Richards v. State

• Decision Date: 02 July 1973
• Docket Number: No. 7488,7488
• Citation: 497 S.W.2d 770
• Parties: Douglas S. RICHARDS, Jr., et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 770

497 S.W.2d 770

Douglas S. RICHARDS, Jr., et al., Appellants, v. The STATE of Texas, Appellee.

No. 7488.

Court of Civil Appeals of Texas,

Beaumont.

July 2, 1973.

Rehearing Denied July 26, 1973.

Goodwin & Matheny, Beaumont, for appellants.

Dexter Patterson, Asst. Dist. Atty., Beaumont, for appellee.

KEITH, Justice.

Defendants below appeal from a final judgment permanently enjoining them from the exhibition and distribution of obscene motion pictures. The suit below was brought by the District Attorney of Jefferson County under the authority of § 13, Art. 527, Vernon's Ann.Penal Code (1972 Supp.), hereinafter referred to as the 'Act'. ¹ Trial was to a jury and, in answer to several special issues, the jury found that nine specific films were obscene and that the several defendants knowingly permitted the distribution of one or more of such films.

This cause was submitted on oral argument on June 20, 1973, one day before an important series of decisions on the subject were handed down by the Supreme Court. ² Although we have not had the benefit of argument by counsel upon this important development, our path through the judicial thicket of pornographic litigation has been aided greatly by this fortuitous event.

For the first time in many years, we have a rather clear-cut definition of obscenity which commands a majority of the United States Supreme Court; and in our discussion of this case we will rely heavily upon the opinions of Chief Justice Burger, the organ of the Court in each instance, and will leave to other scholars the fine nuances to be drawn from the elaborate dissents filed by the minority.

At the outset of our discussion, it is appropriate to note that the State did not contend, by either pleadings or evidence, that the defendants either sold or exhibited the material to minors. ³

I. The Decree

The trial court entered judgment permanently enjoining the defendants from: (a) the exhibition or distribution of the specific films mentioned in the several special issues; (b) the exhibition and distribution, 'as those terms are defined in Article 527 of the Texas Penal Code,' of any other obscene material in violation of the Act; and (c) 'exhibiting or selling any other films which show actual acts of fellatio (female's oral stimulation of the male's penis), cunnilingus (male's oral stimulation of female's vulva or clitoris), actual oral genital contact between two or more males or females, any sexual intercourse between any human and any animal or any scenes depicting actual sexual intercourse between human males and females.'

II. Scope of Review

The defendants attack the judgment with many points raising some of the substantial questions of law which have plagued the courts in recent years in this fertile field of litigation. Other points raise the usual questions of the sufficiency of the evidence to support the specific jury findings, i.e., 'no evidence' and 'great weight and preponderance of the evidence' points.

Although we find no authority specifically in point, we are of the opinion that the points challenging the sufficiency of the evidence should be considered under the usual rules governing appeals in the ordinary civil case. The leading authorities governing this type of review are cited in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and will be followed as to such points.

However, when we come to consider the question of whether or not the particular motion pictures are obscene, we are required to follow the rulings of the Supreme Court of the United States and to make an independent examination of the whole record. This latter type of judicial review in the First Amendment area was first articulated by the late Justice Harlan, concurring in Roth v. United States, 354 U.S. 476, 497--498, 77 S.Ct. 1304, 1315--1316, 1 L.Ed.2d 1498, 1514 (1957):

'The suppression of a particular writing or other tangible form of expression is, therefore, an Individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for Itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.

'I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene', for, if 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional Judgment of the most sensitive and delicate kind.' (emphasis in text) ⁴

In Moore v. State, supra (fn. 1), the court followed a similar procedure although it did not specifically point out the differing standards of review. Justice Klingeman, considering an appeal from an order granting a temporary injunction, first referred to the usual rules governing the review of such proceedings. (470 S.W.2d at 392--393) He then stated that '(w)e have carefully examined and reviewed the entire record, including the exhibits,' and said: 'We agree with the trial court's findings' that the matter was obscene under the statutory provisions. (470 S.W.2d at 395) This was, in essence, an independent review of the 'constitutional facts' forming the basis of the order of suppression.

Since our own Supreme Court has not yet spoken on the subject, we will assume the responsibility of reviewing the record as a whole to determine the issue of obscenity, vel non, of the material involved in the case.

III. Defendants' Knowledge of the Nature of the Films

The jury, in answer to specific questions, found that the individual defendants each knowingly permitted the distribution of certain specific films theretofore found to be obscene. The first twenty-four points brought forward complain of these findings with no evidence, insufficient evidence, and great weight and preponderance points. The nature of the attack upon the verdict makes it possible for us to summarize the evidence on the subject so as to make it applicable to each of the several parties, but requires us to identify the parties to the proceeding more in detail than has been done previously.

The State's trial pleading named as defendants Douglas S. Richards, Jr., Mrs. Evelyn Richards, Mrs. Douglas S. Richards, Jr., and Phillip Lynn Cartwright, whom the State alleged were 'doing business as Beaumont Cinema X, Inc. Club and Port Arthur Cinema X, Inc. Club.' By an appropriate certificate from the Secretary of State, it was established that neither of the 'Clubs' was incorporated, notwithstanding the suffix 'Inc.' appearing in the title of the business.

The defendants, Joseph F. Fertitta and Rosario C. Maceo, doing business as Fertitta-Maceo Realty Company, were the owners of the premises occupied by the Beaumont 'Club'. The defendant Rose Mary Begnaud was the owner of the premises in Port Arthur occupied by the Port Arthur 'Club' which was under lease to the Richards defendants and to Cartwright.

The signature cards from a Beaumont bank offered in evidence showed that the three Richards defendants were the only persons authorized to make withdrawals from the account of 'Beaumont Cinema X', whose address was shown thereon to be 450 Orleans Street, the address where the films were exhibited. ⁵

The records of a Port Arthur bank likewise disclosed that the three Richards defendants were the only individuals authorized to make withdrawals from the account of 'The Port Arthur Cinema X'.

None of the defendants gave testimony and the State did not utilize any of the discovery processes to develop direct testimony connecting the individual Richards defendants with the exhibition of the particular motion picture films involved.

Some of the particular films found to be obscene were purchased by police officers from defendant Cartwright who told the policemen, according to their testimony, that he was manager of both the Beaumont and Port Arthur 'Clubs'.

Entrance to the theaters was through the payment of money to join a 'Club' and the patron was then issued a membership card, the face of which is copied in the margin. ⁶ Apparently, payment of sufficient money was the only requisite of membership. The patron was then 'eligible' to pay for admission to the theater.

The names of the defendants were identical with the names of those charged by the State with the operation of the theaters and there was no controverting evidence to that produced by the State.

The rule governing the presumption flowing from an identity or similarity of names is stated in Howell v. Knox, 211 S.W.2d 324, 327 (Tex.Civ.App., Austin, 1948, error ref. n.r.e.), to be:

'The following from Kelly v. Consolidated Underwriters, Tex.Civ.App., 300 S.W. 981, 984, affirmed on other grounds, Tex.Com.App., 15 S.W.2d 229, is ascribed therein to Robertson v. DuBose, 76 Tex. 1, 13 S.W. 300: 'Similarity of name is held to be sufficient to establish the identity of the person, when there is no evidence to the contrary, and no suspicion cast upon the transaction by the evidence."

In Eilar v. Theobold, 201 S.W.2d 237, 238 (Tex.Civ.App., San Antonio, 1947, no writ), the court said simply: 'Identity of names is prima facie evidence of identity of persons.' Accord: Kerby v. Ogletree, 313 S.W.2d 325, 329 (Tex.Civ.App., Beaumont, 1958, error ref. n.r.e.).

In this case, there was no testimony tending to cast suspicion upon the testimony just set out or to rebut the presumption of identity. There being 'no controverting evidence, proof of identity or similarity of name will suffice.' Kerby v. Ogletree, supra. See also, London Properties, Inc. v. Vaccarello, 493 S.W.2d 255, 257 (Tex.Civ.App., Beaumont, 1973, no writ); 1 McCormick & Ray, Texas Law...