Burden v. State

• Decision Date: 19 September 2001
• Docket Number: No. 1698-99,1698-99
• Parties: (Tex.Crim.App. 2001) RALPH CLINTON BURDEN, JR., Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 608

55 S.W.3d 608 (Tex.Crim.App. 2001)

RALPH CLINTON BURDEN, JR., Appellant v. THE STATE OF TEXAS

No. 1698-99

Court of Criminal Appeals of Texas

September 19, 2001

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY

[Copyrighted Material Omitted]

Michael Maness, Houston, for Appellant.

Karen R. Wise, Asst. DA, Dallas, for State.

Price, J., delivered the opinion of the Court in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, and Holcomb, J.J., joined.

OPINION

The appellant was convicted of promotion of obscenity. On petition to this court, the appellant argues that because he did not know that the videotape in question was obscene, the evidence is legally insufficient to support his conviction. The appellant also argues that the Court of Appeals erroneously upheld the trial court's exclusion of comparable pornographic evidence from the internet. Because the statute requires only knowledge of the material's character and content, and not knowledge of its legal status as obscene, we hold that the evidence is legally sufficient. Furthermore, because the defendant failed to show a reasonable degree of community acceptance of the internet images, the trial court did not err in excluding the proffered evidence and testimony. Accordingly, we shall affirm.

Background

On October 9, 1996, Detective Reynerson, an undercover police officer in the Dallas Police Department's Vice Division, entered Star Adult Video Center. After viewing a display of videotape boxes, Reynerson selected the videotape box for "Hardcore Schoolgirls Volume 5" and presented the box to the appellant, who was the sales clerk. The appellant checked the videotape number on the side of the box, retrieved the videotape from the back of the video store, and then sold it to Reynerson. Reynerson later viewed the videotape and arrested the appellant for promotion of obscenity.

At trial, the videotape was played for the jury and the videotape box was admitted into evidence. The front of the box has several sexual statements, and the back of the box has sixteen pictures, eleven of which show sexually explicit scenes.¹ Reynerson testified that he had never purchased a videotape in which the activities pictured on the box were different from the activities depicted in the video, and that he chose this videotape based on the pictures on the box.² In Reynerson's opinion, the videotape was obscene.

The appellant testified that the video store had between twenty-five and thirty thousand videotapes on site. The appellant testified that he knew the character of the films sold was sexually explicit and that he had a general understanding of what was on most of the videotapes. Although the appellant admitted he knew that some kind of sex act was depicted on all the videotapes, he testified that he did not know the exact content of this particular videotape.

Raymond Hill, a lobbyist and consultant for various sexually oriented businesses across Texas, testified for the defense concerning pornographic businesses in Texas and the materials sold at such businesses. Hill said that the images depicted on the videotape were not uncommon in the industry, and that the videotape was not obscene. Hill also testified concerning advertising for pornographic businesses in radio, billboard, and newspaper advertisements.

Outside the presence of the jury, the appellant proffered the testimony of Stanley Wilder, an internet web-page designer. Wilder testified that there were 225,000 sexually oriented internet sites and that anybody with a computer and modem could access those sites. He testified that the internet sites were available at the Dallas Public Library, but that he did not know of any efforts by library personnel to censor access to the internet. According to Wilder, many of the sites originated in foreign countries that did not regulate such sites. On a computer, Wilder displayed a slide show with images obtained from sexually oriented internet sites.

The State objected to Wilder's testimony and evidence as irrelevant. The trial court sustained the State's objection and excluded the evidence. The trial court explained that, even if the evidence was relevant, it would be excluded under Rule 403 as a needless presentation of cumulative evidence and as confusing and misleading to the jury.

Before the jury charge was read, the appellant made a bill of exceptions concerning Wilder's later trip to the library. During the appellant's testimony, Wilder had gone to the library. On a library computer, Wilder accessed the internet and viewed and downloaded material from the same internet sites that he had presented during his prior testimony. Wilder would have testified that the library made no effort to censor or prevent anyone from using its computers to find sexually explicit images on the internet. The trial court again excluded the evidence. The jury found the appellant guilty.

The Court of Appeals affirmed the conviction. Burden v. State, No. 05-97-01464-CR, slip op. at 5 (Tex. App. -- Dallas August 3, 1999) (not designated for publication). The Court of Appeals held that the evidence was legally sufficient to establish that the appellant knew the character and content of the videotape. Id. at 3. The Court of Appeals concluded that the jury could have found that the appellant had knowledge of the videotape's character and content based on the other sexually explicit videos sold at the store, and based on the videotape's box that had pictures showing explicit sexual acts. Id.

The Court of Appeals further held that the trial court did not abuse its discretion in excluding Wilder's testimony and collected images. Id. at 5. It held that evidence of internet pornography was already in the record through the testimony of Reynerson.³ Id. The Court of Appeals also explained that the appellant's proffered evidence consisted of still pictures, not movies; that most likely the appellant's evidence did not originate in Dallas, but rather Holland or South America; and finally, that Wilder stated that he did not know what efforts, if any, the library had taken to censor access to the internet. Id.

We granted the appellant's petition to determine if the evidence was legally sufficient to support the conviction, and to determine whether Wilder's testimony and the internet images from the library were properly excluded.⁴

Legal Sufficiency of the Evidence

In his first two grounds for review, the appellant argues that the evidence is legally insufficient to establish that he knew the videotape was legally obscene. The appellant argues that under Smith v. California, 361 U.S. 147 (1959), in criminal prosecutions implicating First Amendment rights of free expression, the State must prove that a defendant had the requisite criminal scienter. The appellant asserts that the evidence must establish that the defendant knew or had "a reasonable basis for the belief that the sexually explicit material in issue actually exceed[ed] the limits of constitutional protection afforded by the First Amendment." Appellant's Brief at 7. In other words, the defendant must know that what he promotes is obscene. Because there was no evidence that the appellant knew or had reason to know that what he sold was so offensive on its face as to affront current community standards of decency, the appellant argues that the Court of Appeals erroneously held the evidence to be legally sufficient.

In conducting a legal sufficiency review, this Court examines all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). This standard is the same in both direct and circumstantial evidence cases. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

Here, the appellant was charged with the offense of promotion of obscenity, specifically that "knowing its content and character, he promote[d] or possesse[d] with intent to promote any obscene material or obscene device." Tex. Penal Code § 43.23(c)(1). We will give effect to the plain language of a statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We see nothing in the language of section 43.23(c)(1) that requires a defendant to have knowledge that what he promotes is legally obscene. All section 43.23(c)(1) requires is that a defendant have knowledge of the material's sexually explicit character and content. Tex. Penal Code § 43.23(c)(1). The plain language of the statute does not support the appellant's position.

Furthermore, we have held that the State has the burden to prove that a defendant had knowledge of the character and content of the material in question. Carroll v. State, 701 S.W.2d 913, 914 (Tex. Crim. App. 1986) (citing Davis v. State, 658 S.W.2d 572 (Tex. Crim. App. 1983)). In Carroll, the defendant alleged that the evidence was insufficient to establish that he had knowledge of the character and content of the allegedly obscene material. The evidence showed that the defendant had seen the cover of the material, had picked the material up at a United Parcel Service store, had unwrapped the material, and had placed it on a display stand with other sexually explicit magazines and videotapes. We held that this evidence was sufficient to show circumstantially that the defendant had knowledge of the character and content of the obscene material. Carroll, 701 S.W.2d at 915. Although we held that the defendant had knowledge of the character and content of the obscene material, we did not expressly deal with the issue of whether a defendant must know that what he promotes is legally obscene or the constitutional issues now raised by the appellant.

The current definition of obscenity in the statute tracks the Miller v. California, 413 U.S. 15 (1973), definition of...