T.K.'s Video, Inc. v. State

871 S.W.2d 522, 1994 Tex. App. LEXIS 145, 1994 WL 17368
CourtCourt of Appeals of Texas
DecidedJanuary 25, 1994
DocketNo. 2-92-386-CR
StatusPublished

This text of 871 S.W.2d 522 (T.K.'s Video, Inc. 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
T.K.'s Video, Inc. v. State, 871 S.W.2d 522, 1994 Tex. App. LEXIS 145, 1994 WL 17368 (Tex. Ct. App. 1994).

Opinion

OPINION

LATTIMORE, Justice.

Appellant, T.K’s Video, Inc. (“T.K.’s”), was convicted by a jury of the offense of promotion of obscenity. TexJPenal Code Ann. § 43.23(c) (Vernon 1989). The court assessed punishment at a fine of $10,000. On appeal, T.K.’s raises three points of error contending that: (1) there is insufficient evidence to sustain a conviction; (2) the trial court erred in submitting the charge to the jury with the wrong community standard; and (3) the State engaged in improper jury argument.

We affirm.

Deputy Brown of the Denton County Sheriffs Office entered T.K.’s Video Store while working undercover and purchased a magazine, entitled “Overload,” depicting homosexual intercourse. T.K’s was charged by information with promotion of obscene material, which “depicts and describes patently offensive representations and descriptions of oral and anal deviate sexual intercourse.” During the State’s case-in-chief, Officer Brown and Officer Elrod testified about the layout and contents of the store. Officer Brown further testified about the circumstances of the magazine purchase, and stated his opinion that the average hypothetical adult Texan, applying Texas community standards, would find that the magazine appeals to the prurient [524]*524interest in sex. T.K.’s did not call any witnesses, but moved for an instructed verdict at the conclusion of the State’s case based on three grounds: (1) the State offered insufficient evidence to establish what the contemporary community standards of the average adult male homosexual are as applied to the prurient appeal prong of the obscenity test; (2) the State failed to present evidence by expert testimony as to what is or is not acceptable to the homosexual community with regard to the magazine and its prurient appeal; and (3) the State offered no evidence as to what a lay person who has studied the homosexual community of the State of Texas feels about such a magazine. The court overruled the motion for instructed verdict.

In its first point of error, T.K.’s complains that there is insufficient evidence to sustain a conviction because no evidence was introduced that the magazine, which was admittedly primarily designed and disseminated for a sexually deviant group, was unacceptable to the members of that deviate group. Under this point, T.K.’s asserts the State failed to prove its case-in-chief because it did not put on any evidence about whether a homosexual would find the magazine obscene. T.K.’s urges that since the magazine was prepared for and marketed to homosexuals, the State had to present some evidence concerning how homosexuals would view it.

The magazine itself was introduced into evidence, and the jury could have made its obscenity determination based on that evidence alone. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446, 456 (1973) (the materials themselves are the best evidence of obscenity). Moreover, expert testimony is not required to prove materials are obscene if the materials themselves are introduced into evidence. See id.; Goodwin v. State, 514 S.W.2d 942, 945 (Tex.Crim.App.1974). In the ease of hard core pornography intended to appeal to a particular deviant audience, generally it is not necessary that the jury have an understanding of that group’s interests, prurient or otherwise; the pornography speaks for itself. See United States v. Thomas, 613 F.2d 787, 790-91 n. 2, 793-94 (10th Cir.) (child pornography), cert. denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d 114 (1980); United States v. Young, 465 F.2d 1096, 1098-99 (9th Cir.1972) (graphic detailing of heterosexual intercourse, fellatio, cunnilingus, anal intercourse, sodomy, masturbation, and oral-anal contact); United States v. Wild, 422 F.2d 34, 36 (2d Cir.1969) (homosexual materials), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971).

The Paris Adult Theatre Court noted that obscenity is not a subject that lends itself to the use of traditional expert testimony, which is usually admitted to explain to lay jurors what they could not otherwise understand. Paris Adult Theatre I, 413 U.S. at 56 n. 6, 93 S.Ct. at 2634 n. 6, 37 L.Ed.2d at 456 n. 6. Jurors in obscenity eases need no such assistance unless the contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate from which to judge whether the materials appeal to the prurient interest. Id.

T.K.’s cites United States v. Klaw, 350 F.2d 155 (2d Cir.1965) to support its assertion that expert testimony was required in the instant case. The material in Klaw consisted of items related to “bondage.” Id. at 157. In reviewing the defendant’s challenge to the sufficiency of the evidence, the court stated, “if proof of prurient stimulation and response is generally important, it is particularly necessary when the prurient interest may be that of a deviant segment of society whose reactions are hardly a matter of common knowledge.” Id. at 166 (emphasis added).

The magazine in this case was marketed to individuals interested in homosexual intercourse. The magazine depicts, by photos and textual material, explicit sexual acts between homosexuals. T.K.’s cannot seriously argue that this magazine is intended to induce reactions that “are hardly a matter of common knowledge.” The experience of the jury rendered it more than adequate to judge whether the magazine appealed to the prurient interest. See United States v. Petrov, 747 F.2d 824, 836 (2d Cir.1984), cert. denied, 471 U.S. 1025, 105 S.Ct. 2037, 85 L.Ed.2d 318 (1985) (“United States v. Klaw, 350 F.2d 155 [525]*525(2d Cir.1965), is properly understood to require expert testimony that material appeals to the prurient interest of a deviant group only when the material portrays conduct not generally understood to be sexual.”) (Newman, J., dissenting in part). Because we hold the magazine itself is evidence sufficient to support T.K.’s conviction, we overrule T.K.’s first point of error.

T.K.’s complains in its second point of error that the trial court erred in submitting the charge to the jury using the wrong standard of proof. The submitted charge read as follows:

You are further instructed that in determining the contemporary community standards, you may consider any evidence presented during the trial of this case of community standards over the entire State of Texas and rely on your own knowledge of the views and sense of the average person in arriving at your determination of contemporary community standards.

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Related

Mishkin v. New York
383 U.S. 502 (Supreme Court, 1966)
Miller v. California
413 U.S. 15 (Supreme Court, 1973)
Paris Adult Theatre I v. Slaton
413 U.S. 49 (Supreme Court, 1973)
Hamling v. United States
418 U.S. 87 (Supreme Court, 1974)
United States v. Irving Klaw and Jack Kramer
350 F.2d 155 (Second Circuit, 1965)
United States v. Freeman B. Young
465 F.2d 1096 (Ninth Circuit, 1972)
United States v. David Edward Thomas
613 F.2d 787 (Tenth Circuit, 1980)
United States v. Anthony Petrov
747 F.2d 824 (Second Circuit, 1984)
United States v. Louis Guglielmi
819 F.2d 451 (Fourth Circuit, 1987)
Goodwin v. State
514 S.W.2d 942 (Court of Criminal Appeals of Texas, 1974)
Andrews v. State
652 S.W.2d 370 (Court of Criminal Appeals of Texas, 1983)
Perales v. Krieger
484 U.S. 1019 (Supreme Court, 1988)

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Bluebook (online)
871 S.W.2d 522, 1994 Tex. App. LEXIS 145, 1994 WL 17368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tks-video-inc-v-state-texapp-1994.