NUMBERS 13-05-123-CR & 13-05-124-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BEATRICE VILLARREAL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 4 of Nueces County, Texas.
OPINION
Before Justices Yañez, Rodriguez, and Garza Opinion by Justice Yañez
A jury found appellant, Beatrice Villarreal, guilty of offending (1) a state law
prohibiting the sale of obscene devices,1 and (2) a municipal ordinance prohibiting the
1 See T EX . P EN AL C OD E A N N . § 43.23(c)(1) (Vernon 2003). This offense constitutes a Class A m isdem eanor. See id. § 43.23(d) (Vernon 2003). operation of a sexually oriented business without a permit.2 The trial court then imposed
$1,500 in fines and terms of imprisonment amounting to one year in county jail. Appellant
appeals her conviction through six issues. We affirm.
I. Background
On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working
undercover when he visited a business, called Friends 4 Ever, to determine if it was selling
obscene materials or devices. Dominguez was aware that law enforcement agents had
previously informed the business owner that the business needed to cease selling certain
items that were considered obscene under state law. Appellant was at the business
working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator
from appellant; the vibrator was called “Lick it Lover” and resembled the male sexual
organ. A few hours after Dominguez’s purchase, police officers arrived at the business,
where they executed a search warrant and placed appellant under arrest.
In trial court cause number 04-CR-6215-4 (hereinafter “cause one”),3 appellant was
charged by complaint with having committed an offense under section 43.23(a) of the
penal code.4 Under this cause, it was alleged that “[o]n or about 1:30 p.m. on June 25,
2004 . . . in Nueces County,” appellant, “knowing the content and character of a certain
device, to-wit: a dildo and vibrator, knowingly promote[d] or possess[ed] with intent to
2 See C OR PUS C H R ISTI, T EX ., C O D E O F O RD INAN CES ch. 48, art. I, § 48-18(b) (1996). This offense constitutes a Class A m isdem eanor. See id. at § 48-3(b) (1996).
3 Appellate cause num ber 13-05-124-CR.
4 See T EX . P EN AL C OD E A N N . § 43.23(c)(1).
2 promote said device, which was obscene.”5
In trial court cause number 04-CR-6197-4 (hereinafter “cause two”),6 appellant was
charged by information with having committed offenses under sections 48-18(b) of the
Corpus Christi Code of Ordinances (“the Code”) and 43.23(c)(1) of the penal code.7 Under
this cause, appellant was alleged to have “unlawfully intentionally and knowingly
conduct[ed] a business as a sexually oriented business within the city of Corpus Christi,
Texas, without having secured a permit issued by the Corpus Christi Chief of Police to
conduct such a business.”8 The cause further alleged that “[o]n or about 6:14 p.m. on June
25, 2004 . . . in Nueces County,” appellant, “knowing the content and character of a certain
device, to wit: erection makers (stimulators), dildo type devices, anal beads, penis pumps
and simulated vaginas, possess[ed] with intent to promote said device, which was
obscene.”9
Appellant pleaded not guilty to the State’s allegations in both causes, which were
then tried jointly before a jury. The jury found appellant guilty on all counts. With respect
to cause two, the trial court imposed a $500 fine and a six-month term of imprisonment in
county jail. As to cause one, the trial court imposed a $1,000 fine and a six-month term
of imprisonment in county jail, which was to run consecutively with the sentence imposed
5 See id.
6 Appellate cause num ber 13-05-123-CR.
7 See C OR PUS C H R ISTI, T EX ., C O D E OF O RD INAN CES ch. 48, art. I, § 48-18(b); T EX . P EN AL C OD E A N N . § 43.23(c)(1).
8 See C OR PUS C H R ISTI, T EX ., C O D E OF O RD INAN CES ch. 48, art. I, § 48-18(b).
9 See T EX . P EN AL C OD E A N N . § 43.23(c)(1).
3 in cause two.
Appellant’s original appellate brief challenged her convictions through four issues.
After the parties in the instant case submitted their briefs, the United States Court of
Appeals for the Fifth Circuit issued its opinion in Reliable Consultants, Inc. v. Earle.10 In
that opinion, the Fifth Circuit held that provisions of penal code section 43.23—criminalizing
the promotion of obscene devices—violated the Fourteenth Amendment of the United
States Constitution.11 In the interest of justice, we afforded appellant an opportunity to
raise any additional argument she may derive from Reliable.12 Appellant subsequently
submitted a supplemental brief that raised two new issues. The State filed a supplemental
brief in response.
II. Constitutionality of Section 43.23
The general rule concerning passage of an unconstitutional statute is that the law
is void from its inception and cannot provide a basis for any right or relief.13 Appellant thus
argues that her convictions under section 43.23(a) of the penal code cannot stand because
that statute is facially unconstitutional in light of the Fifth Circuit’s holding in Reliable.
In arriving at its holding in Reliable, the Fifth Circuit first sought to determine the right
placed at stake by section 43.23’s criminalization of obscene devices, stating:
Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government
10 517 F.3d 738 (5th Cir. 2008).
11 Id. at 740.
12 See T EX . R. A PP . P. 38.7 (“A brief m ay be am ended or supplem ented whenever justice requires, on whatever reasonable term s the court m ay prescribe.”).
13 Lapasnick v. State, 784 S.W .2d 366, 368 (Tex. Crim . App. 1990).
4 intrusion. The State proposes a different right for the Plaintiffs: “the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.”14
Unlike the Texas Court of Criminal Appeals, which engaged in the same discussion twenty-
three years earlier in Yorko v. State,15 the Fifth Circuit found that the issue before it was
“whether the Texas statute impermissibly burdens the individual’s substantive due process
right to engage in private intimate conduct of his or her choosing,” and concluded that “the
Texas law burdens this constitutional right.”16
The two justices composing the panel majority in Reliable are not the first jurists to
take issue with section 43.23. In Regalado v. State, wherein the Fourteenth Court of
Appeals affirmed a defendant’s conviction for selling an obscene device in violation of
section 43.23, Chief Justice J. Curtiss Brown succinctly expressed his displeasure with the
statute in a concurring opinion, stating: “Here we go raising the price of dildos again.
Since this appears to be the law in Texas I must concur.”17 We share Chief Justice
Brown’s sentiments; moreover, we agree with the legal reasoning set out by the Reliable
majority.18 And though we embrace the Fifth Circuit’s decision, we are unfortunately
constrained from following it.
Fifth Circuit precedent is not binding on Texas courts, and its constitutional
14 Reliable Consultants, 517 F.3d at 743.
15 690 S.W .2d 260, 263-66 (Tex. Crim . App. 1985).
16 Reliable Consultants, 517 F.3d at 744.
17 Regalado v. State, 872 S.W .2d 7, 11 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d) (Brown, C.J., concurring).
18 But see Varkonyi v. State, No. 08-06-00255-CR, 2008 Tex. App. LEXIS 3353, at *21-26 (Tex. App.–El Paso May 8, 2008, no pet. h.) (criticizing Reliable’s legal reasoning).
5 pronouncements are highly persuasive at best.19 An explanation for why Texas courts and
other state courts are not bound by the constitutional pronouncements of the federal district
and circuit courts can be found in United States ex rel. Lawrence v. Woods.20 In that case,
Lawrence was found guilty of violating an ordinance that criminalized interfering with the
duties of a police officer.21 While Lawrence’s appeal was pending before the Supreme
Court of Illinois, a federal district court, in an unrelated declaratory judgment action, held
that the interference ordinance was unconstitutional and void on its face as repugnant to
the federal Constitution.22 The Supreme Court of Illinois later affirmed Lawrence’s
conviction, and Lawrence eventually appealed to the Seventh Circuit, contending “that the
Supreme Court of Illinois failed to follow, under the supremacy clause, the federal district
court’s ruling . . . that the interference ordinance is constitutionally void on its face.”23 The
Seventh Circuit rejected Lawrence’s contention, explaining:
19 See Shpikula v. State, 68 S.W .3d 212, 225 (Tex. App.–Houston [1st Dist.] 2002, pet. ref'd) (citing Vaughn v. State, 888 S.W .2d 62, 74 (Tex. App.–Houston [1st Dist.] 1994), aff’d, 931 S.W .2d 564 (Tex. Crim . App. 1996)); see also W oodward v. Tex. Dep’t of Human Res., 573 S.W .2d 596, 598 (Tex. 1978). In W oodward, the Texas Suprem e Court stated:
[I]n the absence of a controlling decision by the United States Suprem e Court, Texas courts of civil appeals are bound by the pronouncements of the Texas Suprem e Court on the law. ‘After a principle, rule or proposition of law has been squarely decided by the (Texas) Suprem e Court . . . the decision is accepted as a binding precedent by the sam e court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.’ And, until the Suprem e Court states to the contrary, its pronouncem ent is the law on an expressed issue.
Id. (citations om itted); see generally Stuart Buck & Mark L. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes, 2002 U TAH L. R EV . 381, 427-35 (2002).
20 432 F.2d 1072 (7th Cir. 1970).
21 Id. at 1073.
22 Id.
23 Id. at 1074-75.
6 The Supreme Court of the United States has appellate jurisdiction over federal questions arising either in state or federal proceedings, and by reason of the supremacy clause the decisions of that court on national law have binding effect on all lower courts whether state or federal. On the other hand, because lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts.
Of course in a given factual setting when a lower federal court has jurisdiction over the subject matter and the parties, its adjudication is the law of the case and its judgment is binding on all other courts, subject only to the appellate process. But that is not the situation here. The district court’s declaration that the interference ordinance is unconstitutional was made in an unrelated case and at a time when petitioner’s appeal from his conviction was pending in the Supreme Court of Illinois. In these circumstances, we hold that the federal court’s ruling was not binding on the state appellate tribunal.24
Just as state courts are not bound by declaratory judgments, a lower federal court’s
issuance of an injunction—as done by the Fifth Circuit in Reliable—also fails to directly
bind state courts. As expressed by the United States Supreme Court in Ex parte Young:
“It is proper to add that the right to enjoin an individual, even through a state official, from
commencing suits under circumstances already stated, does not include the power to
restrain a court from acting in any case brought before it, either of a civil or criminal nature
. . . .”25
This Court thus remains duty-bound, for better or worse, to follow the rulings of the
court of criminal appeals, which has held—in contrast to the Fifth Circuit—that section
43.23 does not violate the due process clause of the Fourteenth Amendment.26 Because
24 Id. at 1075-76.
25 Ex parte Young, 209 U.S. 123, 163 (1908).
26 See Yorko, 690 S.W .2d at 261-266. W e have little reason to believe that the court of crim inal appeals now takes issue with its holding in Yorko. In Ex parte Dave, 220 S.W .3d 154, 159-60 (Tex. App.–Fort W orth 2007, pet. ref’d), the Second Court of Appeals rejected the appellant’s argum ent that section 43.23 of
7 we must follow the court of criminal appeals’ holding that section 43.23 is constitutional,
we reject the argument in appellant’s supplemental brief that contests her convictions for
promoting an obscene device. For the same reason, we also reject appellant’s contention
that the holding in Reliable warrants a reversal of her conviction for operating a sexually
oriented business without a permit. The two issues in appellant’s supplemental brief are
therefore overruled.
III. Entrapment
A. Applicable Law
When appellant raised the defense of entrapment at trial, she had the burden of
producing evidence to establish every element of that defense.27 She had to present a
prima facie case that (1) she engaged in the conduct charged; (2) because she was
induced to do so by a law enforcement agent; (3) who used persuasion or other means;
and (4) those means were likely to cause persons to commit the offense.28 Once she
made a prima facie showing of each element, the State then had the burden of persuasion
to disprove entrapment beyond a reasonable doubt.29 In reviewing a challenge to the legal
sufficiency of the evidence to support a jury’s rejection of a defense to prosecution, we use
the same standard used in reviewing the sufficiency of the evidence to support a verdict
of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the
the penal code violated the due process clause of the Fourteenth Am endm ent, and the court of crim inal appeals refused appellant’s subsequent petition for discretionary review.
27 See Hernandez v. State, 161 S.W .3d 491, 497 (Tex. Crim . App. 2005).
28 See id.
29 See id. at 498.
8 rejection of the defense.30
When an entrapment defense is presented at trial, the fact-finder is authorized to
weigh the evidence and draw a conclusion as to whether that evidence establishes
entrapment as a matter of fact or law.31 In reviewing a jury’s rejection of an entrapment
defense, we determine whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
criminal offense beyond a reasonable doubt and also could have found against the
defendant on the issue of entrapment beyond a reasonable doubt.32 This review must take
into account that the trier of fact, not the appellate court, was free to accept or reject all or
any portion of any witness’s testimony.33 In cases where the entrapment defense is
asserted, the fact-finder may disbelieve some or all of a witness’s testimony, even when
that testimony is uncontradicted.34
B. Discussion
Appellant testified she told Dominguez that she could not sell any of the obscene
devices he was browsing, but that he ultimately induced her to sell the vibrator. According
30 See Saxton v. State, 804 S.W .2d 910, 914 (Tex. Crim . App. 1991). W e review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light m ost favorable to the verdict to determ ine if any rational trier of fact could have found beyond a reasonable doubt the essential elem ents of the offense. W ilson v. State, 7 S.W .3d 136, 141 (Tex. Crim . App. 1999). Under this standard, the fact-finder is the exclusive judge of the witnesses’ credibility and the weight given to the evidence, m ay draw reasonable inferences from basic to ultim ate facts, and is entitled to resolve any conflicts in testim ony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W .2d 642, 647 (Tex. Crim . App. 1996).
31 Hernandez, 161 S.W .3d at 500.
32 Id.
33 Id.
34 See id. at 501.
9 to her testimony, the inducement occurred in the following manner:
When [Dominguez] got [the vibrator] out of the container he said, again, that he didn’t think it was considered something that I couldn’t sell to him and since he was a regular customer he didn’t find that there was anything wrong with it and why would I risk selling anything to a customer who had shopped there frequently.
Based on this testimony, appellant asserts on appeal that she made a prima facie showing
of every element of the entrapment defense. She further contends that the State did not
carry its burden to disprove the entrapment defense beyond a reasonable doubt because
it failed to rebut the aforementioned testimony. Appellant thus argues that entrapment was
established as a matter of law.
Listening to appellant’s testimony from the witness stand, a reasonable trier of fact
could have either (1) concluded that this was “an appalling example of police misconduct
and law enforcement trickery run rampant,” or (2) concluded “from appellant’s words,
appearance, demeanor, and tone that [she] was indulging in post hoc creativity.”35
Dominguez provided testimony that raised credibility concerns and created a disputed fact
issue with regards to appellant and her testimony, presenting matters that were for the jury
to resolve. Dominguez testified that appellant invited him to browse through obscene
devices. He also stated that when he initially began looking at the vibrator, appellant
commented, “Hey, whoever you buy that for they’re really going to like it.” According to
Dominguez, he never told appellant that she should sell the vibrator to him because he was
a regular customer. Based on this testimony and the reasonable inferences drawn
therefrom, the jury had reason to disbelieve appellant’s claim that she was induced to sell
35 See id. at 500.
10 the vibrator. Given the record before us, we conclude the evidence is legally sufficient to
support both the verdict of guilt and the rejection of appellant’s entrapment defense.
Appellant’s entrapment issue is overruled.
IV. Municipal Ordinance
Chapter 48 of the Code regulates “sexually oriented businesses to promote the
public health, safety and welfare of the citizens of Corpus Christi, and to establish
reasonable and uniform regulations to prevent the concentration of sexually oriented
businesses in the city.”36 A municipality’s authority to create such regulations is derived
from chapter 243 of the local government code (“Chapter 243”), which states that “[a]
municipality by ordinance . . . may adopt regulations regarding sexually oriented
businesses as the municipality or county considers necessary to promote the public health,
safety, or welfare.”37 Appellant was convicted of offending section 48-18(b) of the Code,
which states that “[a] person commits an offense if that person conducts a business as a
sexually oriented business within the City of Corpus Christi unless a permit is issued by the
chief of police for the conduct of such business.”38 The term “sexually oriented business”
is defined in the Code and Chapter 243. Under the Code, the term means the following:
An adult cabaret, adult lounge, nude studio, adult modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, adult novelty shop, adult arcade,
36 C OR PUS C H R ISTI, T EX ., C O D E OF O RD INAN CES ch. 48, art. I, § 48-1(a) (1996).
37 T EX . L O C . G O V ’T C OD E A N N . § 243.003(a) (Vernon 2005).
38 C OR PUS C H R ISTI, T EX ., C O D E O F O R D IN A N C E S ch. 48, art. IV, § 48-18(b) (Ord. No. 22596, § 2, 6-11-1996) (em phasis added). Chapter 48 states that a person “conducts business” if that person “[o]perates a cash register, cash drawer or other depository on business prem ises” or “[d]isplays or takes orders from any person for any m erchandise, goods, entertainm ent or other services offered on the business prem ises.” Id. ch. 48, art. I, § 48-2 (1996).
11 adult encounter parlor, escort agency, or other commercial enterprise the primary business of which is the regular offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer or which regularly sells, rents or exhibits pictures, whether motion or still, or sells, rents or exhibits devices or any other items distinguished or characterized by an emphasis on matter depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas.”39
The term, as defined in Chapter 243, does not include the bolded language. Chapter 243
thus applies only to commercial enterprises that sell, rent, or exhibit certain items as part
of their primary business, while the Code applies to these enterprises in addition to those
that regularly sell, rent or exhibit, certain items.40
Appellant challenges the legality of section 48-18(b) by contending that the Code
conflicts with the legislative intent of Chapter 243. She states that “[the Code] attempt[s]
to do that which [Chapter 243] did not intend for it to do: to bring under its purview
39 Id. ch. 48, art. I, § 48-2 (em phasis added).
40 See T EX . L O C . G O V ’T C OD E A N N . § 243.002 (Vernon 2005). This Court’s understanding of the Code’s definition— with respect to how term s m odify or qualify other term s— is expressed through the following outline:
An adult cabaret, adult lounge, nude studio, adult m odeling studio, love parlor, adult bookstore, adult m ovie theater, adult video arcade, adult m ovie arcade, adult video store, adult m otel, adult novelty shop, adult arcade, adult encounter parlor, escort agency, or other com m ercial enterprise
(1) the prim ary business of which is the regular (a) offering of a service or (b) the selling, renting, or exhibiting of devices or any other item s intended to provide sexual stim ulation or sexual gratification to the custom er; OR
(2) which regularly (a) sells, rents or exhibits pictures, whether m otion or still, or (b) sells, rents or exhibits devices or any other item s distinguished or characterized by an em phasis on m atter depicting, describing, or relating to "specified sexual activities" or "specified anatom ical areas."
See C OR PUS C H R ISTI, T EX ., C O D E O F O RD INAN CES ch. 48, art. I, § 48-2. The relevant difference between the Code and the local governm ent code is that the local governm ent code contains the first prong, but not the second.
12 commercial establishments which did not sell . . . particular items or devices as its primary
business.” Though appellant recognizes that the Code’s definition of a sexually oriented
business brings more commercial establishments within its purview than there would have
been under Chapter 243's definition, she never argues that section 48-18(b) is
unconstitutionally overbroad or vague as a result. Appellant’s brief simply contends that
the ordinance’s wider reach evidences its conflict with the legislative intent of Chapter 243,
and states that “[t]o the extent a city ordinance is in conflict with the general statute, IT IS
VOID.” Limited to this argument on appeal, we find against appellant.
There is a presumption that a city ordinance is valid, and the party attacking it has
the burden of showing invalidity.41 An ordinance that is inconsistent with state legislation
is impermissible.42 However, the fact that there is state legislation on a particular subject
does not automatically preempt that subject from city regulation.43 Local regulation,
ancillary to and in harmony with the State’s legislation, is acceptable.44
The ordinance in the instant case is not inconsistent with the law of this State. We
first note that Chapter 243 does not contain a series of State-enforced regulations; rather,
it contains a series of regulatory proposals that local governments may copy should they
wish to promulgate their own regulations governing sexually oriented businesses. Second,
the Code does not conflict with the legislative intent of Chapter 243—it does not impede
41 Gordon v. State, 757 S.W .2d 496, 502 (Tex. App.–Houston [1st Dist.] 1988, pet. ref’d) (citing Utter v. State, 571 S.W .2d 934, 937 (Tex. Crim . App. 1978)).
42 Id.
43 Id.
44 Id.
13 local governments from (1) remedying problems arising from “the unrestricted operation
of certain sexually oriented businesses”45 or (2) adopting regulations to govern such
businesses.46 Finally, the fact that a business owner may be required to obtain a permit
under the Code’s definition of a sexually oriented business, but would not have been
required to do so under the more limited scope of Chapter 243’s definition, does not
automatically warrant the conclusion that a conflict exists.47
It is possible that appellant intends to assert that the Code’s definition of a sexually
oriented business is preempted by Chapter 243’s definition. In other words, appellant is
asserting that the State has defined “sexually oriented business” and Corpus Christi may
not change the term’s meaning by adding language that broadens its reach. Courts have
held, however, that any legislative intention to limit the power of local governments must
appear with unmistakable clarity,48 and a review of Chapter 243 does not reveal, with
unmistakable clarity, an intent to prohibit local governments from altering the definition of
a sexually oriented business. It is conceivable that such an intent was not established
because the legislature foresaw the possibility that a municipality would choose to expand
45 See T EX . L O C . G O V ’T C OD E A N N . § 243.001(a) (Vernon 2005).
46 See id. § 243.003.
47 See City of W eslaco v. Melton, 158 Tex. 61, 308 S.W .2d 18, 21-22 (1957) (upholding an ordinance prohibiting the sale of raw m ilk, even though it was conceded that the prohibited m ilk com plied with all federal, state, and county regulations, was wholesom e for hum an consum ption, and the respondent held the necessary perm its).
48 See Gordon, 757 S.W .2d at 502 (citing City of Sweetwater v. Geron, 380 S.W .2d 550, 552 (Tex. 1964)).
14 Chapter 243’s definition in order to more effectively exercise its police powers.49
Determining if an alteration is constitutionally permissible is a matter that is ultimately
predicated upon whether it is “arbitrary and capricious, having no substantial relation to the
general welfare.”50 Nothing in appellant’s brief, however, permits us to entertain this latter
inquiry.
We find that appellant has not satisfied her burden to prove the invalidity of section
48-18(b). Furthermore, because appellant has failed to show why this Court should reject
the Code’s definition of a sexually oriented business, we need not address her challenge
to the sufficiency of the evidence that she operated a “sexually oriented business” as that
term is defined by Chapter 243. Appellant’s second issue is therefore overruled.
V. Double Jeopardy
In her third issue, appellant contends that her Fifth Amendment guarantee against
double jeopardy was violated when she was charged and convicted for (1) operating a
sexually oriented business without a permit and (2) promoting an obscene device. She
fails to provide, however, any argument on appeal explaining how the Double Jeopardy
Clause was violated. As a consequence, we find that appellant has waived her third
issue.51
49 See generally T EX . L O C . G O V ’T C OD E A N N . § 243.0075 (Vernon 2005) (“The m unicipality m ay license any lawful business or occupation that is subject to the police power of the m unicipality.”); Ex parte W oodall, 154 S.W .3d 698, 702 (Tex. App.–El Paso 2004, pet. ref’d) (stating that “a city m ay enact reasonable regulations to prom ote the health, safety, and general welfare of its people as a valid exercise of its police power”).
50 See Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980).
51 See T EX . R. A PP . P. 38.1(h) (stating that a “brief m ust contain a clear and concise argum ent for the contentions m ade”).
15 VI. Legal Sufficiency Challenge
Appellant received one conviction for promoting, or intending to promote, an
obscene device at 1:30 p.m., and a second conviction for committing the same offense at
6:14 p.m. Both offenses were said to have occurred on June 25, 2004. Appellant
challenges the legal sufficiency of the evidence supporting the latter conviction on the basis
that there was no evidence that she promoted, or intended to promote, an obscene device
on June 25, 2004, at 6:14 p.m. The State responds by directing our attention to Ponce v.
State, wherein this Court stated that “[t]he ‘on or about’ language of an indictment allows
the State to prove a date other than the one alleged in the indictment as long as the date
is anterior to the presentment of the indictment and within the statutory limitations period.”52
The State thus contends that “although the jury charge was unnecessarily specific
concerning the time of the offense as ‘[o]n or about 6:14 p.m. on June 25, 2004,’ the
evidence measured against the hypothetically correct jury charge adequately proved that
the offense occurred before the presentment of the indictment and within the limitations
period.”
Though the State’s brief accurately presents the law to this Court, we still find
ourselves plagued by the fact that the State’s brief does not assert that appellant
promoted, or intended to promote, an obscene device on more than one occasion or in
more than one manner. The brief only discusses the one instance in which appellant sold
the vibrator to Dominguez at 2:00 p.m. Presuming that appellant was prosecuted for this
act under cause one, which charged her with promoting an obscene device on or about
52 Ponce v. State, 89 S.W .3d 110, 117 (Tex. App.–Corpus Christi 2002, no pet.).
16 1:30 p.m., we have searched the record for evidence of a second unlawful act that would
justify her conviction for promoting an obscene device on or about 6:14 p.m., as set out in
cause two.
Though not asserted by the State, a reading of the State’s complaint and the jury
charge leads us to believe that appellant—in addition to being prosecuted for promoting
an obscene device by selling to Dominguez—was prosecuted for a second act of
promotion stemming from her possession of six or more obscene devices.53 Under cause
two, the State asserted that appellant possessed, with the intent to promote, “erection
makers (stimulators), dildo type devices, anal beads, penis pumps and simulated vaginas.”
Other than the “dildo type device” that appellant sold to Dominguez, there was no proof
that appellant promoted, through the act of selling, any of the other aforementioned items.
There was evidence, however, that appellant, as a sales clerk, possessed numerous
amounts of the other unsold items (far more than six).54 We conclude that such
possession may constitute a second act of promotion under section 43.23(c)(1),55 because
53 The jury charge included the following instruction: “A person who possesses six or m ore obscene devices or identical or sim ilar obscene articles is presum ed to possess them with intent to prom ote the sam e.” See T EX . P EN AL C OD E A N N . § 43.23(f) (Vernon 2003).
54 See Regalado, 872 S.W .2d at 11 (finding that appellant, as sales clerk of an adult book store, was in possession of dildos within store); Myers v. State, 781 S.W .2d 730, 732 (Tex. App.–Fort W orth 1989, no pet.) (finding that the jury could find beyond a reasonable doubt that appellant knowingly possessed obscene devices with the intent to prom ote them because the State “established that appellant, as the sole em ployee on duty, was in charge of the store, had possession of and control over dildos and other sexually-oriented devices, knew the obscene character of the devices, and was prom oting the dildos and other item s by offering them for sale”); Kennedy v. State, 774 S.W .2d 822, 825 (Tex. App.–El Paso 1989, no pet.) (“The jury in this case could reasonably conclude that the Appellant, as sole em ployee on duty, stationed at an overlook post, responsible for m aking sales facilitated by the m erchandise displays, was in charge of and responsible for the static exhibition of these obscene devices. As a result, there was sufficient evidence that Appellant was in possession of these devices and in keeping with his job responsibilities, intended to prom ote them via the use of these static exhibits.”); see also Hall v. State, 646 S.W .2d 489, 491 (Tex. App.–Houston [1st Dist.] 1982), rev’d on other grounds, 661 S.W .2d 101 (Tex. Crim . App. 1983).
55 T EX . P EN AL C OD E A N N . § 43.21(c)(1).
17 section 43.23(f) states that “[a] person who possesses six or more obscene devices or
identical or similar obscene articles is presumed to possess them with intent to promote
the same.”56 Accordingly, because there is legally sufficient evidence57 that appellant
possessed more than six obscene devices on a date anterior to the presentment of the
indictment and within the statutory limitations period, we overrule appellant’s legal
sufficiency challenge.
VII. Conclusion
We affirm the trial court’s judgments.
LINDA REYNA YAÑEZ, Justice
Publish. TEX . R. APP. P. 47.2(b).
Opinion delivered and filed this the 3rd day of July, 2008.
56 T EX . P EN AL C OD E A N N . § 43.23(f).
57 See generally Jackson v. Virginia, 443 U.S. 307, 319 (1979).