journal of the texas criminal defense lawyers association

WILLIE SKINNER, No. 839-82, Opinion on State's PDR: Rev'dIJdgmt of Acq'tlentered, Judge Teague, En Banc, 4120183.EVIDENCE INSUFFICIENT TO PROVE D GUILTY OF PROMOTING BY EXHIBITING TO XOBSCENE MATERIAL, NAMELY, A FILM: D, a college student, worked at atheater to defray her expenses at college and just happened to be thecashier on the unfortunate day the officers bought tickets and enteredto view the film. She had no managerial responsibility or financialinterests in the theater or its operations and for that matter had neverseen the film. The evidence was held insufficient. Acevedo, 633 S.W,Zd856.STEPHEN BARNHART, No. 808-82,En Banc, 4120183.Opinion on State's PDR: Rev'd, Judge Teague,MOTION TO QUASH PROPERLY OVERRULED: D was convicted of promoting obscenity.In part, the informatjon alleged that D, knowing the content andcharacter of the material, intentionally did sell to X obscene material,namely, one magazine entitledwhich depicts patently offensiverepresentations of actual and simulated sexual intercourse and sodomy.The court held that the word "sodomy" was merely descriptive of what thestate had to prove and thus the matter sought through the Motion to Quashwas essentially evidentiary. A charging instrument must allege sufficientfacts to give the accused person notice of precisely what he is chargedwith committing. However, unless a fact is essential to give an accusedperson notice of what he is accused of committing, the charging instrumentneed not plead the evidence that the state will rely upon to proveits case. May, 618 S.W.2d 333.JOHN DUPLECHIN, NQ. 378-83, Qpinion on D's PDR: Rev'd and remanded to CA,Per curiam, En Banc, 6/29/83.ENHANCEMENT - FUNDAMENTALLY DEFECTIVE PRIOR CONVICTION - SUBSEQUENT ATTACKAVAILABLE: D was convicted of aggravated assault and two prior convictionsbrought him automatic life. In this PDR, D complaints that one prior convictionused for enhancement was based upon a fundamentally defectiveindictment. No objection was voiced at trial. The absence of an objectionto the use of the prior conviction, based upon a fundamentally defectiveindictment does not serve so as to preclude a subsequent attack upon aconviction that utilized the prior conviction for enhancement purposes.Thus D may challenge for the first time on appeal the validity of theindictment underlying one of the prior convictions used for enhancementpurposes. Ex Parte Nivens, 619 S.W.2d 184; u, 633 S.W.2d 520 was di5-tinguished in that H i l l claimed one of his prior convictions used for 'enhancement was invalid because he was without counsel at the time O f theconviction. H ~ S failure to object at trial precluded later complaint.