Charged by information with promoting obscenity, the appellant entered a plea of not guilty. In a trial before the court, appellant was found guilty and assessed a fine of $500.00 as punishment.
By his first ground of error, appellant alleges that the trial court erred in denying appellant’s motion to quash the information as vague, indefinite and uncertain, and in violation of due process because the word “sodomy” used in the information is such that persons of common intelligence must necessarily differ as to its meaning.
The information upon which appellant was tried read in pertinent part:
AUSTIN BOYCE SHELTON hereafter styled the Defendant, heretofore on or about MAY 5, 1981, did then and there unlawfully AND KNOWING THE CONTENT AND CHARACTER OF THE MATERIAL, INTENTIONALLY SELL TO W.L. HAYDEN OBSCENE MATERIAL, NAMELY A MAGAZINE ENTITLED “SEXY M” AGAINST THE PEACE AND DIGNITY OF THE STATE.
It is sufficient to note that the word “sodomy” is not used in the information and, therefore, this ground of error is without merit. We also note that this argument has previously been raised and overruled.
See Taylor v. State,
By his second ground of error, appellant alleges that the Texas statutory definition of obscenity is void for vagueness in that its failure to define the term “pruient interest in sex” violates due process and therefore, men of common intelligence must necessarily guess at its meaning and differ as to its application. This argument has been previously raised and overruled in Red Bluff, supra, as well as in Taylor, supra.
By his third ground of error, appellant alleges that the trial court erred in overruling his motion to quash the information on the ground that article 43.21 Tex. Penal Code Ann. (Vernon Supp.1982) is void for vagueness and overbreadth in its definition of the term “patently offensive.” This issue was specifically left undecided by the Fifth Circuit in Red Bluff, supra.
Whether Texas has exceeded its constitutional authority to regulate obscenity by defining ‘patently offensive’ in terms of ‘decency’ rather than ‘tolerance’ is a significant question. But before the constitutional issue can be resolved, the interpretation of the critical word must be left to State courts. As the final arbiters of the Texas Legislature’s intent, state courts deserve the first opportunity to decide if the Legislature intended to hold obscenity defendants to the community’s norms of ‘proper’ behavior and ‘taste’ as opposed to a minimum standard of conduct the community is willing to tolerate. If on its face the statute warned too broadly, deference to the state courts would be inappropriate. Such is not the case here. There is ample room to formulate jury instructions that comport with § 43.21(a)(4) and the First Amend *651 ment rights of defendant charged with obscenity offenses. The pendency of ongoing state criminal proceedings in which the issue may be resolved and the potential for narrowing state court constriction move us to refrain from entering the fray in a facial challenge to this statute.
Red Bluff, supra at 1029.
Red Bluff
leaves to us the opportunity of formulating jury instructions which could obviate any possible unconstitutional aspect of the use of the word “decency.” However, appellant was tried before the court and attacks the facial validity of the statute. When there is a challenge to the constitutionality of a statute, it is vested with a presumption of validity and this court must construe it so as to uphold its constitutionality when possible. Tex.Penal Code Ann. § 1.05(b) (Vernon 1974); Tex.Rev.Civ. Stat.Ann. art. 5429b-2 § 3.01(1) (Vernon Supp.1982) (Code Construction Act);
Ely v. State,
Appellant has stated this ground of error as an attack on the vagueness of the statute, but his Motion to Quash and his argument speak to overbreadth. The traditional test of unconstitutional vagueness is whether the terms of the statute are so indefinite that “men of common intelligence must necessarily guess at its meaning and differ as to its application.”
Connally v. General Construction Company,
Under the First Amendment, appellant must demonstrate facial invalidity on grounds of overbreadth by showing that the terms of the challenged statute are broad enough to suppress protected speech.
Gooding v. Wilson,
The Supreme Court established the current basic guidelines governing the determination of what is obscene in
Miller v. California,
(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the pruient interest ...;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.
Appellant’s complaint as to part (a) has been answered and he does not complain of part (c). We must determine whether the Texas legislature has gone beyond the definition of “patently offensive” allowed by the Supreme Court. Section 43.21(a)(4) Tex.Penal Code Ann. (Vernon Supp.1982), defines patent offensiveness as that which affronts current community standards of decency. In Miller, the court gave two “plain examples” of depictions or descriptions which could be regulated under part (b) as
*652 (a) [pjatently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated [or] (b) [pjatently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Since
Miller,
the Supreme Court has provided additional insight into how the term “patently offensive” is to be interpreted. In
United States
v.
12 200-ft. Reels of Film,
In
Jenkins v. Georgia,
Once this “substantive component” is satisfied, the question becomes whether, as a matter of fact, the portrayal is “patently offensive” in light of “contemporary community standards.” The appellant argues that the Supreme Court mandates that a jury is to judge the patent offensiveness of the substantive portrayal against the “tolerance” of the community and not against what the community deems “decent.”
The most often cited passages from Supreme Court opinions used to establish “tolerance” as a standard for the community are set out below:
(1) In Smith v. California, Justice Harlan in a concurring and dissenting opinion, stated the following with regards to the introduction of evidence in establishing the community standard:
[T]he trier of an obscenity case must take into account ‘contemporary community standards,’ (citation omitted). This means that, regardless of the elements of the offense under state law, the Four *653 teenth Amendment does not permit a conviction ... unless the work complained of is found substantially to exceed the limits of candor set by contemporary community standards. The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates, (emphasis added).
Smith v. California,
(2) Justice Burger stated in
Miller
that “[i]t is neither realistic nor constitutionally' sound to read the First Amendment as requiring the
people
of Maine or Mississippi accept the public depiction of conduct found
tolerable
in Las Vegas or New York City.” (emphasis added).
Miller, supra
The jury in
Miller
was instructed that in determining whether the material “goes substantially beyond customary limits of candor and affronts standards of community
decency,”
(emphasis added)
Miller, supra
(3) In
Smith v. United States
the Court stated that “obscenity is to be judged according to the
average person
in the community, rather than the most prudish or the most
tolerant.”
(emphasis added)
(4) Also in
Smith,
the Court stated that “contemporary community standards must be applied by [the trier of fact] in accordance with [its] own understanding of the
tolerance
of the
average person
in the community .... ” (emphasis added).
The clear indication of the Court in these holdings is that the trier of fact is “to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable person’ in other areas of the law.”
Hamling v. United States,
The term “decency” as used in the Texas statute does not impermissibly expand the parameters of the
Miller
standard beyond the scope contemplated by the decisions of the Supreme Court.
Accord Garcia v. State,
As to appellant’s claim of vagueness, we quote from Miller wherein it was held:
Many decisions have recognized these terms of obscenity statutes are not precise. [Footnote omitted.] This court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘... [T]he Constitution does not require impossible standards’; all that is required is that'the language ‘conveys sufficiently definite warning as to prescribed conduct when measured by common understanding and practices.. .. ’ [citations omitted]. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘... boundaries sufficiently distinct for judges and juries to fairly administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.’ [citations omitted].
413 at 28, n. 10,
The Texas statute is drawn substantially from
Miller.
Appellant’s claim of a lack of due process in the statute under which he is charged is overruled.
See Goocher v. State,
The conviction is affirmed.