dissenting.
I respectfully dissent.
The majority, I believe has failed to state a few facts. Nine vice officers met at a mexican food restaurant in order to discuss their raid of a Houston night club. Once at the bar, the nine officers apparently all paid the $10.00 cover charge. Apparently, in order to retain their cover they engaged in drinking and dancing. At least three officers then observed appellant rubbing the genitals of her partner through his trousers.
The majority cites McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App.1981) for the proposition that the intent to arouse or gratify sexual desire may be inferred from the surrounding circumstances. In McKenzie the defendant approached two girls and asked them to help look for his dog. The defendant pulled down the pants of one of the girls and touched her genitalia. The court, however, refused to only rely on this act alone. Intent was inferred by his actions of attempting to get one of the girls alone, his explanation to a third party of what he was doing in an apartment complex, and his parting comment that he would see the girl again. A course of conduct, therefore, over a period of time was established. The court in McKenzie, however, conceded the closeness of the factual issue. Id. at 215.
I believe that this is a much closer case. The indictment alleged that the rubbing was sexually gratifying to the appellant. The best evidence brought forth of appellant’s sexual gratification was appellant’s smiling during the action. Unlike McKenzie, no course of conduct exists to show intent. Smiling alone is inadequate to establish intent. Appellant may have been smiling for many reasons. This does not mean that in all cases a course of conduct would be necessary to support the infer*880ence of intent. In close cases, however, one ambiguous act would seem to be inadequate.
In addition, the majority ignores the danger of their holding. The majority gives a broad interpretation to sexual contact. Tex.Penal Code Ann. § 21.07 (Vernon 1974) states:
A person commits an offense if he knowingly engages in any of the following acts in a public place ... (1) an act of sexual intercourse; (2) an act of deviate sexual intercourse; (3) an act of sexual contact; and (4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or foul.
Tex.Penal Code Ann. § 21.01 (Vernon Supp.1986) defines sexual contact as “[a]ny touching of the anus, breasts or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” The purpose of prohibiting sexual contact appears to be a catch-all provision to protect the public from viewing unwanted sexual acts. The majority gives a broad interpretation to the statute. With such a broad interpretation, the statute is in danger of being unconstitutional because of vagueness.
A penal statute fails for vagueness if it defines the criminal offense without sufficient definiteness so that ordinary people can understand what conduct is prohibited and it encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). The more important aspect of the vagueness doctrine is whether it encourages arbitrary and discriminatory enforcement. Id. at 357-58,103 S.Ct. at 1858-59. The legislature must establish minimal guidelines to govern law enforcement. Id. In determining whether a statute is void for vagueness, the state courts interpretation of the statute is controlling. See Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192-193, 38 L.Ed.2d 179 (1973). By interpreting a possible vague statute very narrowly, a state court can maintain the constitutionality of the statute.
The majority is increasing the scope of an already broad catch-all provision. The statute establishes very few guidelines initially. The majority expands upon this by requiring a very small showing of intent. Intent is probably the single most important factor in providing definiteness to public lewdness statutes. See Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031,1035-36, 89 L.Ed. 1495 (1945) (Plurality opinion).
I believe that the court’s interpretation causes the statute to be vague. As appellant has pointed out, under the majority’s interpretation, a person could be convicted under the statute for touching the front of a man’s shirt. Roger Staubach could be convicted if he happened to smile while taking the snap from the center. The interpretation of the majority can only lead to arbitrary enforcement.
In sum, the broad brush the majority has painted on the statute encourages discriminatory enforcement and further waste of the court’s time and the taxpayer’s money. I would reverse the decision of the trial court.