Adams v. State, 13-83-150-CR

• Decision Date: 01 January 1984
• Docket Number: No. 13-83-150-CR,13-83-150-CR
• Citation: 669 S.W.2d 339
• Parties: Martin Luther ADAMS, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 339

669 S.W.2d 339

Martin Luther ADAMS, Jr., Appellant, v. STATE of Texas, Appellee.

No. 13-83-150-CR.

Court of Appeals of Texas Corpus Christi.

Jan. 1, 1984.

Rehearing Denied with Opinion

Feb. 16, 1984.

Eric Brown, Tinker & Tor, Corpus Christi, for appellant.

T.R. Bandy, Jr., County Atty., Corpus Christi, for appellee.

Before BISSETT, KENNEDY and GONZALEZ, JJ.

OPINION

BISSETT, Justice.

On the Court's own motion, our opinion of December 29, 1983 is withdrawn and this opinion is substituted for it.

Appellant was convicted of obscenity and the jury assessed punishment at 270 days in the Nueces County Jail and a fine of $1,800.00. Appellant, in his first four grounds of error, complains that the trial court erred in overruling his motion to quash the information.

The information charged that appellant "did then and there, knowing the content and character of certain material, to-wit: one (1) motion picture, the title of which is unknown to affiant, to be obscene, unlawfully and knowingly promote said obscene material by then and there exhibiting said obscene material to R. Vipond, which material depicts ultimate sexual acts, to-wit: sexual intercourse."

Appellant argues that the information failed to give him adequate notice of the motion picture the State intended to use against him at trial. Evidence adduced at the pre-trial hearing showed that the State had seized two films from the appellant's place of business and that both films were untitled. Although appellant continually refers us to the evidence adduced to show that notice was inadequate, the Court of Criminal Appeals has consistently held that it is improper to examine the record of the case to determine whether the charging instrument provides adequate notice since the notice must come from the facts found and alleged in the charging instrument itself. Bonner v. State, 640 S.W.2d 601 (Tex.Cr.App.1982); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980) (Opinion on State's Motion for Rehearing). Thus, we must test the adequacy of the allegation by its own terms. ¹

In American Plant Food Corporation v. State, 508 S.W.2d 598, 599 (Tex.Cr.App.1974), the Court of Criminal Appeals noted that an indictment or information must allege on its face the facts necessary 1) to show that an offense was committed, 2) to bar subsequent prosecution for the same offense, and 3) to give the defendant precise notice of the charge. The Court also emphasized that the test to judge the validity of a motion to quash is separate and distinct from the test used to determine whether the charging instrument is fundamentally defective.

Appellant argues that the information failed to give him adequate notice or sufficient facts to bar a subsequent prosecution. Since appellant's claim was properly asserted in a pre-trial motion to quash, which included an adequate statement of the manner in which he alleged the notice was deficient, fundamental constitutional protections were invoked. Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1978). Because of the notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration from the perspective of the accused. Drumm at 560 S.W.2d 946. The accused is not required to anticipate any and all variant facts the State might seek to establish, but by his motion or exception may insist "on a specific allegation of what the State will rely upon to convict." See Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977).

Appellant was convicted of obscenity under Sec. 43.23(c) TEX.PENAL CODE ANN. (Vernon Supp.1982) which provides:

"A person commits an offense if, knowing its content and character, he:

(1) promotes or possesses with intent to promote any obscene material or obscene device."

Appellant was charged with exhibiting one motion picture of unknown title which depicted ultimate sexual acts. The allegations in the information are thus more specific than the language of the statute. The issue we must resolve is whether the degree of the descriptive averments in the information gave the appellant sufficient notice of the charges against him.

The State's allegations are more descriptive than the statute in three ways. Through its charging instrument, the State notified the defendant that (1) the material is a motion picture; (2) that the material depicts ultimate sexual acts (sexual intercourse); and (3) that the State is prosecuting for the exhibition of only one film. The State also alleged that the title of the motion picture was "unknown to affiant." We note that the information did not allege that the picture was untitled but only that the title was unknown. Thus, the State notified the appellant that he was charged with exhibiting one motion picture which depicts sexual intercourse.

To obtain a conviction for obscenity, the State must prove that the material is the State must show that 1) the average person, applying contemporary community standards, would find the material, taken as a whole, appeals to the prurient interest in sex; 2) the material depicts or describes patently offensive sexual acts; and 3) taken as a whole, the material lacks serious literary, artistic, political, and scientific value. These factors impose quite a burden on the State and afford the accused a variety of defensive tactics based upon the material itself. Without specific knowledge of the material relied upon by the State, the accused is foreclosed from utilizing the variety of defenses which relate to the specific material relied upon for prosecution. At the pre-trial hearing, appellant argued that the State could have distinguished one film from another by specifying the booth number, or film type, or by describing the actors involved. We agree. However, an insufficiency in the allegations of an indictment which is a defect of form, will not require a reversal of the judgment unless it prejudices the substantial rights of the defendant. TEX.CODE CRIM.PROC.ANN. Art. 21.19 (Vernon 1966). Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981). Accordingly, the Court of Criminal Appeals has uniformly held that prejudice caused by a defect of form cannot be determined without reviewing a statement of facts. Craven at 490; Taylor v. State, 134 Tex.Cr.R. 561, 116 S.W.2d 392 (1939); Van Horn v. State, 143 Tex.Cr.R. 55, 156 S.W.2d 987 (1941).

We therefore have reviewed the statement of facts and the evidence presented. The State seized two films from coin operated booths in appellant's place of business. Both films were untitled, both were seized at the same time; and both depicted acts of sexual intercourse and oral sex. We have reviewed the films in their entirety. Each film explicitly shows acts of sexual intercourse and oral sex. Except for the participants who could be identified, the films are similar in content. The entire footage of each film presents explicit sexual activity of a type barred by statute, and the films are so similar that one could not conceivably find one film obscene and the other film not.

Appellant argues that the lack of notice prevented him from defending himself against the State's allegations that the one film shown to convict him lacked serious literary, artistic, political, or scientific value. However, we are unable to conjecture a scenario in which the substantial rights of the appellant were prejudiced. The films are so similar (in that they depict essentially the same conduct) that appellant could not possibly have defended on a theory applicable to one film but not the other.

Bonner v. State, supra, which appellant cites in support of reversal, is actually supportive of the opposite position with respect to the analysis employed to determine whether appellant was harmed. In Bonner, the defendant was charged with burglary of a vehicle. The defendant challenged the indictment on notice grounds because the evidence showed that three vehicles belonging to the victim were implicated. The State's evidence showed that only one vehicle had been broken into or entered; thus appellant had a valid defense to burglarizing two of the three implicated vehicles. The Court of Criminal Appeals held that the trial court erred in overruling appellant's challenge to the indictment and held that appellant was harmed because the defendant's opportunity to defend himself was diminished. The conviction was therefore reversed.

In Hill v. State, 544 S.W.2d 411 (Tex.Cr.App.1977) the same analytical approach used in Bonner resulted in the Court of Criminal Appeals affirming the defendant's conviction. The Court found the indictments were sufficient to allow the defendant to prepare a defense.

In Goodwin v. State, 514 S.W.2d 942, 945 (Tex.Cr.App.1974), the Court observed:

"Appellants' contention that the court cannot find the material obscene when the State has offered no expert evidence and the defense has presented expert testimony as to its non-obscenity was discussed in Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). There, the United States Supreme Court clearly stated that the materials themselves are sufficient for the determination even though the defense has introduced countervailing testimony."

Under the circumstances of the present case, the defect in the charging instrument did not restrict the appellant's opportunity to defend against the prosecution. Accordingly, appellant's first four grounds of error are overruled.

In his eighth ground of error, appellant contends that the trial court erred in denying his challenge for cause to prospective juror Jennie Lee Jay "in that from hearsay or otherwise, she had established in her mind such a conclusion as to the guilt or innocence of the Appellant as would influence her in her actions in finding a verdict." The ground of error does not comport with the objection made at trial and therefore nothing is presented for review. Porter...