Yorko v. State

Court of Appeals of Texas

Yorko v. State

707 S.W.2d 680, 1986 Tex. App. LEXIS 12333

CourtCourt of Appeals of Texas

DecidedMarch 6, 1986

DocketNo. 01-83-0517-CR

StatusPublished

This text of 707 S.W.2d 680 (Yorko 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.

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Yorko v. State, 707 S.W.2d 680, 1986 Tex. App. LEXIS 12333 (Tex. Ct. App. 1986).

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OPINION

EVANS, Chief Justice.

The appellant was charged by information with selling an obscene magazine. After a trial before the court, he was found guilty and his punishment assessed at a fine of $350.

On appeal to this Court, we ordered the appellant’s conviction reversed and the cause remanded for a new trial, deciding that the State had failed to prove that the appellant sold the material knowing its content and character to be obscene. The Court of Criminal Appeals, on its own motion, granted discretionary review, and held that the evidence was sufficient to support the conviction. Accordingly, the Court of Criminal Appeals reversed this Court’s judgment and remanded the cause to this Court for consideration of the appellant’s remaining grounds of error. Yorko v. State, 699 S.W.2d 224 (Tex.Crim.App., 1985).

In his first ground of error, the appellant contends that Texas Penal Code sections 43.21 and 43.23 are unconstitutional under the first and fourteenth amendments of the United States Constitution because they define community standards for judging obscenity in terms of community standards of “decency” rather than community standards of “tolerance.” This ground of error is overruled. Andrews v. State, 652 S.W.2d 370, 377-82 (Tex.Crim.App.1983).

In his second and third grounds of error, the appellant contends that his conviction must be reversed because the material that he sold is neither constitutionally nor factually obscene.

As stated in the opinion of the Court of Criminal Appeals, the magazine in question was introduced into evidence without objection. The magazine, which depicts acts of sexual intercourse, oral sodomy, and other sexual activity, is clearly obscene within the statutory definition. Viewing the contents of the magazine, and the stipulated evidence in a light most favorable to the judgment, we find the material to be both factually and constitutionally obscene. We overrule the appellant’s second and third grounds of error.

The appellant’s fourth and last ground of error has been duly considered and rejected by the above-mentioned decision of the Court of Criminal Appeals.

The judgment of the trial court is affirmed.

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OPINION

EVANS, Chief Justice.

The appellant was charged by information with selling an obscene magazine. After a trial before the court, he was found guilty and his punishment assessed at a fine of $350.

On appeal to this Court, we ordered the appellant’s conviction reversed and the cause remanded for a new trial, deciding that the State had failed to prove that the appellant sold the material knowing its content and character to be obscene. The Court of Criminal Appeals, on its own motion, granted discretionary review, and held that the evidence was sufficient to support the conviction. Accordingly, the Court of Criminal Appeals reversed this Court’s judgment and remanded the cause to this Court for consideration of the appellant’s remaining grounds of error. Yorko v. State, 699 S.W.2d 224 (Tex.Crim.App., 1985).

In his first ground of error, the appellant contends that Texas Penal Code sections 43.21 and 43.23 are unconstitutional under the first and fourteenth amendments of the United States Constitution because they define community standards for judging obscenity in terms of community standards of “decency” rather than community standards of “tolerance.” This ground of error is overruled. Andrews v. State, 652 S.W.2d 370, 377-82 (Tex.Crim.App.1983).

In his second and third grounds of error, the appellant contends that his conviction must be reversed because the material that he sold is neither constitutionally nor factually obscene.

As stated in the opinion of the Court of Criminal Appeals, the magazine in question was introduced into evidence without objection. The magazine, which depicts acts of sexual intercourse, oral sodomy, and other sexual activity, is clearly obscene within the statutory definition. Viewing the contents of the magazine, and the stipulated evidence in a light most favorable to the judgment, we find the material to be both factually and constitutionally obscene. We overrule the appellant’s second and third grounds of error.

The appellant’s fourth and last ground of error has been duly considered and rejected by the above-mentioned decision of the Court of Criminal Appeals.

The judgment of the trial court is affirmed.

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707 S.W.2d 680, 1986 Tex. App. LEXIS 12333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yorko-v-state-texapp-1986.

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