Longoria v. State, 44433
| Decision Date | 16 February 1972 |
| Docket Number | No. 44433,44433 |
| Citation | 479 S.W.2d 689 |
| Parties | Frank George LONGORIA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
J. Mack Ausburn, San Antonio, G. Rudolph Garza, Jr., Corpus Christi, for appellant.
Franklin L. Smith, County Atty., Michael J. Westergren, Asst. County Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION ON MOTION TO REINSTATE APPEAL
This is an appeal from a conviction for knowingly exhibiting obscene matter. The jury assessed the punishment at six months in jail and a fine of.$1000.00.
The prior opinion dismissing the appeal for lack of a sentence is withdrawn. A sentence has been made a part of the record, and the motion to reinstate the appeal is granted.
The sufficiency of the evidence is challenged.
On February 16, 1971, Sergeants Jack Featherston and John McDevitt of the Corpus Christi Police Department purchased tickets and entered the Texas Cinne Arts Theater in Corpus Christi. The officers viewed four films during a period of approximately two hours. As the officers were leaving the theater Sergeant Featherston asked who was the projectionist and appellant replied that he was.
At the trial the officers described several scenes from the films which showed nude bodies of men and women, acts of sexual intercourse, acts of oral sodomy, other sexual activity and a limited amount of conversation. Neither the films themselves nor any portions or representations of them were introduced into evidence.
In his second ground of error appellant complains that the evidence is insufficient to show the material obscene according to Article 527, Section 1(A), Vernon's Ann.P.C., which provides:
"Obscene' material means material (a) the dominant theme of which, taken as a whole, appeals to a prurient interest; (b) which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) which is utterly without redeeming social value.'
We recognize the difficulty prosecutors face in seizing allegedly obscene motion pictures for introduction into evidence in light of the confusion resulting from several recent three-judge federal court decisions. In Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.), where the judgment was vacated and remanded for reconsideration in light of Younger v. Harris on jurisdiction, sub nom. Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971) (per curiam), an adversary hearing on obscenity prior to seizure of films was said not to be a constitutional requirement. In Fontaine v. Dial, 303 F.Supp. 436 (W.D.Tex.1969), more than an ex parte judicial determination of probable cause was said to be required to obtain a search warrant and seize allegedly obscene motion pictures. In Newman v. Conover, 313 F.Supp. 623 (N.D.Tex.1970), Article 527, Section 9, V.A.P.C., was held unconstitutional for allowing the issuance of ex parte search warrants to seize allegedly obscene material without a prior adversary hearing. Yet in Academy, Inc. v. Vance, 320 F.Supp. 1357 (S.D.Tex.1970), where the procedures followed to seize...
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Bryers v. State
...required judgment as to the obscenity Vel non of the material in question. Hunt v. State, supra, 475 S.W.2d at 936; Longoria v. State, 479 S.W.2d 689 (Tex.Cr.App.). But since the holding of the instant appeal is that a conviction under Article 527 cannot be upheld unless the film is introdu......
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Richards v. State
...West v. State, 489 S.W.2d 597, 605 (Tex.Cr.App., 1972); Hunt v. State, 475 S.W.2d 935, 936 (Tex.Cr.App., 1972); and Longoria v. State, 479 S.W.2d 689, 690 (Tex.Cr.App., 1972).5 There appears a notation upon the signature card 'Chain of Small Movie Theaters/Located: 707 Main St. Fort Worth, ......
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...evaluation of whether "Barbara Broadcast" is obscene. He cites Andrews v. State, 652 S.W.2d 370 (Tex.Cr.App.1983); Longoria v. State, 479 S.W.2d 689 (Tex.Cr.App.1972); Hunt v. State, 475 S.W.2d 935 (Tex.Cr.App.1972), as authority for the proposition that notwithstanding a jury verdict findi......
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Andrews v. State
...with past decisions of the Supreme Court, this Court has long subscribed to the "independent review" rule of law. In Longoria v. State, 479 S.W.2d 689, 690 (Tex.Cr.1972), this Court stated the following, without limitation, restriction, or qualification: "It is necessary that the record con......