Gholson v. State

• Decision Date: 23 June 1983
• Docket Number: No. C14-81-420CR,C14-81-420CR
• Citation: 667 S.W.2d 168
• Parties: William T. GHOLSON, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 168

667 S.W.2d 168

William T. GHOLSON, Appellant, v. STATE of Texas, Appellee.

No. C14-81-420CR.

Court of Appeals of Texas Houston (14th Dist.).

June 23, 1983.

Rehearing Denied July 28, 1983.

Discretionary Review

Refused Jan. 6, 1984.

Clyde W. Woody, Houston, for appellant.

James Brough, Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

MURPHY, Justice.

A jury found William T. Gholson (Appellant) guilty of promoting obscene material in violation of TEX.PENAL CODE ANN. § 43.23 (Vernon Supp.1982-1983). In his appeal he raises seven grounds of error relating to inaccuracies in the statement of facts, the constitutionality of various provisions in §§ 43.21 and 43.23 of the Texas Penal Code, the adequacy of the affidavit upon which the information and search warrant depended, and the sufficiency of the evidence concerning the act of promotion of the material. Sufficiency of the evidence relating to the finding that the material was obscene has not been raised on appeal, and so we decline to address that issue. We affirm.

Appellant is the owner of the Bellaire News Stand in Harris County. On October 15, 1979, undercover officer R.E. Thompson of the Houston Police Department went to the newstand and purchased VHS video cassettes entitled "Behind the Green Door" and "One Way At A Time" from a clerk. Officer Thompson then returned to the Vice Squad office with the cassettes and discovered the Department's video machine was a Betamax model which was not compatible with the VHS cassettes. He returned to the Bellaire News Stand later that same day and exchanged the VHS cassettes for Betamax versions of "One Way at a Time" and "Barbara Broadcast." At the time of the exchange, Appellant was standing near the clerk and was talking on the telephone. He interrupted his conversation to authorize the transaction, and he remained nearby when the clerk paid an $18.00 refund.

In April 1980, Appellant was charged by information with the misdemeanor offense of obscenity, and specifically with promoting or selling obscene material with knowledge of its content. "Barbara Broadcast" was the only obscene material mentioned in the information. The warrant for Appellant's arrest was served in May 1980. A number of pre-trial motions, including a motion to suppress evidence and motions to quash the information, were denied. Trial was to a jury in February 1981. The jury heard extensive testimony and viewed numerous exhibits, including the films purchased by the undercover officer. Appellant was found guilty as charged, and was sentenced to one year in jail and fined $2,000.00. The record on appeal consists of eighteen volumes, including a ten volume statement of facts and six volumes of exhibits.

The state of the appellate record has provoked controversy. Prior to perfecting his appeal to this court, Appellant had considerable difficulty in obtaining a statement of facts because the court reporter became ill after the trial and was unable to promptly transcribe her notes. This court issued a writ of mandamus in January 1982 and ordered her to provide the statement of facts on or before February 11, 1982. Appellant filed a second objection to the appellate record, the court reporter was found in contempt by this Court on March 19, 1982, and part of the statement of facts was filed in the trial court on April 12, 1982. In May Appellant again objected to the record because of numerous spelling errors in the transcription. Additional volumes of the statement of facts were filed in June, and Appellant objected for the third time to uncorrected spelling errors. On July 26, 1982 the trial court approved the record stating: "Record approved with its many inaccuracies as the Court believes that the many, many misspelled words might make sense if read phonetically."

Appellant in his first two grounds of error maintains that in overruling his third objection to the appellate record the trial court (1) contravened the requirement imposed by TEX.CODE CRIM.PROC.ANN. art. 40.09, § 7 (Vernon Supp.1982-1983) that the record speak the truth, and (2) denied him effective assistance of counsel and due process in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We disagree with both contentions.

A statement of facts must be approved by counsel for both parties or by the trial judge to be considered by an appellate court. McDearmon v. State, 171 Tex.Cr. 161, 346 S.W.2d 335, 336 (1961). In this case, the trial court approved the transcript of the court reporter's notes despite a multitude of spelling errors. Most of Appellant's complaints are directed at misspelled words which, though numerous and pervasive, can be readily deciphered, particularly when read in context. It is obvious to us, for example, that "William T. Gholsom" refers to William T. Gholson, that "Betamack" means Betamax, that "bailie" should be bailiff, and that "peerant interest in sex" is prurient interest in sex (the court reporter is not the first person to be perplexed by the word, prurient). We do not find the typographical errors in the statement of facts to be so serious as to render the document unintelligible. See Searcy v. State, 40 Tex. 460, 50 S.W. 699, 700 (1899). Appellant's first two grounds of error are overruled.

The most difficult questions posed by Appellant are found in grounds of error three and four, in which he challenges the constitutionality of TEX.PENAL CODE ANN. § 43.21(a)(4) and (a)(5) on the grounds of overbreadth, both on the face of the provisions and as they were applied to him in the prosecution. In the interest of a coherent discussion, we will briefly delineate the legal context of Appellant's assertions before addressing his specific complaints.

It is well settled in American jurisprudence that the right of free speech is not absolute and that obscenity does not fall within the bounds of expression protected by the First Amendment to the United States Constitution. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). Obscenity may be regulated without infringing on First Amendment rights because it has such slight social value as a medium of speech and expression of ideas that any benefit from it is clearly outweighed by society's interest in order. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). The courts and legislatures of this country have produced mammoth amounts of verbiage in an effort to clarify the standards to be used in identifying obscene material. Relatively concise guidelines to be used by the trier of fact in differentiating between obscenity and constitutionally protected expression were set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973):

(a) whether "the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The Texas Legislature has incorporated language from Miller into the criminal obscenity statute under which Appellant was prosecuted, TEX.PENAL CODE ANN. §§ 43.21-43.23 (Vernon 1974 & Vernon Supp.1982-1983). The three part test quoted above is found in § 43.21(a)(1)(A), (B), and (C).

STANDARD OF REVIEW IN AN OVERBREADTH CHALLENGE

Before analyzing Appellant's third and fourth grounds of error, a few general observations about statutory construction and judicial review in the area of the First Amendment are in order.

The overbreadth doctrine is one of several judicial techniques used in the adjudication of First Amendment claims. It is founded on the principle that "a governmental purpose to control or prevent activities constitutionally subject [to] regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313, 12 L.Ed.2d 325 (1964).

In contrast to the typical "as applied" analysis of a statute with First Amendment ramifications, the overbreadth approach used by the federal courts does not reach the question of whether the challenger's activities are constitutionally protected. Instead, the doctrine alters normal rules of standing and permits the invalidation of a statute because of the potential application of it to the constitutionally protected activity of others not before the court. County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, Texas does not subscribe to the federal method of analyzing an overbreadth challenge. Our state courts consistently have insisted that standing to challenge the constitutionality of portions of a statute is predicated on a defendant's having had those portions applied to him. See, e.g., Gaffney v. State, 575 S.W.2d 537, 541 (Tex.Cr.App.1978); Scott v. State, 460 S.W.2d 103, 107 (Tex.1970); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1030 (5th Cir.1981).

Since criminal penalties can be imposed by a statute which implicates First Amendment guarantees, the Texas Penal Code scheme must be subjected to close scrutiny. Beck v. State, 583 S.W.2d 338, 343 (Tex.Cr.App.1979). On the other hand, according to contemporary overbreadth analysis, no state statute should be declared facially invalid unless state courts cannot readily construe it more narrowly and, in addition, unless the statute's deterrent effect on legitimate speech and conduct is both real and substantial in relation to the statute's legitimate sweep. Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. at 616, ...