West v. State
Decision Date | 13 February 1974 |
Docket Number | No. 45090,45090 |
Parties | Alton A. WEST, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Karl A. Maley, Michael Anthony Maness, Houston, Phil Brummett, Lubbock, J. Mack Ausburn, San Antonio, for appellant.
Thoms J. Purdom, County Atty., & Joel Howard, Asst. County Atty., Lubbock, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
Appellant was convicted of the offense of exhibiting obscene matter; punishment was assessed at a $200.00 fine, and a thirty day jail term, probated for one year. Upon appeal the judgment was affirmed by this Court on September 25, 1972. West v. State, 489 S.W.2d 597. Thereafter the United States Supreme Court granted his petition for writ of certiorari, vacated the judgment, and remanded the cause to this Court for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973), on October 23, 1973 (West v. Texas, 414 U.S. 961, 94 S.Ct. 268, 38 L.Ed.2d 209).
Upon his original appeal to this Court, appellant challenged his conviction on four grounds. Of those four, only three merit further consideration in light of the recent Supreme Court decisions: (1) the film should have been suppressed because no adversary hearing was conducted prior to the issuance of the search warrant and seizure of the film; (2) the evidence was insufficient to support a finding that the film was obscene; and (3) the film was not obscene as a matter of law.
In Heller v. New York, supra, the Supreme Court held that there is no absolute right to a prior adversary hearing where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. Distinguishing earlier cases, the Court held:
In the instant case, it is undisputed that a single copy of the film was seized for the Bona fide purpose of preserving it as evidence in a criminal proceeding. Complaint and information were filed November 19, 1969, the same day and the search warrant issued. The film was seized and appellant was arrested, arraigned, entered his plea of not guilty, and had his bond set the next day. At no time has appellant contended, in the instant case, that the seizure prevented the continued exhibition of the film.
The only remaining issue concerning the constitutionality of the seizure is that of the availability of a prompt judicial determination of the obscenity issue in an adversary proceeding Following the seizure, at the request of any interested party. Although the Heller decision says a seizure under such conditions is constitutionally permissible, it does not hold the absence of such a condition would in all cases render the seizure unconstitutional, nor does it hold that a film so seized must be excluded from evidence.
In the instant case, appellant did not allege upon appeal that he was denied a post-seizure adversary hearing, nor was such claim raised at trial. His claim was that no adversary hearing was held Prior to seizure of the film. In addition, in appellant's case the trial court issued an order setting a pre-trial conference under Article 28.01, Vernon's Ann.C.C.P. 1 for January 12, 1970, approximately eight weeks after the film was seized. Prior to issuance of notice of this hearing, no objections to the seizure of the film had been filed. Although no hearing was conducted on the date set, the record reflects no complaint, by motion or otherwise, to the failure to hold such hearing on the set date. We must therefore conclude that even if it be assumed he desired a prompt post-seizure determination there was a lack of diligence on the part of appellant.
Thus, even if denial of a requested post-seizure hearing would render the seizure unconstitutional, we hold that failure diligently to seek such a hearing would bar appellant from complaining of the failure to the court to conduct one sua sponte.
Upon this further consideration we still find appellant's first ground of error is without merit. 2
We will next consider appellant's contention that the evidence was insufficient to support a finding that the film was obscene.
Appellant contends there was no testimony to establish community standards, no testimony as to lack of redeeming social value, and no testimony regarding an appeal to prurient interest.
In Paris Adult Theatre I v. Slaton, supra, the Supreme Court held:
And in Kaplan v. California, supra:
In the instant case the film was introduced in evidence. Appellant's second ground is overruled.
Appellant's final claim is that the film was not obscene as a matter of law. As his sole contention thereunder, appellant alleges 'the film consists of females who disrobe and feign some type of sexual satisfaction which is self-induced.' As authority, appellant quotes from Pinkus v. Pitchess, 429 F.2d 416, a Ninth Circuit case. What appeals to the prurient interest or is patently offensive in the Ninth Circuit is of no relevance in the State of Texas. As held in Miller v. California, supra:
'(O)bscenity is to be determined by applying 'contemporary community standards,' see Kois v. Wisconsin, Supra, 408 U.S. (229), at 230, 92 S.Ct. (2245), at 2246, 33 L.Ed.2d 312 (1972), and Roth v. United States, Supra, 354 U.S. (476), at 489, 77 S.Ct. (1304), at 1311, 1 L.Ed.2d 1498 (1957), not 'national standards."
It is still the opinion of this Court, as expressed in our prior opinion (West v. State, supra):
The film is obscene. Appellant's final ground is overruled.
Although appellant made no further argument on the question of whether the film is obscene as a matter of constitutional law than that stated above, an examination of Article 527, Vernon's Ann.P.C., in light of the Miller substantive standards will be made in the interest of justice (Art. 40.09, Sec. 13, V.A.C.C.P.).
In Miller v. California, supra, the Supreme Court was 'called on to define the standards which must be used to identify obscene material that a State may regulate without infringing the First' and Fourteenth Amendments. The basic standards were then set forth:
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