Marlow v. State

• Citation: 537 S.W.2d 8
• Decision Date: 19 May 1976
• Docket Number: No. 50599,50599
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Parties: James MARLOW, Appellant, v. The STATE of Texas, Appellee.

Page 8

537 S.W.2d 8

James MARLOW, Appellant, v. The STATE of Texas, Appellee.

No. 50599.

Court of Criminal Appeals of Texas.

May 19, 1976.

Roland H. Hill, Jr., Fort Worth, for appellant.

Tim Curry, Dist. Atty., Donald S. Gandy and Joe Shannon, Jr., Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction under our former Penal Code for exhibiting obscene material. Punishment was assessed at confinement for ninety days and a fine of one thousand dollars.

First, appellant contends that portions of the court's charge at the guilt or innocence stage of the trial constitute impermissible comments upon the weight of the evidence, Art. 38.05, V.A.C.C.P. The court charged the jury:

'NOW THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that the motion picture film depicting various acts of oral sodomy and sexual intercourse between three white females and two white males, which has been introduced in evidence before you, to be obscene, as that term is herein defined, you will so state in the verdict form provided below. Unless you do so find beyond a reasonable doubt, then you will find the film depicting various acts of oral sodomy and sexual intercourse between three white females and two white males not to be obscene, and so indicate in the verdict form provided below.

'NOW THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that Charles Eugene Armstrong did on or about August 8th, 1973, knowingly exhibit to J. E. Little obscene matter, namely, one motion picture depicting various acts of oral sodomy and sexual intercourse between three white females and two white males, and you further find and believe from the evidence beyond a reasonable doubt that the defendant, JAMES MARLOW, did engage in procuring aid or means of any kind to assist the exhibition, if any, while the said Charles Eugene Armstrong was engaged in the exhibition, if he was, then, in that event, the said JAMES MARLOW would be guilty as a principal and you will so say by your verdict.'

Appellant objected to these portions of the charge in a timely manner. His complaint is that the charge assumes as true that the film depicted acts of oral sodomy and sexual intercourse and thereby invaded the province of the jury as the finder of fact.

It is undisputable that the charge assumed the matters stated and that the matters stated were adverse to appellant's interest. The issue is whether the trial court erred in assuming such matters.

The authorities are in conflict upon this point. On the one hand, this Court has said:

'It has been quite uniformly held that it is improper for a judge, in charging the jury in a criminal case, to assume that any fact has been proved against the defendant, However strong the evidence may be.'

Kellogg v. State, 58 Tex.Cr.R. 84, 124 S.W. 958, 959 (emphasis added.) Accord, Richardson v. State, Tex.Cr.App., 390 S.W.2d 773; Supina v. State, 115 Tex.Cr.R. 56, 27 S.W.2d 198; Jones v. State, 22 Tex.App. 680, 3 S.W. 478; Jernigan v. State, 10 Tex.App. 546; Webb v. State, 8 Tex.App. 115; Baker v. State, 6 Tex.App. 344. See also Hawley v. State, 158 Tex.Cr.R. 61, 252 S.W.2d 933; Stanley v. State, 142 Tex.Cr.R. 495, 154 S.W.2d 856, 859 (on motion for rehearing); Hughes v. State, 99 Tex.Cr.R. 244, 268 S.W. 960, 961 (on motion for rehearing); Cannon v. State, 84 Tex.Cr.R. 504, 208 S.W. 339; Young v. State, 68 Tex.Cr.R. 580, 151 S.W. 1046.

Under this statement of the rule, there appear to be only two exceptions. If the fact is one that the court may judicially notice or if the accused makes a judicial admission of the fact, it is not error if the trial court assumes the fact to be true in its charge. Findley v. State, Tex.Cr.App., 378 S.W.2d 850; see also Wyatt v. State, 140 Tex.Cr.R. 578, 146 S.W.2d 187; Burk v. State, 50 Tex.Cr.R. 185, 95 S.W. 1064; Jackson v. State, 25 Tex.App. 314, 7 S.W. 872.

On the other hand, as this Court has stated:

'(I)t has been held that where the facts are admitted to be true, Or are shown beyond any doubt without contest, the court in its charge may so assume without infringing the rule inhibiting a charge upon the weight of evidence and . . . where there is no conflict in the testimony and no room to doubt or hesitate as to a matter of fact in issue the charge ought not to assume that it is or may be doubtful. (Elizando v. State, 31 Tex.Cr.R. 237, 20 S.W. 560; Jackson v. State, 25 Tex.App. 314, 7 S.W. 872; Fahey v. State, 27 Tex.App. 146, 11 S.W. 108, 11 Am.St.Rep. 182; Nelson v. State, 35 Tex.Cr.R. 205, 32 S.W. 900; Holliday v. State, 35 Tex.Cr.R. 133, 32 S.W. 538; Pearce v. State, 35 Tex.Cr.R. 150, 32 S.W. 697; Tracy v. State, 44 Tex. 9).'

Schwartz v. State, 53 Tex.C.R. 449, 111 S.W. 399, 400 (emphasis added.)

It is apparent that the latter statement of the rule will more often authorize the trial court to assume adverse facts to be true in its charge, although it has frequently been stated, as in Schwartz v. State, supra, that 'This doctrine should rarely be applied . . ..'

Reconciliation of these divergent authorities has sometimes been attempted, as in Bradshaw v. State, Tex.Cr.App., 70 S.W. 215, 216:

'While there are some cases which hold that where some fact is not controverted, but admitted, the court may in the charge assume the fact to be so, yet these are special instances, in which there was clearly no controversy as to the fact assumed; the proof being all one way on the question, or the fact distinctly admitted. Ordinarily the plea of not guilty brings in issue every inculpatory fact, and the court should be careful not to assume against appellant any fact about which there might be any possible controversy.'

Similar language and an illustrative example appear in Nelson v. State, 35 Tex.Cr.R. 205, 32 S.W. 900, 901:

'When the facts are admitted to be true, or are placed beyond any doubt without contest, we can see no reason why the court may not so assume, without infringing the rule inhibiting a charge upon the weight of the evidence. But this would not be so if there was an issue as to any such fact, and the court must then refrain from the assumption. To illustrate, on a trial for homicide, where it is proved by both sides, or it is not controverted, that deceased was killed, but the issue is as to the degree of culpability or identity of the slayer, it would not constitute a charge on the weight of the evidence for the court to assume the death of the deceased; but it would be if the court assumed the identity of the accused, or any degree of his culpability, as the issue might be, the plea on the trial being not guilty.'

The inherent danger is clear where the trial court assumes in its charge facts damaging to a defendant to be true merely because the same were not 'controverted,' not 'placed in issue,' or not 'contested.' It is the right of all defendants to put the State to its proof. The burden of proof rests with the State and the failure of an accused...