Clayton Anthony RENT, Appellant, v. The STATE of Texas, Appellee.
No. 05-88-00739-CR.
Court of Appeals of Texas, Dallas.
May 30, 1989.
Rehearing Denied June 23, 1989.
771 S.W.2d 723
Before WHITHAM, BAKER and THOMAS, JJ.
Thomas F. Clayton, Dallas, for appellant. Pamela Sullivan Berdanier, Dallas, for appellee.
Clayton Anthony Rent was convicted of promoting obscene material upon his plea of nolo contendere and sentenced to five days in jail and payment of a fine of $1,500. He raises three points of error, contending that the trial court erred in: 1) refusing to give him ten days after the informatiоn was amended to prepare and file written pleadings; 2) denying his motion to quash on the grounds that the information failed to allege the requisite mental state as well as the specific acts or omissions depicted which were obscene; and 3) refusing to declare the obscenity statute unconstitutional. Although we find no merit in points two and three, we conclude that Rent was entitled to ten days after amendment of the information in which to respond to the information. Accordingly, we reverse and remand for new trial.
We must first consider the State‘s contention that Rent has waived all nonjurisdictional defects. The State avers that because the plea of nolo contendere was not entered pursuant to a plea bargain, Rent has waived all error. See Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). Rent states in his brief that the plea was entered pursuant to a plea bargain. The State responds that the record does not reflect a plea bargain.
There is no document in the record which sets out a plea pursuant to a plea bargain. However, there is a hand-written notation on the State‘s announcement of ready for trial, which reads: “5/26/88. 5 days & $1500 per Howard Blackman JRF if pled before 5/31/88.” At the hearing on the plea of nolo contendere, the following colloquy between Rent and the trial judge occurred:
THE COURT: Do you understand that by law in Dallas County, if I was not going to follow the plеa bargain I would give you advance notice of that?
RENT: Yes.
THE COURT: Under the plea bargain, is five days in confinement in the Dallas County Jail, and a $1,500.00 fine plus court cost.
RENT: Okay.
THE COURT: Is that your understanding?
RENT: Right.
(Emphasis added.) Neither the State, nor Rent contested the court‘s statement of the existence of the plea bargain. We conclude that the record does reflect a plea of nolo contendere pursuant to a plea bargain. Thus, we conclude that Rent has not waived all nоnjurisdictional defects under Helms.
In his first point of error, Rent contends that the trial court erred in refusing to allow Rent ten days after the information was amended to prepare and file written pleadings. He relies upon article 27.11 of the
In the case at bar, the information was filed on September 16, 1987. On March 25, 1988, Rent filed a motion for pretrial hear-
Directly under the certification of service is an order signed by the trial judge which reads as follows: “On this, the 6 day of April, 1988, the foregoing Motion is hereby granted and the information is hereby amended.” The trial court stated on the record that “well before April 11, 1988,” he informed cocounsel that “that motion to amend the information would be granted.” On April 14, 1988, Rent filed a new motion for pretrial hearing, again invoking
On May 23, 1988, the trial court conducted a hearing on pretrial matters. At the hearing the trial court stated, “Mоtion to Amend Information, this was State‘s Motion number one filed April 1, 1988. For record purposes, that Motion to Amend the Information, the Court gave leave of the State to amend the Information on April 6, 1988, that was granted.” The words “oral and anal” were hand-written on the information, and the trial court, defense counsel and assistant district attorney initialed the change.
At the May 23 hearing, the trial court denied Rent‘s April 14 motion for an additional ten days from the date of рresentment of the amended information. On May 31, 1988, Rent entered his plea of nolo contendere pursuant to a plea bargain and that plea was accepted by the court.
Rent contends that the mandatory provisions of
We agree that Oliver is not directly on point in the instant case. However, we consider Oliver instructive on the purposes of
The general and perhaps most basic premise of the long-standing “right to time” statute is that it was enacted by the Legislature of this State to afford the accused or his counsel a right to carefully examine the formal accusation and to prepare and file any necessary pleadings pertaining thereto. [Citations omitted.] Such time allowed an accused is both a precious and valuable right.
Oliver, 646 S.W.2d at 245. Thus, the statute affords a defendant ten full days in which to familiarize himself with the charges against him so that he may respond to those charges appropriately. When those charges are modified by amendment, it would seem that a defendant would still need that “precious and valuable” time to examine the amended charges and to prepare and file any necessary рleadings.
The legislature has recognized that a defendant may need additional time after an amendment to an information.
There is scant authority concerning the mechanics of amending a charging instrument. One venerable case seems to support Rent‘s argument that something more than an order to amend is required. In Robins v. State, 9 Tex. App. 666 (1880), the court stated, “Simply to order an indictment amended is not sufficiеnt; the record must show affirmatively that the amendment was in fact made.” Id. at 668. This holding is dicta; the court first held that allegations of venue were not matters amendable and then held that such amendment never occurred because the order to amend was not sufficient. Further, the court cited as support Cox v. State, 7 Tex. App. 495 (1879) and Turner v. State, 7 Tex. App. 596 (1880). In Turner, the court held that a new indictment had not been properly substituted for a lost indictment because there was “no order of record showing that fact.” Id. at 598. Cox involved the amendment of the minutes showing presentment of the indictment. Although the court granted the State‘s motion to amend the minutes, “the record itself was never amended or corrected.” Cox, 7 Tex. App. at 498.
These cases involve the requirement that the record reflect amendment, not the requirements for the amendment itself. The record in this case does reflect the actual amendment, so the requirement of Robins is met. Robins does not, however, resolve the issue of whether an amendmеnt is effective for purposes of
The State‘s argument that the amendment is effective as of the date of the order is facially appealing. By April 11, Rent was aware, at the very least, that the State intended, and that the court would allow, an amendment of the charge. The April 6 motion set out the amendment that the State desired. Thus, by April 11, 1988, Rent had some notice of what the new charge against him might be.
We conclude, however, that the notice of the substance of the amendment was insufficient because the order itself did not set out the amendment which the trial court granted. Although the motion set out the amendment which the State desired, the order does not recite the amendment which the court would allow. The State assumes that in granting the order the trial court intended to give it precisely the relief which it requested. The purpose of
In the case at bar, the order amending the information does not set out the substance of the amendment. The actual interlineation of the information did not occur until May 23, 1988. Although Rent requested his statutory ten days, the trial court denied the request and set the hearing on the plea for May 31, 1988. Thus, Rent was denied his statutory ten days in
In his second point of error, Rent contends that the trial court erred in denying his motion to quash on two grounds: 1) the information failed to allege the requisite mental state; and 2) the information failed to allege the specific acts or omissions which the magazine depicted. We note initially that this point, complaining of two alleged errors, is multifarious. By combining more than one contention in a single point of error, Rent risks rejection on thе ground that nothing is presented for review. Cuevas v. State, 742 S.W.2d 331, 335 n. 4 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1488, 99 L. Ed. 2d 716 (1988). Nevertheless, to the extent that we understand his arguments, we will attempt to address their merits.
Rent first argues that the charging instrument fails to allege a culpable mental state. The information reads, in relevant part, that Rent did:
then and there, knowing the content and character of certain obscene material, to-wit: one magazine entitled “Unreal People“, promote by offering for sale and sale of obscеne material to L.R. Cadena, and said material was obscene in that it depicted patently offensive representations of or descriptions of oral and anal deviate sexual intercourse.
Rent argues that the information failed to allege a culpable mental state in that the information alleges only that he knew the content and character of the material but not that he knew that it was obscene.
Rent next argues that the information should have been quashed because it failed to allege the specific acts or omissions depicted which rendered the material obscene. Rent notes that the statute fails to refer to or to define “oral and anal deviate sexual intercourse.” He avers that the State should have utilized the definition of deviate sexual intercourse found in section 43.01, and should have alleged whether the deviate sexual intercourse was “contact between the genitals of one person and the mouth of another person,” and/or “contact between the genitals of one person and the anus of another person.”
Rent relies upon Laverne v. State, 737 S.W.2d 379 (Tex. App. - San Antonio 1987), rev‘d on other grounds, 753 S.W.2d 404 (Tex. Crim. App. 1988), as authority for his contention. In Laverne, the San Antonio Court of Appeals noted that the charged offense, prostitution, is statutorily defined to include more than one means of commission—contact between genitals and mouth or contact between genitals and anus. See
The alternate means of commission in Laverne refer to acts of a defendant. Here, the only act of the defendant Rent was promotion of obscene material. “Deviate sexual intercourse” as used in this information does not refer to alternate means of commission of the offense of promotion of obscenity by Rent. Thus, Laverne is inapposite. We conclude that the State was not required to distinguish between oral/genital contact and genital/anal contact when alleging that the acts which rendered the magazine obscene involved “oral and anal deviate sexual intercourse.” We overrule point of error two.
In his third point of error, Rent contends
Rent first complаins of the definition of obscene contained in
Rent argues that
The Texas statute imposes the local community standard on the first two prongs of the Miller test, and we find that it is in compliance with constitutional requirements.
Section 43.21(a)(1) is virtually identical to the format set out in Miller. The first prong, prurient interest, is to be assessed by the average person, apрlying contemporary community standards to the work as a whole. The second prong is similarly related to the local standard by the definition of “patently offensive” contained insubsection (a)(4) :“Patently offensive” means so offensive on its face as to affront current community standards of decency.
*
Subsection (a)(1)(C) requires the absence of values expressed in the third portion of the Miller test. Sections43.21 and43.23 are in compliance with constitutional standards and are not overbroad. There is no аuthority that requires that this State apply the contemporary community standard test to the third prong of the Miller test requiring that the material lack serious literary, artistic, political or scientific value.
Garcia v. State, 633 S.W.2d 611, 613 (Tex. App.—El Paso 1982), overruled on other grounds, Davis v. State, 658 S.W.2d 572, 580 (Tex. Crim. App. 1983). We agree that the definition of obscenity, which follows the Miller standard, is constitutional.
Rent‘s second argument is that
Rent further complains that the statute is vague and overbroad because of the law enforcement exception to
We conclude that this subsection does not render the statute overbroad. A statute is unconstitutionally overbroad on its face if it does not aim specifically at evils within the allowable area of State control, but on the contrary, sweeps within its ambit other activities which are protected by the constitution. See Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 741, 84 L. Ed. 1093 (1940). Rather than sweep additiоnal activities within the scope of the statute, the exclusion works to exclude certain activities. Thus, there is no overbreadth.
Further, we conclude that
Rent argues lastly that the magazine he is accused of promoting is “presumptively protected by the First Amendment.” It is, however, well settled that the right to free speech is not absolute and that obscenity does not fall within the bounds of expression protected by the first amendment. Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498 (1957). Obscenity may be regulated without infringing first amendment rights because it has such slight social value as a medium of speech and expression of ideas that any benefit from it is clearly outweighed by society‘s interest in order. Gholson v. State, 667 S.W.2d 168, 172 (Tex. App.—Houston [14th Dist.] 1983, pet. ref‘d), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942).
It is well settled that when a defendant pleads nolo contendere to a misdemeanor offense, such plea constitutes an admission to every element of the charged offense. Dees v. State, 676 S.W.2d 403, 404 (Tex. Crim. App. 1984). Rent, by his plea оf nolo contendere, has therefore admitted that the material was obscene and he has not contended on appeal that it is not obscene. Thus, we conclude that the material is not protected by the first amendment. The obscenity statute is not, therefore, violative of the first amendment. After due consideration of Rent‘s multifarious arguments under point of error three, we overrule that point.
Having sustained Rent‘s first point of error, we reverse the trial court‘s judgment and remand for new trial.
BAKER, Justice, dissenting.
I respectfully dissent from the majority‘s conclusion regarding point of error number one because it is a classic example of elevating form over substance.
The majority reverses and remands this cause because it concludes that appellant‘s notice of the substance of the State‘s amendment to the information was insufficient since the order itself did not set out the amendment which the trial court grаnted. The majority notes that although the motion set out the amendment which the State desired, the trial court‘s order does not recite the amendment which the court would allow. They reason that a defendant would not have notice of the amended charges against him unless the trial court‘s order set out the substance of the amendment or until the indictment itself was physically changed. See
The record reflects that the State‘s motion and thе trial court‘s order are all part of one instrument, and the trial court‘s order specifically says that the State‘s foregoing motion is granted and the information is hereby amended. This order was signed effective April 6, 1988. On April 14, 1988, appellant filed a new motion for pretrial hearing requesting, under
In my view, to hold that the trial court‘s order must set out the substance of the amendment when the order is part and parcel of the motion to amend which contains the specific amendment requested is to elevate form over substance, particularly when the record is without dispute that appellant had notice of the amendment for a рeriod of more than ten days before trial. Under the facts of this case, I would hold that appellant had sufficient time to familiarize himself with the charges against him so that he could respond appropriately, and I would overrule point one.