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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS NO. 1911-98DAVID LACOUR, Appellant v. THE STATE OF TEXAS ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS JEFFERSON COUNTY McCormick, P. J., delivered the opinion of the Court in which
Mansfield, Keller, Price, Holland, Womack and Keasler, JJ., joined; Meyers, J., filed a concurring opinion; Johnson, J., dissents. O P I N I O N The Court of Appeals overturned on legal
sufficiency grounds a jury's verdict convicting appellant of disorderly conduct as defined in Section 42.01(a)(12) of the Texas Penal Code which makes it a crime for a person to be naked in a "public place" if that person "is
reckless about whether another may be present who will be offended or alarmed by his act." The evidence shows that appellant and about 100 other nudists were naked on a public beach. The complainant was offended by this
public nakedness when he took his family to the beach to fish and saw appellant and the other nudists. The complainant considered this particular public beach a good fishing location. The complainant had seen
and been offended by nudists naked on this beach before when the complainant had gone there to fish. The complainant had complained to law enforcement authorities about the nudists' activities on this beach. The nudists
apparently picked this particular beach to carry on their activities because it was not easily accessible to the public. The nudists' attitude was that if their public nakedness on the beach offended other people, then these
people should go elsewhere. In a 2-1 decision the Court of Appeals decided it would have been irrational for a jury to find that appellant was naked in a "public place" and that he was reckless about whether another
may be present and offended by his nakedness because the public beach was "remote" and "secluded" and "could not easily be seen from adjacent property." Lacour v. State, S.W.2d
No. 09-96-322-CR Slip op. at 5 (Tex.App.--Beaumont, May 7, 1998). The dissenting opinion claimed this decision empowered nudists with eminent domain authority "to condemn any portion of our Texas beaches in order to promote their own interest, requiring any offended citizenry to go elsewhere."
Lacour, S.W.2d at Slip op. at 2 (Walker, C.J., dissenting). We exercised our discretionary authority to review the Court of Appeals' decision. The State argues
the evidence of appellant's guilt is overwhelming under the "plain" language of Section 42.01(a)(12). Appellant argues he should not be held to be reckless "for engaging in nude swimming and sunbathing at a location where
approximately 100-500 other persons regularly engaged in the same conduct" because "no one would believe that those in attendance would be offended by the conduct that they themselves were engaging in." Appellant also argues
that one "may reasonably infer from [the complainant's] testimony that it would have been easier for him to avoid offensive scenery by keeping his eyes on the road." The Court of Appeals appears to have misconstrued
Section 42.01(a)(12) and to have misapplied the appellate standard of review for assessing evidentiary sufficiency. The relevant appellate inquiry for assessing evidentiary sufficiency is "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." See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979) (emphasis in original). This standard is meant to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." See Jackson
, 99 S.Ct. at 2789. Section 42.01(a)(12) makes no exceptions for public places that are "remote" or "secluded" or for when others are "regularly engaged in the same conduct." And, it does not require someone
like the complainant to "keep his eyes on the road." And, on this record, a rational jury could have found that appellant was naked in a "public place" and that he was "reckless about whether another may be present who
will be offended or alarmed" by his public nakedness. A rational jury could have inferred the ultimate fact of appellant's recklessness from the basic fact of his nakedness on a public beach. We do not agree with
appellant's contention that this holding makes nudity per se
an offense contrary to the plain language of Section 42.01(a)(12). This holding does not dispense with the State's obligation to prove recklessness in a prosecution under Section 42.01(a)(12). The judgment of the Court of
Appeals is reversed and the case is remanded there to address appellant's other points of error.
McCormick, Presiding Judge (Delivered January 5, 2000) En Banc Publish
Meyers, J., filed this concurring opinion. CONCURRING OPINIONThe majority correctly reverses the judgment of the Court of
Appeals. While the fact that one hundred other nudists were on the beach certainly suggests the conduct was not offensive to everyone on the beach, it says nothing about whether the conduct was offensive to non-nudists
who also had a right to be there. Under the Court of Appeals' logic, if participants in the disorderly conduct greatly outnumber nonparticipants, then participants are not reckless in their expectations that others will not
be offended. Thus, according to the Court of Appeals, the viewpoint of the majority participants in the questionable conduct is determinative of what is offensive. This view of the evidence in a light favorable to the
actors is contrary to Jackson v. Virginia, 443 U.S. 307 (1979). Such view of the evidence is also inconsistent with the definition of "recklessness," which subsumes the standard of care of an ordinary, reasonably
prudent person, not the standard of care of the particular actor.1 With these comments, I concur in the judgment of Court. MEYERS, J. Delivered January 5, 2000 Publish _______________________________________________________________
1. The Penal Code defines reckless conduct as follows:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from
the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
Tex. Penal code § 6.03(c). The evidence is sufficient to prove reckless conduct when, viewing the evidence in the light most favorable to the verdict, the "evidence supports the jury finding that an ordinary
person or reasonably prudent person, in appellant's position, ought to have been aware that a substantial and unjustifiable risk was created" by the appellant's conduct." Lopez v. State
, 630 S.W.2d 936, 941 (Tex. Crim. App. 1982). |
