Melissa Martin Wins in the Court of Criminal Appeals

The Harris County District Attorney’s Office’s form charging instrument in “weenie waggling” indecent exposure cases has, for time immemorial, read:

[Defendant], hereafter styled the Defendant, heretofore on or about [Date], did then and there unlawfully expose his GENITALS to [Cop] 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.

Pretty standard stuff, it tracks the language of the statute, which any judge—and almost any lawyer—in the courthouse would have said was good enough.

Until today.

Today the Texas Court of Criminal Appeals held that the charging instrument was defective for failing to describe the act or acts constituting recklessness:

In this case, a trier of fact could not infer recklessness from the information because there is nothing inherently reckless about either exposing oneself or masturbating.

How many countless defendants, accused by strapping young cops in short shorts (like HPD Officer Shannon Farquhar, who admitted that, in a public place he “began touching himself in a ‘mock masturbation;’ he had his fly unzipped and his hand inside his pants”—conduct for which he ought to be arrested) of waggling their weenies in Houston’s public parks, have pled guilty to indecent exposure charges alleging only what was alleged in that case? Not Mr. Smith.

Represented by Houston criminal-defense lawyer Melissa Martin all the way, he filed a motion to quash the information, went to trial, was convicted, got probation, and didn’t give up. He appealed, lost in the court of appeals, filed a petition for discretionary review in the Court of Criminal Appeals and, against the odds, won there. Now the case returns to the Court of Appeals for a harm analysis.

Mr. Smith could conceivably lose the harmless-error battle back in the Court of Appeals. But, since the State’s burden of pleading (and therefore proving) in indecent exposure cases has been increased by Mr. Smith’s and Melissa Martin’s fight, every other defendant charged with indecent exposure in Texas in the future wins.

(I’m particularly pleased by this win because Melissa was my officemate for about five years when we were both starting our practices. Attagirl, Melissa!)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in appeals, indecent exposure, recklessness and tagged , . Bookmark the permalink.

2 Responses to Melissa Martin Wins in the Court of Criminal Appeals

  1. Jackie Carpenter says:

    Melissa, awesome job! Mark, way to give kudos! This is an incredible win for all the future cases that will surely come before the courts, and this decision allows the defendant to be fully on notice of what the State intends to prove. That sets the bar a little higher for a prosecutor who has the burden to prove their case within the pleadings beyond a reasonable doubt. Melissa had to have written a well-reasoned and, from what I hear, passionate plea based on constitutional principles. It paid off BIG!

  2. Quit trying to grab on to Melissa’s lime light by announcing being former office mates! : )

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