Green v. State

• Decision Date: 26 April 1978
• Docket Number: No. 56572,56572
• Citation: 566 S.W.2d 578
• Parties: Billy Ray GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 578

566 S.W.2d 578

96 A.L.R.3d 664

Billy Ray GREEN, Appellant, v. The STATE of Texas, Appellee.

No. 56572.

Court of Criminal Appeals of Texas,En Banc.

April 26, 1978.

Rehearing en banc Denied June 14, 1978.

Robert O. Smith, Austin, for appellant.

James L. McMurtry, County Atty. and Philip R. Lerway, Asst. County Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for public lewdness as denounced by V.T.C.A., Penal Code, Section 21.07. After a jury returned a verdict of guilty, the trial judge assessed appellant's punishment at ten days' confinement in the county jail, probated for one year, and a four hundred dollar fine.

Appellant contends that the trial judge: (1) failed to properly instruct the jury to properly apply the culpable mental state of the offense; (2) failed to apply the law to the facts in the charge to the jury; (3) admitted evidence obtained in violation of appellant's rights under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution; (4) failed to give appellant's requested instruction pertaining to whether certain evidence had been illegally obtained; (5) failed to give appellant's requested instruction pertaining to whether appellant's conduct occurred in a public place; (6) failed to give appellant's requested instruction on whether appellant knew he was in a public place; (7) failed to give appellant's requested instruction on mistake of fact; (8) failed to give appellant's requested instruction pertaining to whether appellant's conduct occurred in the common area of a shop; (9) erroneously excluded defensive evidence; and (10) failed to instruct a verdict of not guilty. We overrule these contentions and affirm.

On January 18, 1977, at approximately 12:00 a. m., Sergeants Belvin, Miller, Huckabee, Polk and Ray of the Austin Police Department, and Alcoholic Beverage Commission Agent Bacak, all of whom were in plain clothes, met at Mr. Peeper's Book Store at 213 East 6th Street in Austin.

The first section of Mr. Peeper's was a typical newsstand. The second section contained soft and hard core pornographic magazines, paraphernalia, films, and a sales counter. The third section, comprising the rear portion of the building, consisted of nineteen booths, hallways and a restroom. The booths contained coin-operated viewers which, when activated by the insertion of a quarter, played portions of movies depicting various sexual acts. These booths were all approximately six and one-half feet tall, although their internal dimensions varied. Entry into each booth was through a full length, nontransparent curtain. Some of the booths had red light bulbs on top of them which were designed to go on when the viewer inside the booth was activated. The lighting in the third section of Mr. Peeper's was dim and loud music was piped in through a stereo system.

There were between fifteen and thirty-five people going into and coming out of the booths.

Sergeant Belvin saw a man, later identified as Mark Edmund Webb, enter booth No. 18. Shortly thereafter, he saw another man, later identified as the appellant, go into the same booth. Belvin motioned to Sergeants Miller and Ray and they approached Belvin who told them that two people were in the booth. Appellant came out, looked up and down the hallway and reentered the booth.

Miller and Ray then stood near the booth and each looked into it through a three to five-inch gap between the curtain and the edge of the booth. The booth was illuminated by "black lights" and the viewer in the booth had been activated. Miller saw appellant fondle Webb, unzip Webb's pants, remove his penis, and masturbate him. He then saw appellant put his head in Webb's crotch area. Ray also saw appellant's head in Webb's crotch area.

Miller, followed by Ray, then entered the booth and Miller, while holding his Austin Police Department badge in one hand and a flashlight in his other hand, announced that appellant and Webb were under arrest. At that time Miller observed Webb's penis in the appellant's mouth and saw Webb moving his hips back and forth, while Ray heard appellant sucking on Webb's penis.

Appellant and Webb were led outside by Miller and Ray. Appellant then escaped. After a chase for several blocks and through several floors in the Stephen F. Austin Hotel, the appellant was apprehended by Miller and Officer Kohler of the Austin Police Department. Kohler testified that appellant's breath "smelled like soured milk or perhaps ammonia or urine."

The appellant contends, in substance, that the court erred in failing to charge that before finding him guilty the jury must find that he knew he was in a public place and knowingly engaged in deviate sexual intercourse. The court instructed the jurors that if they believed beyond a reasonable doubt that appellant ". . . did then and there in a public place, to-wit: Mr. Peeper's Book Store, a shop open to the public . . . knowingly engaged in deviate sexual intercourse . . . you will find the defendant guilty. . . ."

V.T.C.A., Penal Code, Section 21.07(a)(2), provides in part as follows:

"(a) 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:

" * * *

"(2) an act of deviate sexual intercourse;"

Reading Section 21.07 as a whole, sexual deviate intercourse is illegal if it is knowingly done and if it was in a public place. The same act would be a crime in a private place if recklessly done. If the conduct reveals that those involved are reckless about whether another is present who would be offended or alarmed by that act, it is recklessly done. See Brown v. State,558 S.W.2d 471 (Tex.Cr.App.1977).

We hold that knowingly as used in the statute applies only to the act of deviate sexual intercourse and not to the place where such act was committed.

The appellant's second contention is that the trial judge failed to apply the law to the facts in the charge to the jury and thereby commented on the weight of the evidence. The portion of the charge complained of is as follows:

"Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant, Billy Ray Green, on or about the 18th day of January, 1977, in the County of Travis, and State of Texas, as alleged in the information, did then and there in a public place, to-wit: Mr. Peeper's Book Store, a shop open to the public at 213 East 6th Street, Austin, Travis County, Texas, knowingly engaged in deviate sexual intercourse in that Billy Ray Green placed his mouth on the genitals of Mark Edmund Webb, you will find the Defendant guilty of the offense of public lewdness and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict 'Not Guilty.' "

He contends that the court erred in its charge by commenting on the weight of the evidence by not limiting the jury's determination of whether appellant's conduct occurred in a public place booth No. 18. He also requested a charge for the jury to determine if the booth was a public place.

The court instructed the jurors that if they believed beyond a reasonable doubt that appellant "as alleged in the information, did then and there in a public place, to-wit: Mr. Peeper's Book Store engaged in deviate sexual intercourse . . ." to find him guilty.

We hold that the charge was not a comment on the weight of the evidence. It required the jury to find him guilty only if they found that he committed the act as alleged. The judge did not assume any facts to be true. We also hold that the court did not err in refusing to limit the definition of a public place to booth No. 18. The information alleged in part that "Billy Ray Green did then and there in a public place, to-wit: Mr. Peeper's Book Store, a shop open to the public . . . knowingly engage in deviate sexual intercourse." All of the evidence shows that Mr. Peeper's Book Store was a public place. There was no evidence that the act was committed outside of the shop. The booth was open to anyone. All one had to do was draw the curtain to enter the booth. If one wanted to watch part of a moving picture, he could put a coin into the machine. Appellant testified that he looked into other booths and saw people in them. The store was open to the public, that is the way it was supposed to make a profit. Later in this opinion we hold that appellant had no right to expect privacy in the booth. Under all of the evidence the booth was part of a public place.

V.T.C.A., Penal Code, Section 1.07(a)(29), defines "public place" as "any place" to which the public or a substantial group of the public has access.

In Loden v. State, 561 S.W.2d 2 (Tex.Cr.App.1978), the defendant's probation was revoked on the ground that he appeared in a public place under the influence of alcohol to the degree that he endangered himself or others. He was arrested by an officer in the Sundance Saloon. He contended that there was no evidence to show that it was a public place. The Court noted that, although no witness testified the Sundance Saloon was a public place, the evidence showed that it was open for business on the night in question.

The proof shows that Mr. Peeper's was open for business on the night in question.

Appellant contends that the trial judge admitted evidence which was seized in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution. He argues that the testimony of Officers Miller and Ray relating to what they had seen through the crack between the curtain and the edge of the booth was the result of an unconstitutional search and seizure.

The basic purpose of the Fourth Amendment and Article 1, Section 9 is to...