677 S.W.2d 560 | Tex. App. | 1984
The jury convicted Trong Thi Abor of misdemeanor obscenity,
Appellant has briefed two grounds of error. First, she argues that the trial court erred in not granting her motion for an instructed verdict of not guilty “because the evidence was insufficient to establish
Appellant was working as cashier at the World News Stand in Abilene when she sold the video cassette which led to her arrest.
Appellant cites Skinner v. State, 652 S.W.2d 773 (Tex.Cr.App.1983), and Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983). Those cases are factually distinguishable. Neither of them would justify a reversal of the jury’s finding of guilt in this case.
In Davis, supra at 580, the Court of Criminal Appeals said:
(W)e do not mean to imply or leave the inference or impression that we are holding that promoters of obscene material are beyond the law. They are not. The above simply means that the prosecution must prove its accusation without the statutory presumption.
The State did not rely upon the statutory presumption
Proof of knowledge and intent are usually, because of their very nature, established inferentially from the totality of the facts of the case.
The Court of Criminal Appeals said in Skinner, supra at 776:
The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
The second ground of error claims a fatal variance between the allegations of the information and complaint and the proof at trial. The State alleged that appellant sold “a film entitled ‘Cocky Crui-sin’.” The proof at trial showed that it was a video cassette recording on magnetic tape which came in a carton showing that title and containing the following statement:
NOTICE: This film or video tape has been prepared and is intended solely for*562 viewing by a special and limited audience, namely adults who request and desire sexually explicit material for their information, education and entertainment, in the privacy of their own home. This film may not be sold to any person except consenting adults who agree to view the film, nor to minors, nor to any person who does not wish to view it.... (Emphasis added)
Since the manufacturer of the obscene movie considered the terms “film” and “video tape” to be synonyms, we hold that there is no variance between the allegations and the proof in this case. Moreover, we note that Webster’s New Twentieth Century Dictionary (Unabridged 2d Ed. 1983) gives several meanings for the noun “film” and that one of the approved definitions is: “a motion picture.” The video cassette recording in this case is “a motion picture.” We hold that there is no variance between the allegations and the proof; therefore, the second ground of error is overruled.
The judgment of the trial court is reformed
. TEX.PENAL CODE ANN. sec. 43.23(c) (Vernon Supp.1984) defines the offense, a Class A misdemeanor.
. TEX.PENAL CODE ANN. sec. 12.21 (Vernon 1974) authorizes the punishment for a Class A Misdemeanor as a fine of not more than $2,000, confinement in jail for not more than one year, or by both a fine and confinement.
. The video cassette was in a carton entitled: "Cocky Cruisin’,” and it showed on its cover a young man placing his mouth on the genital area of another male and the words: "Cocky Cruisin’ — Young Cockmen in Hard Action! Formerly titled "Gay Guide to Cruising — How-to Techniques from ‘The Chase’ to the ‘Sweat and Soap Approach.' The geography of love is dia-gramed by hot studs 69’ing, J.O. and plain ol’ f — ing.”
. TEX.PENAL CODE ANN. sec. 43.23(e) (Vernon Supp.1984) which was declared to be unconstitutional in Davis v. State, supra.
. Pursuant to TEX.CODE CRIM.PRO.ANN. art. 44.24(b) (Vernon Supp.1984), we reform the trial court's judgment to show that appellant entered a plea of not guilty and was tried by a jury which found her guilty. Through clerical error the original judgment recited a plea of guilty and a waiver of trial by jury.