RONNIE EUGENE HUTTO,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

            
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00877-CR
RONNIE EUGENE HUTTO,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
 
BEFORE JUSTICES McCLUNG, ROWE AND BURNETT
OPINION BY JUSTICE McCLUNG
AUGUST 8, 1989
 
 
        Ronnie Eugene Hutto appeals his conviction for promoting obscene material, a videotape, for which the jury assessed a $2,000 fine as punishment.
        In four points of error, Hutto complains that the statute under which he was convicted was unconstitutionally defective both in failing to define the term "community" and in requiring him to anticipate a jury finding on what is obscene; the evidence was insufficient to establish that the videotape was obscene; and the trial court erroneously instructed the jury concerning contemporary community standards. We affirm the judgment.        
        In point of error three, Hutto contends the evidence was insufficient to support the conviction because the State did not establish that the videotape was obscene and because his knowledge of its obscenity was not sufficiently proven.
        We have viewed the videotape in question entitled "Girls Who Eat Cum" to determine if it is constitutionally obscene. See Barnhart v. State, 648 S.W.2d 696, 697 (Tex. Crim. App. 1983). After viewing the entire videotape, we conclude that it is hard core pornography and that it is constitutionally obscene.
        With a claim that evidence is insufficient to support a conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
        Police Officer Bardin testified that on February 2, 1987, he went to the Paris Adult Bookstore No. 2 where he saw Hutto standing at the manager's station next to the cash register. Because the station was raised 12 to 18 inches off the ground, Hutto had an overall view of the store. The manager's station contained a glass display case with various items for sale, including videos, devices, potions, and oils. One side of the store contained a theater which showed full length movies and a peep show area which consisted of small booths where a customer could watch about 30 seconds of a movie. All the movies which Officer Bardin observed in the theater and peep show area were sexually explicit.
        The other side of the store contained racks of magazines and books wrapped in clear plastic so the covers could clearly be seen. The store contained over 2,000 magazines which were marked with price tags. There were also several hundred videos for sale in the store, usually with pictorial excerpts from the movie displayed on the carton. Officer Bardin testified that all the magazines and videos in the store were sexually explicit.
        Officer Bardin entered the bookstore, walked to the magazine and video area and selected a video which was displayed on a rack, sealed in cellophane, and marked with a price tag of $21.95. Officer Bardin took the video to the counter and paid Hutto for it. Officer Bardin placed the video on the counter with the price tag facing Hutto. The price tag was in the upper right hand corner of the front cover located slightly above a large colored picture.
        The video carton had a picture on the front cover which was approximately 7 inches long and 5 inches wide. The video was boldly titled "Girls Who Eat Cum." The front cover contained a picture of two men with erections standing over a female on her knees, with semen over her face and mouth. A description on the cover said, "cum hungry bitches who live only to fuck." The back cover contained three other scenes from the movie, one involving a female with her tongue on a male's penis, another of a male ejaculating into a female's mouth, and a third where a male is ejaculating on the face of a female who is lying down. The back cover also contained a brief description of the three different sections of the movie: FN:1
        GIRLS WHO EAT CUM!
        We've compiled a video collection of the hottest sex scenes with each ending in a complete oral cumshot! It's a definite must for those oral fixationists.
 
        Program #1 - Starring AMBER LYNN, RON JEREMY, ROCKY ROME. Two pud's from the pool pick up Amber and fuck her silly in an orgy of fingers, tongues, cocks and cunts, only stopping to fill her mouth with their gooey explosions.
 
        Program #2 - Starring Stacey Donovan and Craig Roberts. Stacey teases Craig into an orgasmic frenzy as he strokes off into her waiting mouth and pouting red lips! He then licked the sweet juice off her cum drenched face.
 
        Program #3 - Starring Cheri Janvier and Skip Stokey. The most disgusting oral cumshot ever filmed -- when Goo-queen Cheri sucks stream after stream of Skip's hot nut juice, then plays with the sticky strands of jism!
        Officer Bardin testified that the video contained representations of ultimate sexual acts, mainly deviate sexual intercourse and that, taken as a whole, it lacked serious literary, artistic, political, and scientific value. In his opinion, the average person applying contemporary community standards would find that, taken as a whole, the video appeals to a prurient interest in sex.         
        We hold that the above evidence was sufficient to prove that Hutto had knowledge of the contents and intentionally promoted the obscene videotape by selling it to Officer Bardin. See generally Volkland v. State, 510 S.W.2d 585, 587 (Tex. Crim. App. 1974); Johnson v. State, 760 S.W.2d 797, 799-800 (Tex. App.--Dallas 1988, no pet.), Abor v. State, 677 S.W.2d 560, 561 (Tex. App.--Eastland 1984, pet. ref'd).
        Although Hutto introduced expert testimony to the effect that sexually explicit materials are available in Texas markets and that Texans, generally, are tolerant of obscene materials, "mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities." Hamling v. United States, 418 U.S. 87, 126 (1974), quoting, United States v. Manarite, 448 F.2d 583, 593 (2nd Cir.1971). Moreover, the State also offered Officer Bardin's expert opinion that an average person, applying contemporary community standards, would find that this video appealed to a prurient interest in sex. The jury as the sole judge of the credibility of the witnesses, could accept or reject any or all of any witness's testimony and was entitled to disbelieve Hutto's defensive theory. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see Hamling, 418 U.S. at 100.
        Hutto's knowledge and intent were established by the nature of his business, the pictures and descriptions on the video carton, and Hutto's observation of the carton when he looked at the price tag, made change, and placed the video in a bag. "Proof of knowledge and intent are usually, because of their very nature, established inferentially from the totality of the facts of the case." Davis v. State, 658 S.W.2d 572, 580 n.3 (Tex. Crim. App. 1983). Considering         the totality of the facts, it is clear that Hutto knowingly and intentionally promoted obscenity when he sold the video to Officer Bardin. We overrule point of error three.        
        Points of error one and two complain that the Texas obscenity statute is impermissibly vague and affords no notice as to what standard is applicable because the term "community" is not defined in the statute. He also argues that the statute violates due process guarantees because it provides no objective standards for determining what is obscene and that individuals are, therefore, reduced to guessing what materials will ultimately be deemed obscene.
        The statutory section in question provides that obscene means material or a performance 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)(1) (Vernon Supp. 1989).
        In Miller v. California, 413 U.S. 15, 24-25 (1973), the United States Supreme Court set forth the following guide-lines for regulating obscene materials which, if observed by state legislatures, would satisfy the first and fourteenth amendments:
        (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
        (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
        (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
        The Texas legislature adopted the same three-pronged approach recommended in Miller and the statutory definition of obscenity tracks, virtually word-for-word, the language used in Miller. See Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. l982).
        The purpose of requiring a jury to apply the contemporary community standard is to insure that the material will be judged by its impact on an average person, however, the Constitution does not require an abstract formulation of the term "community" and it does not require that obscenity be proscribed in terms of a statewide standard. Hamling v. United States, 418 U.S. at 104-05; see Jenkins v. Georgia, 417 U.S. 153, 157 (1974); Miller, 413 U.S. at 29, 33. Rather, each juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes. Hamling, 418 U.S. at 105.         
        When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law.
 
Miller, 413 U.S. at 30.
        A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. 1982). The Supreme Court has recognized that defining regulated materials cannot be done "with ultimate, god-like precision." However, this lack of precision does not in itself offend due process. The constitution does not require impossible standards; what is required is language which sufficiently conveys a definite warning against the prescribed conduct in a way that can be commonly understood. Miller, 413 U.S. at 28 n.10.
        We do not agree that the statute left Hutto without proper guidance as to how to conform his conduct. The Texas statute carefully limits the type of material which is subject to prosecution. See Miller, 413 U.S. at 25. The wording of the Texas statute only proscribes materials with patently offensive or "hard core" depictions of sexual conduct. TEX. PENAL CODE §43.21 (a)(1) B (i), (ii) (Vernon Supp. 1989).
        The Constitution does not purport "to hold that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes." Hamling, 418 U.S. at 121. What is required is than an individual know the content and character of the material. TEX. PENAL CODE ANN. § 43.23(c). Having met the specific requirements of Miller, Hutto was accorded fair notice that dealing in such materials could subject him to prosecution. Miller, 413 U.S. at 27; Roth v. United States, 354 U.S. 476, 491-92 (1957).
        Hutto also claims that the Texas statute fails to define the term "community" to encompass the community standards of the State of Texas. Community standards is not a term which lends itself to precise definition. Smith v. United States, 431 U.S. 291, 308 (1977). While a state may choose to instruct the jury to apply the standards of a hypothetical statewide community, the Constitution does not require that juries be so instructed. Jenkins v. Georgia, 418 U.S. at 158.                
        In Jenkins v. Georgia, the Supreme Court wrote, "we also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply 'community standards' without specifying what 'community'." 418 U.S. at 157.        Therefore, as a constitutional matter, the legislature was not required to proscribe obscenity in terms of a statewide standard. Hamling, 418 U.S. at 105; see Boyd v. State, 643 S.W.2d 700, 702-03 (Tex. Crim. App. 1982); see also Brewer v. State, 659 S.W.2d 441, 442 (Tex. Crim. App. 1983). Rather, the states are accorded latitude in deciding the geographic scope of the community from which the jury is to apply standards. Smith v. United States, 431 U.S. at 303. We overrule points of error one and two.
        Hutto's last argument is that the trial court's instruction on contemporary community standards was insufficient to guide the jury in their deliberations.
 
        The trial court instructed the jury as follows:
        In deciding whether the material as a whole appeals to the prurient interest and whether the sexual conduct is portrayed in a patently offensive way, the jury must avoid subjective personal and private views in determining community standards and, instead, evaluate what judgment would be made by a hypothetical average adult person applying the collective view of the adult community as a whole.
 
        You are further instructed that in determining the current community standards, the term "community" is not geographically limited to Dallas County, Texas. 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 current community standards.
        
Prior to trial Hutto had requested the following definition:
        The Court instructs the jury that in order to find the film obscene, the jury must conclude, that the average person, applying contemporary community standards, would find that the film, taken as a whole, is obscene. Under Texas law, a statewide standard must be used in making this determination.
                
 
That instruction was denied. Hutto argues that the instruction given did not ensure that the jurors used a single standard in their determination. He argues that some jurors may have used a Dallas County standard, while others may have relied upon their sense of the average person in the State of Texas.
        In Hamling v. United States, the Supreme Court observed that the "holding in Miller that California could constitutionally proscribe obscenity in terms of a 'statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law." 418 U.S. at 105. The Court of Criminal Appeals has also recognized that a statewide standard is not required. See Berg v. State, 599 S.W.2d 802, 806 (Tex. Crim. App. 1980).
        We hold that the trial court properly instructed the jury that the term community was not limited to Dallas County and that it could consider the standards of the entire state. Compare Hamling v. United States, 418 U.S. at 105 (statewide standard is not constitutionally required) and Miller v. California, 413 U.S. at 33-34, 37 (statewide standard approved, but not required) with LaRue v. State, 611 S.W.2d 63, 64 (Tex. Crim. App. 1980) (proper scope not limited to one county) and Berg v. State, 599 S.W.2d at 806. (statewide standard permissible, but not required). Point of error four is overruled. We affirm the trial court's judgment.
 
 
 
                                                  PAT McCLUNG
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00877.F
 
 
 
 
FN:1 We note that the language of the back cover advertising recognizes this video was not intended for general use but is a must for "fixationists" and that it contains some of the "most disgusting" scenes ever filmed.
File Date[01-02-89]
File Name[880877F]