Carlock v. State
| Decision Date | 26 November 1980 |
| Docket Number | No. 59451,No. 2,59451,2 |
| Citation | 609 S.W.2d 787 |
| Parties | 6 Media L. Rep. 2275 Charles Edwin CARLOCK, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Malcolm Dade, Dallas, for appellant.
Henry Wade, Dist. Atty., and T. Michael Sutton, Jim Johnson and Joe Revesz, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and CLINTON, JJ.
On August 11, 1976, Jesus Baca, working in the capacity of an undercover police officer, entered the Denmark Bookstore in Dallas for the purpose of "making an obscenity case." While inside the store, Officer Baca selected a magazine entitled "Candid," went to the cashier's counter and purchased the magazine from the appellant. After viewing the magazine's contents with two other officers who had been waiting outside the Denmark, Officer Baca returned to the bookstore and arrested the appellant for the offense of commercial obscenity. A jury found the appellant guilty and assessed his punishment at 120 days' confinement and a fine of.$1000.00.
In his first ground of error, the appellant contends that the trial court erred in excluding from evidence a public opinion survey dealing with community standards regarding obscenity. The appellant called only one witness during the guilt-innocence stage of the trial, Dr. Roderick Bell. At a hearing out of the presence of the jury, Dr. Bell testified that in May and June of 1977, he conducted a poll of Dallas County regarding that community's standards as to explicit sexual materials. The trial court refused to admit a summary of this survey's results or to permit the appellant's expert witness to testify before the jury concerning the opinion-poll. For reasons discussed below, we find the exclusion of this evidence was error and accordingly reverse.
(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." (Emphasis supplied.)
Under this definition, the issue of what is or is not acceptable according to "contemporary community standards" is a question the jury must resolve before determining whether the particular material distributed is in fact obscene. In other words, the community's contemporary standards regarding obscenity are at issue. Evidence which tends to show such relevant standards would, therefore, assist the jury in resolving the factual issues raised in an obscenity prosecution. In the instant case, the excluded expert testimony and the survey summary were offered by the appellant as evidence of the standards existing in Dallas County concerning explicit sexual materials.
The State advances several arguments in support of its contention that the trial court properly excluded the appellant's expert evidence. It first asserts that the assistance of an expert witness is not needed for a juror to determine community standards and, therefore, exclusion of such evidence is within the trial court's discretion. The State's argument is premised upon Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), in which the United States Supreme Court held that expert testimony on behalf of the prosecution is not constitutionally required because the allegedly obscene material itself is sufficient evidence for the determination of the question of obscenity. But that holding cannot justify denying a defendant the right to introduce the best evidence he can produce upon a material element of the statutory definition of obscenity. Indeed, in another opinion delivered the same day as Paris Adult Theater I, the Supreme Court expressed the view that while expert affirmative evidence upon relevant community standards is not required, a defendant should be free to introduce appropriate expert testimony. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); see also Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).
In Berg v. State, 599 S.W.2d 802 (Tex.Cr.App.1980), this Court also recognized the right of a defendant to introduce evidence as to contemporary community standards in a commercial obscenity prosecution. Berg held that it was error for the trial court to exclude from evidence certain magazines and films offered by the defendant because such materials were relevant to and probative of the fact issue raised by Section 43.21(1)(A).
The public opinion survey in this case, like the materials offered in Berg, is evidence which attempts to define the applicable community standards. Although such expert evidence is not required from either the State or the defendant, it is certainly relevant to the determination of a material fact issue. We therefore reject the State's first contention that the trial court could properly exclude the appellant's expert evidence as to contemporary community standards in the exercise of judicial discretion. 1
The State next contends that the exclusion of the public opinion survey from evidence was proper because the poll was taken in May and June of 1977, and, therefore, did not reflect the community standards of August 11, 1976, the data of the alleged offense. The State did not present any evidence in support of its contention, and it is doubtful that the standards at issue did in fact change significantly in this relatively short period of time. But regardless of whether the State's claim is or is not correct, any such alleged defect in the manner in which a poll was conducted should affect only the weight to be accorded the survey results rather than the admissibility of the survey itself. Since the jury is the exclusive judge of the weight to be given to the testimony, 2 the trial court should have permitted the jury to hear and consider the appellant's opinion survey.
The State also contends that the public...
To continue reading
Request your trial
-
US v. Pryba
...6 But see Saliba v. State, 475 N.E.2d 1181, 1186-87 (Ind.Ct.App.), transfer denied, 484 N.E.2d 1295 (Ind.1985); Carlock v. State, 609 S.W.2d 787, 789-90 (Tex.Crim.App.1980); People v. Nelson, 88 Ill.App.3d 196, 43 Ill.Dec. 476, 478, 410 N.E.2d 476, 478 (1980). 7 Even defendants' authorities......
-
Cimino v. Raymark Industries, Inc.
...public opinion polls have been allowed in some state courts as evidence of community standards in obscenity cases. See Carlock v. State, 609 S.W.2d 787 (Tex.Cr. App.1980); Saliba v. State, 475 N.E.2d 1181 (Ind.App.2d Dist.1985). Evidence based upon statistical sampling has particularly rece......
-
Macon v. State
...Inc. v. Cronvich, 304 F.Supp. 662, 667 (E.D.La.1969). But see Price v. State, 579 S.W.2d 492, 495 (Tex.Cr.App.1979); Carlock v. State, 609 S.W.2d 787 (Tex.Cr.App.1980). A group of cases strikingly similar to appellant's were decided in State v. Furuyama, 64 Hawaii 109, 637 P.2d 1095 (Haw.19......
-
State v. Caudill
...definition of obscenity. See Kaplan v. California (1973), 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492, 498; Carlock v. State (Tex.Crim.App.1980), 609 S.W.2d 787. In my opinion, to do otherwise, results in an abuse of I also acknowledge the fundamental principle that an appellate ......
-
Sample Data as Evidence: Meeting the Requirements of Daubert and the Recently Amended Federal Rules of Evidence
...v. State, 475 N.E.2d 1181, 1185 (Ind. Ct. App. 1985); Commonwealth v. Trainor, 374 N.E.2d 1216, 1220 (Mass. 1978); Carlock v. State, 609 S.W.2d 787, 789 (Tex. Crim. App. 1980); County of Kenosha v. C & S Mgmt., Inc., 588 N.W.2d 236, 252-53 (Wis. 1999). [10]. Sampling has been widely utilize......