PD-1289-19 05/06/2020
“The lower court misapplied the standard of review in this case. Specifically, the panel in this case assumed the role of fact-finder rather than viewing the evidence in the light most favorable to the verdict.”
An officer on mounted patrol in Houston’s Memorial Park was concealed behind some trees conducting surveillance. He saw Romano drive his car into an empty parking lot, get out, partially pull down his shorts, and masturbate while standing near the open passenger door of his car. A judge convicted Romano of indecent exposure.
On appeal, he argued the evidence was insufficient to prove he was reckless about whether anyone was present. The court of appeals agreed. It found the evidence lacking compared to other public-park cases where the defendants were aware another person was present. It recounted that Romano testified that his car door was shielding him from areas where others may have passed by. The court also noted that on the 55 seconds of the officer’s video surveillance of Romano, no pedestrians or park patrons were visible.
The State argues that the court of appeals acted as a factfinder rather than applying the standard of review. It points to the court’s decision to call the location “remote,” despite evidence that it was open and visible to passing traffic. It underscores that after the officer approached Romano, the video footage shows multiple cars, a bicyclist, and pedestrian passing within view. The State contends the facts are distinguishable from the case cited by the court of appeals, Hines v. State, 906 S.W.2d 518 (Tex. Crim. App. 1995), which involved a defendant who deliberately selected an isolated spot “deep in the woods” where he would not be seen.
