OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.As pertinent here V.T.C.A. Penal Code, § 21.07(a)(3) provides that a person commits an offense if in a public place he “knowingly engages in ... an act of sexual contact,” and for purposes of sexual offenses denounced in Chapter 21 “sexual contact” means, again as germane here, “any touching of ... any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person,” *392id., § 21.01(2). A divided panel of the Dallas Court of Appeals held the allegations in an information do not constitute a penal offense, and also are so ambiguous that appellant’s motion to quash the information should have been sustained. Herring v. State, 633 S.W.2d 905 (Tex.App. — Dallas 1982).
The information alleged that appellant “did unlawfully then and there knowingly engage in an act of sexual contact with Danny Burks, by then and there allowing the said Danny Burks, to touch his genitals, with the intent to arouse and gratify the sexual desire of defendant, while said persons were in a public place...”
The problem in this public lewdness case thus is essentially one of statutory construction, and we granted the State’s petition for discretionary review to determine whether the Court of Appeals correctly construed the applicable statutes. The issue, created by an innovative prosecutor with an apparent objective in mind,1 is one of first impression in this Court.
At the outset we state explicitly what was implied by the panel opinion in Jacquez v. State, 579 S.W.2d 247 (Tex.Cr.App.1979): There is a distinction between conduct constituting indecency with a child as proscribed by V.T.C.A. Penal Code, § 21.-11(a)(1) and conduct amounting to public lewdness that is denounced by § 21.07(a)(3). The distinguishing feature of the former is that an offender engages in sexual contact “with the child”2 — Jacquez, supra, at 249— the preposition connoting a sense of association of a reciprocal kind or by way of participation in an action or transaction. Webster’s New International Dictionary (Second Edition) G.C. Merriam Company 1944. See also Lujan v. State, 626 S.W.2d 854, 859 (Tex.App. — San Antonio, 1981) Petition for Review refused, 1982. Thus, we need not further notice the Jacquez opinion beyond its tentative observation that “the statutory definition of sexual contact seems to contemplate that sexual contact occurs when the accused touches the victim’s genitals, and not vice versa,” id., at 249.
Reducing the statutes to a simple, unadorned statement of this matter, we find that a person commits an offense if he knowingly engages in an act3 of touching any part of the genitals of another person (having the requisite specific intent). V.T. C.A. Penal Code, §§ 21.07(a)(3) and 21.-01(2). A further distillation of that statement refines the offense to knowingly touching any part of the genitals of another person (again, with prescribed intent). Given that an offender must act — make a bodily movement — with a specific intent on his part, in reason we cannot interpret the statutory provisions to embrace merely allowing another person to touch the genitals of the alleged offender in order to arouse or satisfy the sexual desire of the latter. Facially, at least, that kind of “submission” does not offend the statutes now being construed.
Indeed, by employing language in the instant information that is plainly de hors the applicable statutory provisions — engaged in an act of sexual conduct “with Danny Burks” by “allowing” Burks to touch his genitals — the pleader gives indications that some other theory of criminal liability is relied on. And in its petition for discretionary review the district attorney asserts at the outset that the court of appeals “fell into error” when it rejected “a parties theory of criminal responsibility” under which the State says it was proceeding, and such is the thrust of the dissenting opinion below.
However, in its petition the State primarily critiques the opinion of the court of *393appeals, rather than to explain the legal basis of its theory and how to apply it. For a development of contention we resort to the brief presented by the State to the court below.
Characterizing as “absurd on its face” an argument made by appellant in his brief, the State countered:
“Of course, the above absurdity would not occur if the person acquiescing in the public act of sexual intercourse (or in the present case, sexual contact) was responsible as a party pursuant to Sec. 7.02(a)(2) pQ * * *4
The facts in the present case would certainly support a conclusion by the jury that the Appellant ‘solicited’ or at the very least ‘encouraged,’ through his actions, the sexual conduct effectuated by Burks. * * * Accordingly, the Appellant’s conviction can be supported under a Sec. 7.02 theory. This being the case, the Appellant’s argument that a person who received the public sexual touch is not guilty of public lewdness is without merit.”
It is true that the law of parties “enlarges a defendant’s criminal responsibility,” Romo v. State, 56S S.W.2d 298, 302 (Tex.Cr.App.1978), and that a jury may be charged with respect to the law of parties though that theory of criminal responsibility for the conduct of another was not alleged in the indictment, Pitts v. State, 569 S.W.2d 898, 900 (Tex.Cr.App.1978). However, application of those propositions in the trial of a criminal case depends upon the state of the evidence adduced; they have no relevance in testing sufficiency of a charging instrument. Indeed, just recently this Court made that abundantly clear: Jeffers v. State, 646 S.W.2d 185 (Tex.Cr. App., Nos. 68,114-68,121, delivered February 2,1983). The rule is even more forceful when the defect claimed is one of substance. American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App. 1974); Articles 27.08, § 1, 21.01, 21.02, 21.21 and 21.23, Y.A.C.C.P. Acts alleged in a charging instrument “must be measured against the law they are supposed to violate,” Ex parte Cannon, 546 S.W.2d 266, 270 (Tex.Cr.App.1976) (Odom, J., concurring), and a facial defect may not be cured through application of evidentiary principles of law. Ex parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981); compare Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976).
“To require evidence reflected in a statement of facts to establish insufficient notice is to ignore the requirement that notice appear on the face of the indictment. Examination of the indictment, not the evidence is the ultimate test.”
The judgment of the Court of Appeals is affirmed.5
TEAGUE, J., concurs in result..In a nightclub undercover vice officers observed appellant and another male hugging and kissing each other on their lips. Appellant then rubbed the genitals of his companion; his companion in turn rubbed the genitals of appellant. Following their arrest the prosecution here is not for appellant’s affirmative act of touching, but for his “allowing” Burks to touch genitals.
. All emphasis is added throughout by the writer of this opinion unless otherwise indicated.
. For our present purposes as used in the penal code, “act” means “a bodily movement,” § 1.07(a)(1).
. We have omitted an excerpt from the section cited.
. We have addressed only the first major issue resolved by the Court of Appeals and, since the cause must be reversed and remanded on that score, we pretermit a determination of whether the motion to quash for ambiguity in the information should have been sustained.