KENNETH WAYNE GREENTREE,FROM A COUNTY CRIMINAL COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00929-CR
 
 
KENNETH WAYNE GREENTREE,FROM A COUNTY CRIMINAL COURT
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE HOWELL
JUNE 29, 1989
 
        Kenneth Wayne Greentree appeals a jury conviction for possession with intent to promote obscene devices. The court assessed a $2,000 fine. Appellant asserts that the trial court erred in denying his motion to quash the information for failure to give notice of the offense charged, thereby violating his rights under both the federal and state constitutions. In addition, appellant claims the evidence was insufficient to support his conviction. We disagree with these contentions; therefore, we affirm.
        In his first two points of error, appellant claims the information charging the offense was defective, and the trial court erred in refusing to quash it. He claims the information was vague and failed to give him fair notice of the precise offense charged, in violation of his constitutional rights.
        Unless facts are essential to give notice, the information need not plead evidence relied upon by the State. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988), citing Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981) (op. on reh'g); Hodge v. State, 756 S.W.2d 353, 356 (Tex. App.--Dallas 1988, no pet.). See also Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986). Similarly, if the terms and elements of the offense are statutorily defined, these definitions are essentially evidentiary and need not be defined or alleged in the indictment. E.g., Lewis v. State, 659 S.W.2d 429, 431 (Tex. Crim. App. 1983); Dahl v. State, 707 S.W.2d 694, 702 (Tex. App.--Austin 1986, pet. ref'd). If, however, the statutory definition provides for more than one manner or means to commit the alleged act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish. Ferguson v. State, 622 S.W.2d 846, 851 (Tex. Crim. App. 1981) (op. on reh'g). This rule, though, applies only where the statutory term goes to an act or omission of the defendant. Lewis, 659 S.W.2d at 431, and cases cited therein.
        The obscenity statute provides in pertinent part that a person commits an offense if, knowing its content and character, he promotes or possesses with intent to promote any obscene material or obscene device. TEX. PENAL CODE ANN. § 43.23(c)(1) (Vernon Supp. 1989). "Obscene device" is defined as a device including a dildo or artificial vagina, designed or marketed as useful primarily for stimulation of human genital organs. TEX. PENAL CODE ANN. § 43.21(a)(7) (Vernon Supp. 1989). In this case, the information charged that appellant
 
        did then and there knowingly and intentionally possess with intent to promote, to wit: present, exhibit and offer to sell, obscene devices, namely one penis pump, one soft rubber vibrator, one dildo, one E-jac-u-lator, one cock ring, one soft rubber dildo with leather strap knowing the content and character of said device.
 
        Appellant complains that the information failed to allege how the devices were obscene and thus failed to give him fair notice of the charges against him. FN:1 The information lists specific obscene devices alleged to have been possessed by appellant with intent to promote, which is the precise act or omission with which appellant is charged. The term challenged by appellant as vague, "obscene devices," is defined in the statute. We conclude that the definition of "obscene devices" is essentially evidentiary. See Lewis, 659 S.W.2d at 431. The State would be required to prove at trial how the devices were obscene; therefore, the State was not required to allege the definition or other facts in the information. Consequently, the information was not defective, and appellant was not deprived of his constitutional right to notice of the accusations against him. Finding no error in the trial court's refusal to quash the information, we overrule points one and two.
        Appellant's remaining contention is that the evidence was insufficient to support his conviction for possession of obscene devices with intent to promote. In reviewing the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the State, a 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); Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). The same standard applies whether the evidence is direct or circumstantial. Livingston v. State, 739 S.W.2d 311, 329 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2858 (1988); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984). In circumstantial evidence cases, however, if the evidence supports a reasonable inference other than defendant's guilt, then a finding of guilt beyond a reasonable doubt is not a rational finding. Kirven v. State, 751 S.W.2d 212, 215 (Tex. App.--Dallas 1988, no pet.). We note, though, that each fact need not point directly and independently to the guilt of the accused because the cumulative effect of all the incriminating circumstantial evidence may be sufficient to support the conviction. Hooker v. State, 621 S.W.2d 597, 601 (Tex. Crim. App. 1981).
        As we have discussed, section 43.23 of the Penal Code makes it a criminal offense to possess obscene devices with intent to promote them. One way to promote the devices, as recited in the information, is to exhibit them. TEX. PENAL CODE ANN. § 43.12(5) (Vernon Supp. 1989). In Yates v. State, 766 S.W.2d 286 (Tex. App.--Dallas 1989, pet. filed), this Court acknowledged that because "exhibit" was not defined in the Penal Code, its ordinary meaning must be applied. Id. at 289, and cases cited therein. The Yates Court defined exhibit as "'[t]o show or display; to offer or present for inspection. To produce anything in public, so that it may be taken into possession.'" Id. (citing BLACK'S LAW DICTIONARY 514 (5th ed. 1979)) (emphasis omitted).
        With these standards in mind, we turn to the evidence in the case at bar. Detective Ronald Bardin, an undercover police officer in the Dallas vice division, testified that he entered the back door of the Eros Adult Bookstore at 4 p.m. September 3, 1987. The detective said that in the store he saw racks of sexually explicit videotapes and magazines, as well as a large glass display case containing numerous obscene devices including dildos, penis-shaped vibrators, and a penis pump. Appellant was standing at the front of the store conversing with another man. The officer testified that he overheard part of their conversation:
 
    [COUNSEL:] And what did [appellant] say, sir?
 
    [BARDIN:]    I heard [appellant] tell this other individual that he wasn't going to pay for the three days that he had worked until he and Mary [co-defendant] had checked the books, and then they would pay him next week. . . . The defendant and this individual argued back and forth for a while and [appellant] told the other individual, I want you to get out of my store, and told the other individual to leave.
 
Pretending to browse, the detective remained in the store for approximately ten minutes. He left and returned at 5 p.m. the same day with three other police officers. Again, appellant was standing near the front of the store, somewhere between the front door and the glass display case. The other officers arrested appellant while detective Bardin confiscated more than twenty obscene devices from the case. The majority of the devices were marked with price tags. Some contained instructions for use, while others specified they were for "novelty" use only.
        Officer Bardin was the only witness who testified at trial. Appellant's counsel waived cross-examination and presented no other witnesses.
        Based on our review of the record, we conclude that the jury, as factfinder, could have found the essential elements of the offense charged: that appellant, knowing their character and content, possessed the obscene devices with intent to promote them, by exhibiting, showing, or displaying the devices so that they might be taken into possession by someone else. See Yates, 766 S.W.2d at 290. Appellant was present in the store during both visits by the detective. Appellant conveyed that he maintained some managerial control over the premises by his statement regarding payment of an employee and his request for someone to "get out of my store." Without dispute, the devices were openly displayed in the glass case and marked for sale. No reasonable hypothesis other than appellant's guilt was raised by the evidence before us. We hold, therefore, that the evidence was sufficient to support appellant's conviction, and we overrule point three.
        We AFFIRM the trial court's judgment.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00929.F
 
FN:1 This Court has rejected contentions similar to those advanced by appellant in Yates v. State, 766 S.W.2d 286 (Tex. App.--Dallas 1989, pet. filed).
File Date[01-02-89]
File Name[880929]