NO. 1911-98







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.


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