West v. State

514 S.W.2d 433, 1974 Tex. Crim. App. LEXIS 1388

• Court: Court of Criminal Appeals of Texas
• Decided: February 13, 1974
• Docket: 45090
• Status: Published

Opinions

OPINION

ODOM, Judge.

Appellant was convicted of the offense of exhibiting obscene matter; punishment was assessed at a $200.00 fine, and a thirty day jail term, probated for one year. Upon appeal the judgment was affirmed by this Court on September 25, 1972. West v. State, 489 S.W.2d 597. Thereafter the United States Supreme Court granted his petition for writ of certiorari, vacated the judgment, and remanded the cause to this Court for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973), on October 23, 1973 (West v. Texas, 414 U.S. 961, 94 S.Ct. 268, 38 L.Ed.2d 209).

Upon his original appeal to this Court, appellant challenged his conviction on four grounds. Of those four, only three merit further consideration in light of the recent Supreme Court decisions: (1) the film should have been suppressed because no adversary hearing was conducted prior to the issuance of the search warrant and seizure of the film; (2) the evidence was insufficient to support a finding that the film was obscene; and (3) the film was not obscene as a matter of law.

In Heller v. New York, supra, the Supreme Court held that there is no absolute right to a prior adversary hearing where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. Distinguishing earlier cases, the Court held:

“. . . seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.”

In the instant case, it is undisputed that a single copy of the film was seized for the bona fide purpose of preserving it as evidence in a criminal proceeding. Complaint and information were filed November 19, 1969, the same day and the search warrant issued. The film was seized and appellant was arrested, arraigned, entered his plea of no| guilty, and had his bond set the next day. At no time has appellant contended, in the instant case, that the seizure prevented the continued exhibition of the film.

The only remaining issue concerning the constitutionality of the seizure is that of the availability of a prompt judicial determination of the obscenity issue in an adversary proceeding following the seizure, at the request of any interested party. Although the Heller decision says a seizure under such conditions is constitutionally permissible, it does not hold the absence of such a condition would in all cases render the seizure unconstitutional, nor does it hold that a film so seized must be excluded from evidence.

In the instant case, appellant did not allege upon appeal that he was denied a post-seizure adversary hearing, nor was such claim raised at trial. His claim was that no adversary hearing was held prior to seizure of the film. In addition, in appellant’s case the trial court issued an order setting a pre-trial conference under Article 28.01, Vernon’s Ann.C.C.P.¹ for January 12, 1970, approximately eight weeks after the film was seized. Prior to issuance of notice of this hearing, no objections to the seizure of the film had been filed. Although no hearing was conducted on the date set, the record reflects no complaint, by motion or otherwise, to the failure to hold such hearing on the set date. We must therefore conclude that even if it be assumed he desired a prompt post-seizure determination there was a lack of diligence on the part of appellant.

Thus, even if denial of a requested post-seizure hearing would render the seizure unconstitutional, we hold that failure diligently to seek such a hearing would bar appellant from complaining of the failure to the court to conduct one sua sponte.

Upon this further consideration we still find appellant’s first ground of error is without merit.²

We will next consider appellant’s contention that the evidence was insufficient to support a finding that the film was obscene.

Appellant contends there was no testimony to establish community standards, no testimony as to lack of redeeming social value, and no testimony regarding an appeal to prurient interest.

In Paris Adult Theatre I v. Slaton, supra, the Supreme Court held:

“. . . [I]t [was not] error to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. . . . The films, obviously, are the best evidence of what they represent.”

And in Kaplan v. California, supra:

“We . . . reject in Paris Adult Theatre I v. Slaton, supra, any constitutional need for ‘expert’ testimony on be-lf of the proscu half of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene materials themselves are placed in evidence. Paris Adult Theatre I, supra, 413 U.S., at 55-58, 93 S.Ct. at 2634-2635 (1973). The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U.S. 147, 164-165, 80 S.Ct. 215, 224-225, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring), but in ‘the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.’ Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966).”

In the instant case the film was introduced in evidence. Appellant’s second ground is overruled.

Appellant’s final claim is that the film was not obscene as a matter of law. As his sole contention thereunder, appellant alleges “the film consists of females who disrobe and feign some type of sexual satisfaction which is self-induced.” As authority, appellant quotes from Pinkus v. Pitchess, 429 F.2d 416, a Ninth Circuit case. What appeals to the prurient interest or is patently offensive in the Ninth Circuit is of no relevance in the State of Texas. As held in Miller v. California, supra:

“[OJbscenity is to be determined by applying ‘contemporary community stand-dards,’ see Kois v. Wisconsin, supra, 408 U.S. [229], at 230, 92 S.Ct. [2245], at 2246, 33 L.Ed.2d 312 (1972), and Roth v. United States, supra, 354 U.S. [476], at 489, 77 S.Ct. [1304], at 1311, 1 L.Ed.2d 1498 (1957), not ‘national standards.’”

It is still the opinion of this Court, as expressed in our prior opinion (West v. State, supra):

“The film which is before us for review depicts nothing but a sequential representation of explicit sexual acts. Each sequence of sexual conduct can only be interpreted within the context of the other sequences of sexual conduct. No ideas are presented nor is there an attempt to present ideas. The sequential representation in this film of nothing but isolated acts of sexual conduct demonstrates that its sole object was the commercial exploitation of the prurient interest of those persons who paid to view it.”

The film is obscene. Appellant’s final ground is overruled.

Although appellant made no further argument on the question of whether the film is obscene as a matter of constitutional law than that stated above, an examination of Article 527, Vernon’s Ann.P.C., in light of the Miller substantive standards will be made in the interest of justice (Art. 40.09, Sec. 13, V.A.C.C.P.).

In Miller v. California, supra, the Supreme Court was “called on to define the standards which must be used to identify obscene material that a State may regulate without infringing the First” and Fourteenth Amendments. The basic standards were then set forth:

“This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). . . . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. ... As a result, we now confine the permissible scope of such regulation to works which • depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”

It initially appears that Miller lays down four conditions which must be met before a work may be prohibited by State law as obscene: (1) The conduct depicted or described must be specifically defined by state law. (2) The work, taken as a whole, must appeal to the prurient interest in sex. (3) The work must portray sexual conduct in a patently offensive way. And (4) the work, taken as a whole, must lack serious literary, artistic, political, and scientific value.

These four conditions, however, are not all of the same character. The first is set apart from the last three and is clearly distinct in the interest it is designed to protect. The Court’s statement of the last three conditions is set apart from the statement of the first condition, and it begins : “A state offense must also be limited to works which . . . ” To create an offense not so limited is to prohibit conduct protected by the First Amendment; that is, to prohibit as obscene that which is not, in a constitutional sense, obscene. The Court has said obscenity is not protected by the First Amendment; therefore the State may prohibit all obscenity without violating First Amendment rights. If, on the other hand, the State prohibits as obscene works which do not appeal to the prurient interest or do not portray sexual conduct in a patently offensive way, and which are therefore not obscene, but instead protected by the First Amendment, then the State has gone too far and the statute is overbroad. The Supreme Court has thus stated that even a work which is a “prurient, patently offensive depiction or description of sexual conduct,” may not be obscene and merit First Amendment protection, if it has serious literary, artistic, political, or scientific value. It will thus be seen that a statute prohibiting works lacking one of the last three elements will be overbroad inasmuch as it condemns protected First Amendment rights, and therefore be unconstitutional, either facially or as applied.

Before passing to a discussion of the first element, we observe that the Texas statutes, under both the old Penal Code³ and the new one⁴ reveal no such vice of overbreadth, and establish standards at least as narrow as those required by Miller.

While it is clear that the last three conditions are elements of the constitutional definition of obscenity, such cannot be said of the first one. Since obscenity is not protected by the First Amendment, the State may prohibit all obscenity. Whether a work is obscene is not dependent upon whether it is described in the State statute, but on whether it appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political and scientific value. Whether described in the statute or not, if the work falls within the last three conditions it is obscene and therefore lacks First Amendment protection. This being true, it is clear that the first standard is not an element of the definition of obscenity since whether a work describes or depicts conduct defined in the statute, if it meets the three elements of obscenity it is not entitled to First Amendment protection and may be prohibited by the State.

Prohibition of a work describing or depicting conduct not defined in the State statute, but which work is a “prurient, patently offensive depiction or description of sexual conduct” lacking “serious literary, artistic, political, or scientific value,” is prohibition of a work which Miller says does not merit First Amendment protection. Miller, supra, at 93 S.Ct. 2616. Thus such a prohibition would not be unconstitutional for overbreadth. What, then, is the interest sought to be protected by the Miller requirement that the prohibited description or depiction of sexual conduct be of conduct “specifically defined by the applicable state law, as written or authoritatively construed ?”⁵ This question is answered in Miller as follows:

“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” 93 S.Ct., at 2616.

We think it clear the intent of this requirement is to provide notice and avoid the vice of vagueness.

In this respect, then, the “specifically defined” requirement is distinct from those which constitute the elements of the constitutional definition of obscenity. How such a requirement will result in a statute less vague than one without it is a more difficult question to satisfactorily resolve. Supposedly a statute could define all conceivable sexual conduct, and thereby satisfy the requirement of a specific definition: the abiding question would remain whether the depiction or description thereof is a “prurient, patently offensive depiction or description” as “determined by applying ‘contemporary community standards,’ ” and lacks “serious literary, artistic, political, or scientific value.” The difficult decision which must be made by the purveyor is not what the conduct is, but what the community standards are. Of course if the conduct depicted or described is not specifically defined by the law as written or construed, the purveyor may operate with the knowledge he is safe from prosecution. But this would hot be because he is not purveying obscene matter, for he may well be, but rather because the state law, by not including the conduct described or depicted, has chosen not to prohibit that particular type of obscene matter.

Whether the first condition laid down in Miller will in practice have the effect intended is not before this Court. For our further consideration upon this remand is whether the Texas law on obscenity satisfies that condition.

Article 527, V.A.P.C., included in the statutory definition of obscenity the requirement that the material be “patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.”

In 53 Tex.Jur.2d, Statutes, Section 119, it is written:

“When in the course of any controversy a question as to the effect or operation of a statute is presented, it becomes the duty and it is the province of the court to construe the statutory language. This consists in ascertaining and declaring the fair and proper meaning of the law, and in giving it, if possible, the effect and scope intended by the legislature.”

See also 53 Tex.Jur.2d, Statutes, Sections 125, 126, 130, 135, 146, 148, 158 and 160.

In 1972 this Court was called upon to consider a claim that Article 527, supra, was void for vagueness. In Bryers v. State, 480 S.W.2d 712, 715, it was held:

“The statutory definition of ‘obscenity’, Article 527 § 1, tracks almost word-for-word the language of the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). The vagueness contention is overruled.”

Clearly the language of the statute does closely track the language of the Supreme Court. We find it equally clear that the Legislature intended to include within the statutory definition of obscene material all material not constitutionally protected by the First Amendment because of its obscene character. Such intent, however, can only be given effect if the language of the statute does include all such material in its definition. In one respect the statutory definition is narrower than constitutional requirements, and this Court cannot amend what the Legislature has written to make the statute broader than its language.

In spite of the holding in Miller, supra, that a depiction or description of prurient, patently offensive sexual conduct that lacks serious literary, artistic, political, or scientific value does not merit First Amendment protection, the statutory definition of obscene material only includes such descriptions or representations as are utterly without redeeming social value. Thus such material as lacks serious literary, artistic, political or scientific value, but yet is not utterly without redeeming social value, though constitutionally obscene, is not statutorily obscene under Article 527, supra.

On the other hand, no impermissible judicial redrafting is involved in construing that portion of the statutory definition referring to “the description or representation of sexual matters.” It is clear the Legislature intended to include all descriptions or representations of prurient, patently offensive sexual conduct utterly without redeeming social value, and to this end included all such descriptions and representations of all sexual matters. “Sexual matters” is not a technical term nor is it defined in the statute. It is, therefore, to be understood in its ordinary meaning. Art. 8, V.A.P.C. It would, therefore, certainly include such examples as those suggested in Miller, to-wit: (a) “representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated”, and (b) “representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” “Sexual matters” clearly would also include courtship, kissing, “petting”, sexual caressing, sexual fondling, rape, prostitution, birth, nursing, birth control and abortion. Obviously not all descriptions or representations of such matters are obscene. Only such descriptions or representations as are patently offensive because they affront contemporary community standards relating thereto and which have a dominant theme which, taken as a whole, appeals to a prurient interest, and which further are utterly without redeeming social value would be obscene under Article 527, supra. It may be that as to some sexual matters, such as courtship, there could be no such depiction as would be obscene within the terms of the statute. Such factual impossibility would not, however, render the statute void any more than the extinction of the sabre-tooth tiger or the whooping crane would render void a statute prohibiting their capture.

As a matter of state law we find the legislative use of the term “sexual matters” was intended to mean precisely that, and have no difficulty in construing it precisely in that manner. Furthermore, we give a like construction to the language used by the Legislature in its drafting of Section 43.21, Subsection 1, supra, wherein it refers to the “description or representation of sex, nudity, or excretion.” Certainly at a minimum such language includes each stated type of conduct above construed as being within the intent expressed by the term “sexual matters” in Article 527. V.A. P.C.

As regards this appellant concerning today’s decision and the question of due notice to purveyors of material depicting or describing sexual matters, we note that at no time has appellant urged before this Court any claim that he did not know or was not on reasonable notice that the film seized depicted sexual matters within the meaning of Article 527, V.A.P.C.

Upon this further consideration we decline to alter our former disposition of this appeal.

The judgment is affirmed.

1 . Although Art. 28.01, supra, does not provide for the setting of such hearing “at the request of any interested party”, in light of Seller, supra, a court should give careful consideration to any request for such a hearing when the motion alleges that the matter seized is constitutionally protected under the First Amendment.

2 . We find it undisputed that the initial seizure was made following a viewing of the film by a neutral magistrate upon a warrant issued by him and need not reconsider the issue of whether such procedure constituted an adversary hearing.

3 . Article 527, Section 1(A), Acts 1969, 61st Leg., P. 1547, ch. 468, Sec. 1:

“(A) ‘Obscene’ material means material (a) the dominant theme of which, taken as a whole, appeals to a prurient interest; (b) which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters ; and (c) which is utterly without redeeming social value.”

4 . Section 43.21, Subsection 1, V.T.C.A., Acts 1973, 63rd Leg., Chapter 399, effective January 1, 1974:

“(1) ‘Obscene’ means having as a whole a dominant theme that:

“ (A) appeals to a prurient interest in sex, nudity, or excretion;

“(B) is patently offensive because it affronts contemporary community standards relating to the description or representation of sex, nudity, or excretion; and

“(0) is utterly without redeeming social value.”

5 . Miller, supra, at 2615.