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change his answer, and police treated lus request for an attorney as a
refi~sal to take the test. Cops gave liini sob~iety tests, and lie answered
questions after being hfiandized. He was later charged with DWI. At
trial, Appellant unsuccessh~lly objected when the audio portion of the
videotape showing lhis invocation of the right to counsel was introduced.
PDR was granted to decide whether the audio portion was correctly
admitted at trial as substantive evidence of guilt.
HELD: Because there is no rigbt - to counsel hefore receiving
Miranda warnings, or being charged with an offense, no
constitutional riel~ts are violated by admission, as substantive
evidence, of a recordine of tbe defendant's rea_mt for counsel
before taking an intoxilwer test. CCAfust holds the recording
was relevant to the ju@ determination that Appellant was intoxicated
- any sign of iup~~iient in his ability to speak was circumstmtidy
relevant. Also, because refusal to take a blood-alcohol test is
relevant, Appellant's precondition to taking it - that liis lau~er be
consulted - was also relemt to his refusal to take the test. Tl~e juy
could have considered Appellant's request to be ioc~iminating because
it reflected an awareness that lie \vas intoxicated and ~~eeded to consult
Ius attoroey about whether it \vodd be better to take the test md let the
layer cross-examine tlie results, or to refi~se and take t11e refusal to
the jury Appellant's refusal had probative value beyo~ond lus request for
an attorney. CCA rejects all Appellant's constitutional grounds -
denial of rigl~to counsel (5[11 Amendment light to counsel not inhplicated
because Appellantwas not subject to interrogation and lus statements
were not product of custodial interrogation; 61' Aniendnient
riglit l~ad oat yet attached because Appellmt had not been cl~arged wit11
a crime, thus no for~~ial adversa~y judicial proceedings had been started);
no due process violation (no due process concerns because no
bkmda warnings had been @enen, and no promise had been broken;
CCA distingt~ishes Hflrdie, 80711319 (CCA 19911, in wliicli defendant's
request for counsel was made before refusing the brath test, but dter
receiving illirm~da warnhgs); 110 5f11 Aoie~~dment set-incriniination
violation (request for counsel under these facts cannot be constmed as
a desire to reniaui silent, and i\ppeUw~t was not coerced by cops into
requesting counsel. Judgment is Illerefore &~ne(I.
OBSCENITY - SUFFICIENCY OF EVIDENCE AND EXCLUSION
OF DBFENSIVT EVIDENCE: RALPH CLLVTON BURDEN, JR., u.
Stnte, No. 1689-99, Appellant's I'DR from Dallas Connty; fimed,
9/19/01; Offense: Promotion of Obscenity; Sentence: (not in opinion);
CO,\: fillled (NP-Ddas 1999); Opinion Price, joined by Keller,
Womack, Johnson, Keasler, He~wy & Holcomb; bleyei~ concurredn./o
opinion.
Appellant, a clerk in the Star Adult Video &nte& sold a videotape
entitled "Hardcore Scl~oolgirls Volun~e 5" to undercover cop
Repersoo, \vho anested lun~ &er watcl~igthe tape. Cop testified that
he chose the video because of sexually explicit photographs on the
box, and in his opinion, tbe video was obscene. Appeilaht testifled that
although he knew the cha~acter of the video was sexually explicit, he
did riot know the exact content of tlus particular video. A defense
expert testified that images on the tape \!we not utlconin~oa in tlie
indust~y, and tliat the tape was not obscene. Appellant also proffered
the testimony of \Vilder, another expert, who woold have testiGed that
anyone with a conhputer and modem could access similar o~ate~ial
over the internet, ;u~d that iocluded public camputen at tlie Dallas
Public Jiblay which did not restrict access to the internet. The trial
court excluded Wilder's testimony and evidence as irrelevant, and
cumulative and confusing under TRE 403. Wilder in fact did go to the
libmy and downloaded material from the internet sites he had presented
during his testimony for a bill of exceptions, and vo~ild have
testified that anyone could have found sexually explicit images witliout
hitemention from library personnel. The evidence was agaui excluded.
Appellant's PDR was granted to deterniine whetl~er the evidence
~vas legally sufficient to support the conviction, and wl~ether Wilder's
testimony and evidence was properly excluded.
HELD: Evidence is legally sufficient if the defendant had
lu~owledee of the sexually explicit character and content of the
m . Appellsnt had argued 111at uoder the Fint Amendment and
tlie relevant stahlte, TPC 9 43.23, the defendant niust how that what
he promotes is legally obscene. Bemse tliere was no evidence that
Appellant knew the videotape was so offensive on its face as to affront
community standards of decency, he argues the evidence was legally
insufficient. After su~veying Supreme Court cases and its oWu precedent,
CCAfinds that notlung in g 43.23 or theU.S. Constitution requires
Il~e defendant to know that the material in question is legally obscene.
Tlie statute states that a pelson conimits an offense if, "knowing its
content and chancter, he proniotes . . . u,itli intent to proniote any
obscene material or obscene device." Tlius, the Shte need not prove
the defendant knew the material wvas legally obscene; it is enough that
lie had knowledge of the materid's sex~~ally explicit clha~xcter aid content.
Here, CCA says there \\%IS sucl~ evidence presented tlhrougl~
Reyelson md Avpellahl's testimony, thus, evidence wvas sufficient.
"
rele\ilnt, competent evidence bearing on the issue of conteniporaly
standards, not all such evide~ice is per se admissible. Tlie key to
whether tlie trial cou~t's exclusion of e\idence was an abuse of discretion
is wl~ether the tri;d court's action created a false in~pression with
the ju~y. Here, the trial court's ndings did not do that. CCA then adopts
a 2-part test from US. u. Pinkrrs, 579 EZd 1174 (gth C ~L l97X), as the
standard for adlilting conipanble materials in an obscenity case. The
defendant niust sIio\v: (1) there is a reasonable resenhblance behwen
the proffered compa~able materials aid the allegedly obscene materials;
and (2) there is a reasonable degree of comnimuty acceptance of
the proffered comparable ~nate~ials. Without snch a showing, the evidence
must be excluded as lacking sufficient probative value. R is not
enougl~ that the material is merely available because all that shows is
that other persons are involved in similar activities. Even if the standard
is met, tlie trial court still has discretion to exclude the materials
if sucli we un1iecessarilyc11ni~11;ttive, confusing to the jm): or niake the
trial unn~anageably con~plex and leogtl~y Having said this, CG\ then
holds the trial court did not abuse its discretion because tlie excluded
testiniooy did not reasonablyresemble the video, and Appellant did not
show a reasonable degree of comn~uoity acceptance. Thus, because
he did not nieet the 2-part standard, he loses. Along the way, CCA disapproves
ofAsar 79911802 (Dallas 1990, PDR ret'd), to the extent that
it suggests other sen~dy explicitly material is per se adniissible do
demonstrate contenlpolary conimunity standwds.
PRETRIAL HABEAS CORPUS & COGNIZABILITY: BENNm
IWISE u. State, No. 1425-00, Opinion on Court's Own Motion, from
Harris County; Grarit of Relief Reversed, 9/19/01; Offense: Illegal
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