Andrews v. State

• Decision Date: 20 April 1983
• Docket Number: No. 701-82,701-82
• Citation: 652 S.W.2d 370
• Parties: William ANDREWS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 370

652 S.W.2d 370

William ANDREWS, Appellant, v. The STATE of Texas, Appellee.

No. 701-82.

Court of Criminal Appeals of Texas,

En Banc.

April 20, 1983.

On Rehearing June 22, 1983.

Darrell K. McAlexander, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft and Brad Beers, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

TEAGUE, Judge.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

The Legislature has made certain activities in obscenity the subject of criminal liability, and, with the exception of private possession for personal use, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the Federal constitution does not immunize those properly convicted from the sanctions imposed.

Bryers v. State, 480 S.W.2d 712, 716 (Tex.Cr.App.1972).

William Andrews, appellant, was accused by complaint and information with promoting obscenity by selling an obscene magazine, which was entitled "Swedish Erotica No. 25."

In pertinent part, the information alleges that appellant:

... did then and there unlawfully and knowing the content and character of the material, intentionally sell to O.W. Farrell obscene material, namely one magazine entitled "SWEDISH EROTI CA NO. 25" which depicts and describes patently offensive representations of actual and simulated sexual intercourse, anal intercourse and oral sodomy.

This alleges a violation of the Texas obscenity law. See V.T.C.A., Penal Code, Sec. 43.23(c). Also see Appendix "A," attached to this opinion, which contains all the provisions of subchapter B of Chapter 43 of the Penal Code, which constitutes the statutory law in Texas dealing with obscenity.

Appellant in the direct appeal did not challenge the sufficiency of the evidence. It is therefore adequate for our purposes to state that appellant, while employed as a clerk for a business establishment, Show and Tell Book Store, located at 900 Preston in Houston, in exchange for $6.89 sold O.W. Farrell a magazine entitled "Swedish Erotica No. 25." The record reflects that at the time Farrell purchased the magazine he was a Houston police officer engaged in undercover vice operations.

A jury found appellant guilty of the charged offense and the trial court assessed punishment at 3 days' confinement in the Harris county jail and a $750 fine. The Houston First Court of Appeals, 639 S.W.2d 4, reversed appellant's conviction because it found that the trial court, in the application paragraph of the charge to the jury, erroneously "assumed and established two essential facts: (1) that the magazine in question is 'obscene material,' and (2) that it depicts and describes 'patently offensive representations of actual or simulated sexual intercourse, anal intercourse and oral sodomy.' " The Court of Appeals also held that the charge was additionally defective because (1) it failed to define the phrase "prurient interest in sex" and (2) the definition that was given in the charge for the term " 'patently offensive' ... permitted the jury to evaluate the magazine not as an expression which the community regards as intolerable, but as an expression which the community regards as being less than decent."

This Court granted the State's petition for discretionary review to evaluate the correctness of the holdings of the Court of Appeals. We will affirm in part and reverse in part the judgment of the Court of Appeals.

THE APPLICATION PARAGRAPH OF THE CHARGE

The application paragraph of the charge provides as follows:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, William Andrews, in Harris County, Texas, on or about the 7th day of August, 1980, did, knowing the content and character of the material, intentionally sell to O.W. Farrell obscene material, namely one magazine entitled "Swedish Erotica No. 25" which depicts and describes patently offensive representations of actual or simulated sexual intercourse, anal intercourse and oral sodomy, then you will find the defendant guilty of the alleged offense.

If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

The Court of Appeals held that the application paragraph of the charge to the jury in this cause was defective because it "in effect, assume[d] as established two essential facts: (1) that the magazine in question is obscene material, and (2) that it depicts and describes 'patently offensive' representations of actual or simulated sexual intercourse, anal intercourse and oral sodomy." The Court of Appeals then concluded: "Thus, the court's charge may have erroneously led the jury to believe that it could convict the appellant if it found he sold the magazine, even if it did not find the magazine to be obscene." We agree with the holdings and conclusion of the Court of Appeals.

After comparing the pertinent part of the information with the application paragraph of the charge, it becomes apparent that the trial court, in its preparation of the application paragraph of the jury charge, failed to give the subject adequate thought. When one considers the appellant's timely and proper objections, which were leveled at that portion of the charge, and which were the basis for the holdings of the Court of Appeals, it is difficult to understand why more time and thought were not put into this extremely important part of the charge. It is axiomatic that "If the trial court fails to correctly instruct the jury on the law and on the law as applied to the facts, the jury cannot perform its function of being the exclusive judge of the facts." Doyle v. State, 631 S.W.2d 732, 736 (Tex.Cr.App.1982) (On State's Motion for Rehearing). Also see Jones v. State, 611 S.W.2d 87 (Tex.Cr.App.1981); Ex parte Kimberlin, 594 S.W.2d 438 (Tex.Cr.App.1980).

The application paragraph of the charge should be carefully and properly structured because it is usually the one paragraph of the charge which determines the guilt or innocence of the accused for committing the offense for which he is on trial. The general rule is that it is usually permissible to track the pertinent part of the charging instrument when preparing the application paragraph. However, such general rule is not absolute, especially where, as here, the application paragraph of the charge assumes certain disputed facts. Cf. Grady v. State, 634 S.W.2d 316 (Tex.Cr.App.1982). A trial court in its charge to a jury should never give the jury an instruction which constitutes a comment by the court on the elements of the alleged offense, or assumes a disputed fact, unless such fact comes within an exception to the general rule of prohibition that is set out in Marlow v. State, 537 S.W.2d 8 (Tex.Cr.App.1976).

Although appellant did not dispute the authenticity of the magazine or its content, nevertheless, he made it an issue during the trial whether the magazine was obscene, as that term was defined in the abstract portion of the charge. In any criminal case, the State must prove the defendant's connection or relationship to the crime he is accused of committing. However, in an obscenity case, the State must further establish that the material alleged to be obscene depicts and describes "patently offensive" representations of actual or simulated sexual intercourse, anal intercourse or oral sodomy, before the material can be found to be obscene. In this instance, the jury was told by the trial court, in the application paragraph of the charge, that the magazine, "Swedish Erotica No. 25 depicts and describes patently offensive representations of actual or simulated sexual intercourse, anal intercourse and oral sodomy." (Emphasis Added). Although the magazine was a tangible object easily viewed by the jury, nevertheless, whether it was "patently offensive" is a subjective element not visible to the naked eye. The State had to prove this element of the offense beyond a reasonable doubt before a valid conviction could occur. As structured, we find that the application paragraph of the charge eliminated from the State's burden a key element of the offense it had to prove before a valid conviction could occur; that is, whether the magazine depicted and described patently offensive representations of actual or simulated sexual intercourse, anal intercourse and oral sodomy. The application paragraph was therefore subject to the appellant's objections and the trial court erred by not sustaining those objections. ^*

FAILURE OF THE TRIAL COURT TO DEFINE THE TERM "PRURIENT INTEREST"

The Court of Appeals also held that the trial court's failure to define the term "prurient interest" in the charge to the jury was subject to the objection appellant had made to such omission by way of a specially requested charge. The Court of Appeals concluded that because "The term 'prurient' is not common or widely used outside the context of obscenity cases, and the public may not be presumed to know its meaning," and because the term "has been interpreted by the courts and by our legislature," it was reversible error on the part of the trial court not to give appellant's requested instruction, which stated therein the definition for the term as contained in the former statute proscribing obscenity. We disagree with this holding.

The term, "prurient interest," is not defined in the present obscenity statute, although it was defined in the former penal statute which proscribed obscenity. See Acts 1973, 63rd Leg. p. 883, ch. 399, § 1, eff. January 1, 1974. In Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir.1981), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982), the Fifth Circuit, in judging the validity of the Texas obscenity statute, held that the lack of a statutory definition for the term, "prurient interest," did not render the statute constitutionally deficient.

The Court of Appeals, in reaching its above...