Green v. State

ROBERTS, Judge,

dissenting.

I cannot agree that the majority has correctly decided the appellant’s second, fifth and ninth grounds of error. I shall first address the appellant’s ninth contention, and thereafter I shall address his second and fifth contentions in conjunction with one another.

I.

The appellant’s ninth contention concerns the trial judge’s exclusion of defensive testimony. Before I consider this contention, however, it is necessary to fully review all the evidence contained in the record.

The trial testimony reveals that on January 18, 1977, at approximately 12:00 a. m., Sergeants Belvin, Miller, Huckabee, Polk and Ray of the Austin Police Department, and Alcoholic Beverage Commission Agent Bacak met at Mr. Peeper’s Book Store at 213 E. 6th Street in Austin. The six officers, all of whom were in plain clothes, entered Mr. Peeper’s.

They discovered that Mr. Peeper’s was divided into three sections. 1 The first sec *589 tion, which is immediately adjacent to the main entrance, was a typical newsstand. The second section, which was located to the rear of the first section, contained soft and hard core pornographic magazines, paraphernalia, films, and a sales counter. The third section, which comprised the rear portion of the building and entry to which was through a doorway covered by a curtain, consisted of nineteen booths, hallways, and a restroom. The booths contained coin-operated viewers which, when activated by the insertion of a quarter, played portions of movies depicting various sexual acts. These booths were all approximately six and one-half feet tall, although their internal dimensions varied. Entry into each booth was through a full length, nontransparent curtain. Some of the booths had red light bulbs on top of them which were designed to go on when the viewer inside the booth was activated. The lighting in the third section of Mr. Peeper’s was dim and loud music was piped in through a stereo system.

When the officers entered the third section of Mr. Peeper’s they separated and investigated the area. The total number of people in this section of Mr. Peeper’s was between fifteen and thirty-five, and people were going into and out of the booths.

Sergeant Belvin saw a man, subsequently identified as Mark Edmund Webb, enter booth # 18. Shortly thereafter, he saw a man, subsequently identified as the appellant, likewise go into booth # 18. Belvin motioned to Sergeants Miller and Ray, and they approached Belvin who told them that two people were in booth # 18. The appellant then came out of booth # 18, looked up and down the hallway, and then reentered booth # 18.

Miller and Ray then positioned themselves outside booth # 18 and each looked into booth # 18 through a three to five-inch gap between the curtain and the edge of the booth. The booth was illuminated not only by the “black lights” in the third section of Mr. Peeper’s, but also by the viewer in booth # 18 which, at the time Miller and Ray were looking into booth # 18, had been activated. Miller saw the appellant fondle Webb, unzip Webb’s pants, remove Webb’s penis, and masturbate Webb’s penis. He then saw the appellant put his head in Webb’s crotch area. Ray also saw the appellant’s head in Webb’s crotch area.

Miller, followed by Ray, then entered booth # 18 and Miller, while holding his Austin Police Department badge in one hand and a flashlight in his other hand, announced that the appellant and Webb were under arrest. At that time, Miller observed Webb’s penis in the appellant’s mouth and saw Webb moving his hips back and forth, while Ray heard the appellant sucking on Webb’s penis.

The appellant and Webb were subsequently led outside by Miller and Ray. After the appellant had been led to an unmarked police car, he escaped. The appellant was apprehended shortly thereafter in the Stephen F. Austin Hotel by Miller and Officer Kohler of the Austin Police Department. Kohler testified that the appellant’s breath “smelled like soured milk or perhaps ammonia or urine.”

The defensive evidence tended to establish that the lighting in the third section of Mr. Peeper’s was so dim that, given the floor plan of booth # 18, 2 it would have been impossible for Miller and Ray to have seen any activity in the booth. Furthermore, the music was of such a volume that *590 no “sucking noises,” as testified to by Ray, could have been heard.

The defense also introduced evidence of a conspiracy against the appellant. 3 The appellant testified that he became an Assistant County Attorney for Anderson County in June 1974. He was, at that time, assistant to County Attorney Bill House who had been appointed to fill an unexpired term. In September 1974, House fired the appellant. 4

The appellant ran as a write-in candidate against House for County Attorney in November 1974. The appellant won the election and immediately advised House that due to House’s noncompliance with the election laws, House would have to resign immediately. House resigned and the appellant became County Attorney in November 1974.

The appellant’s term as County Attorney ended on December 31, 1976. Prior to the expiration of his term, the appellant decided to run for District Attorney of the 3rd Judicial District. He ran against the incumbent District Attorney Richard Handorf in November 1976. Handorf’s campaign was handled by one Danny Parish, who was allegedly assisted by Michael O’Brian, District Attorney Handorf’s sole criminal investigator. Handorf’s campaign allegedly involved “smear” tactics, including the dissemination of rumors that the appellant had been arrested for driving while intoxicated on two occasions, and posters, containing “mug” shots from the Palestine Police Department’s files depicting the appellant as a “nigger hater.” The appellant won the election but thereafter was under the belief that O’Brian had him under surveillance. 5

The appellant then testified about his activity on January 17 and 18, 1977. The appellant drove to Austin on January 17, 1977, to order stationery for the 3rd District. However, appellant testified that in December 1976, Kenneth Berry, the Chief of Police in Palestine, had brought him an eight-track tape to ascertain whether the appellant, as County Attorney for Anderson County which included Palestine, could determine if the tape was obscene. 6 On January 11, 1977, the appellant and Berry had another conversation pertaining to obscenity and the local community standards in Palestine. Due to these conversations, the appellant decided to investigate the obscenity standards while he was in Austin.

Therefore, at approximately 10:30 p. m., on January 17, 1977, the appellant left the apartment where he was staying while in Austin and went to the “All American Newsstand” on Guadalupe. He looked at soft and hard core pornographic magazines and viewed one “peep show.” At approximately 11:30 p. m., the appellant went to Mr. Peeper’s, which he had noticed earlier during the day. The appellant looked at the soft and hard core pornographic literature in the second section of Mr. Peeper’s, and then went into the third or “peep show” section of Mr. Peeper’s. The appellant viewed a number of different films and went into approximately six different booths. In some of the booths he encountered people, and some of these people were engaged in various sexual acts.

*591 The appellant saw a sign outside booth # 18 which read “Protect your rights; when you insert 25 cents, you’re renting this space.” When the appellant went into booth # 18, the red light bulb on top of the booth was not on. However, once inside booth # 18, he encountered Mark Webb, whom he had never previously met. The movie then in progress stopped and the appellant bent over to insert a quarter into the viewer. At that time, Miller and Ray entered the booth and arrested him and Webb. The appellant testified that he could not see Miller’s badge and that he thought he was “getting taken for a ride.” The appellant denied that he had engaged in any illegal activity while in booth # 18.

The appellant also introduced evidence that after his arrest Texas Ranger Bob Prince, who was stationed in Palestine, obtained copies of offense reports prepared by members of the Austin Police Department and distributed copies to Judge Lawrence of the 3rd Judicial District in Palestine, Chief Berry of the Palestine Police Department, and Prince’s chief in Waco. Furthermore, copies of the offense reports were found on the desk of Judge Tate McCain, of the 87th Judicial District in Palestine, and in the parking lot of the Calhoun Packing Company in Palestine.

To reiterate, the appellant’s ninth contention concerns the trial judge’s exclusion of defensive testimony. Specifically, the appellant contends that certain portions of his own testimony as well as certain portions of the testimony of Paul Bankston and Marsha Head should not have been excluded by the trial judge.

As set out above, the defensive evidence was voluminous. The appellant attempted to show that he had not engaged in any illegal conduct in booth # 18 and that Richard Handorf, Danny Parish, Michael O’Brian and others had conspired to “get” the appellant due to the appellant’s successful bid for District Attorney in the 1976 election.

The appellant testified that posters had been disseminated during the 1976 Democratic Primary. These posters contained inter alia, “mug” shots of two men, one white and one black, whom the appellant had prosecuted during his tenure as County Attorney. The posters attempted to show that the appellant was prejudiced against blacks. The appellant also testified that the “mug” shots had been given to Mike O’Brian by Sergeant Yarbor of the Palestine Police Department. The appellant then attempted to testify about two conversations he had with O’Brian, but the prosecutor objected on the ground that the testimony would be hearsay. The appellant responded that the conversations fell within the conspiracy exception to the hearsay rule, but the trial judge sustained the prosecutor’s objection.

The appellant then made a proffer of proof. The appellant’s proffer of proof established that O’Brian told the appellant that he had gotten the “mug” shots used on the posters and that he had delivered the “mug” shots to one of Danny Parish’s employees. The appellant also testified outside the presence of the jury that after the election O’Brian told the appellant that he was going to “ruin” the appellant and that he had the appellant under surveillance. O’Brian also gave the appellant specific facts which revealed to the appellant that O’Brian did in fact have the appellant under surveillance. The appellant then testified to facts which tended to support his defensive theory that even during his trial he was under surveillance by “certain law enforcement authorities.” 7

*592 The appellant also called Marsha Head, wife of Representative Fred Head of the 14th Legislative District, to testify. Mrs. Head attempted to testify to a conversation she had with Danny Parish immediately prior to the 1976 Democratic Primary, but the trial judge excluded the conversation as hearsay. The appellant made a proffer of proof which tended to show that Parish was involved in the preparation and dissemination of posters immediately prior to the 1976 Democratic Primary.

The appellant also called Paul Bankston to testify. Bankston attempted to testify to conversations he had with Danny Parish prior to the 1976 Democratic Primary. When the trial judge excluded Bankston’s testimony concerning the conversations, the appellant made a proffer of proof in the form of Bankston’s testimony outside the presence of the jury. According to Bank-ston, Parish came to Bankston’s store in Malakoff a week prior to the election and asked Bankston what percentage of Mala-koff was populated with blacks and which sections of Henderson County were most heavily populated with blacks. When Bankston asked why Parish wanted to know that information, Parish responded that he was handling Mr. Handorf’s campaign.

Bankston also testified that on the day of the 1976 Democratic Primary Parish entered his store and “said he thought that he had everything set up and that he’d been handing out handbills until 5:00 o’clock that morning.”

Thus, it is apparent that the excluded evidence tended to support the defensive theory that Handorf, O’Brian, Parish and others were conspiring to “get” the appellant. I have concluded that the trial judge’s exclusion of this testimony constituted reversible error and that the majority’s disposition of this ground of error effectively eliminates the issue from the jury’s consideration.

Initially, it should be pointed out that the excluded evidence was admissible as the appellant’s defensive evidence explaining the events surrounding and encompassing the alleged crime. This evidence was also admissible as evidence tending to impeach the testimony of the officers who arrested the appellant. The majority’s statement that the “[ajppellant’s purpose [by attempting to introduce the excluded evidence] was to impeach the witnesses” [Officers Miller and Ray], ante at 588, reveals that the majority fails to comprehend the dual basis for the admissibility of the evidence.

As to the first basis of the admissibility of the excluded evidence — that the evidence was defensive evidence — the majority opinion is completely silent, and understandably so. I can think of no necessity to lay a predicate for the introduction of purely defensive testimony.

Moreover, it is well established that the co-conspirator exception to the hearsay rule is “a rule of evidence applicable to the prosecution of any offense in which co-conspirators participate.” Rodriquez v. State, 552 S.W.2d 451, 454 (Tex.Cr.App.1977). It is equally well established that the order of proof is not material; proof of a defendant’s participation in, and the existence of, a conspiracy need not be made before hearsay statements and acts of a co-conspirator are admissible. Rodriquez v. State, supra; Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974). Moreover, each statement or act of a co-conspirator up until the time that the object or objects of the conspiracy are completed is admissible. Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973). Since it is well established that “[a] good *593 rule of evidence works both ways,” Montemayor v. State, 543 S.W.2d 93, 99 (Tex.Cr.App.1976) (Opinion on State’s Motion for Rehearing, Douglas, J., Dissenting), the co-conspirator exception to the hearsay rule is applicable to situations, like the present, where a defendant’s defensive theory involves a conspiracy.

Applying the foregoing principles to the trial judge’s exclusion of the testimony of Marsha Head and Paul Bankston, it is clear that all of their excluded testimony related to statements made by Danny Parish. The excluded statements were in reference to Handorf’s election. The appellant’s defense of conspiracy was built upon the political revenge that Handorf and his cohorts sought as a result of the hotly contested 1976 Democratic Primary.

Moreover, the exclusion of Head’s and Bankston’s testimony must be considered in conjunction with the exclusion of the appellant’s testimony. The appellant’s proffer of proof related to O’Brian’s statement that he was going to “ruin” the appellant. This statement was made after the 1976 Democratic Primary, only two months prior to the commission of the alleged offense. It expressed the idea that Handorf, who prior to the election had employed O’Brian as a criminal investigator, would seek revenge due to the appellant’s victory in the election. Also, the exclusion of O’Brian’s statement to the appellant that O’Brian had the appellant under surveillance was relevant to the appellant’s defense of conspiracy.

The excluded testimony all related to statements of Parish and O’Brian. Both Parish and O’Brian worked for Handorf. I am constrained to conclude that the trial judge improperly excluded the testimony of Head, Bankston and the appellant. 8

As to the second basis of the admissibility of the excluded evidence — that the evidence was impeachment evidence — the majority constructs a requirement that a proper predicate be laid.

Initially, I note that the defense attempted to prove that there was a conspiracy among certain persons to “get” the appellant. The excluded evidence, which the majority labels “[ijrrelevant proof of threats made during a political campaign,” when taken together with the evidence introduced by the appellant, was sufficient to create an inference that the officers who arrested the appellant were connected with the conspiracy. 9 However, there was no direct evidence to demonstrate that the conspiracy among Handorf, O’Brian and Parish, if any, was connected with the appellant’s arrest in Austin by Officers Miller and Ray. The appellant could only attempt to prove such a connection, if any, by introducing circumstantial evidence which might tend to prove the alleged connection. Any such connection would logically tend to impeach and rebut the testimony of Miller and Ray.

In Bailey v. State, 532 S.W.2d 316, 319 (Tex.Cr.App.1975), we stated that “[wjhere a case, such as the one before us, is dependent on circumstantial evidence for its proof, *594 the rules of evidence will not be so stringently applied so as to exclude evidence which sheds light on the occurrence.” (Emphasis added). This rule applies equally to defensive testimony.

Moreover, in Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977), we dealt with the exclusion of defensive testimony which tended to show that police officers, who the defendant contended had “framed” him, were antagonistic toward the defendant. We there stated:

“The animus, motive, or ill-will of a prosecuting witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant may show by himself, or by others if necessary, why the witness is unfriendly toward him. Kissinger v. State, 126 Tex.Cr.R. 182 , 70 S.W.2d 740, 742 (1934). It is not necessary that a predicate be laid that the witness himself is biased toward the defendant before evidence which would create this bias is introduced. Smith v. State, 106 Tex.Cr.R. 202 , 291 S.W. 544, 545 (1927). The reasoning behind this rule is simply that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him. The jury should be given the opportunity to judge for themselves the witness’s credibility in light of his feelings toward the defendant. Wood v. State, 486 S.W.2d 359, 362 (Tex.Cr.App.1972); Minor v. State, 476 S.W.2d 694, 695 (Tex.Cr.App.1972).” (Emphasis added). Id. at 833 .

As in Coleman , the evidence which was excluded could have been used by the defense to suggest to the jury that the arresting officers were biased. The evidence should not have been excluded by the trial judge. 10

The majority has apparently seen fit to ignore and/or overrule sub silentio the rule quoted above from Coleman .

Moreover, it is clear that a proper predicate was laid for the excluded evidence which was offered to impeach the arresting officers’ version of the appellant’s activity on the night in question. The appellant cross-examined the officers about their purpose for being in Mr. Peeper’s and their knowledge of the appellant. When the officers testified concerning the appellant’s alleged activities, and when the officers denied knowing or ever seeing the appellant prior to the night of the appellant’s arrest, they inferentially denied the existence of any conspiracy and thus a proper predicate was laid to impeach them.

It is clear that the majority simply does not believe the appellant’s conspiracy theory. Statements by the majority, such as “[irrelevant proof of threats made during a political campaign could have no legitimate bearing on this trial,” and “[s]uch evidence would seldom be relevant. It would prolong trials for no purpose at all,” indicate that the majority is substituting its opinion of the merits of the appellant’s defensive theory for the jury. This I cannot condone. The appellant had a right to present the excluded evidence to the jury. The trial judge’s exclusion of the evidence was reversible error.

II.

The appellant’s second contention is that the trial judge failed to apply the law to the facts in the charge to the jury and thereby commented on the weight of the evidence. The portion of the charge complained of is as follows:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant, Billy Ray Green, on or about the 18th day of January, 1977, in the County of Travis, and State of Texas, as alleged in the information, did then and there in a public place, to-wit: Mr. Peeper’s Book Store, a shop open to the public *595 at 213 East 6th Street, Austin, Travis County, Texas, knowingly engaged in deviate sexual intercourse in that Billy Ray Green placed his mouth on the genitals of Mark Edmund Webb, you will find the Defendant guilty of the offense of public lewdness and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict ‘Not Guilty’.”

The appellant specifically objected to this portion of the charge on the basis that it constituted a comment on the weight of the evidence and that it failed to limit the jury’s determination of whether the appellant’s conduct occurred in a public place to the exact location — booth # 18 — where that conduct in fact occurred. The appellant also submitted a requested charge dealing with booth # 18 and whether booth # 18 was a public place [see discussion below of appellant’s fifth ground of error].

While I agree with the majority’s conclusion that the charge did not constitute a comment on the weight of the evidence, I violently disagree with the majority’s conclusion “that the court did not err in refusing to limit the definition of a public place to booth No. 18.” Ante at 582.

The majority’s disposition of this ground of error is predicated, at least in part, upon the fact that the appellant had “no right to expect privacy in the booth.” Ante at 582. I agree that the appellant waived any expectation of privacy while he was in booth # 18 due to the crack between the edge of the booth and the curtain. However, the concepts of “reasonable expectation of privacy” and “public place,” although related, are distinct and not interdependent.

The following examples will demonstrate that it is possible to commit an act of public lewdness in: (1) a public place with a reasonable expectation of privacy; (2) a public place without a reasonable expectation of privacy; (3) a private place with a reasonable expectation of privacy; or (4) a private place without a reasonable expectation of privacy. The examples will also demonstrate that the “public” or “private” nature of the location is not transformed from one to another depending upon whether a person has a reasonable expectation of privacy.

The first example involves a toilet stall in a Sears store and a toilet stall in a public park. The former has a door that locks from the inside, while the latter has no doors. Both stalls are accessible to the public or a substantial group of the public. Accordingly, both stalls arguably constitute a public place, although this is a jury question. If a person commits an act of public lewdness in the stall at Sears, with the door shut and locked, that person has a reasonable expectation of privacy, even though he is arguably in a public place. See Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). If a person commits an act of public lewdness in the stall in the public park, which has no door or curtain, that person has arguably waived any expectation of privacy, but he is arguably in a public place. Buchanan v. State, supra.

The second example involves a storeroom or area, restricted to employees only, of a store. This store is open to the public. In this instance, the store itself is undeniably a public place, but the storeroom or restricted area is not open to the public and is therefore arguably a private place. The public or private nature of the storeroom or restricted area, just like the restrooms, is a jury question.

If an émployee of this store commits an act of public lewdness in the storeroom or restricted area, and all the doors or curtains leading into the storeroom or restricted area from the portion of the store open to the public are closed, that individual arguably has a reasonable expectation of privacy, and his act has arguably been committed in a private place. However, if the employee committed the same act in the storeroom or restricted area, but he left all the doors or curtains leading into the storeroom or restricted area open three or four inches, that individual would have arguably waived his reasonable expectation of privacy, but his act arguably has still béen committed in a private place.

*596 The foregoing examples demonstrate that the issue of whether the appellant had a reasonable expectation of privacy while in booth # 18 should not influence the disposition of his second ground of error. Whether a person has a “reasonable expectation of privacy” and whether an act was committed in a “public” or “private” place are two distinct concepts which the majority erroneously confuse and intertwine with one another.

Moreover, the examples demonstrate that regardless of the appellant’s expectation of privacy, the issue of whether the appellant was in a public or private place when the act was committed was a question for the jury. The majority, however, have failed to realize that a jury could find that a portion of a store or other public place could be a private place. Rather, the majority simply finds the evidence sufficient to conclude that booth # 18 was a public place because Mr. Peeper’s was a public place. Such logic, or more precisely, the lack of logic, is repugnant to even the simplistic notions of due process.

The evidence clearly revealed that portions of Mr. Peeper’s were public places. In fact, the only areas of Mr. Peeper’s about which there was conflicting evidence of the public or private nature were the booths and specifically booth # 18. The appellant was arrested in booth # 18 and the illegal conduct allegedly occurred in booth # 18. The only area of Mr. Peeper’s relevant to the appellant’s guilt or innocence was booth # 18. 11

It is clear that the trial judge’s charge to the jury did not direct the members of the jury to focus their attention on booth # 18 and whether booth # 18 was a public place. In Williams v. State, 547 S.W.2d 18 (Tex.Cr.App.1977), this Court addressed a trial judge’s failure to apply the law to the facts. We there stated that:

“The law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence. It is not sufficient for the jury to receive an abstract instruction on the law and then to render a verdict according to a general conclusion on whether the law has been violated. The State must prove its case beyond a reasonable doubt and must prove each element of the offense charged. This is the very basis of the case. The prosecutor as advocate for the State’s position may emphasize some elements in his argument and defense counsel as advocate for the accused may emphasize others in his argument, but the court is the only neutral source to which the jury may look for an unbiased application of the law to the facts of the case. An abstract charge does not inform the jury of what facts, if found by it, would constitute proof of the elements of the offense.

‡ jfc ⅜ ⅜ jfc ‡

“It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues. A charge that leaves application of the law to the facts solely in the hands of the partisan advocates does not guard against the confusion that such partisan claims inspire.” Williams v. State, supra at 20.

I am constrained to hold that the trial judge’s charge was not only factually imprecise and needlessly overbroad, but that it constituted reversible error. I am unable to conclude that the jury was apprised that they had to find beyond a reasonable doubt that the appellant’s conduct occurred in booth # 18 and that booth # 18 was a public place.

*597 The appellant’s fifth ground of error, which must be considered in conjunction with his second ground of error, is that the trial judge erred by refusing to charge the jury in accordance with the appellant’s requested instruction No. 2. The appellant’s requested instruction No. 2 states:

“If you find from the evidence, or if you have a reasonable doubt thereof, that booth No. 18 in Mr. Peeper’s Book Store at 213 E. 6th Street, as shown by the evidence, was not a ‘Public Place’ as that term has been defined herein, then you shall acquit the Defendant and say by your verdict ‘Not Guilty.’ ”

It is well settled that when any defensive theory is raised by the evidence, the trial judge must charge the jury on that defensive theory, regardless of “whether the evidence is produced by the State or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted or whether it is conflicting.” 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660, quoted in Gauthier v. State, 496 S.W.2d 584 (Tex.Cr.App.1973).

It is likewise well settled that a trial judge’s denial of a defendant’s requested instruction is not improper where the requested instruction is merely an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State’s case. Bearden v. State, 487 S.W.2d 739 (Tex.Cr.App.1972); Kirkland v. State, 162 Tex.Cr.R. 424 , 285 S.W.2d 743 (1955); Gilmore v. State, 158 Tex.Cr.R. 534 , 257 S.W.2d 300 (1953).

Whether an act is performed in a public or nonpublic place is an essential element of the offense of public lewdness under V.T.C.A., Penal Code, Section 21.07. Cf. Brown v. State, supra. If the trial judge had restricted the jury’s consideration of the appellant’s conduct to that which occurred in booth # 18, then the trial judge’s refusal to give the appellant’s requested charge No. 2 would have been proper; it would have been an affirmative submission of a defensive issue which merely denied the existence of an essential element of the State’s case. However, the trial judge’s failure to have restricted the jury’s consideration of the appellant’s conduct to that which occurred in both # 18 renders his failure to give the appellant’s requested charge No. 2 reversible error; 12 it would not have been an affirmative submission of a defensive issue which merely denied the existence of an essential element of the State’s case.

For the reasons set forth above, I vigorously dissent from the majority’s treatment of the appellant’s second, fifth and ninth grounds of error. The judgment should be reversed and the cause remanded.

PHILLIPS, J., joins in this dissent.

. My examination of the record and the exhibits introduced by both the State and the appellant leads me to believe that Mr. Peeper’s was divided into three distinct sections. However, the appellant’s brief contends that Mr. Peeper’s was comprised of only two sections. Although both the State and the appellant offered an exhibit depicting the floor plan of Mr. Peeper’s, neither exhibit, or, for that matter, the references in the record to those exhibits, identifies with any degree of specificity the respective sections of Mr. Peeper’s. If either the State or the appellant had placed letters, numbers or other identifying features on the various locations depicted in their exhibits and referred to such identifying features when they questioned witnesses about those particular locations, the record would be much clearer and this Court’s disposition of this matter would have been greatly facilitated. I cannot overemphasize the *589 importance of a clear and unambiguous record in the appellate process. However, my disposition of this cause does not depend upon whether there were two or three separate sections, for it is clear that the offense was committed in the section which contained booths with viewers in them.

. The evidence revealed that booth #18 was 52" by 42". The movie viewer occupied a portion of that floor space. The opening through which entry into booth #18 could be had was 18" wide, and it was partially covered by a 44" curtain. The gap between the edge of the curtain and the edge of the booth was larger near the floor than near the top of the booth.

. The appellant, at the time of his arrest, was the District Attorney for the 3rd Judicial District in Anderson County.

. At the time the appellant was fired, he was engaged in an investigation of “narcotic payoffs” within the Palestine Police Department. The appellant had approached House about the matter, and when House responded that he did not want to know anything about it, the appellant discussed the matter with Mr. Handorf, then District Attorney for the 3rd Judicial District in Anderson County, and Mr. Whitaker, then District Attorney for the 173rd Judicial District in Anderson County. According to the appellant, the Federal Bureau of Investigation was apprised of the matter. Immediately thereafter, the appellant was fired without any reason or justification from House.

. The appellant attempted to substantiate this belief by testifying to a post-election conversation he had with O’Brian. The trial judge excluded the conversation and the exclusion of this evidence is discussed below.

. Berry testified that he did not know whether the tape was obscene.

. The appellant based his belief on the fact that on the night prior to his trial the appellant stayed with a friend. The appellant did not tell anyone where he was going to spend the night. However, he was located at his friend’s residence at approximately 11:30 p. m. by Texas Ranger Pappy Rundell, who served the appellant with a subpoena. The majority’s statement that “The State explained that this friend of appellant’s was the one he called after he was arrested on the night of the offense and the officers knew who he had called” is factually inaccurate and misleading. The prosecutor cross-examined the appellant and only established that the appellant on the night of his arrest, made a phone call to an attorney named Damron from the city jail. The prosecutor then asked the appellant if Damron’s number *592 had been entered on the police card recording the appellant’s property when he made the call, but the appellant answered that he didn’t know whether it had been. The prosecutor then asked the appellant if he was aware that phone numbers could be “crisscrossed” with addresses, and the appellant responded that he was not aware of exactly what this procedure was. However, the prosecutor never established that the phone number of the friend the appellant called on the night of the appellant’s arrest had been recorded by the police on the night the appellant was arrested, that Ranger Rundell or other officers were aware of that fact, or that Rundell or other officers did in fact crisscross the number to obtain the address of the appellant’s friend. The majority assertion is simply incorrect.

. In so concluding, I expressly reject the State’s assertion that the appellant failed to link the conspiracy in Palestine with the Austin Police. The excluded testimony supported the defensive theory of a conspiracy among Handorf, Parish and O’Brian. However, the excluded testimony also established that O’Brian had the appellant under surveillance and that O’Brian would “ruin” the appellant. Also, the excluded testimony tended to show that the appellant was under surveillance by the law enforcement authorities prior to and during his trial in Austin.

The record also reveals that a member of the Austin Police Department gave Ranger Bob Prince, who was stationed in Palestine, copies of the offense reports prepared by members of the Austin Police Department. Copies of these offense reports were distributed to various people in Palestine. None of the five Austin Police Department officers or ABC Agent Bacak had been assigned to enforce sexual offenses, and Mr. Peeper’s did not serve or sell alcoholic beverages so as to justify and explain Bacak’s presence there. Finally, from July 1974 until December 1974 Agent Bacak had been responsible for ABC enforcement in the Palestine area.

I believe that the evidence was sufficient to circumstantially link the alleged conspiracy in Palestine with the police who arrested the appellant.

. See note 8, supra.

. Cf. Baughman v. State, 49 Tex.Cr.R. 33 , 90 S.W. 166 (1905) and Jones v. State, 81 Tex.Cr.R. 230 , 194 S.W. 1109 (1917).

. This is not to say that there may not be instances where the surrounding environment does not affect a determination of whether the conduct occurred in a public or private place. However, merely because the other sections of Mr. Peeper’s, according to both the State and the appellant, are public places does not necessarily mean that booth #18 could not be a private place.

. If the trial judge had incorporated the appellant’s requested charge No. 2 — even though improperly worded — into the main charge, the error discussed above in the appellant’s second ground of error would have been obviated. The majority’s disposition of the appellant’s fifth ground of error fails to comprehend the interrelationship between the appellant’s second and fifth grounds of error.