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Click here for the full text of this decision FACTS:McKnight was charged with indecent exposure after an undercover park ranger, Officer Gabriel Escobedo, arrested him for exposing his penis to him in the woods at Brackenridge Park. The jury charge submitted both the indecent exposure charge and a lesser included offense of disorderly conduct. The relevant portion of the charge relating to disorderly conduct read in part: “To warrant a conviction of the defendant in this case, you must find from the evidence beyond a reasonable doubt that: “1) the defendant, Albert McKnight, did expose any part of his genitals; “2) at the time defendant exposed his sexual organ, if he did, Gabriel Escobedo, was in plain view of the defendant, and within such distance as to be able to see whether the Defendant [italics is handwritten insert] did expose any part of defendant’s genitals; and “3) such exposure of any part of defendant’s genitals by defendant to Gabriel Escobedo, if any, under any circumstances, was conduct that was reckless about whether another is [sic] present who would be offended or alarmed by defendant’s alleged act.” The jury convicted McKnight of disorderly conduct. McKnight filed a motion for new trial asserting that the jury had been misdirected about the law because: 1. the charge omitted the “public place” element with regard to the disorderly conduct offense; 2. the charge contained the phrase “any part of his genitals” as opposed to the term “genitals” in the disorderly conduct charge; and 3. disorderly conduct is not a lesser included offense of indecent exposure and no evidence was presented to establish that McKnight was guilty only of disorderly conduct. The trial court granted the motion for new trial, handwriting the following as its reason on the typewritten order, “Due to error in the portion of [the] jury charge related to Class C lesser included offense of Disorderly Conduct.” The state appealed the trial court’s order granting Albert McKnight’s motion for new trial. The state contended that the trial court erred in granting the motion for new trial, because McKnight did not show he was egregiously harmed by the charge error. McKnight asserted a cross-point contending that the trial court erred in submitting disorderly conduct as a lesser included offense of indecent exposure. HOLDING:Affirmed. The court noted that trial judges have had the discretion to grant new trials in the interest of justice. Accordingly, the court found that reversible error under an appellate standard of “some harm” or “egregious harm.” Because the state conceded that the charge erroneously omitted the element of public place, the trial court had the discretion to grant a new trial, the court stated. As for the question of whether disorderly conduct is a lesser included offense of indecent exposure, the court stated that a two-prong test must be met before a jury charge instruction on a lesser-included offense must be given: 1. The lesser-included offense must be included within the proof necessary to establish the offense charged; and 2. Some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. McKnight contended that disorderly conduct is not established by proof of the same or less than all of the facts required to establish indecent exposure because the state is required to prove the exposure occurred in a public place to establish disorderly conduct which is not an element required to be proven to establish indecent exposure. The state responded that because the information alleged that the exposure occurred “in a place open to the public” the information required the state to produce evidence that the indecent exposure occurred in a public place. The information in this case alleged that McKnight was reckless because McKnight exposed himself in a public place. Because the information was required to contain the public place allegation to describe the manner in which McKnight was reckless, one of the facts required to establish the commission of the offense charged was the occurrence of the offense in a public place. Based on the language contained in the information filed in the instant case, the court found that disorderly conduct was a lesser included offense of indecent exposure in the case. OPINION:Lopez, C.J.; Lopez, C.J., and Stone, J. DISSENT: Duncan, J. “I recognize that a trial court may grant a new trial in the interest of justice . . . But it did not even purport to do so here. Rather, the trial judge granted a new trial in this case”[d]ue to error in the portion of [the] jury charge related to Class C lesser included offense of Disorderly Conduct.’ Since that error was unobjected-to and unquestionably harmless, I fail to see how a new trial serves the interest of justice. Nor can I see how it was anything other than an abuse of discretion . . . I would therefore reverse the trial court’s order.”

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