Cammack v. State

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for public lewdness, V.T.C.A., Penal Code, § 21.07(a)(3). Punishment was assessed by the court at sixty (60) days in jail and a fine of $500.00, probated for one year.

Appellant’s sole contention on appeal is that as a matter of law there was no evidence to show that he was in a public place when the alleged offense occurred.

V.T.C.A., Penal Code, § 21.07(a)(3), provides:

“(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:
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“(3) an act of sexual contact.”

V.T.C.A., Penal Code, § 1.07(a)(29), defines “public place” as:

“. . . any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

The complaint and information alleged that the appellant “did unlawfully then and there knowingly engage in an act of sexual contact with R.L. Newell, by then and there touching the genitals, of the said R.L. Ne-well, with intent to arouse and gratify the sexual desire of Ronald Gene Cammack, while said persons were in a public place, namely: Red Letter News # 2, 10851 Harry Hines, Dallas, Texas .... ”

On January 5, 1978, Robert L. Newell, a Dallas city police officer, working undercover on a temporary assignment, went to the Red Letter News Number Two on Harry Hines Boulevard. This place was apparently an adult book shop or newsstand containing a movie section with individual booths showing peep shows. Newell was in mufti. After entering the common area of the store, he went into several of the booths in the movie section. He eventually entered *908booth six and deposited a quarter, leaving the door ajar about three inches. Appellant entered the completely enclosed booth, twenty-eight inches by forty-two inches, and closed the door.1 Newell related that the appellant “groped my groin,” made sexual contact and placed his hands on Ne-well’s genitals there in the booth. Newell suggested that they go to his van parked outside. The appellant was thereafter arrested.

We are not here dealing with the question of a search. Cf. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). The question is whether viewing booth # 6 in the Red Letter News No. 2 book store was a public place within the meaning of V.T. C.A., Penal Code, § 21.07.

Only recently the Dallas Court of Appeals in Westbrook v. State, 624 S.W.2d 294 (Tex.App.1981), held that a “peep show” booth which is completely enclosed is a public place.

Officer Newell entered the common area of the book store open to the public and went into several of the peep show booths— also open to the public — to view the movies. After he entered booth No. 6, leaving the door ajar, appellant entered and closed and possibly locked the door behind him. The public nature of the booth could not be changed by the appellant, acting alone, closing and locking the door, closeting himself with a stranger. Westbrook v. State, 624 S.W.2d 294 (Dallas Ct. of App.1981); Cf. Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978); Bishoff v. State, 531 S.W.2d 346 (Tex.Cr.App.1976).

The judgment is affirmed.

. Newell acknowledged there was a lock on the door, and that he did not know whether appellant locked the door although the appellant closed it when entering. Appellant testified at the motion to suppress hearing he locked the door upon entering the booth occupied by a man he did not know.