journal of the texas criminal defense lawyers association

Thus, the court found that the CA decided the sole ground of errQr presentedby D on an impermissible "pr&umption" of guilt for appropriatingproperty knqwing that it was stolen by another, rather than consideringwhether unexplained possession of recently stolen property was coupledwith other signiffcant circumstances so as to justify an inference ofknowledge on the part of D that the property was stolen. For that reaso~the CA erroneously affirmed the order revoking probation; the cause wasremanded to the CA.STEVE ROBLES, No. 245-82, Opinion on State's PDR: Rev'd and remanded toCA, Judge McCormick, En Banc, 6/29/83.JURY CHARGE IN BURGLARY OF A VEHICLE CASE NOT FUNDAMENTALLY DEFECTIVE:Indictment alleged D did enter a vehicle, whereas court's charge authorizconviction if jury found D did break into or enter a vehicle. Court fourthat under the charge given, if the jury found that D did break into thevehicle, the jury necessarily found that D entered the vehicle. Thus t h ~court's charge did not enlarge on the indictment because proof of breakirinto is not different from or less than proof of entering.WILLIAM ANDR-, No. 701-82, Opinion on State's PDR: Rev'd in part, aff',in part, Judge Teague, En Banc, 4/20/83.APPLICATION PARAGRAPH OF CHARGE WAS EFFECTIVE BECAUSE IT ASSUMED TWOESSENTIAL DISPUTED FACTS: D was convicted of promotion of obscenity byselling an obscene magazine. The application paragraph related in partthat if the jury helieyed D did, knowing the content and character of thematerial, intentionally sell to X obscene material, namely one magazineentitled "Swedish Erotica No. 25" which depicts and describes patentlyoffensive representations of actual or simulated sexual intercourse, analintercourse, and oral sodomy, then the jury should convict. D objected onthe grounds that this application paragraph assumed two essential facts:(1) that the magazine in question was obscene material and (2) that itdepicted and described patently offensive representations of actual orsimulated sexual intercourse, anal intercourse, and oral sodomy. The courtheld that a trial court in its charge to a jury should never give the juryan instruction which constitutes a comment by the court on the elements ofthe alleged offense, or assumes a disputed fact, unless such fact comeswithin an exception to the general rule of prohibition that is set out inMarlow, 537 S.W.2d 8. Although D did not dispute the authenticity of themagazine or its content in this case, D made an issue during the trial asto whether the magazine was obscene. Thus reversible error occurred.NO NECESSITY TO DEFINE,THE TERM "PRURIENT INTERESTIr: The court first notedthat the term "prurient interest" was not contained either in the informationor in the application paragraph of the court's charge. Only in thecontext of the definition of the word "obscene" does the phrase "prurientinterest in sex" appear in the charge. The term "prurient interest" isnot defined by statute and there is no requirement to so define the termin the court's charge. A similar attitude was taken recently in King,553 S.W.2d 105, a death penalty case, wherein this court beld that statu-SD-20 VOICE for the DefenseJAugust 19831I