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Loya v. State

Public drunkenness is not a lesser included offense of public indecency, since each requires proof of a fact that the other does not.

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Lorenzo Alan Loya was tried by jury and found guilty of felony public indecency for urinating in public.1 On appeal, he contends the trial court erred by refusing to charge public drunkenness as a lesser included offense of public indecency. He also contends one aspect of his sentence is void.

On appeal, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U. S. 307, 319 III B 99 SC 2781, 61 LE2d 560 1979. Moreover, the State does not take issue with Loya’s statement of facts. See Court of Appeals Rule 25 b 1 “Except as controverted, appellant’s statement of facts may be accepted by this Court as true.”. The parties agree that Officer Whitfield saw Loya walk along a road and stop and urinate on a large boulder at the same time that a woman was driving in the opposite direction. Whitfield saw that the woman appeared to be shocked, and Whitfield testified that he could see Loya’s genitals when Loya was urinating. Loya was intoxicated at the time. The State also introduced two similar occurrences. In the first, Loya was arrested and, in August 2003, plead guilty to exposing himself in a courtroom to a female probation officer. In the second, Loya was convicted in November 2005 of exposing himself outside a public library.

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