Yorko v. State, 998-84
| Decision Date | 06 November 1985 |
| Docket Number | No. 998-84,998-84 |
| Citation | 699 S.W.2d 224 |
| Parties | Kenneth Alan YORKO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Michael A. Maness, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft and Vance Christopher, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON COURT'S OWN MOTION FOR DISCRETIONARY REVIEW
Appellant was charged by complaint and information with selling an obscene magazine. V.T.C.A., Penal Code, § 43.23. He waived trial by jury and entered a plea of not guilty before the court. The court found appellant guilty and assessed punishment at a fine of $350.00.
On appeal the appellant raised four grounds of error. The Court of Appeals sustained the fourth ground of error that there was no proof that appellant knew the "character" of the magazine as alleged and the evidence was insufficient to support the conviction. The Court of Appeals remanded for a new trial rather than order an acquittal citing Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984). Justice Levy dissented believing an acquittal was required.
Appellant filed a petition for discretionary review contending that failure of proof of the "character" of the allegedly obscene material requires an acquittal rather than remand in light of the double jeopardy clause of the Fifth Amendment, United States Constitution. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). This Court refused appellant's petition for discretionary review but granted review on its own motion to consider the sufficiency of evidence.
V.T.C.A., Penal Code, § 43.23, provides in pertinent part:
The information charged in pertinent part that appellant:
"on or about August 30, 1982, did then and there unlawfully and knowing the content and character of the material, intentionally sell to S.R. Jett obscene material, namely, a magazine entitled 'Taboo', Courmet (sic) Edition # 66 which depicts patently offensive representations of actual and simulated sexual intercourse and oral sodomy and anal sodomy."
At the bench trial the following stipulation was entered:
It appears the stipulation tracked the allegations of the information, but before being introduced into evidence the words "unlawfully and" and "and character" and "patently offensive" were struck.
After the introduction of the stipulation, the State offered State's Exhibit # 3, the magazine entitled "Taboo" to which offer appellant's counsel stated "No objection." After the introduction, the Court found the magazine obscene. Thereafter appellant was found guilty and the $350.00 fine was imposed.
In assessing the evidence the stipulation does not stand alone. The magazine in question was introduced into evidence without objection. The magazine contains a word-picture story of incest between a mother and her son and depicts acts of sexual intercourse and oral sodomy and other sexual activity. It further depicts the same acts between the mother and other sexual partners and the son and other sexual partners. There are other photographs of group sexual orgy. The cover, front and back, depicts some of the scenes from the magazine.
The word "content" is not defined in the statute, V.T.C.A., Penal Code, § 43.23, nor for the Penal Code. Therefore, it must be given its ordinary or common usage. V.T.C.A., Penal Code, § 1.05; Government Code, Chapter 311, § 311.011 ). Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979). "Content" is defined in The Reader's Digest Great Encyclopedic Dictionary (1966) as
The Random House Dictionary of the English Language, Unabridged Ed. (1967), defines "content" as "1. usually contents a. something that is contained: the contents of a box b. the subjects or topics covered in a book or document...."
Like "content" the word "character" is not defined in the statute nor for the purpose of the Penal Code. It also should be given its ordinary or common usage.
The Random House Dictionary of the English Language (1967) defines "character" as "1. the aggregate features and traits that form the apparent individual nature of some person or things 2. one such feature or trait; characteristic 3. moral or ethical quality: They knew he was a man of fine, honorable character...."
"Character" is also defined as "II a trait or sum of traits conferring distinctiveness." Webster's New International Dictionary, 2nd Ed., unabridged (1944).
In the instant misdemeanor case we have not only the stipulation but the very magazine in question. The stipulation, with some of its provisions struck, before introduction, purports to be an instrument in which some of the facts but not all facts in the case were agreed to by ...
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...the trial court's decision de novo, we must allow for reasonable deductions from the stipulation. Id. ; see also Yorko v. State, 699 S.W.2d 224, 226 (Tex.Crim.App.1985). We must uphold the trial court's ruling if it is reasonably supported by the record and correct on any theory of law appl......
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...of the law to the facts, and therefore, do not turn on credibility and demeanor. See Guzman, 955 S.W.2d at 87-89; Yorko v. State, 699 S.W.2d 224, 226 (Tex.Crim.App. 1985). A trial court may, however, as the trier of fact, draw reasonable deductions and inferences from stipulated facts. See ......
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