CHARLES ARTHUR DIETZ, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed January 24, 1994.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-01467-CR
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CHARLES ARTHUR DIETZ, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MA91-45163-K
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O P I N I O N
Before Justices Lagarde, Chapman, and Morris
Opinion By Justice Morris
        Charles Arthur Dietz appeals his conviction for promotion of obscene material. The jury assessed punishment at one year confinement and a $2000 fine. Appellant asserts three points of error. He contends the trial court erred in failing to instruct the jury that it should consider the prurient interest of homosexuals in determining obscenity if it found the material in question was directed to homosexuals. He also contends the Texas statute prohibiting the promotion of obscene material violates his right to freedom of speech and press under the Texas Constitution. He further contends the trial court erred in allowing a police officer to testify that appellant knew the content and character of the material in question. Because we conclude there is no merit in appellant's contentions, we will affirm.
FACTS
        Appellant was tried before a jury for the offense of promotion of obscene material. Detective W. R. Martin testified for the State that he had been a member of the Dallas Police Department's vice division for two and one-half years. His primary responsibility was to investigate obscenity. As part of that responsibility, he went to adult bookstores several times a week to look for obscene material. One of the stores he frequented was the Denmark Adult Bookstore. He stated the outside of that store contained several signs advertising adult books and videotapes. Inside the store were thousands of magazines and videotapes on display. All of these materials involved some type of sexual activity. The magazines mainly involved females wearing lingerie; males and females engaged in sexual intercourse, anal intercourse, or oral sodomy; or males engaged in anal intercourse or oral sodomy. The videotapes essentially involved the same activities as the magazines except some of them also involved sadomasochism.
        On March 7, 1991, at about 2:00 p.m., Martin entered Denmark to look for obscene videotapes or magazines. Appellant was working behind the clerk's counter. Martin examined some videos and selected one entitled "Amateur Knights." The cover of the videotape explicitly described its contents. Martin went to the counter to purchase the video. Appellant rang up the sale and placed the videotape in a sack for Martin. Martin paid cash for the video and left the store. The videotape purchased by Martin depicted three men involved in various deviate sexual acts including masturbation in public places, anal intercourse, anal penetration with an object, and oral sex. The jury viewed the videotape. In Martin's opinion, the video he purchased at Denmark was obscene. The following exchange then took place during Martin's testimony:
[STATE]: In your opinion, did [appellant] know the content and character of that videotape when he sold it to you?
 
[DEFENSE COUNSEL]: If your Honor, please, I submit that that question is highly opinionated and circumspective.
 
[THE COURT]: Overruled.
 
[MARTIN]: Yes.
The State rested.
        Appellant called a professor of criminology and a psychologist to testify on his behalf. They testified "Amateur Knights" was directed to homosexuals and contained only mild sexual conduct. They stated the video would not appeal to the prurient interest of either homosexuals or heterosexuals and that heterosexuals would be disgusted and revolted by it. On rebuttal, the State called Detective Ronald Bardin to testify. He testified he had been with the Dallas Police Department's vice division for six years and that, in his opinion, the video "Amateur Knights" was obscene.
        Appellant requested the following instruction be included in the charge to the jury at the guilt-innocence stage of the trial:
        You are further instructed that the obscenity law includes a requirement that material be judged with reference to the "average" adult or "ordinary" adult. However, where it appears from the character of the "Amateur Knights Video, Volume 15" itself of the evidence presented, if any, that it was designed for or directed to a particular audience, you must judge this material with reference to this particular audience.
        In the circumstances of this case, therefore, you will judge obscenity with reference to ordinary adults, except that it shall be judged with reference to homosexuals if it appears from the character of the material designed for or directed to such susceptible audiences.
The trial court refused to submit this instruction.
DISCUSSION
        In his first point of error, appellant contends the trial court erred in failing to submit to the jury his requested instruction regarding homosexuality and the specific appeal of the video "Amateur Knights" to the prurient interest of homosexuals. He asserts the evidence raised the issue of whether the videotape was directed to homosexuals. He argues the jury should have been instructed, if it found the video directed to homosexuals, to consider the prurient interest of homosexuals in determining whether "Amateur Knights" was obscene.
        When reviewing an alleged jury charge error, this Court must determine whether error exists in the charge and whether the error was calculated to injure the rights of the defendant. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). In making this determination, this Court must look at the actual degree of harm considering the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Lauderback v. State, 789 S.W.2d 343, 349 (Tex. App.--Fort Worth 1990, pet. ref'd).
        In determining whether there was error in failing to submit appellant's requested instruction, we will review the test of obscenity. The Texas Penal Code provides a three prong definition of the term "obscene." Tex. Penal Code Ann. § 43.21(a) (Vernon 1989). This three prong definition is virtually identical to the three prong obscenity test announced by the United States Supreme Court in Miller v. California, 413 U.S. 15, 24 (1973). The trial court submitted to the jury the definition of obscene as set out in the penal code and in Miller.
        The first prong of this test provides that obscene material is material that "the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex." Tex. Penal Code Ann. § 43.21(a) (Vernon 1989); see Miller, 413 U.S. at 24. Under this prong, material is obscene if the average person, applying contemporary community standards, finds the material appeals to the prurient interest in sex of any person. See United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987), cert. denied, 484 U.S. 1019 (1988). The average person's role in the test is not as the object of the appeal of the material but as its judge. Id. at 454. It is the average person who, applying contemporary community standards, determines whether the material applies to prurient interest. Id. There is no express requirement that the average person determine that the material appeals to the prurient interest of an average person. Id. In such a case, a juror would answer the question by assessing his own reaction. Id. In this case, therefore, the jury was properly instructed to find "Amateur Knights" obscene if it found the videotape appealed to the prurient interest in sex. The submitted instruction allowed the jury to consider the prurient interest of any person, including a homosexual. The trial court was not required to ask the jury to find whether the video was directed to homosexuals and, if so, whether it appealed to the prurient interest of the average homosexual. See id. at 455. Accordingly, we conclude the trial court did not err in refusing appellant's requested instruction. We overrule appellant's first point of error.
        In his second point of error, appellant contends the Texas statute prohibiting the promotion of obscene material is unconstitutional because it violates his right to freedom of speech and press under article I, section 8 of the Texas Constitution. He argues the sale of obscene material to consenting adults is constitutional when, as in this case, there is no evidence children are being endangered, anyone is suffering from commercial harm, or any other interest of society is being affected. He also argues that because it is constitutional to possess obscene material, the State cannot ban its sale. He cites Stanley v. Georgia, 394 U.S. 557 (1969) in support of this argument.
        Article I, section 8 of the Texas Constitution provides in pertinent part:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
Tex. Const. art. I, § 8. Section 43.23(a) of the Texas Penal Code provides "[a] person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device." Tex. Penal Code Ann. § 43.23(a) (Vernon 1989). "Obscene" is defined as material that (1) the average person, applying contemporary community standards, would find appeals to the prurient interest; (2) depicts or describes in a patently offensive way certain sexual conduct; and (3) lacks serious literary, artistic, political, or scientific value. Tex. Penal Code Ann. § 43.21(a) (Vernon 1989).
        In Malone v. State, 170 Tex. Crim. 231, 339 S.W.2d 666 (1960), the appellant challenged under article I, section 8 of the Texas Constitution the commercial obscenity statute, former article 527 of the Texas Penal Code. Former article 527 is the forerunner of today's commercial obscenity statute that appellant challenges in this case. Like the present statute, former article 527 outlawed the sale of magazines having as their dominant theme subject matter that, among other things, appeals to the prurient interest in sex. See Act of Feb. 25, 1943, 48th Leg., R.S., ch. 35, § 1, 1943 Tex. Gen. Laws 38, 38-39, repealed by Act of May 24, 1973, 63d Leg., R.S., ch. 399, §§ 1, 3, 1973 Tex. Gen. Laws 883, 960, 992. The court in Malone held the Texas Constitution did not extend freedom of the press protection to any person who, for the purpose of a sale, knowingly possessed "any magazine containing material which is denounced by penal statute and condemned when measured by application of the following test: `Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'" Malone, 339 S.W.2d at 667.
        Section 43.23 is such a statute denouncing the possession of such material for sale and utilizing the prurient interest test. See Tex. Penal Code Ann. §§ 43.21 & 43.23 (Vernon 1989). We hold, in accordance with Malone, that section 43.23 is constitutional under article I, section 8 of the Texas Constitution. See Video News, Inc. v. State, 790 S.W.2d 340, 343-44 (Tex. App.--Houston [1st Dist.] 1990, no pet.); Video News, Inc. v. State, 781 S.W.2d 411, 411-12 (Tex. App.--Houston [1st Dist.] 1989), pet. ref'd, 786 S.W.2d 356 (Tex. Crim. App. 1990), cert. denied, 498 U.S. 849 (1990); Campbell v. State, 765 S.W.2d 817, 821-23 (Tex. App.--San Antonio 1988, pet. ref'd).
        The Court of Criminal Appeals of Texas has previously rejected appellant's argument that the sale of obscene material to consenting adults is constitutional when, as in this case, there is no evidence interests of those other than the consenting adults are being affected. See Parrish v. State, 521 S.W.2d 849, 851 (Tex. Crim. App. 1975). That court also previously rejected appellant's argument that because it is constitutional to possess obscene material, it is unconstitutional to ban the sale of such material. See Yorko v. State, 690 S.W.2d 260, 264 (Tex. Crim. App. 1985). In Yorko, the court recognized that in Stanley v. Georgia, the Supreme Court held that statutes prohibiting possession of obscene material are unconstitutional. Yorko, 690 S.W.2d at 264. The court in Yorko, however, also recognized that the Supreme Court specifically rejected the theory that because Stanley established the right to possess obscene material in the privacy of the home, there must be a right to receive, transport, and distribute it. Yorko, 690 S.W.2d at 264. We, too, reject appellant's arguments. Accordingly, we overrule appellant's second point of error.
        In his third point of error, appellant contends the trial court erred in allowing Detective Martin to testify about whether appellant knew the content and character of the video "Amateur Knights." Appellant argues Detective Martin's testimony was improper lay opinion testimony pursuant to rule 701 of the Texas Rules of Criminal Evidence because there was no basis for the opinion. Appellant asserts that the fact he worked with sexually oriented material creates no presumption that he knew the video "Amateur Knights" was obscene.
        Appellant fails to recognize Detective Martin testified as an expert witness on obscenity. Rule 702 of the Texas Rules of Civil Procedure provides
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The decision whether to allow a witness to testify as an expert is within the sound discretion of the trial court. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).
        Martin testified about his experience and training as a detective in the police department's vice division. As a member of the vice division, he was responsible primarily for investigating obscenity. He went to adult bookstores several times a week to inspect materials for obscenity. He specifically described the Denmark Adult Bookstore. This experience and training gave him specialized knowledge in the area of obscenity. His opinion that appellant knew the content and character of the videotape in question was based on his specialized knowledge of obscenity and local adult bookstores and assisted the jury in determining whether appellant had such knowledge. Appellant failed to object to this testimony on the basis it was not proper expert opinion testimony. Accordingly, we cannot conclude the trial court abused its discretion in allowing Martin to give his expert opinion that appellant knew the content and character of the videotape in question. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
921467F.U05
 
 
File Date[01-21-94]
File Name[921467F]