Soto v. State

• Decision Date: 27 February 1974
• Docket Number: No. 47051,47051
• Parties: Evarasto Saldana SOTO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 931

513 S.W.2d 931

Evarasto Saldana SOTO, Appellant, v. The STATE of Texas, Appellee.

No. 47051.

Court of Criminal Appeals of Texas.

Feb. 27, 1974.

Rehearing Denied Oct. 16, 1974.

Mike Aranson and Tony Kaufman, Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant in a trial before a jury was convicted of exhibiting obscene matter, to-wit, an obscene motion picture. Punishment was assessed at a fine of $1,000.00 and a term of six months in jail.

The record reflects that at all times pertinent hereto appellant was the manager of the Studio Arts Theater in Dallas. On October 27, 1971, police officer Bailey, of the Alcoholic and License Bureau, formerly known as the Vice Control Bureau, of the Dallas Police Department, purchased a ticket and entered this theater to check complaints that obscene movies were being exhibited. He watched the films being shown from beginning to end, and made written notes regarding them. Later in his office he prepared an affidavit setting forth the prurient nature of the films, and requested a search warrant, and on the morning of November 2, 1971, he presented this affidavit to Justice of the Peace Cole. Judge Cole issued an order directing appellant to retain the moving picture at the theater pending an adversary hearing on the issuance of warrant. Art. 527, § 9, Vernon's Ann.P.C. The hearing was set for 2:00 P.M. on November 2. Notice of this order was served on appellant that same day at 11:11 A.M. That afternoon the magistrate issued the warrant, which recited that after notice to appellant and hearing afforded and after examining the affidavit and complaint, and hearing evidence, the court found that the film was obsence, and was being exhibited in violation of Article 527, V.A.P.C., and determined that probable good cause existed for the immediate issuance of a search warrant for its seizure. Art. 527, Sec. 9(f), (g), V.A.P.C.

About 4:00 P.M. on November 2, this warrant was served upon appellant, he was taken in custody, and the film was seized. On November 15, a hearing was had before Judge Cole with appellant and his attorney present and the film was shown. After the showing, it was returned to the custody of the police department. There are no further orders of the magistrate after the hearing of November 15.

Appellant's first ground of error is that there was insufficient evidence presented by the State as to all aspects of the case to warrant a conviction. Particularly, appellant raises three contentions: (1) That the State's expert witness Forrest Smith was not qualified to give 'expert' testimony on the ultimate issue of obscenity; (2) that Smith was not qualified to give 'expert' testimony on the constitutionally established tests required before a determination of obscenity could be rendered by the jury; (3) that the showing of the film without expert testimony would not be sufficient to sustain conviction.

Since the trial of this cause, and the filing of appellant's brief, the United States Supreme Court has handed down its opinion in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and a number of other obscenity cases, all cited in our recent opinion in West v. State, Tex.Cr.App., 514 S.W.2d 433 (No. 45,090, 1974). This latter opinion in West was delivered as a result of the Supreme Court having granted a writ of certiorari in West v. State, Tex.Cr.App., 489 S.W.2d 597, and having remanded the cause to us for further consideration in light of Miller v. California, supra, and the other recent decisions of that court cited in the 1974 opinion in West. In such opinion, we quoted from Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) as follows:

'We . . . reject in Paris Adult Theatre I v. Slaton, Supra, (413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446), any constitutional need for 'expert' testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene materials themselves are placed in evidence. Paris Adult Theatre I, supra, 413 U.S., at 55--56, 93 S.Ct., at 2634--2635 (1973). The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U.S. 147, 164--165, 80 S.Ct. 215, 224--225, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring), but in 'the cases in which this Court has decided obscenity questions since Roth (v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498), it has regarded the materials as sufficient in themselves for the determination of the question.' Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966).'

In the instant trial, the film was introduced in evidence, and shown in full to the jury. We have likewise reviewed this film on this appeal. It opens with a man and wife having sexual intercourse. They find that their sexual life is mutually unsatisfactory, and decide to take separate vacations. The remainder of the first reel, about 45 minutes in length, shows series of acts of oral sodomy and sexual intercourse, all in the nude, between the husband and other women, and the wife and another man.

The second reel, also about 45 minutes in length, shows individual acts of sodomy and sexual intercourse between a man and woman, and then an orgy of acts of oral sodomy and sexual intercourse between three men and two women, and also further acts of sexual intercourse and oral sodomy in which two couples participated all in the nude.

The showing of the film is sufficient evidence for a determination of obscenity. West v. State (1974), supra. We fully agree with the verdict of the jury, and conclude from our review of the films that they meet the four conditions of 'hard core' obscenity set forth in Miller v. California, supra, and in West v. State, (1974), supra.

The first ground of error is overruled.

By his second ground of error, appellant contends that he had the right under the First and Fourteenth Amendments to private possession of the allegedly obscene films. He argues that restricted distribution of obscene matter, adequately controlled, is not to be condemned, and says that Studio Arts Theater complied with all requirements necessary to produce protected, restricted distribution, pointing out the testimony of State's witness Bailey that (1) the theater is an enclosed theater that requires a fee for admission; (2) signs were displayed giving notice that the films were of the X-rated category, for adults only, and (3) that any patron buying a ticket, who had not then discovered the nature of the film, may decide in the inner admission area whether the film might be offensive to him.

In support of his contentions, appellant relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). However, as stated in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), in Stanley pornographic films were found in the accused's home, and the Court held that the State's power to regulate obscenity 'does not extend to mere possession by the individual in the privacy of his own home.' The Court in Reidel said:

'Reidel is in a wholly different position. He has no complaints about governmental violations of his private thoughts or fantasies, but stands squarely on a claimed First Amendment right to do business in obscenity and use the mails in the process. But Roth ¹ has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today. ² Stanley did not overrule Roth and we decline to do so now.' See also Bryers v. State, supra.

The record discloses that, like Reidel, appellant as manager of the Studio Arts Theater was doing 'business in obscenity.' In such capacity, he has no claims of protection under either the First or the Fourteenth Amendment. The ground of error is overruled.

Appellant next contends in his third ground of error that the film was unlawfully seized, and that his Fourth Amendment rights were violated since he did not obtain a prior adversary hearing, which also violated his Fifth Amendment rights. In his fourth ground he claims that he was denied adequate notice of the adversary hearings.

Only a single copy of the film was seized, for the bona fide purpose of preserving it as evidence. At no time...