient; or (2) if the testimony

was, in fact, inadmissible, the trial attorney = s

performance did not prejudice appellant = s

defense. We overrule appellant = s

third issue as it pertains to the trial attorney = s

opening the door to the elicitation of allegedly inadmissible testimony by the

State.

III. The

Trial Court Did Not Err in Denying Appellant = s Motion in Arrest of Judgment.

In his final issue, appellant contends that the

trial court erred in denying his motion in arrest of judgment. Appellant

repeats his assertion that the information was substantively defective and

therefore subject to a motion to quash, and argues that, under Rule 22.1 of the

Texas Rules of Appellate Procedure, the trial court was required to grant his

motion in arrest of judgment.

A motion in arrest of judgment is a defendant = s oral or written suggestion to the trial court that the

judgment rendered was contrary to law. Tex.

R. App. P . 22.1. The motion may be based on the ground that the

information is subject to an exception on substantive grounds, that in relation

to the information a verdict is substantively defective, or that the judgment

is invalid for some other reason. Tex.

R. App. P . 22.2. However, the Texas Court of Criminal Appeals has made

it clear that, under article 1.14(b) of the Code of Criminal Procedure, a

defect in a charging instrument is waived unless raised before trial. See

Teal v. State , 230 S.W.3d 172 , 177 B 78

(Tex. Crim. App. 2007). Therefore, a party may not raise an objection to a

substantive defect in an information for the first time in a motion in arrest

of judgment. [9] See Tex. Code Crim. Proc . art. 1.14(b); Teal ,

230 S.W.3d at 178 ; see also Studer v. State , 799 S.W.2d 263, 273 (Tex.

Crim. App. 1990).

It is undisputed that appellant did not file a

pre-trial motion to quash the information. Therefore, under article 1.14(b),

he may not raise the substantive defect he complains of for the first time in

his motion in arrest of judgment. See Tex.

Code Crim. Proc . art. 1.14(b); Teal , 230 S.W.3d at 178 ; Studer ,

799 S.W.2d at 273 ; see also Sullivan v. State , No. 04-07-00214-CR, 2008

WL 506230 , at *3 (Tex. App. C San

Antonio Feb. 27, 2008, no pet.) (mem. op., not designated for publication)

(holding that appellant could not raise the complaint that the information was

substantively defective for failing to allege with reasonable certainty the act

or acts relied upon to constitute recklessness for the first time in a motion

in arrest of judgment). Thus, the trial court did not abuse its discretion in

denying appellant = s

motion in arrest of judgment. We therefore overrule appellant = s final issue.

Conclusion

Having addressed and overruled each of

appellant = s issues, we affirm the trial

court = s judgment.

/s/ Wanda McKee

Fowler

Justice

Judgment

rendered and Memorandum Opinion filed August 19, 2008.

Panel

consists of Justices Fowler, Frost, and Seymore.

Do Not

Publish C Tex. R. App. P.

47.2(b).

[1] Section 21.08 of the Texas Penal Code provides that

a person commits the offense of indecent exposure A if he exposes his anus or any part of his genitals

with intent to arouse or gratify the sexual desire of any person . . . . @ Tex. Penal

Code _ 21.08 (emphasis added). Here, the information

alleged that appellant A unlawfully expose[d] his PENIS to D. LEAL with intent

to arouse and gratify the sexual desire of [appellant] . . . . @ This allegation was descriptive of the intent

element of the offense, and the State was therefore required to prove that

appellant exposed his penis with the intent to arouse and gratify his sexual

desire. See Curry v. State , 30 S.W.3d 394 , 400 & n.33 (Tex. Crim.

App. 2000); see also Smith v. State , No. 06-00-00136-CR, 2001 WL

1266058 , at *4 (Tex. App. C Texarkana Oct. 24, 2001, pet. ref = d) (not designated for publication).

[2] See also Caballero v. State , 927 S.W.2d 128, 131 (Tex. App. C El Paso 1996, pet. ref = d) ( A The intent element [of the offense of indecency with

a child] goes only to the purpose of the contact, not to any result therefrom. @ ); Rodriguez v. State , 24

S.W.3d 499, 502 (Tex. App. C Corpus Christi 2000, pet. ref = d) (quoting Caballero , 927 S.W.2d at 130 B 31) ( A The indecency [with a child] offense includes the

requirement of > intent to arouse or gratify the

sexual desire = . . . . The

offense, however does not require that the arousal or gratification actually

occur. @ ).

[3] Specifically, appellant asserts that the information

failed to allege with reasonable certainty the act or acts relied upon to

constitute recklessness, and cites Gengnagel v. State , 748 S.W.2d 227 ,

228 B 30 (Tex. Crim. App. 1988), and article 21.15 of the

Texas Code of Criminal Procedure in support of his contention. However, as we

explain below, because the State concedes that the information is substantively

defective, we will not address the pleading sufficiency of the information

here.

[4] The A DIMS report @ appears to be a summary of the offense report.

Appellant contends that his trial attorney actually reviewed and took notes

from the DIMS report, not the offense report. However, based upon our review

of both reports, we find that the trial court could have concluded that C based upon the trial attorney = s access to and review of either the offense report or

the DIMS report C he was aware of the specific details of the charge

being pursued by the State, and that appellant therefore failed to prove that

his defense was prejudiced by his trial attorney = s failure to move to quash the information.

[5] Appellant cites Ex parte Drinkert , 821 S.W.2d

953 (Tex. Crim. App. 1991), for the proposition that his trial attorney = s failure to move to quash the information prejudiced

his defense in a manner sufficient to satisfy the second prong of the Strickland

test. However, that case is distinguishable from the facts of the present

case. In Drinkert , appellant was charged by indictment with two counts

of murder. Id. at 955. The first count of the indictment was valid,

while the second count was void because it was based upon an invalid theory of

felony murder. Id. The jury charge authorized conviction under either

count of the indictment, and appellant = s

trial counsel failed to object to either the indictment or the jury charge. Id.

The jury returned a general verdict, so that A it [was] impossible to determine upon which count the conviction [was]

based. @ Id. The Court of Criminal Appeals held that

when an indictment alleges two counts of an offense, the first of which is

correct and the second of which is void, and the jury returns a general verdict

of guilt, it is ineffective assistance when trial counsel fails to object to

the indictment and the jury charge. See id. at 956. The Court

explained that, A [b]y failing to object to the indictment and to the

jury charge, the trial counsel permitted an invalid theory to be submitted to

the jury, @ and A [t]here exists

a reasonable probability that the jury may not have convicted appellant had

trial counsel objected and that theory not been submitted. @ Id. Here, unlike Drinkert , an invalid

theory of guilt was not submitted to the jury, so the Court = s conclusion in that case regarding the second prong

of the Strickland test is inapposite.

[6] Specifically, appellant testified that (1) he did not expose himself to

Officer Leal; (2) he would never have exposed himself due to the psychological

issues he has had his whole life with his small genitals; (3) he actually

refused Officer Leal = s request to show him his genitals;

and (4) he wanted the jury to hear testimony regarding his refusal and his

embarrassment over his small genitals.

[7] Appellant cites Brown v. State , 974 S.W.2d

289 (Tex. App. C San Antonio 1998, pet. ref = d), and Doles v. State , 786 S.W.2d 741 (Tex.

App. C Tyler 1989, no pet.), in support of his contention

that opening the door to otherwise inadmissible evidence constitutes

ineffective assistance of counsel. However, these cases are distinguishable.

In Brown , trial counsel opened the door, elicited, and failed to object

to extraneous offense evidence that appellant A used cocaine on a regular basis, drank to excess, and was promiscuous. @ Brown , 974 S.W.2d at 293 . The court of

appeals held that trial counsel = s opening the

door to and elicitation of this extraneous offense evidence constituted

ineffective assistance of counsel. Id. at 294 B 95. In Doles , trial counsel introduced part of

the written statement of appellant = s

stepdaughter, which enabled the State to introduce the entire contents of the

written statement. Doles , 786 S.W.2d at 746 . The written statement

contained allegations that appellant had sexually abused victims other than the

complainant, as well as allegations that appellant A drank a lot and physically abused [his stepdaughter]. @ Id. at 744 B 45.

The court of appeals held that trial counsel = s

actions in enabling the State to introduce the entirety of the written

statement of appellant = s stepdaughter constituted ineffective assistance of

counsel. Id. at 747 . Contrary to the situation in Brown and Doles ,

the testimony appellant complains of here is not extraneous offense evidence,

and appellant provides us with no other authority for his contention that

testimony regarding prior indecency investigations in Memorial Park is

inadmissible. Therefore, to the extent that Brown and Doles stand

for the proposition that trial counsel is ineffective by opening the door to

the introduction of evidence of extraneous offenses committed by the defendant,

they are distinguishable.

[8] Even if the State had elicited testimony that

Memorial Park is A a popular location for lewd or indecent behavior, @ or that it is a A high

crime area, @ such evidence is admissible under Rule 404(b) of the

Texas Rules of Evidence. See Revada v. State , 761 S.W.2d 426, 428 (Tex.

App. C Houston [14th Dist.] 1988, no pet.). The State is

entitled to elicit testimony on the facts and circumstances surrounding the

commission of the offense, and this testimony describes the circumstances

surrounding the commission of the offense for in which appellant was

convicted. See id. (citing Wilkerson v. State , 736 S.W.2d 656,

661 (Tex. Crim. App. 1987); Sifford v. State , 741 S.W.2d 440, 441 (Tex.

Crim. App. 1987); Hoffert v. State , 623 S.W.2d 141, 144 (Tex. Crim. App.

1981)).

[9] This result is in accord with the principle that,

when a conflict arises between the Code of Criminal Procedure and the Rules of

Appellate Procedure, the rules must yield to the legislative enactment. See Tex. Code Crim. Proc. art. 44.33(a); Marin

v. State , 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other

grounds by Cain v. State , 947 S.W.2d 262 (Tex. Crim. App. 1997).

Furthermore, this result comports with our sister court = s observation:

A A motion in arrest of judgment is essentially a

post-trial motion to quash the indictment. With the advent of [Texas Code of

Criminal Procedure article 1.14(b)], requiring that objections to the

indictment be raised prior to the date of trial or be waived, however, a motion

in arrest of judgment now appears to be confined to reurging complaints about

indictments made by timely objection prior to trial. @

See Crittendon v. State , 923 S.W.2d 632, 634 (Tex. App. C Houston [1st Dist.] 1995, no pet.) (internal citations

omitted). Thus, while appellant is correct in his observation that nothing in

the plain language of Texas Rule of Appellate Procedure 22.1 compels this

result, article 1.14(b) of the Code of Criminal Procedure actually controls

this case.