Shelton v. State, B14-81-398-CR

• Decision Date: 20 May 1982
• Docket Number: No. B14-81-398-CR,B14-81-398-CR
• Citation: 640 S.W.2d 649
• Parties: Austin B. SHELTON, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 649

640 S.W.2d 649

Austin B. SHELTON, Appellant, v. STATE of Texas, Appellee.

No. B14-81-398-CR.

Court of Appeals of Texas Houston (14th Dist.).

May 20, 1982.

Terry Gaiser, Houston, for appellant.

Timothy Taft, Houston, for appellee.

Before PRESSLER, MURPHY and ROBERTSON, JJ.

PAUL PRESSLER, Justice.

Charged by information with promoting obscenity, the appellant entered a plea of not guilty. In a trial before the court, appellant was found guilty and assessed a fine of $500.00 as punishment.

By his first ground of error, appellant alleges that the trial court erred in denying appellant's motion to quash the information as vague, indefinite and uncertain, and in violation of due process because the word "sodomy" used in the information is such that persons of common intelligence must necessarily differ as to its meaning.

The information upon which appellant was tried read in pertinent part:

AUSTIN BOYCE SHELTON hereafter styled the Defendant, heretofore on or about MAY 5, 1981, did then and there unlawfully AND KNOWING THE CONTENT AND CHARACTER OF THE MATERIAL, INTENTIONALLY SELL TO W.L. HAYDEN OBSCENE MATERIAL, NAMELY A MAGAZINE ENTITLED "SEXY M" AGAINST THE PEACE AND DIGNITY OF THE STATE.

It is sufficient to note that the word "sodomy" is not used in the information and, therefore, this ground of error is without merit. We also note that this argument has previously been raised and overruled. See Taylor v. State, 625 S.W.2d 839 (Tex.App.--Houston [14th Dist.] 1981); Red Bluff Drive In, Inc. v. Vance, 648 F.2d 1020, 1026 (5th Cir.1981); Knight v. State, 642 S.W.2d 180 (Tex.App.--Houston [14th Dist.]).

By his second ground of error, appellant alleges that the Texas statutory definition of obscenity is void for vagueness in that its failure to define the term "pruient interest in sex" violates due process and therefore, men of common intelligence must necessarily guess at its meaning and differ as to its application. This argument has been previously raised and overruled in Red Bluff, supra, as well as in Taylor, supra.

By his third ground of error, appellant alleges that the trial court erred in overruling his motion to quash the information on the ground that article 43.21 Tex.Penal Code Ann. (Vernon Supp.1982) is void for vagueness and overbreadth in its definition of the term "patently offensive." This issue was specifically left undecided by the Fifth Circuit in Red Bluff, supra.

Whether Texas has exceeded its constitutional authority to regulate obscenity by defining 'patently offensive' in terms of 'decency' rather than 'tolerance' is a significant question. But before the constitutional issue can be resolved, the interpretation of the critical word must be left to State courts. As the final arbiters of the Texas Legislature's intent, state courts deserve the first opportunity to decide if the Legislature intended to hold obscenity defendants to the community's norms of 'proper' behavior and 'taste' as opposed to a minimum standard of conduct the community is willing to tolerate. If on its face the statute warned too broadly, deference to the state courts would be inappropriate. Such is not the case here. There is ample room to formulate jury instructions that comport with Sec. 43.21(a)(4) and the First Amendment rights of defendant charged with obscenity offenses. The pendency of ongoing state criminal proceedings in which the issue may be resolved and the potential for narrowing state court constriction move us to refrain from entering the fray in a facial challenge to this statute.

Red Bluff, supra at 1029.

Red Bluff leaves to us the opportunity of formulating jury instructions which could obviate any possible unconstitutional aspect of the use of the word "decency." However, appellant was tried before the court and attacks the facial validity of the statute. When there is a challenge to the constitutionality of a statute, it is vested with a presumption of validity and this court must construe it so as to uphold its constitutionality when possible. Tex.Penal Code Ann. Sec. 1.05(b) (Vernon 1974); Tex.Rev.Civ.Stat.Ann. art. 5429b-2 Sec. 3.01(1) (Vernon Supp.1982) (Code Construction Act); Ely v. State, 582 S.W.2d 416 (Tex.Crim.App.1974) (and cases cited therein).

Appellant has stated this ground of error as an attack on the vagueness of the statute, but his Motion to Quash and his argument speak to overbreadth. The traditional test of unconstitutional vagueness is whether the terms of the statute are so indefinite that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Overbreadth is a concept parallel to the doctrine of vagueness. While vagueness speaks to the issues of notice and adequate standards, overbreadth speaks to the issue of whether the language of the statute is so broad that it criminalizes conduct protected under the Constitution. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

Under the First Amendment, appellant must demonstrate facial invalidity on grounds of overbreadth by showing that the terms of the challenged statute are broad enough to suppress protected speech. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). The inquiry must be as to whether the language of the statute makes criminal any conduct which is constitutionally protected and not whether merely the specific conduct before the court is protected. A statute which regulates obscenity, therefore, may be enforced against any offender, regardless of the nature of the material involved in the specific case only if the definition of the proscribed material is not broader than the definition of obscenity used by the Supreme Court in drawing the line between protected and unprotected speech under the First Amendment.

The Supreme Court established the current basic guidelines governing the determination of what is obscene in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In Miller, the Supreme Court established a three prong test which examines

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole appeals to the pruient 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 2614.

Appellant's complaint as to part (a) has been answered and he does not complain of part (c). We must determine whether the Texas legislature has gone beyond the definition of "patently offensive" allowed by the Supreme Court. Section 43.21(a)(4) Tex.Penal Code Ann. (Vernon Supp.1982), defines patent offensiveness as that which affronts current community standards of decency. In Miller, the court gave two "plain examples" of depictions or descriptions which could be regulated under part (b) as (a) [p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated [or] (b) [p]atently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S.Ct. at 2615.

Since Miller, the Supreme Court has provided additional insight into how the term "patently offensive" is to be interpreted. In United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the Court indicated that there was a certain "substantive" aspect to the Miller examples: "If and when ... a 'serious doubt' is raised as to the vagueness of the words 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent' or 'immoral' as used to describe regulated material in [federal statutes], we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions to that specific 'hard core' sexual conduct given as examples in Miller v. California ..." 413 U.S. at 130 n. 7, 93 S.Ct. at 2670 n. 7. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court did precisely that, explaining that "Miller undertook to set forth examples of the types of material which a statute might proscribe as portraying sexual conduct in a patently offensive way." 418 U.S. at 113-14, 94 S.Ct. at 2905-06.

In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), the Court acknowledged that the question of "patent offensiveness" was "essentially a question of fact," but went on to hold that the fact finder does not have "unbridled discretion in determining what is 'patently offensive.' ... While [the Miller list of examples] did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination." 418 U.S. at 160-61, 94 S.Ct. at 2755. In Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), the Court described the criterion of "patent offensiveness" not only as an "underlying question of fact[ ]" to be determined in light of "contemporary community standards," but also as a standard containing a "substantive component." 431 U.S. at 300-01, 97 S.Ct. at 1763. "The kinds of conduct that a jury would be permitted to label as 'patently offensive' ... are the 'hard core' types of conduct suggested by the examples given in Miller," 431 U.S. at 301, 97 S.Ct. at 1763. The Court referred to these kinds of conduct as "substantive conduct" the portrayal of which may be held to be "patently offensive" 431...