Yorko v. State

• Citation: 690 S.W.2d 260
• Decision Date: 22 May 1985
• Docket Number: No. 470-84,470-84
• Parties: Kenneth Alan YORKO, Appellant, v. The STATE OF Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 260

690 S.W.2d 260

Kenneth Alan YORKO, Appellant, v. The STATE OF Texas, Appellee.

No. 470-84.

Court of Criminal Appeals of Texas,

En Banc.

May 22, 1985.

Michael A. Maness, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Timothy G. Taft, & Vance Christopher, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellant pled not guilty to a misdemeanor information charging possession with intent to sell an obscene device, namely a dildo. The trial court found appellant guilty and assessed three days in jail and a fine of $750.00. The Fourteenth Court of Appeals (Houston) affirmed the conviction, holding that Sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code do not violate the right of privacy guaranteed by the United States Constitution or deprive citizens of substantive due process under the Texas Constitution. Yorko v. State, 681 S.W.2d 633 (Tex.App.1984). We granted appellant's petition for discretionary review to examine the holdings.

The statutes at issue read as follows:

"43.21. Definitions

"...

" 'Obscene device' means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs."

"43.23. Obscenity

"...

"(c) A person commits an offense if, knowing its content and character, he:

"(1) promotes ¹ or possesses with intent to promote any ... obscene device; ..."

Appellant contends that these provisions, "on their face and as applied in the circumstances of this case, are unconstitutional under the due process clause of the Fourteenth Amendment to the Constitution of the United States because they violate the individual right of privacy."

We are unable to review the constitutionality of the statutes "as applied in the circumstances of this case" because the record contains no evidence of what those circumstances were. The record contains neither a statement of facts nor a written stipulation of evidence. Nor does appellant's brief analyze the application of the statutes to the facts of the case. The state of the record thus permits review of the facial constitutionality only.

Appellant takes care to deny that his challenge rests on the ground of vagueness or overbreadth. He does not dispute the holding of Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), appeal dismissed for want of a substantial federal question, sub.nom. Sewell v. Georgia, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), which rejected a vagueness and overbreadth challenge to a Georgia statute virtually the same as the statute at issue here. Nor does appellant claim that the statutes deny him equal protection of the law.

Appellant claims, rather, that the statutes violate the fundamental right of privacy announced in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and elaborated in subsequent cases, notably Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

In Roe v. Wade, supra, the Court wrote:

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 [11 S.Ct. 1000, 1001, 35 L.Ed. 734] (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 [89 S.Ct. 1243, 1247, 22 L.Ed.2d 542] (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 [88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889] (1968), Katz v. United States, 389 U.S. 347, 350 [88 S.Ct. 507, 510, 19 L.Ed.2d 576] (1967), Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746] (1886), see Olmstead v. United States, 277 U.S. 438, 478 [48 S.Ct. 564, 572, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485 ; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923). These decision make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454 ; id., at 460, 463-465 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925), Meyer v. Nebraska, supra.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy...."

410 U.S. at 152-53, 93 S.Ct. at 726-27.

Appellant argues that:

"Clearly one significant element of the constitutional right of privacy is the individual's interest in making certain kinds of important decision." Whalen v. Roe, 429 U.S. 589, 599-600 [, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64, 73 (1977) ].

"...

"... [I]t is clear that the personal decisions recognized as within the right of privacy must meet at least two criteria. First, such decisions must be essentially personal in nature involving matters of primary concern either to the individual involved or to his immediate family. See, e.g., Eisenstadt v. Baird, [405 U.S. 438, at 453, 92 S.Ct. at 1038] (decision must be one 'fundamentally affecting a person'). Secondly, the decision must profoundly affect the individual's personal life and have little, if any, impact upon others or society in general." [citation omitted].

Appellant concludes that:

"Under the foregoing principles, it is clear beyond argument that the use, and by necessary implication the commercial distribution, of certain types of 'sexual devices' are constitutionally protected activities."

Thus the question is: Does the due process clause of the Fourteenth Amendment guarantee a citizen the right to stimulate his, her or another's genitals with an object designed or marketed as useful primarily for that purpose? Put another way, is there a right to stimulate human genital organs with an object designed or marketed as useful primarily for that purpose, such that the right is a "fundamental" one "implicit in the concept of ordered liberty"? Roe v. Wade, supra, quoting Palko v. Connecticut.

The statute does not criminalize the use of obscene devices, or the mere possession of such devices without the intent to promote them. Nevertheless, appellant argues that by inhibiting the citizen's ability to acquire obscene devices, the statute unconstitutionally burdens the citizen's fundamental right to possess and use them. Appellant relies on the line of cases holding that the right to decide whether to bear or beget a child is a fundamental right under the Fourteenth Amendment. The line began with the dissent in Poe v. Ullman, 367 U.S. 457, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) and continued through Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, to Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).

In Carey the Court announced the full import of the earlier cases in the line, as follows:

"Appellants argue that this Court has not accorded a 'right of access to contraceptives' the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut, struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws 'regulating their manufacture of sale.' 381 U.S. at 485, 85 S.Ct. at 1682. Eisenstadt v. Baird, was decided under the Equal Protection Clause, holding that 'whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.' 405 U.S., at 453, 92 S.Ct., at 1038. Thus appellants argue that neither case should be treated as reflecting upon the State's power to limit or prohibit distribution of contraceptives to any persons, married or unmarried. But see id., at 463-464, 92 S.Ct., at 1043-1044 (White, J., concurring in result).

"The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects 'the right of the individual ... to be free from unwarranted governmental intrusion into ... the decision whether to bear or beget a child.' Id., at 453, 92 S.Ct., at 1038. Griswold did state that by 'forbidding the use of contraceptives rather than regulating their manufacture or sale,' the Connecticut statute there had a 'maximum destructive impact' on privacy rights. 381 U.S., at 485, 85 S.Ct., at 1682. This intrusion into 'the sacred precincts of marital bedrooms' made that statute particularly 'repulsive.' Id., at 485-486, 85 S.Ct. at 1682. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding...