Indecent Exposure Charges? A Former Prosecutor Explains How To Defend And Win! (2022)

What Is Indecent Exposure?

Under the Texas Penal Code § 21.08 entitled “Indecent Exposure,” the law provides in pertinent part that: “(a) a person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act. (b) An offense under this section is a Class B misdemeanor.”

Is Indecent Exposure A Felony In Texas?

For a first-time offense of indecent exposure, it is not a felony. If convicted of indecent exposure, you would face a Class B Misdemeanor punishment, with a monetary fine of up to $2,000, and up to 180 days in jail, and mandatory counseling. Deferred adjudication or probation may be possible if you have no prior criminal record. Although deferred adjudication probation may sound like an option, beware the conditions of a probation for indecent exposure.

For example, in Tarrant County, Texas, it is common for the probation department to require first-time offenders to take sex offender counseling as a condition for probation. The class is referred to as Sexual Misconduct Counseling (SMC). As part of the class structure, many treatment providers require you to admit you have a problem with sexual deviancy as a prerequisite for completion of the program.

The worst part of being convicted for an indecent exposure case with a prior conviction is that you will face a mandatory 10-year sex offender registration. In other words, being convicted for a repeat offense of indecent exposure will place you with a 10-year sex offender registration that requires you to register as a sex offender anywhere you live. This information is made public to everyone in your community, and you are branded as a sexual deviant in the community. It is critical to fight you charges to avoid this stigma and punishment!

Legal Defenses To Indecent Exposure

If you are facing the crime of indecent exposure, it is critical to know the legal defenses necessary to achieve a favorable result. We will examine a few below:

Lack Of Intent To Arouse Or Gratify

As discussed earlier, in order to be convicted of the crime of indecent exposure in Texas, the prosecutor must prove beyond a reasonable doubt that you exposed yourself and that exposure was done with the specific intent to arouse or gratify the sexual desire of another.

What does this mean? What if you exposed yourself but you did not do so with the intent to arouse or gratify yourself or another person? How can the prosecutor prove this? The most common way that the district attorney’s office proves the crime of indecent exposure is to argue that the accused had an erection or was masturbating at the time of the exposure. Evidence of this behavior can be used to establish probable cause that the exposure had the specific intent arouse or gratify their sexual desire.

What if there is no erection or masturbation? Can the prosecutor prove that the exposure was done with the intent to arouse or gratify the desire of another person? In this situation, the prosecutor would need evidence that the accused said or acted in a manner that made it clear to the recipient that the exposure was made for their sexual gratification.

Client Did Not Act Reckless As To Whether Another Would Be Present

In addition to proving that the accused exposed himself with the intent to arouse or gratify another, the State of Texas must also prove that the accused was reckless as to whether another person would be present that would be alarmed or offended by the act.

This happens commonly when someone sees another person exposing themselves in a remote area and believes they are masturbating or have an erection. We have had many cases where a woman sees a man urinating behind a tree or other area and observes this behavior and is offended. Is this indecent exposure? NO! First, there is no sexual element to the crime, but you must also inquire as to whether or not the accused was reckless as to his exposure. Did he expose himself in a manner that would be reckless as to whether someone else might be offended by his act? What if someone did expose themselves and had an erection or was masturbating but the surrounding facts would not have reasonably concluded that someone else would have been present to observe the act and become offended?

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00:00 How To Beat An Indecent Exposure Charge In Texas
00:45 What Is Indecent Exposure?
01:20 What Does "Reckless" Mean?
01:59 Defenses To An Indecent Exposure Charge
04:24 Disorderly Conduct By Exposure
07:31 Punishments For An Indecent Exposure Charge
08:50 What Should You Do If Arrested For An Indecent Exposure Case?

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