Adams v. State

707 S.W.2d 900, 1986 Tex. Crim. App. LEXIS 1209

• Court: Court of Criminal Appeals of Texas
• Decided: February 5, 1986
• Docket: 364-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

A jury found appellant guilty of obscenity and assessed 270 days in jail and a fine of $1,800.00. The Thirteenth Court of Appeals (Corpus Christi) affirmed in a published opinion, holding that the trial court’s error in overruling the motion to quash the information did not prejudice the substantial rights of appellant. Adams v. State, 669 S.W.2d 339 (Tex.App.1984). We granted appellant’s petition for discretionary review to examine this holding.

The information charged that appellant did,

“knowing the content and character of certain material, to-wit: one (1) motion picture, the title of which is unknown to affiant, to be obscene, unlawfully and knowingly promote said obscene material by then and there exhibiting said obscene material to R. Vipond, which material depicts ultimate sexual acts, to-wit: sexual intercourse.”

Invoking the United States and Texas Constitutions and Articles 27.02, 27.03, 27.-08, and 27.09 of the Code of Criminal Procedure, appellant moved the trial court to set aside the information for the following reasons:

“The information herein fails to give the Defendant sufficient notice of what material the State alleges was obscene that the defendant allegedly promoted. The information alleges that the material is one motion picture the title of which is unknown and that such material depicts ultimate sexual acts, to wit: sexual intercourse. The evidence presented to the Court at the pre-trial hearing shows that members of the Corpus Christi Police Department seized two films from the Defendant on August 26, 1982. Both films or motion pictures are untitled and both films allegedly depict acts of sexual intercourse. Thus, the information fails to give the Defendant sufficient notice upon which to prepare his defense ... since the Defendant is not apprised of which motion picture the State intends to prove is obscene in this trial.”

This Court has stated that the failure of a charging instrument to allege facts sufficient to give the defendant notice of precisely what he is charged with is a ground for an exception to the form under Articles 27.09(2), and 21.21(7), supra. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

We have also stated that when a challenge to an accusation for failure to give adequate notice on which to prepare a defense is properly and timely asserted with adequate statement of the manner in which notice is deficient, “fundamental constitutional protections are invoked.” Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). Such a challenge “calls for examination of the criminal accusation from the perspective of the accused.” Id. “When the defendant petitions for sufficient notice of the state’s charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice.” Id.

Moreover, Article I, Section 10 of the Texas Constitution mandates that the notice petitioned for — information on which to prepare a defense — must come from the face of the charging instrument. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980) (opinion on State’s motion for rehearing); Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973); Baker v. State, 123 Tex.Cr.R. 209, 58 S.W.2d 534 (1933); Huntsman v. State, 12 Tex.App. 619 (1882). It is improper to look to the record of the case in order to determine whether the allegation in the charging instrument constitutes adequate notice; the adequacy of the allegation must be tested by its own terms, “in a vacuum, so to speak.” Bonner v. State, 640 S.W.2d 601 (Tex.Cr.App.1982).

In the instant case, the Court of Appeals noted that the allegations in the information are more specific than needed to charge the offense of obscenity. The obscene material proscribed by Y.T.C.A. Penal Code Sec. 48.23(c)(1) and defined generically by Sec. 43.21(a)(2) is described specifically in the information as “one motion picture”. The information charges appellant with “promoting” (the conduct proscribed by statute) the motion picture by “exhibiting” it. The generic term “ultimate sexual acts” in the statutory definition of “obscene” is specified as “sexual intercourse”. The person to whom the material was exhibited is identified by name in the information.

Appellant does not argue that these allegations standing alone are inadequate to give him notice upon which to prepare a defense. Appellant contends, rather, that because the police seized two films, and because the allegations in the information are no more descriptive of one film than the other, the information does not tell him which film the State alleges is obscene.

Appellant emphasizes that the defense he was hindered from preparing concerns the allegedly obscene nature of the material itself. He argues:

“It should be noted herein that in this case there is a very compelling reason why Appellant should be given notice of which film the State intended to introduce as an alleged obscene film. The allegedly obscene materials were motion pictures, material which are potentially subject to First Amendment rights of freedom of speech and press. Because of these First Amendment considerations, the definition of obscene material is defined in V.T.C.A. Penal Code Sec. 43.21. A portion of the definition of obscene material provides that the material taken as a whole, lacks serious literary, artistic, political, and scientific value. If an accused is required to defend himself against allegations that he has promoted material that is obscene, the accused must know what material the State alleges is obscene. Without this notice, any meaningful defense to the charged [sic] cannot be present.”

The Court of Appeals accepted this argument and wrote:

“These factors [constituting the statutory definition of “obscene”] impose quite a burden on the State and afford the accused a variety of defensive tactics based upon the material itself. Without specific knowledge of the material relied upon by the State, the accused is foreclosed from utilizing the variety of defenses which relate to the specific material relied upon for prosecution. At the pre-trial hearing, appellant argued that the State could have distinguished one film from another by specifying the booth number, or film type, or by describing the actors involved. We agree.” [emphasis in original].

The Court of Appeals then correctly characterized the defect as one of form. See American Plant Food Corp. v. State, supra. Accordingly, that Court looked to Art. 21.19, V.A.C.C.P., which mandates that the judgment shall not be affected “by reason of any defect of form which does not prejudice the substantial rights of the defendant.” Following Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981), the Court of Appeals reviewed the statement of facts to determine whether the defect in the information prejudiced appellant’s substantial rights. That Court concluded that “under the circumstances of the present case, the defect in the charging instrument did not restrict the appellant’s opportunity to defend against the prosecution.”

Appellant argues that the Court of Appeals erred in reviewing the statement of facts to determine whether the defect was prejudicial. In Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981) (opinion on State’s motion for rehearing) we overruled Craven, supra, reasoning as follows:

“Craven, supra, also relied on the requirement of Art. 21.19, V.A.C.C.P., that prejudice to some substantial right of the accused be shown before an indictment is held insufficient. The constitutional right to adequate notice of the charges against him from the face of the indictment is the substantial right invoked by filing a motion to quash for insufficient notice. Brasfield v. State, [supra]. To require evidence reflected in a statement of facts to establish insufficient notice is to ignore the requirement that notice appear on the face of the indictment. Examination of the indictment, not the evidence, is the ultimate test.”

The Jeffers opinion states that reviewing the statement of facts to assess prejudice “is to ignore the requirement that notice appear on the face of the indictment.” We acknowledge that a defendant’s right to “demand the nature and cause of the accusation against him” must be satisfied from the face of the charging instrument. We may find in a given case that the State’s accusation is objectionable on that ground. In such a case the requirement of notice from the charging instrument is not satisfied. Yet it appears to be a distinct question whether the particular “notice defect” prejudiced the substantial rights of the defendant. The object of the requirement of notice from the accusation is to secure the defendant’s right to know “the nature and cause of the accusation against him”. Article 21.19 directs us to determine whether, although the right has not been satisfied from the charging instrument, the particular defect of notice harmed the defendant.

The “substantial right” identified in Jef-fers is constituted of two components: one, the right to demand the nature and cause of the accusation, and two, the right to have this notice from the face of the instrument. The two components are not independent, however; the right to a particular means of receiving notice owes its existence to, and is dependent on, the existence of the right to notice. The right to notice from the accusation derives from the right to demand the nature and cause of that accusation. Yet Jeffers defines the right to notice from the face of the accusation as “substantial”. We do not find this proposition to be self-evident, and it begs the question of whether a particular defect of form in the charging instrument prejudiced the substantial rights of the defendant.

The important question is whether a defendant had notice adequate to prepare his defense. The first step in answering this question is to decide whether the charging instrument failed to convey some requisite item of “notice”. If sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether, in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and, finally, how great an impact. To the extent that the holding on State’s motion for rehearing in Jeffers, supra, bars the further inquiry mandated by Art. 21.19, supra, the holding in Jeffers is overruled. The Court of Appeals in the instant case was correct to review the record for prejudice to appellant's substantial rights from the defect of form in the charging instrument.

The Court of Appeals found that the motion to quash should have been granted on the ground that the information failed to apprise appellant of which motion picture the State intended to prove was obscene. In analyzing the harm to appellant from the defect, the Court of Appeals reviewed both films. (Appellant introduced the second in a bill of exceptions.) The Court of Appeals wrote:

“Each film explicitly shows acts of sexual intercourse and oral sex. Except for the participants who could be identified, the films are similar in content. The entire footage of each film presents explicit sexual activity of a type barred by statute, and the films are so similar that one could not conceivably find one film obscene and the other film not.

“Appellant argues that the lack of notice prevented him from defending himself against the State’s allegations that the one film shown to convict him lacked serious literary, artistic, political, or scientific value. However, we are unable to conjecture a scenario in which the substantial rights of the appellant were prejudiced. The films are so similar (in that they depict essentially the same conduct) that appellant could not possibly have defended on a theory applicable to one film but not the other.”

We would only add that, in arguing his motion to set aside the information, on November 17th, the day of trial, appellant’s counsel stated to the trial court the following:

“After the [pre-trial] hearing on [the motion to suppress, held on November 9th], the State permitted myself, along with [the prosecutor], to view the films that they seized on August 26th. I think [the prosecutor] will have to agree that the officers’ testimony was mistaken in that both films depicted acts of oral sex and sexual intercourse, and not as the officer stated, one did not depict sexual intercourse. His testimony was mistaken, and I will also testify as to my viewing of the film. Both of them do depict what is alleged in the information.”

Appellant presented no evidence at the trial on the merits. Counsel argued to the jury that the State had failed to prove that the film was obscene in the statute’s definition, in particular that the material as a whole appealed to the prurient interest in sex, or that it was patently offensive, as follows:

“But, the type of scenes depicted in that film are not the point to draw the line. It’s got to appeal to the prurient interest, and that showed normal sex. We have read a lot about the studies, Masters and Johnsons, so forth. There’s nothing, they say there’s nothing unusual, morbid about sexual relations, even with two or more persons, oral sex.”

Appellant contends that the information's failure to identify the film hindered him from preparing a defense on the basis that the material was not obscene. Appellant’s counsel viewed both films before trial. Both films depicted sexual intercourse. Appellant presented no evidence on the issue of the film’s obscenity. Appellant simply argued to the jury that material depicting normal sex does not appeal to the prurient interest in sex. Appellant does not explain how his ignorance of which film the State would introduce against him hindered his defense when his counsel knew the content of both films, knew that both depicted similar behavior, and still did not present a defense based on the content of the material.

We find that the Court of Appeals was correct in its conclusion that, in the circumstances of this case, the defect in the charging instrument did not prejudice the substantial rights of appellant.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., dissents.