Adams v. State

holding present in In view of our

case, question of we do not reach Article is unconstitutional

whether 1918c face, myriad nor reach the of

on do we questions appli arise in the

other that will

cation of the statute. TEX.CODE CRIM. (Vernon Supp.1982-

PROC.ANN. art. 26.13

1983)imposes on the trial court to duty felony defendant certain

admonish that the felo

particulars to determine

ny mentally competent defendant is plea voluntary. provi These free and apply do not misdemeanors.

sions 526, (Tex.

Empy v. S.W.2d Therefore,

Cr.App.1978). view

reduction of the to a misdemeanor offense present

in the do not reach the

question whether Article 1918c would be applied

unconstitutional as the event a

magistrate accepts plea guilty in a

felony ease. Our decision solely is based our

case on conclusion

under the Constitution of the State of Tex only judge of the Criminal District County judicial held Dallas

power of the Texas to State of determine placed pro be

whether should § pursuant to Article

bation 42.13 3 and judicial power delegated

that this cannot be surrogate.

Reversed and remanded. ADAMS, Jr., Appellant,

Martin Luther Texas, Appellee.

STATE of

No. 13-83-150-CR. Texas,

Court of

Corpus Christi.

Jan. 1984.

Rehearing Feb. Denied 1984. Tor, Corpus Brown, Tinker &

Eric Christi, appellant. Jr., Thus, Bandy, County Atty., Corpus Rehearing).

T.R. State’s Motion for Christi, appellee. adequacy allegation by must test the its own terms.1 BISSETT, Before KENNEDY GON- Corporation In American Plant Food ZALEZ, JJ. (Tex.Cr.App. 1974), noted Criminal OPINION that an indictment or information must al BISSETT, Justice. 1) lege necessary on its face the facts to motion, opinion On the Court’s own our committed, 2) show that an offense was to 29,1983 of December and this withdrawn subsequent prosecution bar for the same opinion is substituted for it. offense, 3) give pre and the defendant Appellant obscenity was convicted of and charge. cise notice of the The also punishment days the 270 assessed at emphasized judge the test to the valid County in the Nueces Jail and a fine of ity quash separate a of motion $1,800.00. Appellant, first four his from the test used distinct to determine error, grounds complains of the trial charging whether the instrument is funda in overruling court erred his motion to mentally defective. quash the information. Appellant argues that the infor charged appellant

The information there, knowing give adequate “did then and him the content mation failed to notice and character of certain to-wit: subsequent or sufficient facts to bar a (1) picture, one motion the title of which is prosecution. appellant’s Since claim was affiant, obscene, unknown to to be unlaw- properly pre-trial asserted in a motion to fully knowingly promote said obscene quash, adequate which included an state by material then exhibiting and there said alleged ment of the manner which he Vipond, obscene material to R. which mate- deficient, notice was fundamental constitu depicts acts, rial ultimate sexual to-wit: were invoked. Drumm protections tional sexual intercourse.” State, v. (Tex.Cr.App.1978). 560 S.W.2d 944 Because of the notions of fairness

Appellant argues that the informa adequate require notice of the nature of give adequate tion failed to him notice of charges against picture sys the motion the accused in our the State intended to against use him at trial. justice, timely inadequate Evidence adduced tem claim of .of pre-trial hearing at the showed that requires notice careful consideration from had appel State seized two films from the perspective the accused. Drumm place lant’s of business and that both films at 560 S.W.2d 946. The accused is not Although appellant were untitled. continu required anticipate any all variant ally us refers to the evidence adduced to establish, might facts the State seek to inadequate, show that notice was the Court exception may insist “on by his motion or Appeals consistently has Criminal held allegation specific of what the State will improper that it is to examine the record of Amaya v. rely upon to convict.” See charging the case to determine whether the State, (Tex.Cr.App.1977). 551 S.W.2d 385 provides adequate instrument notice since obscenity un- Appellant was convicted must come from the notice facts found 43.23(c) TEX.PENAL ANN. der Sec. CODE charging it instrument (Vernon Supp.1982) provides: State, self. Bonner v. 640 S.W.2d 601 if, person an know- v. “A commits offense (Tex.Cr.App.1982); 600 Brasfield character, (Tex.Cr.App.1980) (Opinion ing content and he: S.W.2d By operation apply 1. of Art. 21.12 TEX.CODE CRIM. ments likewise informations. (Vernon 1966) rules as to indict- PROC.ANN. possesses insufficiency promotes allegations with intent of an indict form, is a

promote obscene material ob- ment which defect of will not require judgment a reversal scene device.” unless it prejudices rights the substantial of the de exhibiting charged with fendant. CRIM.PROC.ANN. TEX.CODE picture of title which one motion unknown (Vernon 1966). Craven Art. 21.19 depicted allega- The ultimate sexual acts. (Tex.Cr.App.1981). 613 S.W.2d 488 Accord spe- in the information thus more tions are ingly, the Court of Criminal language cific than the of the statute. uniformly prejudice held caused the de- issue we resolve is whether defect of form determined cannot be with gree descriptive in the averments reviewing a Cra out of facts. statement gave sufficient information 490; Taylor ven at Tex.Cr.R. charges him. notice of the Horn v. (1939); Van State, 143 Tex.Cr.R. 156 S.W.2d 987 descrip- allegations more The State’s are (1941). ways. the in three tive than statute instrument, charging the State Through its We therefore have reviewed the (1) the material notified the defendant that of and the statement facts evidence (2) material picture; is that the a motion presented. The seized two State films (sexual inter- depicts ultimate sexual acts operated appellant’s coin in from booths course); prosecut- that is the State place of films were business. Both unti film. The only exhibition one ing for the of tled, time; were at the same both seized of the mo- also that the title State depicted and both acts of sexual inter affiant.” picture was “unknown to tion oral course and sex. We have reviewed the allege the did not We note that information entirety. explicitly films in their Each film only that picture was that the untitled shows acts of sexual intercourse oral Thus, the State was unknown. the title Except participants for who could sex. the charged appellant he was notified the that identified, the in be films are similar con picture which exhibiting one with motion footage each tent. The entire of film depicts sexual intercourse. presents explicit activity type of a sexual by statute, films barred and the are so obscenity, a for To obtain conviction conceivably that one find similar could not average 1) prove the the State that: film obscene the other film not. one person, community applying contemporary argues the lack of notice that standards, find would the taken defending him prevented from himself whole, appeals to interest prurient as a the against allegations the that one State’s the sex; 2) depicts in the material or describes him lacked film shown to convict serious 3) acts; patently tak offensive sexual artistic, literary, political, or scientific val- whole, the lacks serious en as a material However, conjecture to ue. are unable artistic, political, val literary, and scientific rights in which the substantial scenario impose quite factors a burden ue. These appellant prejudiced. The of the a varie on the and afford the accused State (in they depict are so films similar upon ma the ty based defensive tactics conduct) essentially appel- same knowledge terial specific Without itself. possibly lant could not have defended on State, upon by relied of the material theory applicable one film but not the utilizing from the accused is foreclosed other. spe relate to the variety of defenses which appellant Bonner supra, upon prosecution. relied cific material reversal, actually sup- argued support pre-trial hearing, appellant At the cites position with re- distinguished portive opposite one that the could have State analysis employed to determine spect the booth specifying film from another Bon- In appellant harmed. number, type, by describing the whether filmor ner, However, charged with bur- an the defendant was agree. involved. We actors glary ing ground of a vehicle. The defendant chal- verdict.” The of error does lenged grounds notice comport indictment on with made at because evidence showed that three nothing presented trial and therefore belonging impli- victim were vehicles review. Porter v. S.W.2d The State’s showed cated. evidence (Tex.Cr.App.1981)., Appellant’s eighth only one vehicle had into been broken ground overruled. of error is entered; appellant thus had a valid defense burglarizing implicated two of three error, ground In his seventh Criminal vehicles. Court of appellant complains that the trial court overruling held that the trial court erred prospec erred in his for cause to appellant’s challenge to the indictment and juror Jay tive Jennie because she was held was harmed because prejudiced appli biased and the law opportunity the defendant’s to defend him- During cable to the case. the voir dire self diminished. The conviction was ex examination of Jennie Lee she therefore reversed. pressed difficulty being some able (Tex.Cr. apply contemporary community In Hill v. standards App.1977) analytical approach the same being explicit and in able to sexu in Bonner used resulted the Court of al literary, material had serious artis Appeals affirming Criminal the defendant’s tic, political, objec or scientific value. His conviction. The Court found the indict comports ground tion at trial with this ments were sufficient to allow the defend give error and was sufficient to the trial prepare ant to a defense. specific complaint. court notice of his record, however, reviewing the we have State, 942,

In Goodwin v. 514 S.W.2d 945 found appellant preserve that has failed to (Tex.Cr.App.1974),the observed: Court preserve his error. To the error “Appellants’ contention that the court peremptory must exhaust his cannot the material obscene when strikes and at trial that assert he was expert State has offered no evidence juror accept forced to presented whom he found and the defense expert objectionable testimony request or show that a for non-obscenity as to its was in Kaplan California, peremptory discussed additional strikes was v. denied. 115, (Tex.Cr. U.S. S.Ct. 37 L.Ed.2d 505 S.W.2d 866 Sifford (1973). There, App.1974). the United States Su- Appellant request did not addi preme Court clearly stated that the mate- tional peremptory Appellant’s strikes. rials themselves are sufficient for the counsel stated to the court: though determination even the defense Honor, “Your I would like to state for countervailing has introduced testimo- the record that the Defendant has struck ny.” Seven, Ten, Juror Nine Number with challenges. peremptory Under the of the Juror circumstances Number case, Nine, charging challenges the defect in the for instrument Defendant cause, required, appellant’s opportunity did not restrict the because prosecution. to defend challenge Accord- Court’s denial for that for appellant’s grounds cause, ingly, challenge first four of er- peremptory to exercise her, ror are overruled. jurors objec- and there are other tionable to the Defense that are on the error, eighth ground appel his jury deprived right we were of the lant contends that the trial court erred in them, to strike because Court’s challenge his denying prospec for cause to denial of the for cause of Juror juror Jennie “in tive that from Number Nine. I would like the record hearsay otherwise, had established she reflect that.” mind in her such a conclusion as to the guilt objection virtually This innocence of the identical to the objection by would influence her in her actions in find- defendant’s counsel made (Tex. in Moreno v. 587 S.W.2d 405 PROSPECTIVE JENNIE JUROR Cr.App.1979). there stated: LEE JAY jurors pro- are other on the “There left BY MR. WESTERGREN: spective objectionable list are Q Jay, you Mrs. do like you feel can attorneys, these defendants to their and. apply community standards: they prospective whom would strike as Yes, A I think I can.

jurors compelled were to ex- (sic) challenges al- hause their twelve Q I you And believe also had this reac- by striking lowed the Court the said children, tion about the adult versus the Townsend, jurors, named Jr. two John J. you accept proposition and can Thomas R. Morin.” the State of does have a Texas stricter dealing ways standard two with Judge Onion, writing Presiding among It dissemination children. won’t Appeals, of Criminal stated: stating up in the I’m come it. do not a blanket “We conclude that such adults, dealing A it’s I We—if with suffi- (appellant’s objection) is statement capable up making think we are our Here cient to invoke the rule. Wolfe minds, children, no, own but when it’s juror showing is no who there definitely not. objectionable jury. on the served Q you by, do “our own What mean jur- The asserted that certain other fact you minds?” Do mean the individual ors, objec- designation, without goes into the— certainly tionable was not sufficient any objection- show that community a A I think that the lot of of itself juror served that con- able on the different minds— ours). (emphasis appellants.” victed Q Yeah. The Court reiterated that a defendant ought A —I think that to be able to juror or particular state that a at least go by the the law. standard of Moreno, objectionable him. jurors are Q saying guess really I what I’m when at 408. standard, you community I about ask right you society do believe that has a 147 Tex.Cr.R. Wolfe 178 S.W.2d 274 set some held that where ah standards? compelled per accused been to exhaust Yes, A I do. emptory challenges accept objec an Q nothing go? Below which can juror tionable because a Yes, I A do. overruled, was improperly cause there is Q may may place people And we —some error though reversible even the accused level, rather and I angelic it at a assure juror did not show what manner the intent. Oth- that’s not the Prosecution’s objectionable to him juror or that the it might ers set at a much baser level. partial. proper unfair or still the This is be, your to make job That is what will however, Moreno, rule. As noted in where it that be done? decision is. Can rule, specify invoke the accused Yes, A it can. juror jurors objectionable or are although he need not reasons. state Q you very much. Thank BY MR. BROWN counsel’s

In the Q Jay, my questions state- one earlier to no more than a blanket Mrs. amounted jurors objectionable. having view anybody that other were that ment was about preserve has failed his had depicting matters led material sexual society. any decay error. moral in our You I'm type response. made some er- preserved if had his Even in that re- your feelings what are sure ror, voir The individual no error shown. gards? the follow- dire examination shows A I think it has. ing: Q you very Thank much. Q way you feel like that? What do Well, people I if view A think certain things, gives it them certain

certain PROSPECTIVE JUROR JENNIE ideas. LEE JAY Q you viewing explicit that ma- Do feel MR. BROWN problems? may terial lead to other Jay, you I to think I’m Mrs. don’t want Yes, I A do. picking you. You indicated earlier book, you if a film or Q trying that were view you Do feel like that explicit depicta- had magazine or that community standard determine what relations, sexual inter- is, tions of sexual or you that could consider that some course, sex, you that find is, or oral couldn’t adults, individuals, feel this feel mate- whole, taken as a had obscene, that you rial like this is not can scientific, literary, political, ar- serious or that? consider value; that, you I tistic believe indicated A That other individuals would not? is that correct? Q community, Some individuals in the A That’s correct. some adults. Q your feeling that if it’s that Is it A Would not consider it obscene? value, explicit, just that it doesn’t have or Q Yes. have that value? couldn’t Yes, A I believe other would individuals said, “medical,” you A I think too. it not see obscene. Scientific, Q I believe. Q Okay. And on the other end of the medical, A that kind of include Doesn’t scale, know, you probably I or assume scientific? people heard of that consider mere nudi- Q I would assume it does. ty being personally or offensive ob- know, Well, question A I don’t ask that scene to them? again. Well, according A are to where to, Q you Let’s assume that on a nude. book, mag- you that was a —there that some material If there’s Q Okay. azine, explicitly film showed sexual relations, explicitly depicts sexual sexual relations, sex, and sexual inter- oral intercourse, sex, you or oral could ever you course. Could ever find literary, that that material has some some, whole, the whole had taken as artisic, (sic) political, or scientific value? artistic, work, literary, serious had some A I think don’t so. political, or scientific value? Honor, MR. WESTERGREN: Your scientific, Well, read, I if A what have question give Could I ask that he medical, very includes legal entirety the entire test in the of the what I’ve read from the known fact that question? herpes. it newspaper that increases Certainly. question THE The COURT: Well, Q I’m I understand— not sure entirety. must be submitted in its at, getting what I’m is the definition of Brown) Q (By getting Mr. I’m any What obscenity requires that it lacks film, at, you If to a a is, you is this. view saying What I’m if those values. book, magazine, film, it to have magazine or or were to see a book depictations relations, and sexu- explicit of oral sex explicit and I’m that had sexual intercourse, you find that about, al could ever in inter- talking this sexual whole, material, any sex, liter- course, you taken as could ever and oral artistic, value, ary, political, or scientific val- it that had some of the scientific, political? ue? literary, had some any- disease, help Well, you I A mean that it would spreading than Do A other body? think so. don’t

Q carefully ap- val- have considered all of youDo think that it would have We remaining grounds pellant’s ue? of error. They are overruled. A I think that it would have don’t people have anybody, value to but I think judgment of the trial court is AF- right, right to see adults have the FIRMED. go places they think But, long go want to in. as as it’s not OPINION ON APPELLANT’S MOTION adults, the children. underneath the FOR REHEARING pass juror. MR. BROWN: I’ll rehearing, In his motion for Q (By Westergren) really pret- Mr. It’s first time that the trial contends for the questions ty hard answer these in the charge jury funda- court’s to the contained abstract, it, mean, Jay? you I isn’t Mrs. mental error. He further contends that picture. it be haven’t seen Wouldn’t charge the trial court’s to the errone- you question he easier for to answer ously two essen- assumed and established just you actually asked if had seen what paragraph application tial facts. The reads attempting prosecute? it was we were as follows: Yes, course, pictures A I have seen “Therefore, you if believe from the evi- about; talking that he’s I’ve seen them. beyond a doubt that the dence reasonable concerned, And, I like as far as I’m don’t Defendant, Adams, Luther Martin them, community, they if set a it’s Texas, Au- County, Nueces on or about level, I don’t know where the level would 26, 1982, gust then and there unlaw- did be, though I don’t know how much lower fully, knowing the content and character you go. could (1) one motion of certain to wit: Q juror’s job going That’s what picture, the title of which is unknown be, the standard. to set obscene, affiant, unlawfully and to be A I continue to be with the com- would by knowingly promote obscene material munity. exhibiting said obscene then and there art. 35.- TEX.CODE CRIM.PRO.ANN. de- Vipon, material to R. which material 16(c)(2) (Vernon Supp.1982-83) provides acts, picts ultimate sexual to wit: sexual may for cause be made that a intercourse, the Defendant you will find prospective juror if has “a the defense guilty charged. against any the law prejudice bias believe, you you If so or if have do not the de- applicable upon to the case which thereof, you will find reasonable doubt defense rely, fense is entitled to either as a guilty.” the Defendant not phase for which the to some of the offense being prosecuted or as a miti- defendant is para this asserts punishment there- gation thereof or of the fundamentally graph charge of.” it as estab defective “because assumed (1) lished, two essential facts: against any of the law Bias obscene, and picture question motion rely is upon the defendant is to acts, depicts that it ultimate sexual challenge for cause. ground for a Smith Appellant points intercourse.” wit: sexual (Tex.Cr.App.1974). 513 S.W.2d out that Andrews viewing the dire examination voir (Tex.Cr.App.1983),the of Crimi whole, as we are as a Jennie paragraph application held the nal do, v. required Evert essential charge erroneous for of that 489, conclude (Tex.Cr.App.1978), we Andrews, how ly the same reasons. was not biased that Jennie ever, timely properly the defendant that the trial the case. We hold the law of portion of the application objected to the refusing her err in to strike court did not case, no charge. In the instant ground of Appellant’s seventh for cause. trial. was made at error is overruled. Grady also cites (Tex.Cr.App.1982),

S.W.2d 316 where an er-

ror of a similar sort caused the defendant appeal

to contend on that an error in the charge

trial court’s “removed from the

jury’s consideration the issue of whether phentermine is an isomer of metham-

phetamine.” Ap- The Court of Criminal

peals, concluding charge after that the

erroneous, held particular error

was not fundamental.

Likewise, charge drafted, adequately

while not is not funda-

mentally future, defective. In the the trial

court should submit charge to the

compliance Ap- with the Court of Criminal

peals’ suggested charge as set forth in

Andrews, Appel- S.W.2d 370 at 374. ground

lant’s first rehearing for is over-

ruled.

Appellant’s remaining grounds raised on

his motion for rehearing have also been

considered, are also overruled. Payne, Lawrence, Thornton,

Bill Payne, Kling, Bryan, Watson & appellant. George BLAZEK, Appellant, Edward Davis, Davis, Stacey, Lohmeyer Fred & Davis, Bryan, appellee. BLAZEK, Appellee. Sharon Sue BROWN, C.J., Before J. CURTISS No. A14-82-795CV. DRAUGHN, CANNON and JJ. Texas, Court of (14th Dist.). Houston OPINION Jan. 1984. CANNON, Justice. Opinion on No Remittitur appeal This is an from an award of child March 1984. support. Appellant points raises six of er- contending

ror the trial court abused discretion, findings and that certain supported by fact are not the evidence. We reform and affirm conditioned on the timely filing suggested of the remittitur herein. Blazek,

Appellant, George Edward Blazek, appellee Sharon Sue were married

Case Details

Case Name: Adams v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 1, 1984

Citation: 669 S.W.2d 339

Docket Number: 13-83-150-CR

Court Abbreviation: Tex. App.