Bryers v. State

• Citation: 480 S.W.2d 712
• Decision Date: 31 May 1972
• Docket Number: No. 44667,44667
• Parties: Arlene BRYERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 712

480 S.W.2d 712

Arlene BRYERS, Appellant, v. The STATE of Texas, Appellee.

No. 44667.

Court of Criminal Appeals of Texas.

May 31, 1972.

Clyde W. Woody, Marian S. Rosen, Houston, for appellant.

Carol S. Vance, Dist. Atty., and Michael J. Hinton, Asst. Dist. Atty., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant, a ticket taker in a 'stag' theater in Houston, was convicted for exhibiting an obscene film in violation of Article 527, Vernon's Ann.P.C. (Supp.1972). A $200 fine was assessed as punishment.

On October 6, 1970, Houston Police Detective Richard See, accompanied by a police photographer, went to the Mini Park theater, paid the admission price and proceeded to view two films. Acting under Officer See's direction, the photographer took pictures of certain frames or scenes in the movies. After leaving the theater, See completed in some detail an 'Obscene Film Offense Report' which had been prepared by the District Attorney's staff. Included in this report was a physical description of employees seen in the theater at the time the film was shown.

On October 8th, members of the District Attorney's staff and other police officers involved in similar investigations gathered in the office of Justice of the Peace Touchey for the purpose of obtaining arrest warrants for persons observed in the various theaters investigated. Notwithstanding substantial 'administrative difficulties' in the swearing process, the magistrate was presented with an affidavit by Officer See, the 'Obscene Film Offense Report' and the pictures which had been taken at the Mini Park. Based on this evidence, a finding of probable cause was made and arrest warrants for twenty-eight persons (including appellant) were issued over Judge Touchey's signature. Appellant was arrested the same day.

The record before us makes clear that appellant's arrest was not an isolated incident; consequently, shortly after numerous similar arrests were effected, attorneys for appellant filed an action in federal court on behalf of several movie operators seeking permanent injunctions against further state action in the instant obscenity prosecutions. A three-judge court was convened, heard extensive testimony and ultimately held that federal injunction intervention in the pending state obscenity prosecutions would be improper because the requisite ". . . bad-faith use of the state's legal machinery with the purpose of inhibiting the exercise of the right of free speech. . . ." had not been demonstrated. Academy, Inc. v. Vance, 320 F.Supp. 1357, 1358 (S.D.Tex.Nov. 13, 1970) (3 judge court).

The only evidence introduced by the State in the instant case as to the contents of the film was the testimony of Officer See and three photographs which a police photographer had taken while Office See was viewing the films. From the officer's testimony, it appears that the two films portrayed homosexual contacts between nude males. In one film, the 'House of Gang Bang', the nude episodes involved multiple parties and occurred around a swimming pool. The scene then shifted to a bedroom where several males were shown undressing, 'french kissing', caressing each other's bodies, including (in the officer's words) 'closeup shots of the other man's hand rubbing the private parts of his partner.' Several scenes purported to show anal and oral sodomy taking place between naked males although the officer admitted on cross examination that penetration was not visible and the sexual activity may have been simulated. There was little action or conversation that was not related to the various sexual contacts.

The second film, entitled 'A Peter from Paris', contained similar nauseam except that the encounters were limited to two males. Both films were spliced together and covered thirty to forty-five minutes. At the time of the showing observed by the officer, eight men were in the audience.

The three photographs of frames from the film are now before this court on appeal. Due to the poor resolution of the images, the photographs are difficult to interpret. Thus, for example, while it is self-evident that some type of contact is being made between naked persons, taken apart from the other testimony in the record, one cannot determine whether the participants are male or female.

Rather than follow the order in appellant's brief, we shall consider the grounds of error in order of their logical priority.

The first contention urged is that the trial court erred in failing to quash the information because the county court did not have either personal or subject matter jurisdiction. To support this conclusion appellant advances Inter alia, ¹ the proposition that the federal constitution requires an adversary hearing on obscenity of the suspect materials prior to Any institution of the criminal process, and that absent such a hearing all proceedings are void. ² We are of the belief that such a proposition is not and should not be the law, and appellant has cited us to no authority which convinces us otherwise.

Appellant relies primarily on Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). While it is true that perhaps a majority of decisions have read Marcus and Books as requiring an adversary hearing on obscenity prior to seizure of an allegedly obscene film pursuant to a search warrant, ³ the authorities are sharply in conflict as to whether an adversary hearing on obscenity must precede a seizure which occurs incident to an ordinary arrest. ⁴ But where, as in the instant case, nothing is seized incident to the arrest, the absence of an adversary hearing on obscenity prior to the arrest does not vitiate or taint the legality of the subsequent proceedings as long as the ordinary requirements of probable cause are satisfied. ^4A

Appellant also urges that Article 527, supra, is so vague that it is unconstitutional on its face. The statutory definition of 'obscenity', Article 527 § 1, tracks almost word-for word the language of the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). The vagueness contention is overruled.

And, by supplemental brief, it is argued that Article 527, supra, is also unconstitutional on its face in violation of the First Amendment in that the statute fails to require either 'pandering', an obtrusive showing (invasion of privacy), a specific concern for juveniles, or 'hard-core pornography' as a precondition for a conviction. Such an argument is without merit.

According to appellant, these necessary requirements are said to flow from a synthesis of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), Redrup's progeny of per curiam reversals, and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In the first place, evidence of 'pandering' is, indeed, '. . . relevant to the application of the Roth test. . . .', but relevant in such a way as to Narrow First Amendment protection. Ginzburg v. United States, 383 U.S. 463, 471, 86 S.Ct. 942, 947, 16 L.Ed.2d 31 (1966). Where 'pandering' is shown, the material may be found constitutionally obscene even though otherwise not in violation of the Roth-Memoirs' standards. Ginzburg v. United States, supra, 383 U.S. at 470--473, 86 S.Ct. 942; Hunt v. State, 475 S.W.2d 935, 937 (Tex.Cr.App.1972) (by implication).

Secondly, despite some lower court authority to the contrary. ⁵

'(n)othing in Redrup changes the scope or effect of these added 'tests.' There is no support in that or any other decision of the Supreme Court for the view that they must be satisfied In addition to the three tests of Memoirs before a finding of obscenity is permissible. . . .' Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288, 294 (S.D.N.Y.1969) (3 judge court), aff'd, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970) (per curiam).

Finally, as for the contention that the logic of Stanley somehow limited Sub silentio the Roth-Memoirs' test, we need only turn to the unequivocal language of Mr. Justice White, speaking for a majority of the Court, in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 1412--1413, 28 L.Ed.2d 813 (1971):

'The District Court gave Stanley too wide a sweep. To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion abjured. Whatever the scope of the 'right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here--dealings that Roth held unprotected by the First Amendment.

'. . . Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today. Stanley did not overrule Roth and we decline to do so now.'

After Reidel, therefore, we finally

'. . . can now say for certain that obscenity need Not involve the three enumerated areas, i.e., 'pandering' or 'dissemination to unconsenting adults or children,' in order for it to be proscribed and constitutionally suppressed. . . .' (Emphasis added.) United States v. Thevis, 329 F.Supp. 265, 269 (M.D.Fla.1971). ⁶

These threshold issues aside, we turn now to the primary question presented by this appeal: can a conviction for exhibition of an obscene film be sustained where the film itself is not introduced into evidence before the fact-finder in the trial court? ⁷

For some reason there is a dearth of direct holdings on the issue, possibly because prosecutions in other jurisdictions have not been attempted...