Joshua David Orler v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

No. 10-22-00173-CR

Joshua David Orler,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge David L. Hodges, presiding
Trial Court No. 2021-575-C1

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Joshua Orler appeals from ten convictions for the offense of indecency with a

child by exposure. TEX. PENAL CODE § 22.11. Orler complains that: (1) the

evidence was insufficient because the child was not present when he disrobed

and that the exposure was not directed at the child; (2) the evidence was

insufficient to prove beyond a reasonable doubt that he exposed his anus

which served as the basis for five of his convictions; (3) the rule of lenity
requires that he be convicted of indecent exposure rather than indecency with

a child because he was no more than reckless about the presence of the child

at the time of exposure; and (4)-(8) raise various issues in the alternative

regarding the assessment of costs. We affirm as modified.

Background

Orler was charged in counts 1-5 of the indictment with the offense of

indecency with a child by exposure of his genitals and in counts 6-10 with the

offense of indecency with a child by exposure of his anus. The allegations

stemmed from an outcry made by Orler’s daughter that she had watched

Orler and his girlfriend having sex on many occasions and had seen both

Orler and his girlfriend naked on each occasion. All but one of the

occurrences had taken place in Orler’s residence. One occurrence took place

in a hotel room shared by Orler, his girlfriend, and the child. The jury found

Orler guilty on all ten counts.

Standard of Review

The Court of Criminal Appeals has expressed our standard of review of

sufficiency issues as follows:

When addressing a challenge to the sufficiency of the evidence,
we consider whether, after viewing all of the evidence in the light
most favorable to the verdict, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to

Joshua David Orler v. The State of Texas Page 2
defer “to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319. We may not re-weigh the evidence or
substitute our judgment for that of the factfinder. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court
conducting a sufficiency review must not engage in a “divide and
conquer” strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are
permitted to draw any reasonable inferences from the facts so
long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016)
(citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the
factfinder resolved any conflicting inferences from the evidence in
favor of the verdict, and we defer to that resolution. Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is
because the jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010). Direct evidence and circumstantial evidence are equally
probative, and circumstantial evidence alone may be sufficient to
uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to “the elements
of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the
defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The “law as authorized by the
indictment” includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387

Joshua David Orler v. The State of Texas Page 3
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Issue One

In his first issue, Orler complains that the evidence was insufficient for

the jury to have found that the child was present at the time of the initial

exposure and that Orler’s exposure was not directed at the child. Orler

contends that on nine of the ten charged occasions, he was already exposed at

the time the child entered the room, making it impossible for him to commit

the offense of indecency with a child by exposure because the exposure was

complete at the time of disrobing when the child was not present. For those

nine incidents, Orler further argues that any exposure was not directed at

the child because the child was not present at the time he exposed himself.

A person commits the offense of indecency with a child by exposure if,

with a child younger than seventeen years of age, the person, with intent to

arouse or gratify the sexual desire of any person, exposes the person’s anus or

any part of the person’s genitals, knowing the child is present. TEX. PENAL

CODE § 21.11(a)(2)(A). The child need not be aware of the exposure, only

present when it occurred; thus, the offense “is complete once the defendant

unlawfully exposes himself in the required circumstances.” Harris v. State,

359 S.W.3d 625, 631 (Tex. Crim. App. 2011).

Although the offense of indecency with a child by exposure is complete

Joshua David Orler v. The State of Texas Page 4
at the moment of the exposure, we have found no authority to support the

proposition that the offense cannot occur when the exposure to the child

takes place after an individual is already disrobed.

In this proceeding the child testified that on one of the occasions, she

was in a hotel room with Orler and his girlfriend and that she was present

the entire time that Orler and his girlfriend were having sex with each other,

so any exposure would have arguably occurred at the time Orler disrobed.

On the other occasions, the child testified that Orler and his girlfriend were

having sex at night in another room that did not have a door and she would

walk in on them. Initially it was inadvertent, but Orler allowed the child to

remain in the room. The child testified that Orler routinely invited or

permitted her to remain in the room when the child would walk in on them

and to watch them engaging in sexual intercourse. At times she made videos

of Orler and his girlfriend having sex, with Orler instructing her to place the

recording device so it would not move during recording so it would not appear

that the child was filming it. The child stated that some of the time, Orler

would verbally tell her she could remain in the room. Sometimes the child

would ask questions about what they were doing, and Orler or his girlfriend

might answer or might tell her to be quiet.

Additionally, although it is not necessary for the child to actually see

the defendant’s genitals or anus while exposed, the child in this proceeding

Joshua David Orler v. The State of Texas Page 5
testified as to tattoos that were on Orler’s genitalia. Photographs of the

tattoos were admitted into evidence, which added credibility to the child’s

testimony.

Although it might be more common for the exposure to take place at

the time of disrobing, it is not required under the statute. Rather, and as

occurred in this proceeding, an exposure can take place at the time the child

enters a place where an individual is exposed, and the individual does not

end the exposure but continues in a manner that a reasonable juror could

find was with the knowledge that the child was present and with the intent

to arouse or gratify any person.

Orler further argues that the evidence was insufficient for the jury to

find that he directed the exposure toward the child. However, the statute

does not require that the exposure be directed at the child, merely that the

defendant knows that the child is present. Harris, 359 S.W.3d at 631 (citing

Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim. App. 1977).

Our review of the evidence under the appropriate standards establishes

that the evidence was sufficient for the jury to have found that Orler

committed the offenses of indecency with a child by exposure. We overrule

issue one.

Issue Two

In his second issue, Orler complains that the evidence in support of

Joshua David Orler v. The State of Texas Page 6
counts 6-10 of the indictment was insufficient for the jury to have found that

he exposed his anus because the child did not describe having seen any body

part beyond his genitalia and his “butt” or that any potential exposure of his

anus was with the intent to arouse or gratify the sexual desire of any person.

Orler contends that although it was not necessary that the child actually saw

his anus, some evidence that he exposed his anus was required.

The jury charge did not define the term “anus.” Orler argues that the

term has an established legal meaning, which is “the posterior opening of the

alimentary canal” and excludes the buttocks. See Pryor v. State, 719 S.W.2d

628, 630 (Tex. App.—Dallas 1986, pet. ref’d) (citing Wright v. State, 693

S.W.2d 734, 735 (Tex. App.—Dallas 1985, pet. ref’d)); see TEX. PENAL CODE §

21.01 (practice commentary). Orler further argues that the evidence at trial

did not include any testimony that he ever exposed his anus as defined

above 1 and was therefore insufficient to support the convictions for counts 6-

10.

The child testified that on multiple occasions she entered a room where

Orler and his girlfriend were having sex. She testified that Orler was aware

of her presence, and on some occasions invited her to stay and eventually

allowed her to make a video on his iPad. During some of those occasions, the

child would ask questions about what they were doing, and was told about
1 Orler did not argue to the trial court or in this appeal that the jury charge was erroneous for failing

to define the term.

Joshua David Orler v. The State of Texas Page 7
the various positions she observed, positions the child could identify by

common slang names. The child testified that she observed Orler and his

girlfriend in these varied positions and that she saw her father’s “D-I-C-K”

and “butt.” The child testified that she saw tattoos on genitalia. Two videos

of Orler and his girlfriend were admitted into evidence which showed them in

multiple positions engaging in sexual activity that were made in the same

bedroom where the child described some of the events having taken place.

The videos were not the ones made by the child.

Based on the child’s testimony and the videos that constituted

examples of Orler’s sexual conduct, we find that a reasonable juror could

have found beyond a reasonable doubt that Orler exposed his anus during the

sexual activity with his girlfriend. Although he argues that there was no

evidence that he spread his buttocks to expose his anus during the sexual

activity, it is a reasonable inference for the anus to become visible during the

sexual activity as described by the child and as depicted in the videos. It is

also a reasonable inference that the exposure made while Orler was

continuing to engage in sexual intercourse with his girlfriend was with the

intent to arouse or gratify the sexual desire of another person. We find that

the evidence was sufficient in counts 6-10. We overrule issue two.

Issue Three

In his third issue, Orler argues that the Rule of Lenity compels a

Joshua David Orler v. The State of Texas Page 8
determination that he cannot be found guilty of the offense of indecency with

a child by exposure because he could not have known that the act of having

sex in front of his child met the elements of indecency with a child by

exposure. Rather, Orler contends that he should be found guilty, at most, of

indecent exposure, which is a lesser-included offense of indecency of a child

by exposure but requires only that a person is “reckless” about whether or not

another person is present instead of knowledge of the presence of a child.

Orler’s argument is that there is a constitutional due-process principle

“that no individual be forced to speculate, at peril of indictment, whether his

conduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112, (1979). He

argues that “due process bars courts from applying a novel construction of a

criminal statute to conduct that neither the statute nor any prior judicial

decision has fairly disclosed to be within its scope[.]” United States v. Lanier,

520 U.S. 259, 266 (1977). Orler contends that the State has stretched the

indecency with a child by exposure statute beyond its intended construct to

convict him of offenses he did not have any ability to perceive were criminal

because his counsel has found no caselaw that has been limited to the facts

before us and did not include some direct sexual activity with a child.

Because of this, Orler argues that the rule of lenity resolves any ambiguity in

a criminal statute so as to apply it only to conduct clearly covered, which, at

most, would result in convictions for indecent exposure. Lanier, 520 U.S. at

Joshua David Orler v. The State of Texas Page 9
266.

The State argues that the rule of lenity has been codified into the Texas

Government Code in Section 311.035 and is inapplicable to this proceeding.

See TEX. GOV’T CODE § 311.035. The codified version states that:

(b) Except as provided by Subsection (c), a statute or rule that
creates or defines a criminal offense or penalty shall be construed
in favor of the actor if any part of the statute or rule is ambiguous
on its face or as applied to the case, including:
(1) an element of the offense; or
(2) the penalty to be imposed.
(c) Subsection (b) does not apply to a criminal offense or penalty
under the Penal Code or under the Texas Controlled Substances
Act.
(d) The ambiguity of a part of a statute or rule to which this
section applies is a matter of law to be resolved by the judge.

TEX. GOV’T. CODE § 311.035(b)-(d). The State argues that the rule of lenity

does not apply to this proceeding because this is a proceeding under the

Penal Code which is specifically excluded from the application of the rule.

We agree with the State that the statutory rule of lenity in the

Government Code does not apply to this proceeding. 2 To whatever degree a

constitutional due process rule of lenity might exist, we do not find that it

applies to this proceeding to afford Orler the relief he seeks. It is not a

surprise to any person to know that engaging in sexual conduct while naked

and uncovered after an individual knows a child has entered the room would

2 In his reply brief to this Court, Orler appears to raise the constitutionality of the rule of lenity

statute as applied to him. However, it does not appear that this complaint was raised in the trial
court and Orler does not address any basis under which preservation is not necessary. Therefore,
this complaint has not been preserved and is waived. See TEX. R. APP. P. 33.1.

Joshua David Orler v. The State of Texas Page 10
constitute a criminal offense. Moreover, Orler warned the child to not discuss

what she saw because he would be in “big trouble” if she did, thus evidencing

an awareness of the illegality of the conduct.

Orler further argues that because the evidence established that the

child was not present when he disrobed on each occasion other than the one

incident in the hotel room, and at most, the jury could only have found that

he was reckless about whether or not another person was present, the rule of

lenity requires a conviction for the lesser offense of indecent exposure.

However, in the first issue we determined that the act of disrobing was not

the moment of the exposure, and the evidence was sufficient for the jury to

find that he was exposed at a time he knew the child was present. We do not

find that under the facts of this proceeding the rule of lenity should provide

Orler relief. We overrule issue three.

Issues Four through Eight

COURT COSTS

In his fifth issue, Orler contends that the court costs are not due and

owing because the record does not contain a bill of costs. Page 176 of the

clerk’s record before us contains a certified bill of costs dated July 20, 2022.

Regardless, court costs are not due and payable by a defendant until the

judgment is final. See Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App.

2021). We overrule Orler’s fifth issue.

Joshua David Orler v. The State of Texas Page 11
In his eighth issue, Orler contends that court costs are not subject to

collection during the pendency of his appeal. Orler does not complain about

efforts to collect court costs or ask for this court for relief from collection

efforts despite there being an “Order to Withdraw Funds” included in the

record. We overrule Orler’s eighth issue.

FINES

In his fourth issue, Orler contends that the fines are improperly

cumulated, and in his seventh issue, Orler contends that the fines are

improperly assessed.

The jury assessed fines of $10,000 on counts one through five and fines

of $5,000 on counts six through ten. The trial court pronounced that the

sentences, including the fines, for counts two through ten were to be served

concurrently and that the sentence for count one would commence after the

sentences for counts two through ten were completed. In essence, count one

runs consecutive to counts two through ten. The State agrees that the fines

should run concurrently for counts two through ten.

The judgment for each count properly reflects the fine that was

assessed in that particular count. However, the uncertified bills of costs

attached to each judgment and the certified bill of costs reflects fines in the

amount of $75,000. Fines are not part of court costs and thus, fines do not

belong in a bill of costs. Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex.

Joshua David Orler v. The State of Texas Page 12
Crim. App. 2011). We therefore delete the fines from the uncertified bills of

costs and the certified bill of costs.

We sustain Orler’s issue four and overrule Orler’s issue seven.

In his sixth issue, Orler contends that court costs are improperly

cumulated. When multiple counts or cases are tried together, the defendant

can be assessed court costs only once. TEX. CODE CRIM. PROC. ANN. art.

102.073(a); see also Hurlburt v. State, 506 S.W.3d 199, 203-04 (Tex. App.—

Waco 2016, no pet.). Because the certified bill of costs contains only the court

costs for this single trial court cause we overrule Orler’s sixth issue.

Conclusion

We affirm the judgments of the trial court and modify the bills of costs

attached to the judgments and modify the certified bill of costs.

________________________________
MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: February 13, 2025

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified
Do not publish
[CR25]

Joshua David Orler v. The State of Texas Page 13