Brady v. State

799 S.W.2d 408, 1990 Tex. App. LEXIS 3127, 1990 WL 165370
CourtCourt of Appeals of Texas
DecidedOctober 18, 1990
DocketNo. 13-89-054-CR
StatusPublished

This text of 799 S.W.2d 408 (Brady v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. State, 799 S.W.2d 408, 1990 Tex. App. LEXIS 3127, 1990 WL 165370 (Tex. Ct. App. 1990).

Opinions

OPINION

NYE, Chief Justice.

A jury found appellant guilty of promoting and possessing obscene material. The trial court assessed punishment at a fine of $400.00 and confinement for 60 days in the county jail. By one point of error, appellant challenges the sufficiency of the evidence to support the conviction. We affirm the judgment of the trial court.

Appellant was accused of promoting and possessing with intent to promote an obscene motion picture entitled “Working Girls.” Appellant asserts only that the evidence fails to show that he promoted the film or knew its content and character. He does not argue nor contend that the material itself was not obscene.

In reviewing the sufficiency of the evidence on this sole point of error, the court of appeals must view the evidence in the light most favorable to the trial court’s judgment to determine whether any rational trier of fact could have found this essential element of the offense beyond a reasonable doubt. Baugh v. State, 776 S.W.2d 583, 585 (Tex.Crim.App.1989); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); Castillo v. State, 739 S.W.2d 280, 287 (Tex.Crim.App.1987). A defendant’s knowledge of the character and content of obscene material can be proven by circumstantial or direct evidence. Carroll v. State, 701 S.W.2d 913, 914 (Tex.Crim.App.1986); Davis v. State, 658 S.W.2d 572 (Tex.Crim.App.1983).

The evidence shows that police officer Jose Morales went to the Citrus Drive-In Theater, where the marquee advertised two movies: “Beverly Hills Cox” and “Working Girls.” Morales purchased a ticket and parked his car where he could see Marlin Hankin working in the projection room.1 Officer Morales viewed [409]*409the two advertised movies in their entire-ties. While viewing the movies, Morales observed that appellant thrice left the concession stand where he was working and went to the theater projection room. Appellant remained inside the room for several minutes during each visit, although the record does not indicate what appellant did there. The officer left the theater after the movies ended.

Subsequently, on an evening while the two movies were still showing, Morales, accompanied by Detective Garza, returned to the theater to execute a search warrant. Morales served a copy of the warrant on Hankin while he was in the projection room. Garza served a copy of the warrant on appellant at the concession stand and then escorted him to the projection room.

On his arrival at the projection room, appellant instructed Hankin to “break down” the movies. “Break down” is a term which apparently describes reducing a movie from the large reels feeding into the projector to several smaller reels for easier storage and shipment. Once the film was dismantled and placed on the smaller reels, appellant “got ties” and, according to Morales, “just set those up.”

While Morales waited for Hankin and appellant to break down the movies, he looked at some pieces of film lying on the projection room floor. The testimony indicates that the smaller shipment-sized reels are cut and spliced into one larger reel for viewing. Thus, bits of film will be severed from the movie and often remain in the projection room. Morales testified that appellant said, “if I was looking for pieces of film that had been cut from the movie that [I] should have gotten them the first time because they were not there anymore.”

Morales testified at trial that appellant was the manager of the theater. No objection was made to this assertion. Officer Morales had worked at the theater in the past and knew both the appellant and Han-kin. Morales stated that when he worked at the theater, appellant brought in workers and supplies and gave orders. He further testified, without any objection, that he always knew that the theater belonged to the Brady family and that appellant runs the theater. On the night that Morales served the warrant, the only managerial order, appellant gave was to “break down” the film.

To show that appellant was an owner of the theater, the State introduced articles of incorporation for “Brady’s Citrus Drive-In, Inc.,” which identified Tommy, Jacqueline, and Scott Brady as the incorporators. Appellant did not testify and presented no evidence.

Appellant argues that the State failed to show that he viewed or heard any portion of the movie, operated the projector, advertised the film, had a financial interest in the theater, or was even working at the theater on the date in question. He contends that the evidence shows nothing more than that Officer Morales saw appellant going from the concession area to the projection room three times during the course of the two movies. Appellant relies upon the holdings in Goodman v. State, 667 S.W.2d 135 (Tex.Crim.App.1984); Skinner v. State, 652 S.W.2d 773 (Tex.Crim.App.1983); and Acevedo v. State, 633 S.W.2d 856 (Tex.Crim.App.1982), to argue his point.

In the three cases appellant relies upon, the Court of Criminal Appeals reversed convictions for the exhibition and sale of obscene material essentially stating that the State must show how a defendant’s conduct, not status, was criminal. For example, in Beier v. State, 687 S.W.2d 2 (Tex.Crim.App.1985), the Court of Criminal Appeals reviewed its holding in Volkland v. State, 510 S.W.2d 585 (Tex.Crim.App.1974) and held that proof that the defendant was a manager of an adult bookstore, by itself, would not support a conviction for the exhibition and sale of obscene material. The court stated that without proof that the defendant acted in some way to direct, aid, encourage or assist in the sale of the obscene material, the evidence would not support the defendant’s conviction.

[410]*410The present case is distinguishable from these cited cases because appellant here was accused of “promoting,” and not merely “exhibiting,” obscene material. The unobjected definition of “promote” given in the trial court’s charge was “to manufacture, issue, sell, give, provide, lend, deliver, transfer, transmit, distribute, circulate, disseminate, present, exhibit, or advertise, or to agree to do the same.” See Tex. Penal Code Ann. § 43.21(a)(5) (Vernon 1989). Thus, to “promote” obscenity a defendant could do any of several statutory acts that might not constitute “exhibiting,” yet still qualify as the charged offense. We pause to note that the jury was not instructed on the law of parties; therefore, in order for the jury’s verdict to be valid, there must be some evidence that appellant committed one or more of the acts listed in the charge to promote the film.

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Related

Acevedo v. State
633 S.W.2d 856 (Court of Criminal Appeals of Texas, 1982)
Beier v. State
687 S.W.2d 2 (Court of Criminal Appeals of Texas, 1985)
Volkland v. State
510 S.W.2d 585 (Court of Criminal Appeals of Texas, 1974)
Goodman v. State
667 S.W.2d 135 (Court of Criminal Appeals of Texas, 1984)
Skinner v. State
652 S.W.2d 773 (Court of Criminal Appeals of Texas, 1983)
Baugh v. State
776 S.W.2d 583 (Court of Criminal Appeals of Texas, 1989)
Davis v. State
658 S.W.2d 572 (Court of Criminal Appeals of Texas, 1983)
Moreno v. State
755 S.W.2d 866 (Court of Criminal Appeals of Texas, 1988)
Carroll v. State
701 S.W.2d 913 (Court of Criminal Appeals of Texas, 1986)
Castillo v. State
739 S.W.2d 280 (Court of Criminal Appeals of Texas, 1987)

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Bluebook (online)
799 S.W.2d 408, 1990 Tex. App. LEXIS 3127, 1990 WL 165370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-state-texapp-1990.