Byrum v. State

762 S.W.2d 685, 1988 Tex. App. LEXIS 2960, 1988 WL 126598
CourtCourt of Appeals of Texas
DecidedDecember 1, 1988
DocketC14-88-108-CR
StatusPublished
Cited by26 cases

This text of 762 S.W.2d 685 (Byrum v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byrum v. State, 762 S.W.2d 685, 1988 Tex. App. LEXIS 2960, 1988 WL 126598 (Tex. Ct. App. 1988).

Opinions

MAJORITY OPINION

MURPHY, Justice.

Melissa Kay Byrum appeals her misdemeanor conviction for the offense of public lewdness by sexual contact. Tex.Penal Code Ann. §§ 21.07(a)(3) & 21.01(2) (Vernon 1974 & Supp.1988). She waived her right’ to a jury trial for this and a related offense. The trial court found appellant guilty in this cause and assessed her punishment at thirty days’ punishment in the Harris County Jail, probated, and a $350 fine. Appellant raises five points of error. She questions the constitutionality of the statutes defining the offense and the sufficiency of the evidence. She further contends the trial court erred by admitting portions of the testimony of the State’s [687]*687witness and by overruling her objections to the amended information. She also maintains that a fatal variance between the amended information and the complaint mandates a reversal of her conviction. We affirm.

Subsection (a) of the public lewdness statute, Tex.Penal Code Ann. § 21.07 (Vernon 1974), states that “[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[.]” Sexual contact, which Section 21.01(2) of the Penal Code defines 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,” is one of four acts Section 21.07(a)(3) proscribes.

In her first point of error the appellant contends Sections 21.07 and 21.01 are unconstitutionally “vague and/or overbroad” both facially and as applied. Such a combined attack on the validity of a statute requires that we address appellant’s facial overbreadth challenge first. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

An overbroad statute sweeps too broadly by attempting to regulate constitutionally protected activity. Id.; see Broad-rick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-2918, 37 L.Ed.2d 830 (1973). Although the appellant has never argued that the first amendment or other fundamental interest protected her conduct, the issue controlling her facial over-breadth challenge is whether Sections 21.-07(a)(3) and 21.01(2) substantially encompass protected activity. Village of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191; Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-2918. We conclude they do not. The statutes forbid knowing, intentional conduct only, a factor which tends to weaken a facial overbreadth challenge. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-2918. “Sexual contact,” as defined by Section 21.-01(2), prohibits touching of body parts precisely defined by their anatomical names, if the touching is done with the specific intent to arouse or gratify any person’s sexual desire. The statutes further require that the touching be performed either publicly or recklessly, i.e., without considering whether someone is present “who will be offended.” This factor tends to show that the statutes do not substantially attempt to regulate otherwise protected private conduct. We conclude the statutes do not substantially reach constitutionally protected activity and reject appellant’s facial overbreadth challenge.

Village of Hoffman Estates requires that we turn next to the appellant’s facial vagueness challenge. 455 U.S. at 494-95, 102 S.Ct. at 1191-1192. Ordinarily, a facial challenge to the vagueness of a law will encompass all possible applications of the law. Id. However, a person who engages in conduct which the law proscribes cannot complain of the law’s application to others. Id. at 495, 102 S.Ct. at 1191-1192; United States v. Raines, 362 U.S. 17, 19, 21, 80 S.Ct. 519, 521-522, 522-523, 4 L.Ed.2d 524 (1960). As our discussion of the sufficiency of the evidence indicates, appellant did violate Section 21.07(a)(3). Therefore, this court will address her facial vagueness challenges to Sections 21.-07(a)(3) and 21.01(2) only if the statute is impermissibly vague as applied to her conduct in the instant case. Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987) (en banc), citing Village of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191 and United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975); Balash v. State, 720 S.W.2d 878, 879 (Tex.App. — Houston [14th Dist.] 1986, pet. ref’d). In Balash, which challenged the same statutes on a vague-as-applied basis, this court found no vagueness in the application of the statutes to the defendant’s rubbing her male partner’s genitals while dancing with him at a Houston nightclub. 720 S.W.2d at 879.

The facts show that the appellant was in a public place when she knowingly performed an act the statutes clearly proscribe, touching an undercover officer’s genitals with the requisite specific intent. [688]*688Although Section 21.07 does not define “touching,” its ordinary meaning implies perception of the actor’s body contact through the sensation of feeling. Resnick v. State, 574 S.W.2d 558, 559 (Tex.Crim.App. [Panel Op.] 1978). Thus, the officer’s wearing trousers would not prevent his sensing the touch of the appellant’s naked buttocks and thighs. See Balash, 720 S.W.2d at 879. Accord, Guia v. State, 723 S.W.2d 763, 766 (Tex.App. — Dallas 1986, no pet.) (clothing worn by victim would not preclude conviction for indecency with a child by sexual contact).

We further note that the statutes require a specific culpable mental state, a factor which tends to defeat a vagueness challenge. United States v. Nat’l Dairy Prod. Corp., 372 U.S. 29, 35-36, 83 S.Ct. 594, 599-600, 9 L.Ed.2d 561 (1963); Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). As we hold in our discussion of the sufficiency of the evidence, the State offered circumstantial proof that the appellant knowingly intended to arouse or gratify the undercover officer’s sexual desire. The officer testified that appellant “knew exactly what she was rubbing at” and that it was his impression that she intentionally touched his genitals to arouse his sexual desire, thereby to receive more than $10.00 for the dance.

Because the statute clearly proscribes both the acts appellant committed and her knowing intent to arouse the undercover officer, we hold that Sections 21.-07(a)(3) and 21.01(2) are not unconstitutionally vague as applied to the facts of her case. Accordingly, we need not address her facial vagueness challenge. Village of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191-1192; Briggs,

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Bluebook (online)
762 S.W.2d 685, 1988 Tex. App. LEXIS 2960, 1988 WL 126598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrum-v-state-texapp-1988.