No. 05-03-00648-CR.
Opinion Filed January 21, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB01-76537-C. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice WRIGHT.
Jaclyn Jo Williams appeals her conviction for public lewdness. After the trial court found appellant guilty, it assessed punishment at 120 days' confinement, probated for twelve months, and a $400 fine. In three points of error, appellant contends (1) the evidence is legally insufficient to support her conviction; (2) certain testimony was not sufficiently corroborated; and (3) the penal code section prohibiting public lewdness by sexual contact is unconstitutionally broad. We overrule appellant's points of error and affirm the trial court's judgment.
Background
Officer Michael A. Mendez, a Dallas Police vice officer, testified that while working in his capacity as a vice officer, he went to a topless club known as Lipstick. A short time after he arrived, appellant asked Mendez if he wanted some table dances. According to Mendez, appellant performed three table dances, during which appellant rubbed Mendez's genital area with her hands, her breasts, and her face. Afterwards, appellant went and performed on stage. After performing on stage, appellant took Mendez to a more secluded table where she performed three more table dances for Mendez. During these dances, appellant performed as before, but also unzipped Mendez's pants and "placed her mouth on [his] penis and bit it." Mendez payed appellant for the table dances and left the club. Appellant was later charged with and convicted of public lewdness. This appeal followed. Sufficiency of the Evidence
In her first point of error, appellant contends the evidence is legally insufficient to support her conviction because the record shows Mendez was clothed when she touched him. Specifically, appellant argues that the new definition of "sexual contact" added to the penal code in section 21.11 (indecency with a child statute) invalidates the court of criminal appeals holding in Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim. App. 1978). Appellant concludes "sexual contact" as defined by section 21.01 of the penal code no longer includes touching an undercover officer's genitals over his clothing because section 21.01 was not amended to specifically mention it. We disagree. Prior to September 1, 2001, "sexual contact" was defined only in section 21.01 of the penal code 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." See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3615, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 2001Tex. Gen. Laws 1378, 1378 (current version at Tex. Pen. Code Ann. § 21.01 (Vernon Supp. 2004)). This general definition has been construed by the court of criminal appeals to include touching over clothing. Resnick, 574 S.W.2d at 560. In 2001, the Texas Legislature added a new definition of sexual contact to the indecency with a child statute. That definition, which applies only to that particular statute, prohibits touching of any body part of a child with the anus, breast, or genitals of a person and specifically includes touching through clothing. See Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, 2001 Tex. Gen. Laws 1378, 1378 (current version at Tex. Pen. Code Ann. § 21.11(c) (Vernon 2004)). At the same time, the legislature amended section 21.01 to include the phrase "except as provided by section 21.11." See Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 1, 2001 Tex. Gen. Laws 1378, 1378 (current version at Tex. Pen. Code Ann. § 21.01(2) (Vernon 2004)). Thus, the general definition of sexual contact contained in section 21.01 continues to apply to appellant's prosecution for public lewdness. Although the general definition has been amended to include the language "except as provided by Section 21.11," we cannot conclude this amendment implicitly changed the general definition to exclude touching through clothing. The legislature did not amend the operative language of the general definition. Thus, we presume the legislature intended the same construction to continue to be applied to the general definition contained in section 21.01. See Miller v. State, 33 S.W.3d 257, 260 (Tex.Crim. App. 2000) (When a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one.). To conclude otherwise would lead to the "absurd result" rejected by the court of criminal appeals in Resnick. See Resnick, 574 S.W.2d at 560. We overrule appellant's first point of error. Accomplice Witness Corroboration
In her second point of error, appellant contends Mendez was an accomplice in the offense whose testimony must be corroborated. We disagree. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). To be subject to the accomplice witness rule, a person must be susceptible to prosecution for the offense with which the accused is charged. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (1998). However, a law enforcement officer may not be prosecuted for a crime if he participates solely for the purpose of apprehending one engaged in crime and bringing him to justice. See Vela v. State, 373 S.W.2d 505, 507 (Tex.Crim.App. 1963). Thus, an undercover police officer is not an accomplice so long as the agent merely obtains evidence to be used against those engaged in the crime, although he may technically commit a crime. See Reese v. State, 877 S.W.2d 328, 336 (Tex.Crim.App. 1994); Lopez v. State, 574 S.W.2d 563, 565 (Tex.Crim.App. [Panel Op.] 1978); Passmore v. State, 544 S.W.2d 399, 401 (Tex.Crim.App. 1976). Although appellant maintains Mendez was not merely obtaining evidence because he paid appellant for the lap dances, we disagree. Nothing in the record indicates that Mendez improperly induced appellant to perform the table dances for him. Rather, the record shows appellant came up to Mendez at his table and volunteered to do so. Nor does the record show Mendez did anything to induce the "extra" treatment by appellant. Finally, although we question whether it was necessary for Mendez to allow appellant to perform six table dances for him, we cannot conclude that doing so somehow made his behavior unlawful or expanded his behavior beyond that of merely collecting evidence. In reaching this conclusion, we necessarily reject appellant's argument that cases such as Lopez and Passmore are inapplicable because they involve drug offenses which ordinarily occur in secret and this crime must take place in public where officers may readily observe the offense without the need to work undercover. Rather, we agree with the State that the use of undercover officers is essential to the enforcement of both vice and narcotics laws. This is so not because of where these types of offenses ordinarily occur, but because these types of crimes rarely have complaining witnesses. See Lewis v. United States, 385 U.S. 206, 210 n. 10 (1996). Because these so-called "victimless crimes" could not otherwise be detected, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. United States v. Russell, 411 U.S. 423, 445 (1973) (Stewart, J., dissenting). Mendez's conduct, although perhaps repeated unnecessarily, did not exceed that needed to afford appellant the opportunity to commit a crime. Thus, we conclude he was "merely obtaining evidence" to be used against her and he was not an accomplice in this case. We overrule appellant's second point of error. Constitutionality of Section 21.07.
In her third point of error, appellant contends section 21.07(a)(3) is facially unconstitutional because it is overly broad and infringes on her "expressive conduct," i.e., nude dancing. We disagree. Although nude dancing has been considered "expressive conduct within the outer perimeters of the First Amendment, though . . . only marginally so," see Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991), appellant was not charged with erotic dancing for an audience. She was charged with public lewdness by touching Mendez's genitals in a public place with the intent to sexually arouse Mendez. The evidence showed her table dances were performed for Mendez and not for the patrons at large. Furthermore, appellant has not cited a single case that even remotely suggests such conduct is constitutionally protected. For these reasons, we conclude appellant's conviction did not violate the First Amendment. See Byrum v. State, 762 S.W.2d 685, 687-88 (Tex. App.-Houston [14th Dist.] 1988, no pet.). We overrule appellant's third point of error. Accordingly, we affirm the trial court's judgment.