Physical impossibility usually is a good way to defend yourself in a case. If, say, an incident happened at a cafe at 4:35 in the afternoon, but you were verifiably at work clear across town at the same time, it’s pretty hard to say you did whatever it was that happened.
What about when it’s your physique that’s in question? That was the issue confronting the 14th Court of Appeals in Houston. According to Rick Casey of chron.com, an unspecified doctor lost his public indecency appeal because “that which is alleged to have been exposed is too small to have been seen.”
I think it takes a big man to say he’s a smaller man than others. (I wonder how many other commentators will say essentially the same thing…? Probably most of ’em.)
All kidding aside, the case presents one of the most infuriating aspects of criminal defense: the severe limitations of the direct appeal. The argument on appeal was the factual and legal sufficiency of the evidence. In true appellate fashion, the 14th found the evidence plenty sufficient. (As a side note, Mr. Casey probably rightly declines to name the doctor out of consideration for the family, but the opinion is not sealed or redacted if you know where to find it. What follows comes from the opinion.)
Just as in the Federal system, Texas courts of appeal, when confronted with an argument that the evidence was legally insufficient, “look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Pretty low standard, when you think about it. Rightly or wrongly, the jury rules when a conviction is challenged on legal sufficiency grounds.
When the issue is factual sufficiency, however, there’s a slightly different standard. The court will “view all of the evidence in a neutral light,” and the verdict can be set aside if: “(1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence.” Nonetheless, the jury rules under this standard as well, and the court of appeals must avoid substituting its judgment for that of the jury. Tch. Thus, the 14th declined to reverse the conviction.
