Herring v. State

FISH, Justice.

Appellant was convicted of public lewdness by a jury. The court set punishment at 30 days in jail, probated for one year, and a fine of $1,000. Appellant contends on appeal that the trial court should have granted his motion to quash (1) because the information did not allege that he committed an offense against the laws of the state of Texas and (2) because the information is so ambiguous that it failed to give him adequate notice of the conduct charged. We agree with both contentions and consequently reverse.

I. Was Appellant Charged With An Offense?

The first question presented on this appeal is whether appellant “engage[d]” in an act of sexual contact by “allowing” another “to touch his genitals.” We hold that he did not.¹

Appellant’s conduct was not criminal unless made so by legislative act. The Penal Code provides that:

[e]onduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.²

Sec. 1.03(a), Tex.Penal Code Ann. (Vernon 1974).

Thus, allowing another to touch one’s genitals with intent to arouse and gratify, as alleged in the information, is not punishable unless it is “conduct ... defined as an offense.” Sec. 1.03(a), Tex.Penal Code Ann. (Vernon 1974). “Conduct” is defined as “an act or omission and its accompanying mental state.” Sec. 1.07(a)(8), Tex.Penal Code Ann. (Vernon 1974). To decide whether appellant was guilty of such conduct, we must determine whether he engaged in an “act” or “omission,” as those terms are defined in the Code.

Taking these possible meanings of “conduct” in reverse order, we first examine the State’s contention, made at oral argument, that appellant’s “allowing” the touching of his genitals was culpable conduct because it was an omission³ to perform a legal duty. This contention is refuted by the express language of the Penal Code: “[a] person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Sec. 6.01(e), Tex.Penal Code Ann. (Vernon 1974). The State has not referred us to any statute providing that this “omission” is an offense or that appellant had a duty to perform an act but did not. Moreover, failure to allege such a duty in the charging instrument is a fundamental defect. Lang v. State, 586 S.W.2d 532, 533 (Tex.Cr.App.1979); Ronk v. State, 544 S.W.2d 123, 125 (Tex.Cr.App.1976). Since the information here did not allege a duty appellant failed to perform, his “allowing” of a genital touch cannot be sustained as conduct through omission.

We next consider whether the information may be upheld under the alternate definition of “conduct,” viz., that it charged appellant with an “act.” In determining whether appellant has engaged in an “act” of “allowing” another to touch his genitals, we must turn to the statutory definition of the offense charged. The Penal Code defines public lewdness, in pertinent part, as follows:

Sec. 21.07. Public Lewdness

(a)A person commits an offense if he knowingly engages in any of the following acts in a public place ...

(3)an act of sexual contact....

Tex.Penal Code (Vernon 1974). The term “sexual contact” is elsewhere defined as follows:

Section 21.01. Definitions In this chapter:

(2) “Sexual contact” means any touching of ... any part of the genitals of another person ... with intent to arouse or gratify the sexual desire of any person.

Tex.Penal Code Ann. (Vernon Supp.1982). By these definitions, the elements of public lewdness to be proved in this case are:

(1) A person (appellant)

(2) knowingly engages in

(3) any touching

(4) of any part of the genitals

(5) of another person

(6) with intent to arouse or gratify the sexual desire

(7) of any person

(8) in a public place.

The information does not charge appellant with this offense, for it does not allege that he touched the genitals of another person. Rather, it avers that appellant allowed another person to touch his genitals. Clearly, then, appellant’s own “acts,” if any, are insufficient, as alleged, to constitute the offense.

The State argues that appellant’s conviction should nevertheless be affirmed under the law of parties.⁴ The law of parties provides that “an accused may be charged with an offense on the theory that, although he did not, himself, alone commit it, he is criminally responsible for the conduct of the one or more persons who did.” Galvan v. State, 598 S.W.2d 624, 628 (Tex.Cr.App.1979) (On State’s Motion For Rehearing). While the law of parties makes an accused criminally responsible, under some circumstances, for the conduct of another, see section 7.02, it does not alter the definition of the conduct constituting an offense. On the contrary, the language in section 7.02, making an accused vicariously responsible for aiding another “to commit the offense”, still requires conduct constituting an offense plus an intentional act by the accused to promote or assist such conduct. Unless “allowing” a genital touch is itself an offense (i.e., an act with a culpable mental state), see section 21.07(a)(3), or unless “allowing” such a touch constitutes “acting with intent” to promote or assist commission of an offense, see section 7.02(a)(2), the information does not charge appellant with culpable conduct even under the law of parties. We must determine, therefore, whether “allowing” a genital touch is an act.

In the Penal Code, “act” means “bodily movement, whether voluntary or involuntary .... ” Sec. 1.07(a)(1) Tex.Penal Code Ann. (Vernon 1974). The word “allow” is given several meanings in Webster’s Third New International Dictionary of the English Language Unabridged (1976) at 58, but only one of them is applicable here— “4:PERMIT a: to permit by way of concession b: to permit by neglecting to restrain or prevent.” Employing the common usage of “allow,” as we are commanded to do by Section 1.05(b), Tex.Penal Code Ann. (Vernon 1974), and article 5429b-2, section 2.01, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1982), see Ex parte Cone, 601 S.W.2d 383, 385 (Tex.Cr.App.1980) (En Banc), we construe the information to accuse appellant of permitting or letting someone else touch his genitals by failing to restrain or prevent such touching. In other words, appellant was accused of “not restraining” or “not preventing” the touching. Thus measuring the offense charged in the information, as that language is commonly used, against the Code’s definition of an “act,” plainly reveals that appellant could be guilty of “allowing” a genital touch without any bodily movement, i.e., without an “act.” As a matter of definition, it logically follows that appellant cannot be guilty of the offense charged because “allowing” is not an act (and therefore not conduct as defined in the Penal Code).⁵ Furthermore, appellant cannot be guilty under the law of parties, because section 7.02(a)(2) requires “acting with intent to promote or assist commission of the offense.” If “allowing” a genital touch is not an act to constitute an offense, it is likewise not an act to promote or assist the commission of an offense.

A second problem also prohibits acceptance of the State’s contention regarding the law of parties. To convict appellant as a party, the State had to prove that appellant was (1) “acting with intent to promote or assist the commission of the offense” and (2) that the culpable intent attached to the proscribed act at the time the conduct was performed. See Ely v. State, 582 S.W.2d 416, 420 (Tex.Cr.App.1979). Although intent, being subjective, may be shown by the surrounding circumstances, appellant’s mere presence at the scene is not enough. He must do or say something from which a culpable intent can be inferred. As noted earlier, however, appellant might be shown to be guilty of the charge — allowing the touching of his genitals — without doing anything at all. Under these circumstances, evidence of appellant’s intent to promote or assist commission of the offense would have to be inferred from his mere presence, which is insufficient. See Suff v. State, 531 S.W.2d 814, 817 (Tex.Cr.App.1976); Ortiz v. State, 577 S.W.2d 246, 248 (Tex.Cr.App.1979). Cf. Torme v. State, 525 S.W.2d 9, 10 (Tex.Cr.App.1975) (intent to arouse and gratify can be inferred from appellant’s actions together with statement he wanted to “make love” to complainant).

II. Did the Information Give Appellant Adequate Notice?

The second question presented on this appeal is whether appellant’s motion to quash should have been sustained because the information was ambiguous in alleging whose genitals were touched and who had the culpable mental state. We hold that the trial court erred in overruling appellant’s motion. The information accused appellant of “then and there allowing the said Danny Burks to touch his genitals, with the intent to arouse and gratify the sexual desire of defendant .... ” From this language, the genitals which are being touched, as well as the intent to arouse and gratify, might belong either to Danny Burks or to appellant. The number of possible interpretations is shown by the following table:

Whose genitals Whose intent

1. A[ppellant] A

2. A B[urks]

3. B A

4. B B

If the information is interpreted according to number 1 in the table, it did not state an offense by appellant for the reasons already given. If interpretation number 2 is correct, the information was defective because it did not allege that appellant had the culpable mental state required by section 21.01(2). If interpretation number 3 or 4 is correct, the information failed to allege the offense of public lewdness based on sexual contact. Burks could not engage in an act of sexual contact by touching his own genitals, because section 21.01(2) defines “sexual contact” as any touching of the genitals of another person.

In summary, the ambiguity of the information, and its failure to allege an offense by appellant under any conceivable interpretation, require that appellant’s conviction be reversed.⁶

Reversed and remanded with instructions to dismiss the information.

1 .The information charged that appellant “did ... knowingly engage in an act of sexual contact with Danny Burks, by then and there allowing the said Danny Burks, to touch his genitals, with the intent to arouse and gratify the sexual desire of defendant, while said persons were in a public place.”

2 . Emphasis supplied throughout unless otherwise indicated.

3 . “Omission” means “failure to act.” Sec. 1.07(a)(23), Tex.Penal Code Ann. (Vernon 1974).

4 . The Penal Code defines the law of parties as follows:

Section 7.01 Parties to Offenses

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

(b) Each party to an offense may be charged with the commission of the offense.

(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.

§ 7.02. Criminal Responsibility for Conduct of Another

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense ....

Tex.Penal Code Ann. (Vernon 1974).

5 . Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979) actually points to — rather than away from — our conclusion, despite the dissent’s assertion to the contrary. In Jacquez, the Court read the statute defining “sexual contact,” Sec. 21.01, in the same way we do:

The statutory definition of sexual contact seems to contemplate that sexual contact occurs when the accused touches the victim’s genitals, and not vice versa.

579 S.W.2d at 249.

The Court then held that the evidence was sufficient to support appellant’s conviction of indecency with a child because it showed appellant had grabbed the minor victims and forced them to “touch and scrub” his penis.

We note that this portion of the Jacquez opinion dealt with a challenge to the sufficiency of the evidence, which requires a different standard of appellate review than a challenge to the charging instrument. See note 6 below. Even assuming, however, the applicability of Jacquez to measure the sufficiency of the information in this case, the “grabbing” and “forcing” there involved were clearly “acts” as defined in Sec. 1.07(a)(1), because they required “a bodily movement.” Nothing in Jac-quez suggests that “allowing,” as charged here, is an act.

6 . The recitation of evidence by the dissent is irrelevant. “Axiomatic is the proposition that an indictment must be tested for validity by itself as a pleading, and can neither be supported nor defeated as a pleading by evidence” [citations omitted]. Gibson v. State, 623 S.W.2d 324, 329 n.4 (Tex.Cr.App.1981) (En Banc) (Opinion On State’s Motion For Rehearing)-