West v. State

Decision Date13 February 1974
Docket NumberNo. 45090,45090
PartiesAlton A. WEST, Appellant, v. The STATE of Texas, Appellee.
CourtTexas 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.

OPINION

ODOM, Judge.

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:

'. . . seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the Bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.'

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:

'. . . (I)t (was not) error to fail to require 'expert' affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. . . . The films, obviously, are the best evidence of what they represent.'

And in Kaplan v. California, supra:

'We . . . reject in Paris Adult Theatre I v. Slaton, Supra, 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--58, 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, 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 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 which is before us for review depicts nothing but a sequential representation of explicit sexual acts. Each sequence of sexual conduct can only be interpreted within the context of the other sequences of sexual conduct. No ideas are presented nor is there an attempt to present ideas. The sequential representation in this film of nothing but isolated acts of sexual conduct demonstrates that its sole object was the commercial exploitation of the prurient interest of those persons who paid to view it.'

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:

'This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). . . . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. . . . As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A...

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