*1 LACOUR, Appellant, David
The STATE of Texas.
No. 1911-98. Criminal
En Banc. Jan. Parker, Arthur, appel- Carl A. Port
lant.
Rodney D. Conerly, Atty., Asst. Dist. Beaumont, Paul, Atty., Matthew State’s Austin, for State.
OPINION McCORMICK, J.,P. delivered the opinion of the Court in which MANSFIELD, KELLER, PRICE, HOLLAND, KEASLER, WOMACK JJ., joined. overturned on le-
gal sufficiency grounds a jury’s verdict convicting appellant as defined of the Texas Penal Code which makes it a crime person naked “is reckless about whether who will be of- fended or alarmed act.” evi- dence that appellant shows and about 100 other nudists were naked on a complainant beach. The was offended this nakedness when he took his family to the beach to fish and saw lant and the other nudists.
The complainant particu- this considered lar a good fishing beach location. complainant had seen and nudists naked on gone before the complainant had complainant there to fish. The had com- plained to law enforcement authorities about the nudists’ activities on this beach. apparently picked particu- lar carry beach to on their be- activities *2 671 See Jackson the reasonable doubt.” easily it not accessible to cause was if 61 public. The attitude was that 43 U.S. nudists’ 4 (1979) original). in (emphasis on the beach their nakedness L.Ed.2d 560 people people, play other then these “full to give meant to This standard is go fairly” elsewhere. should to “draw [jury’s] responsibility the basic facts to inferences from reasonable Appeals of In a 2-1 decision the Court Jackson, at 99 S.Ct. ultimate facts.” See it irrational for decided have been would in a appellant to that was naked jury find place” that he was reckless “public and exceptions makes no Section may another be and about whether or “se- public places that are “remote” for the his because offended nakedness are “regularly for others cluded” or public beach was “remote” and “secluded” And, it engaged in the same adja easily not be from and “could seen com- like the require does not someone property.” Lacour v. cent “keep eyes his on the road.” plainant to (Tex.App. S.W.2d —Beaumont And, record, jury on this a rational 1998). dissenting opinion claimed appellant that was naked could have found with empowered decision eminent “reck in and that he was any authority portion “to condemn domain pres less about whether promote in to of our Texas beaches order interest, will be offended or alarmed” any own offended ent who requiring their Lacour, jury nakedness. A rational citizenry go 980 his to elsewhere.” (Walker, C.J., ultimate fact of dissenting). could have inferred the at 528 authority the fact discretionary appellant’s our recklessness from basic We exercised review Court of beach. We do Appeals’ to the decision. of his nakedness on agree appellant’s not contention that argues The State the evidence of nudity per an of holding makes se guilt overwhelming lant’s under the plain the of language fense 42.01(a)(12). “plain” language of Section 42.01(a)(12). holding does not Section This Appellant argues he should not be held to obligation to dispense with the. State’s “for in engaging be reckless nude swim- a prosecution in under prove recklessness ming sunbathing at a where location 42.01(a)(12). approximately persons regu- 100-500 other in larly engaged the same conduct” be- the of judgment in “no one would believe that those cause there and the case is remanded reversed would the con- attendance be offended points of er- to address other they engaging that duct themselves were ror. “may Appellant argues that one in.” also complainant’s] infer reasonably [the MEYERS, J., opinion; a concurring filed testimony it been easier that would have J., JOHNSON, dissents. scenery by keep- him to avoid offensive MEYERS, J., concurring filed this eyes on the road.” ing opinion. appears to The Court of correctly reverses the majority 42.01(a)(12) and have misconstrued Section Appeals. While judgment of the Court misapplied appellate standard the hundred other nudists the fact that one assessing evidentiary of review for suffi certainly the suggests on the were ciency. appellate inquiry relevant everyone on conduct was not offensive sufficiency is “wheth assessing evidentiary beach, nothing it about whether says the er, in the after offensive to non-nudists ra the conduct was prosecution, any to the most favorable Under right also had a be there. found who trier of fact could have tional participants Appeals’ logic, the Court of beyond of the crime essential elements greatly outnum- nonparticipants, ber participants then are
not expectations their reckless oth- Thus,
ers 'will not offended. according Appeals, viewpoint
the majority participants questiona- in the determinative
ble conduct is of what
offensive. This view of the evidence a
light favorable the actors is
Jackson v.
U.S.
(1979).
definition of which sub-
sumes the an ordinary, standard of care of
reasonably prudent person, not the stan- particular
dard of care actor.1 comments, concur
With these I in the
judgment of Court. Kimber,
John KIMBER and Shawn
Individually, and as next friends of Kimber, Minor, Appellants,
Julia a SIDERIS, Appellee. D.,
E.B. M.
No. 07-98-0204-CV. of Appeals
Amarillo.
Sept. 8, 1999. Overruling Rehearing
Order
Nov. 1. The Penal Code defines reckless conduct as circumstances as viewed the actor’s follows: standpoint. 6.03(c). § reckless, recklessly, A acts isor Tex. Penal code when, prove sufficient respect surrounding reckless conduct to circumstances the result the evidence in the most favor- or of his conduct when verdict, consciously supports able disregards he is of but the "evidence aware unjustifiable jury finding ordinary person substantial and risk that the that an or rea- sonably prudent person, appellant's posi- exist or will circumstances the result occur. tion, ought risk must of such nature and aware that substan- degree disregard gross unjustifiable that its tial and risk created constitutes was Lopez v. deviation from the standard care that an ordinary person (Tex.Crim.App.1982). would exercise under all the