Case Summary - Joseph Denver Smith v. State

The State charged Joseph Denver Smith with indecent exposure. Basically an officer working undercover at Memorial Park . . . wait a minute, what am I doing? This is a motion to quash, why am I going into the facts? Oh well, the CCA did it, and I’m such a follower. Anyway, the undercover officer sat in a parking lot and saw Smith pull in (no pun intended). The two engaged in some longing, pregnant glances for two or three minutes including some head nods until they decided they couldn't quit each other. The officer got out of his car and walked towards a bathroom building a few yards away, and Smith followed. When Smith arrived outside the bathroom, the undercover officer began touching himself in “mock masturbation” (don't try this at home) with his fly unzipped and his hand inside his pants. Smith stared at the detective, looked around, and then, removed his penis from his shorts for thirty to forty-five seconds, exposing the shaft area of his penis while masturbating.

The charging instrument read as follows:

“JOSEPH DENVER SMITH, hereafter styled the Defendant, heretofore on or about APRIL 12, 2007, did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.”

Smith moved to quash the information because the State failed to allege what act or acts constituted recklessness as required by Article 21.15 of the Texas Code of Criminal Procedure. Smith argued that the information was fundamentally defective because it failed to allege detail about the recklessness element of the offense. He cited to the CCA opinion in Gengnagel v. State where the Court held, in an indecent exposure case, that the State must allege the circumstances of the act which indicate that the defendant acted in a reckless manner. In that case, the information merely alleged that the defendant had exposed his penis to an officer with no mention of masturbation. [I’m sorry, I’m still kind of snickering on the inside about Gengnagel. Sounds like a Jerry Lewis ad lib.] The court of appeals affirmed in an unpublished opinion, holding that the information sufficiently described the acts relied upon to constitute recklessness. [Here's a link to the court of appeals case information if you're interested.]

A unanimous CCA reversed this unpublished opinion (guess they needed a palate cleanser). Judge Keasler, writing for the majority, noted that the denial of a motion to quash is reviewed de novo rather than under and abuse of discretion standard (the standard the court of appeals had improperly used). Then the Court went on to explain that in Townsley v. State they had held that allegations of driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and causing the vehicle to run off the roadway and roll over killing a passenger alleged sufficient acts of recklessness . In contrast, the Court held in Gengnagel [snicker, snicker] that alleging exposing genitals to another person with the intent to arouse or gratify the sexual desire of the defendant wasn’t sufficient to describe recklessness. In this case, adding the additional act of masturbation did not sufficiently apprise Smith of the act or acts constituting recklessness “there is nothing inherently reckless about either exposing oneself or masturbating.” Had the State alleged that this took place in a public park, it would have been sufficient.

Judge Keasler also explained that this did not amount to fundamental error (so it’s subject to harmless error analysis), but it did amount to a substantive defect because it failed to describe the “reckless” element of the offense. Because neither party briefed or addressed the issue of harm, the Court remanded to the court of appeals to consider whether Smith was harmed by this substantive defect.

Here's a link to the CCA case information if you're interested. Here's a link to my post when review was granted. Here's a link to the oral arguments.

Commentary: I must not be going to the same parties as these judges because I kind of think that exposing oneself and masturbating is inherently reckless. At least, that's how I raise my kids. I know my opinion means absolutely nothing (assuming it's even observed), but I think Judge Keasler and the gang are just wrong here. Seems to me that part of the problem is that they are mixing up public lewdness with indecent exposure. Public Lewdness criminalizes sexual conduct between two people, and the State must prove that either the offense occurred in public or that the conduct occurred in a manner that was reckless as to whether another would be alarmed or offended, but it can't be the other person engaged in the lewdness. In other words, for public lewdness you have to be reckless about an uninvolved third party.

Indecent exposure, on the other hand, does not have an uninvolved third party requirement. You only have to be reckless about at least one other person. Sure, you can commit the offense by mere exposure to the public, but there’s no public requirement. You can commit indecent exposure by doing something that may alarm or offend one person standing right in front of you so long as you do it with the intent to arouse or gratify. With all due respect, what I think the opinions in Gengnagel [snicker, snicker] and Smith both get wrong is that they add an additional audience member requirement. The offense is complete if the defendant exposes himself to a person and he’s reckless about whether that person would be offended or alarmed by it. Adding in the fact that it happened in a park is adding an additional layer of recklessness not found in the indecent exposure statute.

But fine, if there’s nothing inherently reckless about exposing yourself to someone (I disagree, but we’re past that), surely exposing yourself and masturbating would be. Sure, sure, we all aspire to reinforce that people should be accepting of their bodies and everyone’s free to do what they want any old time. But the right to whip it out ends at the other person's alarm. Recklessness in this circumstance isn’t about whether people have the right masturbate or whether people shouldn't be alarmed or offended about a "natural, normal, healthy activity." It’s whether there’s a substantial risk that doing it in front of someone might cause alarm or offense. And people are reluctant to even talk about masturbation. Just ask Dr. Joycelyn Elders. So I just don't see how doing it in front of someone doesn't carry a substantial risk that you might offense or alarm that person. But maybe I'm not as calloused to such things as the CCA.

I guess you could argue that there was no way the defendant risked offending the officer given the "mock masturbation", but that's getting into the facts of the case. That's not a charging issue. And if the argument is that the language at the end needs to include "in front of the complainant", that wasn't what the majority said or held. It also fails to consider the rest of the charging instrument. But even that I would find easier to accept than exposing genitals and masturbating isn't inherently reckless so you have to allege it occurred in public.

I guess I shouldn't get too bent out of shape, though, I can't imagine how the defendant will be able to show harm. But just as sure as I say that, the court will find a away. I just feel that the Court made a value judgment here and tried to act like it was an inexorable legal conclusion. I don’t want to go out on a limb, but I would imagine that there are only a limited number of circumstances where masturbating in front of someone wouldn’t contain at least some risk of alarm or offense. Otherwise, why bother dating? Surely that's enough to suggest that the risk is substantial enough to be inherent.

But on a lighter note (NSFW):