Ho v. State

• Decision Date: 13 May 1993
• Docket Number: No. 01-91-00199-CR,01-91-00199-CR
• Parties: Hoa HO, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 495

856 S.W.2d 495

Hoa HO, Appellant, v. The STATE of Texas, Appellee.

No. 01-91-00199-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 13, 1993.

Rehearing Denied May 28, 1993.

Michael A. Maness, Houston, for appellant.

John B. Holmes, Jr., Winston E. Cochran, Jr., Quentin Brogdon, Houston, for appellee.

Before DUGGAN, DUNN and O'CONNOR, JJ.

OPINION

DUGGAN, Justice.

A jury found appellant guilty of selling an obscene videotape and assessed his punishment at 365-days confinement, probated, and a $500 fine. Appellant asserts five points of error. We affirm.

Appellant asserts in his first point of error that the evidence is insufficient to establish beyond a reasonable doubt that the allegedly obscene material is "a motion picture film," as alleged in the information. He urges that the amended information, which alleges his sale of "one videotape," was invalid; therefore, he reasons, there is a fatal variance between the original information, which alleged his sale of "a motion picture film," and the record proof, which undisputedly showed the sale of a videotape.

The original information, which was supported by a signed and sworn complaint, alleged that appellant,

knowing the content and character of the material, intentionally [sold] to C.D. LOFTIN obscene material, namely a motion picture film entitled STARLETS # 6, CARA LOT VOLUME 2, which depicts patently offensive representation of actual sexual intercourse, oral sodomy, masturbation and male ejaculation.

(Emphasis added.)

Six months before trial, the State filed a motion for leave to amend its information, together with a proposed amended complaint and information. As amended, the complaint and information were identical to the originals except that the words "a motion picture film" were changed to "one videotape." The trial judge signed the form of order attached to the State's motion to amend. In the portion of the order specifying "(Granted) (Denied)," the court marked neither. Additionally, the amended complaint was not signed or sworn to. As amended, the complaint and information alleged that appellant,

knowing the content and character of the material, intentionally [sold] to C.D. LOFTIN obscene material, namely, one videotape entitled "STARLETS # 6, CARA LOTT VOLUME 2...."

(Emphasis added.)

Appellant neither moved to quash nor urged any other pretrial objection to the amended information. During trial, appellant made no objection when the State introduced into evidence the videotape "Starlets # 6, Cara Lott Volume 2." During both his cross-examination of Officer Loftin and his motion for an instructed verdict, appellant's trial attorney referred to the material as a "video" or "videotape." Further, appellant did not raise the issue of fatal variance between the original "motion picture film" and the proven "one videotape" in his motion for instructed verdict.

A valid complaint is a prerequisite to a valid information, State v. Price, 816 S.W.2d 824, 827 (Tex.App.--Austin 1991, no pet.); TEX. CODE CRIM.P.ANN. art. 21.22 (Vernon 1989), and a proper jurat is essential to a valid complaint. Shackelford v. State, 516 S.W.2d 180, 180 (Tex.Crim.App.1974). A complaint that is not sworn to before some official or person in authority is insufficient to constitute a basis for a valid conviction. Nichols v. State, 171 Tex.Crim. 42, 344 S.W.2d 694, 694 (App.1961); Price, 816 S.W.2d at 827.

However, when an original complaint and information are proper, the trial court has jurisdiction over the case, and a new complaint is not required in order to amend an information. Dixon v. State, 737 S.W.2d 134, 135 (Tex.App.--Fort Worth 1987, pet. ref'd); TEX. CODE CRIM.P.ANN. art. 28.09-.10 (Vernon 1989). If an originally valid complaint and information are amended in such a manner that the amended pleadings are defective, the defect is one of form or substance, not jurisdiction, because the trial court already has jurisdiction over the case.

An objection to a defect, error, or irregularity of form or substance in an information must be made before the date on which trial on the merits commences; otherwise, the alleged defect is waived. TEX.CODE CRIM.P.ANN. art. 1.14(b) (Vernon Supp.1993). A defendant must raise objections based on lack of subject matter jurisdiction in the trial court, while there is still an opportunity to correct the problem, DeDonato v. State, 819 S.W.2d 164, 167 (Tex.Crim.App.1991), and a failure to object, or to present a motion to quash prior to or at the time trial commences, waives any right to assert the objection on appeal. Loredo v. State, 788 S.W.2d 196, 198 (Tex.App.--Houston [1st Dist.] 1990, no pet.). Appellant raises this complaint for the first time on appeal. By failing to object or file a motion to quash, or to request an instructed verdict about this defect at trial, he has waived the complaint. Id. We overrule appellant's first point of error.

Appellant's second point of error asserts that the evidence does not establish beyond a reasonable doubt that the average person, applying contemporary community standards, would find that, taken as a whole, "Cara Lot" appeals to the prurient interest in sex.

Appellant asks this Court to view this videotape to determine whether "(i) the average person, applying contemporary community standards, would find beyond a reasonable doubt, that it appeals to the 'prurient interest' in sex, and (ii) the videotape depicts sexual activity so offensive on its face as to affront current community standards of decency." We have done so.

Appellant also requests this Court to take judicial notice of certain facts set out in his brief. ¹ He urges that these facts establish "convincingly that the prurience elicited by 'Cara Lot' is normal rather than abnormal, and that this videotape is not obscene in the sense demanded by [TEX.PENAL CODE ANN. § 43.21 and the first and fourteenth amendments to the U.S. Constitution]".

Rule 201(b), entitled "Kinds of Facts," tells us that a judicially-noticed, adjudicative fact must be indisputable ("not subject to reasonable dispute") in that it is either notorious ("generally known within the territorial jurisdiction of the trial court") or verifiable ("capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). 33 S. Goode, O. Wellborn & M. Sharlot, GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 201.3 (Texas Practice 1988) [hereinafter GUIDE TO THE TEXAS RULES OF EVIDENCE]. Although appellant has requested judicial notice of eight adjudicative "facts," he has not provided the "necessary information" required by rule 201(d).

With regard to facts covered by Rule 201(b)(1)--notorious facts--it is unlikely that the request needs to be accompanied by any information, since presumably the judge will be aware of community knowledge of indisputable facts. With regard to facts covered by Rule 201(b)(2)--verifiable facts--the requesting party must provide two things: (i) the "source[ ] whose accuracy cannot reasonably be questioned" in which the fact appears, and (ii) any additional information required to show that the source is one "whose accuracy cannot reasonably be questioned."

GUIDE TO THE TEXAS RULES OF EVIDENCE § 201.5

We cannot judicially notice appellant's submitted "facts" as notorious under rule 201(b)(1) because we are not aware that they are "generally known within the territorial jurisdiction of the trial court." Neither can we accept them as verifiable under rule 201(b)(2) because appellant has not provided us with a source for such facts "whose accuracy cannot reasonably be questioned."

In determining whether material is constitutionally obscene, an appellate court is obligated to independently review and evaluate the subject material, as we have done, in light of the criteria set out in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). Andrews v. State, 652 S.W.2d 370, 383 (Tex.Crim.App.1983); see also Burch v. State, 695 S.W.2d 264, 265 (Tex.App.--Houston [1st Dist.] 1985, pet. ref'd). The test for obscenity set out in Miller is, in pertinent part:

(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.

413 U.S. at 24, 93 S.Ct. at 2615.

Thus, appellant's point of error asserts the State's failure to prove the first prong of the Miller analysis, i.e., that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. "Prurient interest" may be constitutionally defined for the purpose of identifying obscenity as that which appeals to a shameful or morbid interest in sex. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). Before material can be found obscene and support a valid conviction, the State must prove beyond a reasonable doubt that it depicts and describes "patently offensive" representations of actual or simulated sexual intercourse, anal intercourse, or oral sodomy. Burch, 695 S.W.2d at 265. However, where the items charged as obscene are introduced and admitted into evidence, the State is not required to introduce testimony as affirmative evidence of community standards. Smith v. State, 811 S.W.2d 665, 671 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd.).

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, we view the evidence in the light most favorable to the judgment. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after viewing the entire body of evidence in...