Berg v. State, 58658

• Decision Date: 02 April 1980
• Docket Number: No. 58658,No. 2,58658,2
• Citation: 599 S.W.2d 802
• Parties: Leslie Clinton BERG, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 802

599 S.W.2d 802

Leslie Clinton BERG, Appellant, v. The STATE of Texas, Appellee.

No. 58658.

Court of Criminal Appeals of Texas, Panel No. 2.

April 2, 1980.

Rehearing Denied June 11, 1980.

Kenneth W. Boyd, Cleburne, for appellant.

Dan M. Boulware, County Atty. and Wayne Bridewell, Asst. County Atty., Cleburne, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of commercially exhibiting obscene material as denounced by V.T.C.A., Penal Code, § 43.23(a)(1). The jury assessed punishment at confinement in the county jail for 180 days and a fine of $1,000.00, but recommended probation.

Though appellant presents some seven grounds of error for our consideration, we need reach but one. In his fourth ground of error, appellant contends that the trial court erred in refusing to admit into evidence nine magazines and one film offered by appellant to reflect "contemporary community standards" as that term is utilized in the 1975 amendment to § 43.21(1)(A). ¹ As we find that exclusion of these materials in the context of the factual situation presented was error, we now reverse.

Former Deputy Sheriff Jim Scarber attended a showing at the Trail Drive-In on the evening of July 31, 1977 in Johnson County where the double feature "Dixie" and "Deviates in Love" was playing. Scarber purchased a ticket, watched both features and, the following day, consulted with the District Attorney regarding institution of criminal charges against appellant. Scarber procured a search warrant from a Justice of the Peace in Alvarado and, with Officer Duval, again proceeded to the Trail Drive-In, and purchased tickets for admission. After watching "Dixie" and "Deviates in Love," the two men executed their arrest and search warrants by taking appellant, who had been the ticket taker on the evening in question, into custody and by confiscating the two films they had viewed. The jury viewed both films as part of the presentation of the State's case.

Appellant called only one witness during the guilt-innocence stage of the trial, private investigator Bob Jones. Through Jones, appellant offered for the jury's consideration some 38 magazines, two films and a book in an attempt to shed some light on one aspect of the somewhat murky definition of "obscenity" in V.T.C.A., Penal Code, § 43.21(1)(A). Since amended, the statute at the time of the trial below provided in pertinent part:

"In this subchapter:

"(1) 'Obscene' means having as a whole a dominant theme that:

"(A) appeals to the prurient interest of the average person applying contemporary community standards ;

"(B) depicts or describes sexual conduct in a patently offensive way; and

"(C) lacks serious literary, artistic, political, or scientific value." ²

Thus, it goes without saying that before members of a jury can decide whether given material is in fact obscene under the ambit of §§ 43.21 and 43.23, supra, they must first determine what are the governing "contemporary community standards." To bring before the jury evidence tending to show what these contemporary community standards were appellant was permitted to introduce 28 magazines, one film and the book, which were purchased in and about the area bounded by Dallas-Fort Worth to the north; Hillsboro to the south; Weatherford to the west; and Waxahachie to the east. The materials introduced and admitted into evidence were purchased by Bob Jones at various points in time from November 1 to November 14, 1977.

The trial court, however, excluded nine other magazines and one film from evidence on the basis that such materials "were not purchased close enough in time or distance to the event." ³

The State advances a trio of arguments calculated to validate the trial court's decision to exclude the proffered material. For reasons about to be stated, we find none of them particularly persuasive.

At the outset, the State does not contend that appellant had no right to introduce materials tending to aid the jury in their determination as to what "contemporary community standards" might be. Indeed, the Supreme Court has consistently held that the accused has the right to introduce such material in a criminal proceeding relating to obscenity offenses. See, e. g., Hamling v. United States, 418 U.S. 87, 105-106, 94 S.Ct. 2887, 2901-02, 41 L.Ed.2d 590 (1974).

The State, however, argues that no error is shown inasmuch as the excluded exhibits are "comparable" to some of the other magazines which were eventually admitted with the possible exception of two exhibits ⁴ "which go far beyond what the other magazines showed." To accept the logic of this argument would be, in essence, to substitute the State's lights for the jury's. That the jury might have believed that the excluded exhibits were "comparable" to those which they ended up viewing is a judgment that we are unable to make given the manifestly subjective nature of the jury's decision as to the ultimate obscenity issue. We therefore cannot accept the State's assertion that the error, if any, was harmless, based upon our own reading of the record and on what seems to us to have been the probable impact on the minds of an average jury given the exclusion of the proffered materials. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969). Consonantly, we conclude that an average jury could have reasonably found the State's case significantly less persuasive had these exhibits been admitted. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

The State next contends that the trial court was correct in excluding the proffered materials as their explicit nature, combined with the fact they were purchased in Dallas or Fort Worth, clearly evidence that they did not relate to what community standards are in Johnson County. This argument is bottomed on the mistaken notion that "contemporary community standards" are somehow confined to a clearly prescribed geographical area, in this case the territorial limits of Johnson County, and that in no instance can evidence tending to show contemporary community standards outside of that strictly defined area be admitted. That the State is mistaken in this assertion may be demonstrated by a brief review of the Supreme Court's treatment of the less than lucid concept of "contemporary community standards," a subject which we next address.

The Supreme Court first expressly held that obscenity enjoys no First Amendment protection in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) adopting what became to be regarded as the prevailing basic definition of obscenity:

" . . . (W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

Id. at 489, 77 S.Ct. at 1311. The problem with Roth was that it did not explain whether the "contemporary community standards" were derived nationwide or from a more local venue. Of the few lower courts that considered the issue thereafter, most decided that the Court was referring to local community standards. See Waples and White, Choice of Community Standards in Federal Obscenity Proceedings, 64 Va.L.R. 399, 400 (1978).

Five years later in Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), the Court held that Congress did not intend to make the community standard less than national under the federal obscenity statute noting:

"We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects different ethnic and cultural backgrounds, is a national standard of decency."

Id. at 488, 82 S.Ct. at 1437.

Two years later in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), a state obscenity conviction, a plurality of the Court concluded that the Constitution required a national standard to determine whether materials are obscene. Four Justices, however, failed to endorse this view and two other Justices expressed the contrary belief that "community standards" under the Roth test meant local community standards. Id. at 200-01, 84 S.Ct. at 1685.

An effort to end the confusion surrounding the applicable "standard" was made in 1973 with a line of cases climaxed by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), in which Chief Justice Burger wrote:

"To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility. . . . Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable 'national standards' when attempting to determine whether certain materials are obscene as a matter of fact."

Id. at 30-31, 93 S.Ct. at 2618. (Emphasis in original.) Miller also held that a "state-wide" standard is permissible in State obscenity cases but not constitutionally required. Id. at 31, 93 S.Ct. at 2618.

In Hamling v. United States, supra, the next major obscenity disposition, in attempting to clear the muddied waters of "contemporary community standards," the Court pointed out:

"A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination (of what contemporary community standards are), just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law."

418 U.S. at 104-05, 94 S.Ct. at 2901. The Court in Hamling stressed that a principal concern in requiring that a judgment as to obscenity be made on the basis of "contemporary community standards" is to ensure that the material is judged neither on the basis of each juror's personal opinion nor...