Burch v. State

712 S.W.2d 163, 1986 Tex. Crim. App. LEXIS 777

• Court: Court of Criminal Appeals of Texas
• Decided: June 25, 1986
• Docket: No. 906-85
• Status: Published

Opinion

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appeal is taken from a conviction for the offense of obscenity. Appellant was convicted in a trial before the court. Punishment was assessed at a $200.00 fine. The Court of Appeals concluded that the evidence is insufficient to support the trial court’s finding that the magazine in question is obscene. Therefore, the Court of Appeals reversed the conviction and ordered the trial court to enter a judgment of acquittal. Burch v. State, 695 S.W.2d 264 (Tex.App. — Houston [1st] 1985).

We agree with the Court of Appeals that appellant’s conviction should be reversed and a judgment of acquittal entered. Accordingly, the state’s petition for discretionary review will be refused. As is true in every case, refusal of discretionary review by this Court does not constitute endorsement or adoption of the reasoning employed by the Court of Appeals.

To prevent any misunderstanding, we take this opportunity once again to emphasize that summary refusal of a petition for discretionary review by this Court is of no precedential value. This is true whether the petition is refused without opinion, as is the usual practice, as well as where the petition is refused with a brief opinion disavowing the reasoning employed by the Court of Appeals, as in the instant case. The Bench and Bar of the State should not assume that the summary refusal of a petition for discretionary review lends any additional authority to the opinion of the Court of Appeals. Sheffield v. State, 650 S.W.2d 818 (Tex.Crim.App.1983).

The state’s petition for discretionary review is refused.