DeGuerin: Size matters; Court: Nah

A promise and a prediction. I will do my best not to insert bad puns into this column.

I will fail.

Houston's 14th Court of Appeals on Tuesday upheld the conviction of a local doctor for indecent exposure.

The court rejected the argument by high-profile attorney Dick DeGuerin and his associate Neal Davis that the doctor could not have exposed himself to an undercover cop because that which is alleged to have been exposed is too small to have been seen.

I'm not naming the doctor because his two innocent children don't deserve the playground abuse that would come both from their father's crime and the defense that he and his attorneys decided to pursue.


A walk in the woods
The story begins on a Monday afternoon nearly two years ago with two plainclothes vice officers in separate cars looking for perverts in Memorial Park.

One of the officers, Daniel Leal, testified that he noticed that a car was following him and pulled into a parking lot. He said the suspect pulled up next to him and, making eye contact, began fondling himself.

Leal said the man, wearing a dress shirt, tie and dress pants, got out of his car and approached him.

He said the man asked him if he wanted to come sit in his car, but Leal said he'd rather go over to a wooded area.

Leal said that, in the woods, the man pulled up his T-shirt and massaged his abdomen, then the suspect started undoing his own pants but stopped when two men walked nearby.


Just wanted to talk
At Leal's suggestion, they moved to a spot behind a nearby men's room, where the doctor asked Leal to "Let me see."

Leal says he declined but said, "You let me see."

Leal says the doctor did, whereupon Leal put him under arrest and was joined by his partner.

At trial the doctor gave a considerably different version. He said he went to the park during a 20-minute work break and just wanted to talk to someone.

He said Leal was the first one to make eye contact, they both got out of their cars at the same time and he neither fondled nor exposed himself.

He said he agreed to go into the woods at Leal's suggestion just to continue a conversation in which they talked about "usual stuff" such as marriage and family.

He said Leal lifted his own shirt to show off his stomach muscles and ordered him to do the same.

Even though he was uncomfortable about it, the doctor said he began untucking his shirt, then they heard some people.

He said at Leal's suggestion they moved behind the restroom, which was locked, and he did lift up his shirt, at which time he was arrested.

The jury found the doctor guilty, and the judge gave him six months in jail, but suspended the sentence to two years of community supervision.

The doctor had not used DeGuerin and Davis for the trial but hired them for the appeal.

What might be called the 2.8-inch issue (as measured by a urologist DeGuerin called as an expert witness during a subsequent hearing) did not come up at the trial.

The original attorney testified at the hearing the doctor never told him about his physique. The doctor disagreed, testifying that he mentioned it at their first meeting, but the lawyer said it "would be demeaning to bring up in court" and "this case is about exposure, not about size."

But DeGuerin and Davis argued that it was a key bit of evidence. For one thing, the doctor said he is so embarrassed that he avoids exposure to anyone but his wife.

Secondly, the urologist testified that given the officer's own description of how the doctor allegedly showed off, the illegal part of the alleged display would have been concealed by the doctor's palm, which the urologist measured as being more than half again as large as the subject at hand.

In a 30-page opinion clinically crafted to avoid double-entendres, Justice Wanda McFee Fowler (writing for a unanimous three-judge panel) rejected the defense argument.

She said the trial judge could reasonably have believed the trial lawyer that he was unaware of his client's stature. She rejected DeGuerin's argument that it was the lawyer's duty to ask his client about it.

DeGuerin and Davis made other arguments, but the court rejected those as well.

The bottom line: This is a case that could be described as de minimis, a legal term defined by Black's Law Dictionary as "1. Trifling, minimal. 2. (Of a fact or thing) so insignificant that a court may overlook it in deciding an issue or case."

You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at rick.casey@chron.com

What might be called the 2.8-inch issue (as measured by a urologist DeGuerin called as an expert witness during a subsequent hearing) did not come up at the trial.

But DeGuerin and Davis argued that it was a key bit of evidence. For one thing, the doctor said he is so embarrassed that he avoids exposure to anyone but his wife.