LaRue v. State

637 S.W.2d 934, 1982 Tex. Crim. App. LEXIS 983

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for commercial obscenity. V.T.C.A. Penal Code, Sec. 43.23. After finding appellant guilty, the jury assessed punishment at 180 days and a fine of $1,000.00.

In his fourth ground of error, appellant maintains the court erred in overruling his written objection to that portion of the charge concerning contemporary community standards. He contends the charge was erroneous with regard to “the applicable geographical area for determining contemporary community standards.”

That portion of the charge of which appellant now complains states as follows:

“You are further instructed that, in determining whether the dominant theme of the material as a whole appeals to the prurient interest of the average person applying contemporary community standards, you are to apply the contemporary community standards of the adult population of Potter County, Texas, and not the personal opinion of each juror.”

In LaRue v. State, 611 S.W.2d 63 (Tex.Cr.App.), this Court held that the proper community scope for determination of the obscenity issue is not limited to one county. Thus, it was error for the court to charge on a county-wide standard over the objection made by the defendant. Id. at 64. See Graham v. State, 620 S.W.2d 133 (Tex.Cr. App.1981); Berg v. State, 599 S.W.2d 802 (Tex.Cr.App.).

We find the court erred in charging the jury, over the objection made by appellant, that a county-wide standard is applicable with regard to a determination of contemporary community standards.

The judgment is reversed and the cause is remanded.