Robin Earl Frazier v. the State of Texas

Affirmed as Modified in Part, Reversed and Remanded in Part, and Opinion
filed January 11, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00472-CR

ROBIN EARL FRAZIER, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1739706

OPINION

Appellant, Robin Earl Frazier, appeals his conviction for indecency with a
child by exposure. After appellant waived his right to a jury trial, a visiting judge
found him guilty and assessed his punishment at three years in prison. In eight
issues, appellant contends that (1) the trial court lacked jurisdiction because the
grand jury that indicted him was impaneled by a different district court than the
one that tried and sentenced him; (2) the record does not contain an assignment
order for the visiting judge; (3) the evidence was insufficient to prove that
appellant exposed his anus or genitals knowing a child was present as required by
the indictment; (4) the evidence was insufficient to prove that appellant acted with
intent to arouse or gratify any person’s sexual desire; (5) there was no evidence
that appellant was “with a child” at the time of the offense; (6) the written
judgment states that two enhancement paragraphs were found to be true when the
trial court made no such finding; (7) the written judgment states that the trial court
imposed a general fine when the trial court did not orally pronounce the assessment
of any fine; and (8) the judgment incorrectly calculated the court costs appellant
was required to pay.1

The State has conceded on issues six, seven, and eight. Concluding that the
judgment erroneously includes findings regarding the enhancement paragraphs, a
general fine, and an improper assessment of costs, we modify the judgment to
remove the enhancement findings and the fine, reverse and remand the assessment
of costs issue, and affirm the remainder of the judgment as modified.

Background

Amy Alsop testified that on May 10, 2019, she took her daughter, who was
five years old at the time, to a park in their neighborhood. As Alsop was pushing
her daughter on the “big” swings, Alsop noticed appellant standing about six feet
behind her and staring at her. Appellant had a small dog with him. There was also
another man close to Alsop with his daughter and two elementary-aged children
playing on the basketball court. Alsop then took her daughter to a play structure in
the park, where they stayed for about five to ten minutes before her daughter asked

1
Appellant also filed a pro se brief on appeal, which largely raises some of the same
issues as addressed in his attorney’s brief. We do not address any additional issues or arguments
raised in the pro se brief, however, because appellant has no right to hybrid representation. See
Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006).

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Alsop to push her in a “baby swing.” While at the baby swings, Alsop could see
appellant about 20 or 25 feet directly in front of her, sitting on a bench. Alsop’s
daughter was in the swing facing Alsop and away from appellant.

Alsop said that as he was sitting on the bench, appellant had pulled up one
leg of his shorts, had his penis out, and was masturbating. More specifically, Alsop
said that appellant’s penis was visible, he had his hand around it, and was moving
his hand up and down. Alsop looked around to check if anyone else had seen what
she saw, then she looked at appellant again to verify she saw what she thought she
saw. After confirming her observation, she picked her daughter up, took her home,
and called the police. A recording of Alsop’s call to the police was admitted into
evidence and played for the court. Alsop subsequently returned to the park with her
brother-in-law, where she spotted appellant in his van. Appellant was arrested a
short time later at a different location.

On cross-examination, Alsop agreed that the distance from her position at
the swings to the bench where appellant was sitting was approximately double the
width of a tennis court. Defense counsel also performed an in-court demonstration
of the distance from the swings to the bench with Alsop’s participation. Alsop
stated that her daughter had not seen appellant masturbating. She said that while
appellant was masturbating, he made eye contact with Alsop but not with her
daughter. Because of the eye contact, she believes that appellant was aware she
saw him masturbating. She acknowledged that there was a utility pole with some
attachments in the line of sight between the swing that her daughter was in and the
bench on which appellant sat. Alsop stated, however, that the utility pole did not
obstruct her view when she saw appellant masturbating.

In his testimony, appellant acknowledged being at the park on the day and at
the time in question, but he asserted that when he was sitting on the bench, he was

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undoing knots in his dog’s leash and not masturbating or otherwise exposing his
penis. He further said that he did not see Alsop or her daughter or any other
children at the park that day, although he did see a few other adults there. He
estimated the distance from the swings to the bench to be around 85 to 90 feet. A
friend of Alsop’s, who helped locate appellant after the incident, and a police
officer involved in the investigation also testified.

The Grand Jury

In his first issue, appellant contends that the trial court lacked jurisdiction
over this matter because the grand jury that indicted him was impaneled by a
different district court than the one that tried and sentenced him, albeit both district
courts were in the same county. In support of his argument, appellant relies on
Texas Code of Criminal Procedure article 21.02(2), which provides that for an
indictment to be deemed sufficient, “[i]t must appear that the same was presented
in the district court of the county where the grand jury is in session.” Tex. Code
Crim. Proc. art. 21.02(2).

As we have recently explained, an argument regarding the sufficiency of an
indictment under article 21.02(2) presents a nonjurisdictional, procedural challenge
that must be preserved by proper and timely objection in the trial court. McLeod v.
State, No. 14-22-00684-CR, 2023 WL 8263659, at *3 (Tex. App.—Houston [14th
Dist.] Nov. 30, 2023, no pet. h.) (citing Jenkins v. State, 592 S.W.3d 894, 902
(Tex. Crim. App. 2018)). Appellant does not cite, and we have not discovered, any
place in the record demonstrating that he objected to the alleged failure to comply
with article 21.02(2) in the trial court. See id. Accordingly, we overrule his first
issue.

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Visiting Judge

In his second issue, appellant asserts that his conviction should be
overturned because the record does not contain an assignment order for the visiting
judge who presided over the trial. Without such assignment, appellant insists, the
judge had no authority to act in the case.

It is well-settled, however, that a party complaining regarding the
assignment of an otherwise qualified judge must preserve that complaint in the trial
court and may not raise it for the first time on appeal. See, e.g., Wilson v. State, 977
S.W.2d 379, 380 (Tex. Crim. App. 1998) (holding defendant failed to preserve
argument that judge’s appointment order had expired); see also Lackey v. State,
364 S.W.3d 837, 846 (Tex. Crim. App. 2012) (“[A]n objection to the authority of
the individual purporting to conduct a proceeding must be timed so as to ‘afford
both the trial judge and the State notice of the procedural irregularity and an
adequate opportunity to take appropriate corrective action.’”) (quoting Wilson, 977
S.W.2d at 380–81); Lopez v. State, 57 S.W.3d 625, 629 (Tex. App.—Corpus
Christi 2001, pet. ref’d) (holding defendant failed to preserve argument based on
fact record did not contain assignment); Sparkman v. State, 997 S.W.2d 660, 663
(Tex. App.—Texarkana 1999, no pet.) (rejecting defendant’s argument based on
absence of appointment order in the record in part because defendant failed to
object to the judge’s assignment in the trial court).

Appellant here does not challenge the trial judge’s qualifications but only
complains that the record does not contain an order of assignment. Appellant does
not cite any place in the record demonstrating that he preserved this complaint
below and we have not found one. Accordingly, this issue was waived and is
overruled. See Lackey, 364 S.W.3d at 846.

5
Sufficiency of the Evidence

In issues three, four, and five, appellant challenges the sufficiency of the
evidence. In reviewing the sufficiency of the evidence, we view all the evidence
presented at trial in the light most favorable to the verdict and determine, based on
that evidence and any reasonable inferences therefrom, whether any rational
factfinder could have found the elements of the offense beyond a reasonable doubt.
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as a thirteenth juror and
may not substitute our judgment for that of the factfinder by reevaluating the
weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic to
ultimate facts. Id. This standard applies equally to both circumstantial and direct
evidence. Id. Each fact need not point directly and independently to the appellant’s
guilt so long as the cumulative effect of all incriminating facts is sufficient to
support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

As relevant to this case, a person commits the offense of indecency with a
child

if, with a child younger than 17 years of age, whether the child is of
the same or opposite sex and regardless of whether the person knows
the age of the child at the time of the offense, the person . . . with
intent to arouse or gratify the sexual desire of any person . . . exposes .
. . the person’s genitals, knowing the child is present.

Tex. Penal Code § 21.11(a).

In his third issue, appellant specifically asserts that the evidence was
insufficient to demonstrate that he knew a child was present at the time he
allegedly exposed his penis. Appellant insists that it required shear conjecture to

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conclude he knew Alsop’s daughter was present at the time. Proof of a culpable
mental state almost invariably depends upon circumstantial evidence, and a
factfinder can infer a defendant’s knowledge from his acts, conduct, and remarks
as well as from all the surrounding circumstances. See Gant v. State, 278 S.W.3d
836, 839 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

In her testimony, Alsop provided several strong indications that appellant
was aware of the presence of Alsop’s daughter. Alsop stated that she first observed
appellant standing about six feet behind her and staring at her while she pushed her
daughter on the big swings. A short time later, Alsop observed appellant and made
eye contact with him as he was sitting on a park bench masturbating approximately
20 to 25 feet, or double the width of a tennis court, away from where Alsop was
pushing her daughter in the baby swings. Although there was a utility pole between
the bench and the swings, Alsop indicated the utility pole was not a significant
obstruction. Alsop also stated that two elementary-aged children were playing
basketball on a nearby basketball court in the park. This evidence was sufficient
for the trial judge to reasonably conclude that appellant knew there was a child
present at the time he allegedly masturbated at the park. We therefore overrule
appellant’s third issue.

In issue four, appellant contends the evidence was insufficient to establish
that he acted with an intent to arouse or gratify any person’s sexual desire. See Tex.
Penal Code § 21.11(a). This element can, of course, include the defendant’s own
sexual desire. See Hendrix v. State, 150 S.W.3d 839, 850 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d). Appellant acknowledges Alsop testified she saw
appellant masturbating, but he insists this evidence was insufficient to show an
intent to arouse or gratify his sexual desire, and he cites cases in which the
evidence included more graphic details than did Alsop’s testimony in this case.

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See, e.g., Cantu v. State, 604 S.W.3d 590, 594 (Tex. App.—Houston [14th Dist.]
2020, pet. ref’d).

We disagree, however, with appellant’s assertion that evidence he exposed
himself and masturbated in a public park was insufficient to demonstrate that he
did so with the intent to sexually arouse or gratify himself. Indeed, the very
definition of masturbation indicates an intent to sexually arouse and gratify. See
New Oxford American Dictionary 1078 (3d ed. 2010) (defining masturbate to
mean to “stimulate one’s own genitals for sexual pleasure”); Webster’s Ninth New
Collegiate Dictionary 732 (1991) (defining masturbation as “erotic stimulation of
the genital organs commonly resulting in orgasm and achieved by manual or other
bodily contact exclusive of sexual intercourse”). Moreover, although our prior
opinion in Cantu included more graphic details than does the present case, it is
clear from that opinion that the key factor supporting the conviction was the
evidence of masturbation. 604 S.W.3d at 594 (“[T]he complainant described an act
of masturbation, from which the jury reasonably could infer appellant’s intent to
arouse or gratify his sexual desire.”). Because the evidence that appellant exposed
himself and masturbated in a public park was sufficient to support the conclusion
that he did so to arouse or gratify his sexual desire, we overrule appellant’s fourth
issue.

In his fifth issue, appellant challenges the sufficiency of the evidence to
demonstrate that he was “with a child” at the time of the alleged offense, as
required by section 21.11(a).2 Appellant first insists that the phrase must mean
something other than just that the child was present at the time and place of the
2
When interpreting a statute, an undefined word or phrase should be construed and
understood according to its common, everyday usage. Hanna v. State, 426 S.W.3d 87, 92 (Tex.
Crim. App. 2014). The operative word here, “with,” has several meanings, including its use “as a
function word to indicate combination, accompaniment, presence, or addition.” Webster’s Ninth
New Collegiate Dictionary 1026.

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offense because the statute already requires that the child be present in a later
subsection. He further suggests that the phrase therefore should be read to mean
“in the company of a child,” and he argues that there was no evidence in the record
indicating he was in the company of a child at the time of the alleged offense—“He
was not walking with her. He was not playing with her. He was not talking to her.
He was not babysitting her. He was not even in the company of [the child’s]
mother.”

We disagree with appellant’s interpretation of the statutory requirements as
well as his conclusion regarding the evidence. In essence, appellant argues that the
fact the statute references the presence of a child at two points means that the
drafters must have intended different meanings for each reference. The only
authority appellant cites for this contention is the general principle of statutory
construction that says a reviewing court must presume that every word of a statute
is used for a purpose. See, e.g., Polk v. State, 676 S.W.2d 408, 410 (Tex. Crim.
App. 1984). While there certainly may be circumstances in which two similar
phrases in a statute should be interpreted as having different meanings, such as
when they occur in a list, that is not necessarily always the case. For example, here,
the first reference to a child’s presence in section 21.11(a), “with a child,” is a
general requirement that a child be present at the time and place of certain conduct
of the accused; whereas, the second reference to the child’s presence, “the child is
present,” is specifically tied to the defendant’s knowledge of the child’s presence.
The two references therefore perform different functions within the statute.

Additionally, it should be noted that section 21.11(a) provides four different
ways in which indecency with a child can be perpetrated: (1) sexual contact with a
child, (2) causing the child to engage in sexual contact, (3) exposing the person’s
anus or genitals, knowing a child is present; or (4) causing the child to expose his

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or her anus or genitals. “With a child” is a requirement for all four methods of
commission; “knowing a child is present” is a separate requirement only in regards
to the third option.3 Again, the two phrases serve different purposes in the statute,
so the principle of statutory construction that we presume every word of a statute is
used for a purpose does not require the two phrases to have separate meanings.

Moreover, nothing in the statute supports appellant’s suggestion that “with a
child” means more proof is required than that the child be present at the time and
place of the accused’s conduct. See, e.g., Harris v. State, 359 S.W.3d 625, 631
(Tex. Crim. App. 2011) (“[T]he offense of indecency with a child by exposure is
complete once the defendant unlawfully exposes himself in the required
circumstances. . . . The child need only be ‘present’ for the offense to be
effectuated; the child does not even have to be aware of the exposure.”). As amply
discussed above, there was sufficient evidence to establish that appellant was “with
a child” at the time he was observed masturbating in a public park. Accordingly,
we overrule his fifth issue.

Enhancement Paragraphs

In issue six, appellant points out that while the judgment states that two
enhancement paragraphs were found to be true, the trial court did not make any
such findings. The State acknowledges that not only did the trial court not make
such findings, the State also did not offer any evidence that would support such
findings if they had been made.4 Both sides request that we correct the judgment to
delete the “true” findings on the enhancement paragraphs. We agree and sustain
appellant’s sixth issue for this purpose.
3
This is probably because such knowledge is implied in the other options.
4
When asked by the trial court how he pleaded on the enhancement allegations, appellant
responded that he was invoking his rights under the Fifth Amendment. The trial court interpreted
this as a plea of not true to each allegation.

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General Fine

In his seventh issue, appellant points out that the judgment assessed a
general fine of $100 even though the trial judge did not state such a fine was being
imposed at the time she orally pronounced appellant’s sentence. Generally, fines
must be orally pronounced in the defendant’s presence, as they are punitive and
intended to be part of a convicted defendant’s sentence. See Armstrong v. State,
340 S.W.3d 759, 767 (Tex. Crim. App. 2011). When there is a conflict between a
judge’s oral pronouncement of a sentence and the judgment, the oral
pronouncement controls, and when a judgment contains a fine that was not orally
pronounced, an appellate court may correct the judgment by deleting the fine. See
Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). The State agrees
that this is what happened in this case and deletion from the judgment is the proper
remedy. Accordingly, we sustain appellant’s seventh issue and correct the
judgment by deleting the $100 general fine.

Court Costs

In his eighth issue, appellant contends that the trial court improperly
assessed certain court costs against him and requests that the issue be remanded to
the trial court for a proper assessment of costs. The State again agrees that the costs
were improperly assessed and also agrees with the requested remedy.

The judgment states that a total of $290 in court costs was assessed against
appellant. The bill of costs accompanying the judgment lists two such costs, a state
consolidated court cost of $185 and a local consolidated court cost of $105.00.
However, the statute authorizing assessment of these costs did so only for offenses
committed on or after January 1, 2020. See Act of May 21, 2019, 86th Leg. R.S.
ch. 1352, §§ 1.03, 1.05, 504. The evidence in this case demonstrated appellant
committed the offense on May 10, 2019; thus, these court costs should not have
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been assessed against appellant. However, as appellant concedes, there were likely
costs that should have been assessed against him. Appellant therefore requests and
we grant a reverse and remand for the purpose of assessing the proper amount of
court costs. See, e.g., McLeod, 2023 WL 8263659, at *9; Authorlee v. State, No.
14-20-00821-CR, 2022 WL 220267, at *3–4 (Tex. App.—Houston [14th Dist.]
Jan. 25, 2022, pet. ref’d) (mem. op., not designated for publication). We sustain
appellant’s eighth issue for this purpose.

Conclusion

The judgment erroneously includes findings regarding the enhancement
paragraphs, a general fine, and an improper assessment of costs, we modify the
judgment to remove the enhancement findings and the fine, reverse and remand the
assessment of costs issue, and affirm the remainder of the judgment as modified.

/s/ Frances Bourliot
Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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