Byrum v. State

• Decision Date: 01 December 1988
• Docket Number: No. C14-88-108-CR,C14-88-108-CR
• Citation: 762 S.W.2d 685
• Parties: Melissa Kay BYRUM, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 685

762 S.W.2d 685

Melissa Kay BYRUM, Appellant, v. The STATE of Texas, Appellee.

No. C14-88-108-CR.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 1, 1988.

Albert S. Low, Jr., Houston, for appellant.

Kathlyn Giannaula, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

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 witness 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 Broadrick 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 overbreadth 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. Although 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, 740 S.W.2d at 806. The first point of error is overruled.

In her second point of error the appellant argues there is insufficient evidence to sustain her conviction. This court reviews challenges to the sufficiency of the evidence in both jury and non-jury trials by reviewing the evidence in the light most favorable to the judgment or verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984) (en banc). In a circumstantial evidence case, the circumstances must exclude every reasonable hypothesis except the guilt of the accused. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984) (en banc).

Officer Demetrios Lemonitsakis worked undercover with the Harris County Sheriff's Department's vice division. On July 31, 1987, he went to the Executive Suite, a Harris County club where the appellant worked as a "topless" dancer. Lemonitsakis testified that the club allowed its stage dancers to perform "table" dances for individual customers. The club required a minimum $10.00 fee for the dance but allowed patrons to pay more. A "table" dance is done for an individual customer at his table. The officer had previously visited the club on June 15 when he paid the appellant $10.00 to do a table dance for him. He was working undercover at the time.

The appellant approached the officer's table when he went to the club on July 31. She wore only a G-string. She recognized him from his June 15 visit and asked if she could perform a table dance for him. When he agreed she turned his swivel chair away from the table and then spread his legs apart. During the dance the appellant rubbed her bare thighs and buttocks against the officer's penis. Lemonitsakis testified that because the appellant could have danced two feet away from him and still earned the $10.00 he paid her, he inferred from "what she was doing to me" that the appellant knew she was touching his genitals and did so to encourage him to pay her more for the dance.

The appellant approached the officer, offered to dance for him, danced much closer to the officer than was necessary to earn the $10.00, and actually made contact with his genitals. Moreover, the record shows that she touched only his genitals, and therefore permits the inference that her conduct was purposeful, knowing and intentional. Appellant denied any intent to arouse the officer. She also testified that customers who pay more get no special favors, that her only goal was to earn money, and that trying to arouse men would defeat that goal because the club would fine her if it observed her trying to arouse a customer. Her version of the facts does not preclude her conviction.

First, appellant's intent to make money would not preclude an intent to arouse the customer. Second, while the club's policy was to fine a dancer the first time she attempted to arouse a...