DAVID JOHNSON BROOKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed July 2, 1992.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-01021-CR
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DAVID JOHNSON BROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the County Criminal Court No. 2
Dallas County, Texas
Trial Court Cause No. MA90-34587-B
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O P I N I O N
Before Justices Baker, Burnett, and Rosenberg
Opinion By Justice Baker
        A jury convicted David Johnson Brooks of obscenity. The jury assessed a six months' sentence and a fine of $2000. Appellant contends the trial court erred in: (1) denying his motion for continuance; (2) overruling his objection to the State's testimony comparing the volume of drug transactions to the volume of sexually explicit materials purchased in the community; and (3) giving the jury an Allen FN:1 or "dynamite" charge that was harmfully coercive. We overrule these points. We affirm the trial court's judgment.
FACTUAL BACKGROUND
        A detective with the vice division of the Dallas police department went to Show World Bookstore, an adult bookstore. He purchased a videotape entitled "Made in the Shade." Appellant was the clerk on duty at the store who sold the detective the tape. The detective returned to the police department and viewed the tape. The detective summarized the tape in his affidavit for arrest warrant. He described "Made in the Shade" as about thirty minutes long. He said it contained about thirty sexual acts involving sexual intercourse, oral sodomy, masturbation, and one act of anal intercourse. The detective concluded that the movie depicts nothing but a sequential representation of explicit sexual acts. He said the film shows nothing but acts of sexual conduct. He said it had no plot and did not develop characters except to connect one sex scene to another sex scene.
MOTION FOR CONTINUANCE
        In his first point of error, appellant contends the trial court erred in denying his second motion for continuance. To preserve for appellate review the denial of a continuance due to an absent witness, the defendant must file a sworn motion for new trial. The defendant must raise the issue of the denial of the motion for continuance and set out what the absent witness's testimony would have been. Flores v. State, 789 S.W.2d 694, 698-99 (Tex. App.--Houston [1st Dist.] 1990, no pet.); Chambliss v. State, 633 S.W.2d 678, 683 (Tex. App.--El Paso 1982), aff'd, 647 S.W.2d 257 (Tex. Crim. App. 1983). Appellant filed a motion for new trial. However, the motion did not raise the trial court's denial of the motion for continuance as a ground of error. Appellant did not preserve error. We overrule appellant's first point of error.
COMPARISON OF DRUG TRANSACTIONS TO SALES
OF SEXUALLY EXPLICIT MATERIALS
        In the second point of error, appellant contends the trial court erred in overruling his objection to testimony comparing the volume of drug transactions in the community to the volume of sexually explicit material purchased in the community. While cross-examining the State's expert witness on the meaning of the term "accepted in society as proper," appellant analogized the term to newspapers in different cities by showing that people in Houston who read the Houston Post instead of the Dallas Morning News would still "accept" the Dallas Morning News as a proper newspaper though they might never read it. Next, appellant analogized "accepted in society" to different film genres by showing that people who do not like horror films might still "accept" horror films as a proper form of entertainment.
        Appellant then questioned the witness about the prevalence in communities throughout the state of adult bookstores selling films similar in content to "Made in the Shade." Although appellant never expressly drew this conclusion, the clear import of this line of questioning was that the prevalence of adult bookstores selling films like "Made in the Shade" in communities all over Texas means that those films are "accepted in society as proper" and do not "affront current community standards of decency."
        On re-direct examination, the prosecutor asked the witness:
Q. Did you ever make any drug busts?
 
A. Yes, I did.
 
Q. Did you know how many drug busts were going on all across Dallas County?
 
A. No, ma'am.
 
[Appellant's relevance and unfair-comparison objections overruled]
 
Q. Would you agree with me that obscene material, material that has been determined to be obscene is illegal?
 
A. Yes, it is.
 
Q. Okay. Getting back to the drug busts that you made, did you know how many drugs were brought into the community?
 
A. I have no idea.
 
Q. You don't know if the Jamaicans were bringing it in or some other South Americans were bringing it in, do you?
 
[Appellant's relevance objection overruled]
 
Q. Do you?
 
A. No, I don't have any idea.
 
* * *
[Appellant granted running objection as to questions about drugs]
 
Q. Before I get into that, in your mind, is there a difference between something being accepted and something being tolerated?
 
A. Yes.
 
Q. Well were there a lot of drug transactions going on in the community that you saw as an officer on the street?
 
A. Absolutely.
 
Q. Well, in your mind, was this something that was accepted?
 
A. Certainly not.
 
The prosecutor asked these questions to rebut appellant's suggestion that a commonly occurring vice is "accepted in society as proper."
        Appellant objected to the testimony about drugs claiming it was irrelevant and an unfair comparison to sexually explicit films. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401. The witness's testimony that there was "a lot" of drug use in the community but that drug use was unacceptable in the community tends to make more probable a fact of consequence to the determination of the action, i.e., the meaning of the term "accepted in society as proper." We hold the testimony relevant.
        As for appellant's objection that the comparison of drugs to sexually explicit films is unfair, appellant opened the door to this testimony by his questions on cross-examination of the witness about the meaning of "accepted in society as proper." Evidence used to fully explain a matter opened by the other party ordinarily need not be admissible. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); McMinn v. State, 640 S.W.2d 86, 91 (Tex. App.--Fort Worth 1982, pet. ref'd). The State used the witness's testimony about drugs to show the difference between "accepted" and "tolerated," an issue opened by appellant. The trial court did not err in overruling appellant's objections to the testimony. We overrule appellant's second point of error.
ALLEN OR "DYNAMITE" CHARGE
        In the third point of error, appellant contends the trial court erred in giving the jury an Allen or "dynamite" charge that was harmfully coercive. The record does not show that appellant objected to that charge. An appellant must object to a coercive Allen charge to preserve the error for review. Verret v. State, 470 S.W.2d 883, 886 (Tex. Crim. App. 1971); Dodd v. State, 753 S.W.2d 519, 521 (Tex. App.--Houston [1st Dist.] 1988, no pet.). We hold appellant waived any error. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
911021F.U05
 
FN:1 See Allen v. United States, 164 U.S. 492 (1896).
File Date[07-02-92]
File Name[911021F]