Hey, anyone who says the Court of Criminal Appeals doesn't have common sense needs to read this unanimous opinion by Judge Womack:

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD 166-04

TRISHA UNDERWOOD, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS
ECTOR COUNTY

Womack, J., delivered the opinion for a unanimous Court.


The question in this case of public lewdness is whether the evidence of the appellant's intent to arouse or gratify the sexual desire of another was sufficient.

Public lewdness is committed when a person knowingly engages in an act of sexual contact in a public place. (1) "'Sexual contact' means � any touching of � any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." (2)

The State alleged that the appellant committed the offense of public lewdness by "knowingly engag[ing] in an act of sexual contact by touching the genitals of J. Medrano, with the intent to arouse and gratify the sexual desire of J. Medrano in a public place, to wit: Playmates," on or about April 11, 2002.

In a trial by jury, the State produced evidence that, on the date alleged, four Odessa police officers went to "Playmates." It was a place of business that the supervising officer called "an adult cabaret" or "topless bar." Officer Jordan Medrano testified that he knew "topless dancing" went on there. The appellant, in her counsel's words, was "a dancer in a topless bar."

The officers were men in plain clothes. Each was charged a cover charge of ten dollars when he entered Playmates. They sat at tables, bought and drank alcoholic beverages, watched women dancing on the stage, and gave tips to some of the dancers. Each officer paid for one or more "lap dances" or "table dances," which are private dances at a table or couch where a customer is sitting. The appellant was the only dancer who was charged with public lewdness.

Officer Medrano testified that he asked the appellant for a table dance, and paid her twenty dollars. She took him from his table to a "couch seat," which was "a large square seat. More of a long chair [than a couch]." The officer testified that "she removed her dress." No one testified what, if anything, the appellant wore after she removed her dress, except to say that she was not one of the dancers who "leave their lingerie on" when they remove their dresses to do table dances.

Medrano was clothed during the dance. He testified, "She began her dance in front of me. And she was dancing, at which time she then got between my legs and started rubbing my genitals with her legs." She touched his "genital area" with her knee and thigh.

The appellant (in her counsel's words) "turn[ed] and show[ed] her backside to [Medrano] during the dance." Medrano said, "She sat in my lap, and � her buttocks touched my genitals." Asked on cross-examination, "And did she sit down in your lap?" Medrano answered, "She sat down on my genital area."

Medrano testified he "was kind of shocked at first" when the appellant did that to him. When he was asked if his reaction changed into anything else, he said it did not. He wrote in his report that he was "stunned and alarmed" when the appellant touched his genital area.

Another officer testified that, looking from his table to the couch area in the "fairly dimly lit" establishment, he saw "Officer Medrano seated at -- kind of in a chair, seated back like this with his hands out to the side away from his body. And I observed Mrs. Underwood sitting on his lap."

The jury found the appellant guilty of public lewdness.

The court of appeals reversed and rendered a judgment of acquittal because the evidence was insufficient, as a matter of law, to prove that the appellant had the intent to arouse Medrano's sexual desire. Underwood v. State, No. 08-03-00061-CR, 2003 Tex. App. LEXIS 10228 (Tex. App. -- El Paso 2003) (not designated for publication). The court said (slip op. at 4):

We conclude Medrano's testimony supplies no direct evidence of arousal or gratification.

Nevertheless, intent to arouse or gratify another's sexual desire may be inferred from defendant's conduct, remarks, and surrounding circumstances. [Citations omitted.] Here, we find nothing from which the jury could infer that Underwoods's intent was arousal. Point One is sustained.


We hold that the court of appeals erred.

The question of whether evidence is sufficient, as a matter of law, to sustain a conviction is resolved by applying the "familiar standard" of "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (3) This standard provides due process, and it is applied by this court. (4) It must be applied likewise by the courts of appeals. (5)

Evidence that the appellant removed her dress and was wearing no lingerie, stood in front of the complainant and danced, turned and showed her backside to him during the dance, got between his legs, touched his genital area with her knee and thigh, and touched his genitals with her buttocks when she sat on him, was evidence, viewed in the light most favorable to the prosecution, from which any rational trier of fact could have found the element of intent to arouse sexual desire beyond a reasonable doubt.

Another court of appeals has so held on similar facts.

On July 31, 1987, [Officer Lemonitsakis] went to the Executive Suite, a Harris County club where the appellant worked as a "topless" dancer. Lemonitsakis testified that the club allowed its stage dancers to perform "table" dances for individual customers. The club required a minimum $10.00 fee for the dance but allowed patrons to pay more. A "table" dance is done for an individual customer at his table. The officer had previously visited the club on June 15 when he paid the appellant $10.00 to do a table dance for him. He was working undercover at the time.

The appellant approached the officer's table when he went to the club on July 31. She wore only a G-string. She recognized him from his June 15 visit and asked if she could perform a table dance for him. When he agreed she turned his swivel chair away from the table and then spread his legs apart. During the dance the appellant rubbed her bare thighs and buttocks against the officer's penis. Lemonitsakis testified that because the appellant could have danced two feet away from him and still earned the $10.00 he paid her, he inferred from "what she was doing to me" that the appellant knew she was touching his genitals and did so to encourage him to pay her more for the dance.

The appellant approached the officer, offered to dance for him, danced much closer to the officer than was necessary to earn the $10.00, and actually made contact with his genitals. Moreover, the record shows that she touched only his genitals, and therefore permits the inference that her conduct was purposeful, knowing and intentional. (6)


Lemonitsakis was permitted to testify about his inferences, but such testimony would not be necessary for a rational jury to infer that such a dancer had the intent to arouse sexual desire.

The judgment of the court of appeals is reversed, and the case is remanded to that court for consideration of the appellant's other points.


En banc.

Delivered November 10, 2004.

Do Not Publish.

1. See Tex. Penal Code � 21.07(a)(3).

2. Id., � 21.01(1)(B)(2)

3. Griffin v. State, 614 S.W.2d 155, 159 (Tex. Cr. App. 1981) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

4. Turner v. State, 636 S.W.2d 189, 194 n.4 (Tex. Cr. App. 1980).

5. See Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Cr. App. 1996) ("Texas courts have adopted the Jackson standard as the legal sufficiency standard in direct appeals").

6. Byrum v. State, 762 S.W.2d 685, 688 (Tex. App. -- Houston [14th Dist.] 1988, no pet.)

So, John, did any of the jurors in the cases you mention take Off. Medrano out to a parking garage and pounce on him to see if he would "capsize"? I hear that's what they do in the Golden State, with the judge watching no less.

I am appalled, simply appalled, that the CCA has ordered the opinion not to be published. It sure sounds to me that at least 3 court of appeals judges need to have a published opinion telling them what nearly every other breathing human being could infer from the facts. I would be curious as to the innocent hypothesis they had in mind?

Perhaps the court's reasoning was that while the dancer was knowingly arousing the poor victimized officer, it was not her intent to do so. Her conscious objective or desire was merely to perform the dance for which she had been paid, and perhaps to encourage the purchase of a subsequent dance. The arousal of the sexual desire of the shocked and dismayed victim was an expected byproduct of her conduct, but the actual arousal or lack thereof was of no consequence to the dancer.

What is more suprising to me than three judges finding for acquittal here is that the prosecution found 12 jurors to convict in the first place. In Hays County, I expect the jurors would have acquitted just on general principles (or lack thereof, depending on your POV, I suppose)

Little town here. I would not want to pick a jury to try a case like that. He got what he paid for.Can I assume that both the dancer and the lap dog are being prosecuted for these heinous crimes? Do you have a victim or is it the State of Texas??

Whether there's an innocent hypothesis or not is irrelevant... the reasonable hypothesis test is no longer used to evaluate legal or factual sufficiency. If anyone needs the cites I have them somewhere here from an appeal I just did.

g