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.
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!)