Moore v. State

• Decision Date: 30 June 1971
• Docket Number: No. 14903,14903
• Citation: 470 S.W.2d 391
• Parties: Norman G. MOORE et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 391

470 S.W.2d 391

Norman G. MOORE et al., Appellants, v. The STATE of Texas, Appellee.

No. 14903.

Court of Civil Appeals of Texas,

San Antonio.

June 30, 1971.

As Modified on Denial of Rehearing July 28, 1971.

Concurring Opinion July 28, 1971.

Second Rehearing Denied Sept. 1, 1971.

Ausburn & Hibler, San Antonio, for appellants.

Ted Butler, Dist. Atty., R. Emmett Cater, Donald H. Smith, Asst. Dist. Attys., San Antonio, for appellee.

KLINGEMAN, Justice.

An obscenity case. This is an appeal from an order of the trial court granting a temporary injunction enjoining the sale of certain specific magazines, books and items (hereinafter called 'Specific Title Order'), and also enjoining the sale of similar magazines, books and items (hereinafter called 'Similar Items Order').

Appellants assert five points of error, two of which attack the Specific Title Order, two the Similar Items Order, and one attacks the constitutionality of the statute under which this proceeding was brought. Although appellants' points of error to some extent overlap, we will attempt in this opinion, insofar as applicable, to discuss the two orders separately.

We are guided by certain well established rules in the character of appellate review required in passing upon the granting of a temporary injunction. To warrant the issuance of a writ of temporary injunction, the applicant need only show a probable right and a probable injury he is not required to establish that he will finally prevail in the litigation. Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Ramey v. Combined American Ins. Co., 359 S.W.2d 523 (Tex .Civ.App.--San Antonio 1962, no writ); Cargill v. Buie, 343 S.W.2d 746 (Tex.Civ.App.--Texarkana 1961, writ ref'd n.r.e.). It is also well settled that our review is limited to the narrow question of whether the action of the trial court in granting of denying a temporary injunction constitutes a clear abuse of the discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundaries, Inc. v. International Molders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Briscoe Ranches, Inc. v. Eagle Pass Ind. School Dist., 439 S.W.2d 118 (Tex.Civ.App.--San Antonio 1969, writ ref'd n.r.e.).

Obscenity is not within the area of constitutionally protected speech and press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 1507; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813. In Roth it was held that a material is obscene and not constitutionally protected against regulation and proscription if 'to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' ¹

Some later cases of the Supreme Court have stated that under this definition three elements must coalesce, and it must be established that:

(a) The dominant theme of the material taken as a whole appeals to a prurient interest in sex;

(b) The material is patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters; and

(c) The material is utterly without redeeming social value. ²

Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, 5 and 6.

Constitutionality of Statute

By their fifth point of error appellants assert that the trial court erred in granting the temporary injunctions because Article 527 of the Vernon's Ann. Texas Penal Code is unconstitutional under Article 1, Sections 8 and 19 of the Texas Constitution, Vernon's Ann .St., and the First and Fourteenth Amendments of the United States Constitution. Since this point is common to both the Specific Title Order and the Similar Items Order, we will first discuss it. Article 527 of the Texas Penal Code, as amended in June of 1969, has been held to be constitutional in all aspects involved in this case ³ by a three-judge federal court in Newman v. Conover, 313 F.Supp. 623 (N.D.Texas, 1970), and by the Supreme Court of Texas in State v. Scott,460 S.W.2d 103 (1970). The contentions made in such two cases as to the unconstitutionality of said statute are basically similar to appellants' contentions herein in this regard.

The proceedings before us where brought pursuant to Section 13 ⁴ of Article 527, and this section was expressly held to be constitutional in both of the cases above cited. We do not regard Article 527 unconstitutional insofar as any issue involved in the case before us is concerned, and appellants' fifth point of error is overruled.

Specific Title Order

Appellants, by their third and fourth points of error, attack the Specific Title Order, asserting that there is no evidence upon which to base a finding of obscenity of the specific titles and items enumerated therein, and that there is insufficient evidence upon which to base a finding of obscenity of the specific titles and items enumerated therein.

In passing upon appellants' points of error, we have carefully examined and reviewed the entire record. Included in such record are some 491 exhibits, including some 170 magazines, a newspaper-type publication, some 307 paperback books, with suggestive titles, ⁵ 10 reels of motion picture film, one deck of cards, and one simulated male penis.

A number of witnesses testified. There was evidence that on one occasion a student, sixteen years of age, had been in the store for approximately forty minutes at the same time a police officer was there; that the minor was shown some of the items therein including both a simulated male and female organ and a 'French tickler'; that the prices of some of such items were discussed with him; and that he also looked at some of the magazines . There was testimony of an officer that on one occasion while he was in the store, he asked the identification and ages of three of the customers therein, all of whom were under twenty-one. A picture of the front of such store was introduced into evidence, and shown thereon there is a sign on the door: 'Notice--If seeing parts of the nude body tends to offend you, do not enter.' There is testimony that the magazines and books therein ranged in price from $3.00 to $6.00, and testimony of sales to some of the customers. A captain of the vice squad testified that he had looked at some of the movie films in the store and browsed through the books and that they were about the worst he had ever seen in any book store and on public display; that in his opinion they definitely did appeal to a prurient interest; and that he did not feel there was any socially redeeming value in such material. A newspaper reporter testified that he had viewed some of the movies and had looked at most of the magazines and books, and that they were obscene; that generally the dominant theme taken as a whole appealed to the prurient interest; that they were utterly without redeeming social value and are patently offensive because they affront contemporary community standards relating to the description or representation of sexual matters.

The trial judge had all of the exhibits before him and after hearing the evidence and examining the exhibits, found that the exhibits 1 through 8 and 12 through 489 were obscene within the definition of Article 527 of the Texas Penal Code; that the dominant theme of the material and matter, when taken as a whole, appeals to a prurient interest in sex; that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters on a local, state and national scope; and that the matter is utterly without any socially redeeming value. The court further found that each and all of the exhibits exemplified and are hard-core pornography, and that they are filthy, base, degrading, and that they exceed all bounds of propriety and common decency. The court further found that there was evidence of pandering ⁶ on the part of agents, service and employees of the defendant; that the material is designed not to deal with sex in a manner to advocate ideas or in a way that has any literary, scientific or artistic value, but that sex is used throughout the material solely to pander sex for profit.

We have carefully examined and reviewed the entire record, including the exhibits. The basic contents of the magazines are photographic depictions of nudity, including unclothed human male and female genitalia in close proximity, and acts of sexual perversion. The books consist of detailed verbal descriptions in coarse and vulgar language of acts of masturbation, homosexuality, sodomy, bestiality, sexual intercourse, sadism and masochism. Pictures and descriptions run the gamut of sexual experiences such as lesbianism, female masturbation, homosexuality, the flagellation of male by female, and vice versa, bizarre descriptions of different acts of sexual intercourse between male and female characters. None of the enjoined films purport to portray any story whatsoever, but rather each consists of simulated or suggested abnormal sexual acts between woman and woman, man and man, or multiple groups of same. Most of the action was filmed with the camera in close proximity to the genitals.

We agree with the trial court's findings. The trial court did not abuse its discretion in granting that part of the temporary injunction herein referred to as 'Specific Title Order.'

Similar Items Order

By their first point of error appellants contend that the trial court erred in granting a temporary injunction and entering a Similar Items Order because:

(a) There is no pleading or proof for such relief. ⁷

(b) Such order is not specific in terms.

(c) Such order does not describe in reasonable detail the act or acts sought to be restrained.

(d) Such order...