Baxter v. State

Court of Criminal Appeals of Texas

Baxter v. State

363 S.W.2d 475, 1963 Tex. Crim. App. LEXIS 1070

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 9, 1963

Docket35104

StatusPublished

Cited by1 cases

This text of 363 S.W.2d 475 (Baxter v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baxter v. State, 363 S.W.2d 475, 1963 Tex. Crim. App. LEXIS 1070 (Tex. 1963).

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Opinion

WOODLEY, Presiding Judge.

The offense is contributing to the delinquency of a minor (Art. 534 P.C.); the punishment, 6 months in jail and a'fine of $500.

The information alleged that, appellant contributed to the delinquency of the named boy, who was under 16 years of age, by showing him obscene pictures.

Art. 527, Sec. 2, Vernon’s Ann.P.C. makes it unlawful to knowingly exhibit any obscene picture to a minor. “Obscene” is defined in Sec. 3 of said Art. 527 “ * * * as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the- term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas-”

Under the allegations of the information, it was necessary that the proof show that this statute was violated. Why the state chose to prosecute under Art. 534 P.C. when proof of the same facts would authorize a conviction with a higher punishment under Art. 527, Sec. 2, P.C., is not apparent.

The court in his charge told the jury that it was unlawful to exhibit an obscene picture to a minor. “Obscene” was defined in the charge, but the definition was not that found in the statute making such exhibiting of an obscene picture to a minor an offense. Omitted from the court’s definition was the above italicized portion of the statute.

Appellant’s objection to the court’s charge, that the definition of “obscene” was contrary to and at variance with the definition found in the statute, was well taken.

The state, in relying upon Malone v. State, 170 Tex.Cr.R. 231, 339 S.W.2d 666, overlooks the fact that “obscene” was not defined in Art. 527 as it existed when the Malone case was tried and decided.

The judgment is reversed and the cause remanded.

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WOODLEY, Presiding Judge.

The offense is contributing to the delinquency of a minor (Art. 534 P.C.); the punishment, 6 months in jail and a'fine of $500.

The information alleged that, appellant contributed to the delinquency of the named boy, who was under 16 years of age, by showing him obscene pictures.

Art. 527, Sec. 2, Vernon’s Ann.P.C. makes it unlawful to knowingly exhibit any obscene picture to a minor. “Obscene” is defined in Sec. 3 of said Art. 527 “ * * * as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the- term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas-”

Under the allegations of the information, it was necessary that the proof show that this statute was violated. Why the state chose to prosecute under Art. 534 P.C. when proof of the same facts would authorize a conviction with a higher punishment under Art. 527, Sec. 2, P.C., is not apparent.

The court in his charge told the jury that it was unlawful to exhibit an obscene picture to a minor. “Obscene” was defined in the charge, but the definition was not that found in the statute making such exhibiting of an obscene picture to a minor an offense. Omitted from the court’s definition was the above italicized portion of the statute.

Appellant’s objection to the court’s charge, that the definition of “obscene” was contrary to and at variance with the definition found in the statute, was well taken.

The state, in relying upon Malone v. State, 170 Tex.Cr.R. 231, 339 S.W.2d 666, overlooks the fact that “obscene” was not defined in Art. 527 as it existed when the Malone case was tried and decided.

The judgment is reversed and the cause remanded.

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Bluebook (online)

363 S.W.2d 475, 1963 Tex. Crim. App. LEXIS 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-state-texcrimapp-1963.

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