journal of the texas criminal defense lawyers association

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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
tory terms such as, "deliberately", "pr~bability","criminal acts ofviolence", and "continuing threat to society", all of which unquestionablyhave acquired technical meanings, dld not have to be defined in the chargeto the jury even in the face of an objection. Further, the absence ofa definition for this term does not render the statute void for vaguenessnor does the omission violate either due process under the federal constitutionor due course of law under the Texas Constitution, Red BluffDrive In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981).In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 11973)(which overruled Roth v. United States, 354 U.S. 4761, the Supreme Courtheld that printed material is not protected by the first amendment to theUnited States Const. if the material, when viewed as a whole, appeals tothe prurient interest in sex, and the material portrays "sexual conductin a patently offensive way, in which, taken as a whole does not haveserious literary, artistic, political, or scientific value". The threepart test of Miller is set forth at page 11 of the slip opinion in Andrews;the four part test for material to be obscene under the Texas statute isset forth at page 15 of the slip oplnion in Andrews.\.THE APPELLATE COURTS MUST FORCE TBEMSELVES TO BE A CAPTIVE AUDIENCE: Itis encumbent upon appellate courts to further make the independant determinationwhether the material is constitutionally obscene. In other words,under the decisions of the U.S. Sup. Ct. and the CCA, in an obscenity case,where the defendant pleads not guilty and trial is to a jury or to the courtbut the defendant is found guilty and appeals his conviction, it is nowencnmbent upon intermediate appellate courts of Texas as well as the CCA,to make independant determinations as to whether the material that isalleged to he obscene is constitutionally obscene. And then there was thejudge who was overheard saying that this would simply additional requiredreed+~g viewing for law clerks!JOSEPH LANDRY, No. 68,725, Aff'd, Comm'r Dally, En Banc, 7/29/83.INDICTMENT AND COURT'S INSTRUCTIONS WERE SUFFICIENT: D argued that theindictment and the court's charge were fundamentally defective, for thefirst time on appeal. The indictment alleged that D did "break and enter"the vehicle. The court's charge authorized conviction if the jury foundD did "bteak into or enter" the vehicle. Sec. 40.04 PC (burglary of avehicle) provides in part that an offense is committed if a person "breaksinto or enters a vehicle".Since the definition of the term "entry" in Sec. 30.04 is broad eaopah toinclude "breaking into", "enter" and "breaking into" are not two separateways or methods in which the offense of burglary of a vehicle nay be committed;when entry is all+ged it includes breaking into. Therefore theindictment is not fundamentally defective, the court's charge is not fundamentallydefective, and the court did not err in deffntng the term"break intov, although it would be unnecessary to submit a defihition ofthe words "break into" since those words are not statutorily defined andthey have a common meaning. Adaml, 524 S.W.7-d 693.August 1983/VQICEfur the Defense SD-21
Page 3 and 4: President's ReportTHOMAS G. SHARPE,
Page 5 and 6: THE NEW TEXASRULES OF EVIDENCEIN CR
Page 7 and 8: Legislature; Constitution Article I
Page 9 and 10: RONALD DANFORD, No. 62,855, Attempt
Page 11 and 12: JULIA MONTEZ, No. 68,441, Rev'd, Ju
Page 13 and 14: -- NARCISQ RICO, No.6/29/83.68,637,
Page 15 and 16: EX PARTE VICTOR MAREK, No. 61,904,
Page 17 and 18: supra, i-e., as the juror, thr~ugh
Page 19: MICHAEL CAMPBELL, No. 027-83, Opini
Page 23 and 24: WILLIE SKINNER, No. 839-82, Opinion
Page 25 and 26: 509 S.W.2d 356. The courts of ~ppea
Page 28 and 29: ". . . There is one thing qore I wa
Page 30 and 31: KO one has talked to the Jurors abo
Page 32 and 33: e reflected in a formal judgment or
Page 34 and 35: defendant would have to be willing
Page 36 and 37: contains the necessary allegation o
Page 38 and 39: 3727. Oldrecord books of munimentso
Page 40 and 41: vacuum. Commentary on the code's kn
Page 42 and 43: ~42retroactively, but only for thos
Page 44: TEXAS CRIMINAL DEFENSE LAWYERS ASSO

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