dissenting.
I dissent.
Appellant claims that the information does not charge an offense and alternatively, fails to give him adequate notice of the offense charged. Majority agrees and reverses; I disagree and would affirm.
The import of the majority opinion, Part I, is simply that the charging instrument is insufficient because a willing, yet “passive,” participant to an act of public lewdness cannot be convicted under the law. I believe that under the law of “parties” and the holding in Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979), the information sufficiently describes prohibited conduct.
There are two “acts” relevant to this opinion, not to be confused. The first “act” is the prohibited conduct — the gravamen of the offense. This is the act of touching and may be committed by the accused or by one other than the accused. Majority, in reversing, starts with the premise that the act of touching must be done by the appellant, yet the statutory definition of sexual contact, as majority incorrectly implies, does not specify who must be the agressor of the sexual contact, who must do the touching, or whose sexual desire is intended to be aroused or gratified. Tex.Penal Code Ann. § 21.01 (Vernon 1974).
The second “act” is part of the law of “parties.” This “act” unlike the first “act” discussed, must be done by the accused to invoke the law of “parties.” The law of parties is a law that prescribes the responsibility of a suspect for the criminal conduct of another, or stated differently, the “acts” of another. Tex.Penal Code Ann. § 7.02 (Vernon 1974). The law of parties need not be pled, only charged to the jury if raised by the evidence. English v. State, 592 S.W.2d 949, 955 (Tex.Cr.App.), vacated on other grounds, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980). The law of parties was charged to the jury in this case.
I would hold the recitation in the information “... by then and there allowing the said Danny Burks, to touch his genitals ...,” accompanied by the requisite culpable mental state, to be sufficient. It describes a “touching” which should not be regarded as an exclusive act. Touching, within the statutory definition of “sexual contact” means to perceive by the sense of feeling. Resnick v. State, 574 S.W.2d 558, 559 (Tex.Civ.App.1978). It would seem reasonable that all perceive by the “sense of feeling.” Once the information specified “sexual contact” as the touching of genitals, it became legally sufficient to withstand a motion to *911quash. See Thomas v. State, 621 S.W.2d 158 (Tex.Civ.App.1980); Ferguson v. State, 622 S.W.2d 846 (Tex.Civ.App.1981). The further recitation in the information, namely, “... by allowing ...” should not be construed to mean that appellant was not also “touching” within the meaning “perceive the sense of feeling.” The words “by allowing”, are used by the State to identify the role of the accused of conduct in which two persons are willing participants. Once the State proved the “act” of Danny Burks’ touching the genitals of appellant, the State could then prove appellant’s responsibility for that act under the law of parties.
This issue was decided in Jacquez v. State, supra, discussed by majority. This was an appeal from a conviction for indecency with a child pursuant to Tex.Penal Code § 21.11 (Vernon 1974), that provides:
(a) a person commits an offense if, ... he
(1) engages in sexual contact with a child. (Emphasis added.)
It is important to note that both the “sexual contact” as used in § 21.11, Indecency with a Child, and as used in § 21.07, Public Lewdness, are identically defined by § 21.01(2) of the Penal Code. Therefore the interpretation given by the courts to the term “sexual contact” in an indecency with a child case would be equally applicable in a public lewdness case. The facts of Jacquez are identical to the present case in that the defendant did not touch the children’s genitals, but instead, was touched by the children. The Court of Criminal Appeals, in affirming stated:
We agree with appellant that the statutory definition of sexual contact seems to contemplate that sexual conduct occurs when the accused touches the victim’s genitals, and not vice versa. However, the statutory definition of indecency with a child provides that a person commits an offense if he “engages in sexual contact 'with the child.”1 ... By grabbing the complainants and forcing them to “touch and scrub” appellant’s penis, appellant engaged in sexual contact with the complainants.
Thus the rule is that one can “engage in sexual contact” by being touched, as well as by touching “another person.”
The majority has attempted to distinguish Jacquez from the present facts as Jacquez addressed the sufficiency of the evidence, rather than the allegations in the information, yet it follows that if the act of “allowing” in Jacquez is sufficient to support a conviction, then a recitation of “allowing” in the pleading will serve to describe prohibited conduct. The court in Jacquez cites Tex.Penal Code Ann. § 7.02(a)(1) (Vernon 1974), indicating that the law of “parties” was charged, as it was in the present case.
The majority opinion looks beyond the pleadings to the facts of Jacquez, supra, to demonstrate how the accused in that case “acted” (by “grabbing and forcing”) to invoke the law of parties. Since the law of parties is not raised by the information, but rather the evidence submitted at trial, we must look to the evidence, rather than the information to find the “act” making the appellant criminally responsible.
On the evening of March 29,1979, several Dallas Police Department officers assigned to vice were working undercover in a “gay” bar located in the 3900 block of Cedar Springs in Dallas County. There were between 150-200 patrons in the bar, mostly men, and there was a dance floor where the men were seen dancing together. Several officers testified to the same series of events. Danny Burks was sitting on a bar-stool with his legs spread, kissing the appellant “passionately” on the lips. While kissing, appellant was rubbing Danny Burks’ genitals with his hand. They were willing participants in that neither made any movement to avoid the contact.
The first officer then called other officers to observe. They testified that when they arrived, appellant and Danny Burks were then standing at the end of the bar, kissing *912on the lips and hugging, during which Danny Burks was seen rubbing appellant’s genitals for a moment or two. Both appellant and Danny Burks were arrested shortly thereafter. It was this second encounter that was the offense alleged in the information. These facts are not contested, and they indicate more than “mere presence at the scene," as suggested by majority.
Once the evidence became sufficient to support a finding of “sexual contact” the jury was then entitled to determine the responsibility of the appellant. As stated in the law of parties, the appellant would be responsible if, “acting with intent to promote” the commission of the offense, he “encouraged” Danny Burks. “Acting” as used in Tex.Penal Code Ann. § 7.02 (Vernon 1974), modifies the words “intent to ... promote” in defining responsibility and, again, should not be confused with the “act” necessary in defining the forbidden conduct namely, “an act of sexual contact.” See Tex.Penal Code Ann. § 21.07(a)(3) (Vernon 1974). I would hold, unlike the majority, that the act of appellant in going to. a “gay” bar, his act of kissing Danny Burks, his act of rubbing Danny Burk’s genitals, and his act of spreading his legs to accomodate the “rubbing” are sufficient to prove that the appellant was acting with the intent to “promote” and “encourage” the sexual contact. I would therefore hold that appellant would be responsible for the sexual contact under the law of parties.
The majority contends in Part II of the opinion that the information is vague and ambiguous, thereby not providing adequate notice to the defendant. Once again I disagree. The majority, in citing no cases, has attempted a common sense approach to the construction of the word “his” in this information. In taking the same approach, I would hold that the allegation that the 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 ... ”, is not, unduly vague. It would be unreasonable to construe that, after first alleging that the appellant had sexual contact with Danny Burks, the subsequent description of the “contact” was appellant’s allowing Danny Burks to touch himself. I would hold that the appellant should have little difficulty in determining from the information that he was the one being touched.
In stretching to reverse, the majority has taken a hypercritical approach to the construction of the governing statute and chárging instrument, and in so doing, has, contrary to the language in Jacquez, supra, refused to apply the public lewdness law to both knowing partners engaging in an act of public lewdness. I vigorously disagree with the majority holding, and would accordingly affirm.
. The emphasized words “with the child” do not affect the application to this case of the principle of law stated therein,