Balash v. State

720 S.W.2d 878, 1986 Tex. App. LEXIS 9165

• Court: Court of Appeals of Texas
• Decided: November 26, 1986
• Docket: A14-85-754-CR
• Status: Published

Opinions

OPINION

MURPHY, Justice.

Appellant was convicted by the court of the offense of public lewdness and punishment was assessed at a fine of five-hundred dollars. Appellant raises two points of error on appeal. In point of error number one she claims that the trial court erred in failing to grant her motion to set aside the information because the public lewdness statute is unconstitutionally vague as it is applied to this case and in point of error number two she claims the evidence is insufficient. We affirm.

Appellant, while dancing with a male partner at a local nightclub, was observed by Houston police officers rubbing the genitals of her partner through his trousers. The rubbing continued for a “couple of minutes”; she was arrested and charged with public lewdness.

In her first point of error appellant claims that the public lewdness statute, Tex.Pen.Code Ann. § 21.07 (Vernon 1974), is unconstitutionally vague as applied to this case. Section 21.07 states in pertinent part: “A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act: (3) an act of sexual contact.” Id. Sexual contact is defined in Tex.Pen. Code Ann. § 21.01 (Vernon Supp.1986), as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” Id.

The United States Supreme Court has held that “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). No one has argued that the public lewdness statute involves First Amendment freedoms. The appellant’s acts in this case are similar to those which have previously been found to violate the public lewdness statute. See Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App.1978) (defendant violated public lewdness statute when he placed his hand on portion of another person’s trousers which covered that person’s genitals). Sections 21.07 and 21.01 of the penal code are not vague in their application to appellant’s conduct in this case. Appellant’s first point of error is overruled.

In her second point of error appellant contends that the evidence is insufficient to show that appellant possessed the intent to arouse or gratify her own sexual desire as alleged in the information. Intent to arouse or gratify sexual desire may be inferred from the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 213 (Tex.Crim.App.1981). The evidence at trial showed that appellant and her dance partner were fondling each other. Appellant’s rubbing of her male partner’s genital’s was “pretty continuous there for a couple of minutes.” Appellant smiled while this was happening. The facts of the case permit the inference that appellant possessed the requisite intent to arouse or gratify her own sexual desire.

After a review of the record before us, viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to allow a rational trier of fact to find the element of intent beyond a reasonable doubt. See Jackson v. State, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). Appellant’s second point of error is overruled.

The judgment is affirmed.