Southwick v. State

701 S.W.2d 927, 1985 Tex. App. LEXIS 12410
CourtCourt of Appeals of Texas
DecidedNovember 21, 1985
Docket01-85-00166-CR
StatusPublished
Cited by41 cases

This text of 701 S.W.2d 927 (Southwick 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
Southwick v. State, 701 S.W.2d 927, 1985 Tex. App. LEXIS 12410 (Tex. Ct. App. 1985).

Opinions

OPINION

EVANS, Chief Justice.

A jury found the appellant guilty of the promotion of obscene devices in violation of Tex.Penal Code Ann. sec. 43.23 (Vernon Supp.1985) and assessed his punishment at 6 days confinement and a $750 fine. We affirm.

In August 1984, two Houston police officers entered a newsstand in southwest Houston. The police officers proceeded to the rear section of the newsstand, where sexually explicit material was sold. There, the officers observed the appellant standing behind a glass counter in which some 47 obscene devices were openly displayed. The officers observed the appellant, who was the only employee in the store, make several sales of magazines. Then, without making a purchase, the officers arrested the appellant for promotion of obscene devices and seized all of the obscene devices contained in the glass counter. The officers did not have a warrant for the appellant’s arrest or for the search and seizure of the contraband.

A person commits an offense under Tex. Penal Code Ann. sec. 43.23(c)(1) if, knowing its content and character, he promotes any obscene device. A person possessing sue or more obscene devices is presumed to possess them with intent to promote. Section 43.23(f). The term “promote” includes the offering and exhibiting of obscene devices for sale. Section 43.21(a)(5). The term “obscene device” is defined as “a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” Section 43.21(a)(7).

The appellant was charged by information with possessing, with intent to sell, six obscene devices, described in the indictment as three “auto sucks” and three “penis pumps.” At trial, the officers testified about the use of each device, basing their testimony on their experience in the vice division of the Houston Police Department, and upon knowledge gained from having viewed magazine advertisements regarding [929]*929the use of such devices. The appellant presented no evidence on his own behalf.

The appellant first contends that the trial court erred in denying his motion to suppress, challenging the legality of the war-rantless search, seizure, and arrest. He argues that obscene devices are within the ambit of the first amendment of the United States Constitution, and that because such devices are constitutionally protected, there must have been a prior judicial determination that the devices were probably obscene.

We conclude, contrary to the appellant’s contention, that “obscene devices” are not within the constitutional protection afforded by the first amendment. We base our conclusion largely on the holding of the Texas Court of Criminal Appeals in Hall v. State, 661 S.W.2d 101 (Tex.Crim.App.1983) (affirming a conviction for possession of obscene devices against a first amendment challenge), and its later pronouncement of the law in Hoyle v. State, 672 S.W.2d 233 (Tex.Crim.App.1984); see also Yorko v. State, 690 S.W.2d 260 (Tex.Crim.App.1985).

In Hoyle, the Court of Criminal Appeals reversed a holding of the 14th Court of Appeals, which had concluded that the jury’s erroneous charge on the statutory presumption of Tex.Penal Code Ann. sec. 43.23(e) was harmless. The Court of Criminal Appeals, referring to its earlier decision in Shealy v. State, 675 S.W.2d 215 (Tex.Crim.App.1984), held that because the promoted material, a magazine, was presumptively protected by the federal and state constitutions, the court’s instruction to the jury could not be harmless error. But the court made a clear and explicit distinction between protected material such as films and magazines, and obscene devices such as dildos. In a footnote to its opinion, the court stated:

What we have stated today, and what we stated in Shealy v. State, supra, do not conflict with what we stated [sic] Hall v. State, 661 S.W.2d 101 (Tex.Cr.App.1983), because in Hall v. State, id., the objects which were promoted by the defendant in that cause were dildos, which are not constitutionally protected. Because dildos are not constitutionally protected, it was permissible for the trial court to invoke and apply in the court’s charge the presumption provided by Section 43.-23(e), in conjunction with V.T.C.A., Penal Code, Section 2.05.

Hoyle, 672 S.W.2d at 235 n. 2 (emphasis added).

This Court, as an intermediate appellate court, is bound to follow the law as declared by the highest courts of this state. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964). The Court of Criminal Appeals is the highest tribunal on matters pertaining to the enforcement of criminal laws, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation. See Robinson v. City of Galveston, 51 Tex.Civ.App. 292, 111 S.W. 1076 (1908, no writ); see also State v. Schwarz, 103 Tex. 119, 124 S.W. 420 (1910).

The quoted statement of the Court of Criminal Appeals in Hoyle was obviously made intentionally and with forethought to guide the bench and the bar in future proceedings. Although the statement may have been unnecessary to the court’s decision in that case, we consider its judicial pronouncement of the law to be controlling on the question here. See Stephenson v. Perlitz, 524 S.W.2d 786, 788-89 (Tex.Civ.App.—Beaumont 1975), rev’d on other grounds, 532 S.W.2d 954 (Tex.1976); Thomas v. Meyer, 168 S.W.2d 681, 685 (Tex.Civ.App.—San Antonio 1943, no writ). We accordingly hold that obscene devices do not fall within the protection afforded by our federal or state constitutions.

We also hold that the police officers had sufficient probable cause to believe that an offense was being committed in their presence, justifying the appellant’s arrest without a warrant pursuant to Tex. Code Crim.P.Ann. art. 14.01 (Vernon 1977). The officers testified, without objection, that the appellant was the sole employee in the store and that he conducted sales of items in their presence. The six devices in question were openly displayed in the glass store counter, behind which the appellant [930]*930stood while he conducted the sales. The officers testified, without objection, that the six devices were “obscene devices,” designed or marketed as useful primarily for the stimulation of human genital organs. On the basis of this knowledge, the officers were justified in believing that the appellant was unlawfully promoting such devices in violation of Tex.Penal Code Ann. sec. 43.23; see Moses v. State, 630 S.W.2d 337 (Tex.App.—Houston [14th Dist.]), rek’g denied, 633 S.W.2d 585 (Tex.App.—Houston [14th Dist.] 1982, no pet.).

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Bluebook (online)
701 S.W.2d 927, 1985 Tex. App. LEXIS 12410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwick-v-state-texapp-1985.