Thomas Varkonyi v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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THOMAS VARKONYI, No. 08-06-00255-CR
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Appellant, Appeal from
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v. County Court at Law No. 7
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20040C16770)
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OPINION

Thomas Varkonyi appeals his conviction of obscenity. Appellant, acting pro se, waived his

right to a jury trial and tried the case to the court. The trial court found him guilty of promotion of

or possession with intent to promote obscene material. The court assessed punishment at

confinement in the El Paso County Jail for a term of twenty days. Finding no error, we affirm.

FACTUAL SUMMARY

Appellant and the State waived their respective rights to a jury trial, and the trial court heard

Appellant’s motion to suppress evidence at the same time it heard the case on the merits. The

following facts were developed during this combination hearing.

In July 2004, David Bazan and John Robert Armendariz, El Paso police officers, participated

in an undercover operation involving Appellant. The investigation began when the police

department received information that a female student at El Paso Community College had applied

for a job offered by Appellant but when she went to his home, he solicited her to provide sex for

money and to be featured on a pornographic website. Bazan participated in the undercover operation

using the name “Daniel Hernandez” and Armendariz used the name “Maurizio Payan.” They
contacted Appellant and pretended to be customers who wanted assistance in developing a website

involving cameras and pictures. They went to Appellant’s home, spoke with him about launching

the website, and explained that they wanted him to work as a consultant in setting up the computers

and cameras. They also asked Appellant to show them how to operate the computer and the cameras.

Appellant quoted them a fee for these services. Initially, they did not tell Appellant they wanted to

set up a pornographic website but Appellant asked several times what the website would involve.

Finally, Armendariz asked Appellant if he objected to pornography. Appellant said no, and he

showed them various images on his computer, including a video depicting a woman being sexually

penetrated by a pony. During this meeting, Appellant gave the officers his business card listing an

e-mail address.

One week after this conversation, Armendariz, using an address he set up as part of his

undercover identity, sent the following e-mail to the address Appellant had given him:

I’m just keeping in touch with you. We’re still working out the financial situation
with the equipment, but we are still moving forward with the plan. I’m still looking
at an all Latina site with member wish list on videos and pics that are wanted to be
seen. Also I’ve been looking at several sites to get ideas. By the way I’ve been
searching for the horse movie you showed us and wondering where you found it or
if you can send me files. I have a girl I’d like to introduce you to later on and we’ll
talk some trade offs at a later time. Can you give me a quote on a website
construction base on the information I gave to you? And can we [illegible] another
meeting at your best chance to talk some more ideas? If [illegible] would like we can
meet at a club and get some drinks and see some ladies and get some more contacts.

Armendariz received the following reply from Appellant’s e-mail address:
 I can’t really quote you on the cost of designing your website without more specific
info on what exactly you wish to show on each page, how different links/pages (to
determine bandwidth and space required number of DNS (Domain Names) you will
want to use. Each name will have [illegible] registered and renewed yearly about
$20/name. Monthly fees for [illegible] hosting and upkeep can be $30-$100/months
plus shopping cart fees, depending on what you will choose to host. I attached one
clip of the Pony enjoying himself, on good faith. [illegible] can have more when I
get to enjoy one of the ladies you offered to introduce to me. You can call me
anytime for more info or to set-up another meeting.

A video was attached to the e-mail--the same bestiality video viewed by the officers at Appellant’s

home. Armendariz specifically testified that he did not alter, change, fabricate, or reword the e-mail

and that a printout of the e-mail was a true and correct copy of the e-mail he received from

Appellant. When the State offered into evidence the bestiality video (State’s Exhibit 1) and the

print-out of the e-mail (State’s Exhibit 2), Appellant objected that they were untrue and

unsubstantiated. In support of his argument, Appellant introduced evidence showing that it is easy

to create an e-mail address using someone else’s name.1 The trial court overruled those objections

and admitted the exhibits into evidence.

Appellant’s twenty-four-year-old son, Miguel Varkonyi, testified that he and his brothers had

downloaded pornographic material onto his father’s computer and he recalled the “donkey and a

woman” video as one of those videos. He had seen this particular video on many computers and he

described it as a “viral video” which is a title given to a video when it receives a certain number of

“hits” on the internet. Miguel admitted that he did not have the video on his own computer. Miguel,

who had worked with his father in the computer business, testified that it was not possible to attach

a 140 kilobyte video to an e-mail and send it to a public e-mail address. In addition to Miguel’s

testimony, Appellant offered the testimony of four customers who testified Appellant had never

1
In an effort to prove his point, Appellant created an e-mail address using the prosecutor’s name and sent an
obscene picture, purportedly from the prosecutor, to Appellant’s e-mail address.
shown them anything obscene or pornographic. The trial court subsequently entered a written order

denying Appellant’s motion to suppress, stating that the evidence established that Appellant freely

admitted the undercover officers into Appellant’s home, voluntarily showed them the video alleged

to be obscene, and voluntarily transmitted the video as an e-mail attachment. The order expressly

states that the court was not persuaded by Appellant’s entrapment and technological impossibility

arguments. In the same order, the trial court found Appellant guilty as charged in the information.

ENTRAPMENT

In Issue One, Appellant contends that his prosecution should have been dismissed because

it was the result of illegal entrapment.2 Appellant did not file a written motion to dismiss asserting

entrapment as a matter of law but Appellant raised the issue at the pretrial hearing3 with the consent

of the trial court. At that hearing, he argued that the trial court should dismiss the case against him

because he was entrapped. The trial court denied Appellant’s motion after the trial on the merits had

concluded.

Entrapment is a defense to prosecution requiring the defendant to show that he engaged in

the conduct charged because he was induced to do so by a law enforcement agent using persuasion

or other means likely to cause persons to commit the offense. See TEX .PEN .CODE ANN . § 8.06(a)

(Vernon 2003). Conduct merely affording a person an opportunity to commit an offense does not

2
Appellant has not challenged the sufficiency of the evidence supporting the fact finder’s rejection of his
entrapment defense. Appellant’s first issue states: “W as the arrest and prosecution of Varkonyi the result of an
attempted illegal entrapment?” In footnote 5 of his brief, Appellant argues: “In entrapment cases, the trial court, as the
trier of fact, must weigh the evidence and determine whether the defendant was entrapped as a matter of law. Soto v.
State, 681 S.W .2d 602, 604 (Tex.Crim.App. 1984).” At no point in the discussion of Issue One does Appellant argue
that the evidence is legally or factually insufficient to support the fact finder’s rejection of his entrapment defense.
Consequently, we have interpreted Issue One as arguing only that Appellant proved his entrapment defense as a matter
of law.

3
Because the trial court did not conduct a distinct hearing on the pretrial motions but instead melded the
suppression hearing and the trial on the merits, it is difficult to discern where the pretrial hearing ended and the trial on
the merits began. Nevertheless, we will address Appellant’s entrapment issue as one which was raised and heard pretrial.
constitute entrapment. TEX .PEN .CODE ANN . § 8.06(a).

Normally, a defense such as entrapment is a question for the fact finder to decide unless as

a matter of law the accused has established beyond a reasonable doubt that he was entrapped.

Hernandez v. State, 161 S.W.3d 491, 498 n.12 (Tex.Crim.App. 2005); Melton v. State, 713 S.W.2d

107, 113 (Tex.Crim.App. 1986). The issue is usually reserved for the fact finder because it is

determined largely by weighing facts and assessing credibility. Hernandez, 161 S.W.3d at 498. A

defendant may, however, raise the legal issue of entrapment to the trial judge in a pretrial hearing

under Article 28.01 of the Code of Criminal Procedure. Hernandez, 161 S.W.3d at 498; TEX .CODE

CRIM .PROC.ANN . art. 28.01, § 1(9)(Vernon 2006).4 A defendant is entitled to dismissal of the

charges under Section 8.06 of the Penal Code in a pretrial hearing context only when he can establish

entrapment as a matter of law with conflict-free, uncontradicted, uncontested, or undisputed

evidence. Hernandez, 161 S.W.3d at 499. If the facts concerning entrapment are in dispute, there

cannot be entrapment “as a matter of law” determined at the pretrial stage. Id. It is the defendant,

not the State, who must establish beyond a reasonable doubt that he was entrapped. Id. At the

pretrial stage, the State has no burden to disprove the factual defense of entrapment beyond a

reasonable doubt. Id. When an entrapment defense is presented in either the pretrial or trial context,

the fact finder is authorized to weigh the evidence and draw a conclusion as to whether that evidence

establishes entrapment as a matter of law in the pretrial context or as a matter of fact or law in the

trial context. Id. at 500. A defendant’s testimony which is not directly contradicted at a pretrial

hearing may nonetheless be “disputed” because the trial judge, as the sole trier of fact, is not required

to believe that testimony. Id. In such a case, a trial court does not err in overruling a motion to

4
Although Article 28.01 allows the presentation of the entrapment defense in a pretrial motion to dismiss, it
is not required. Hernandez, 161 S.W .3d at 499 n.14, citing Bush v. State, 611 S.W .2d 428, 432 n.1 (Tex.Crim.App.
1981)(op. on reh’g).
dismiss. Id.

In reviewing a trial court’s denial of a defendant’s pretrial motion to dismiss based on

entrapment “as a matter of law,” an appellate court determines de novo whether any rational trier of

fact could conclude that the undisputed facts failed to establish all of the elements of entrapment.

Id. Our review must take into account that the trier of fact was free to accept or reject all or any

portion of any witness’s testimony. Id.

Appellant did not testify at trial. Instead, he sought to establish his entrapment defense

through his cross-examination of Officers Bazan and Armendariz. Appellant complains that it was

the undercover officers who urged him to “promote the video by asking him to email it to them; that

is, the criminal design originated in the mind of the police, not Varkonyi’s mind, and induced him

to commit a crime.”

The State argues that the offense was complete before Appellant e-mailed the video to the

police . The information alleged that Appellant, knowing the content and character of the obscene

material, promoted or possessed with intent to promote obscene material, to wit: material depicting

sexual bestiality. Promotion of obscene material includes its presentation and exhibition. See

TEX .PEN .CODE ANN . § 43.21(a)(5)(Vernon 2003). The officers testified that they did not ask

Appellant for any pornographic material when they were at his home in early July 2004. Instead,

Appellant, having been asked by Armendariz whether he had a problem with pornography, presented

and exhibited the video to them. The offense was complete at that point, and thus, Officer

Armendariz’s subsequent e-mail request for the video could not have entrapped Appellant into

committing the already-complete offense. Because Appellant failed to prove his entrapment defense

as a matter of law, the trial court did not err by denying his motion to dismiss the prosecution. We

overrule Issue One.
 AUTHENTICATION

In Issue Two, Appellant contends that the evidence was legally and factually insufficient to

sustain his conviction because the State failed to authenticate the e-mails and the attached video

evidence admitted as State’s Exhibits 1and 2. He also argues that the evidence is inadmissible

because the State failed to produce the originals as required by Rules of Evidence 1001 and 1002.

In reviewing both the legal and factual sufficiency of the evidence, we consider all the evidence

admitted at trial, even improperly admitted evidence. Moff v. State, 131 S.W.3d 485, 488

(Tex.Crim.App. 2004). In the event a portion of this evidence was erroneously admitted, the accused

may complain on appeal of such error. Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App.

1988). If his complaint has merit and the error is reversible, a new trial should be ordered. Id. But

the fact finder does not act irrationally taking such evidence into account. See id. Appellant’s

complaints regarding the sufficiency of the evidence resulting from the alleged inadmissibility of the

e-mail evidence are without merit. We will, however, address his arguments regarding the

admissibility of State’s Exhibits 1and 2.

Preservation of Error

To preserve an issue for review, a party must timely object and state the grounds for the

ruling sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context of the objection.

TEX .R.APP .P. 33.1(a)(1)(A). On appeal, Appellant argues that State’s Exhibits 1and 2 are

inadmissible because they were not properly authenticated and the State did not produce the originals

in court as required by Rules 1001 and 1002 of the Texas Rules of Evidence. The only objections

made by Appellant at trial to the two exhibits is that they were untrue and unsubstantiated.

Appellant’s objection that the evidence is “untrue” does not state a legal ground for exclusion of the
evidence. His objection that the evidence is “unsubstantiated” is sufficient to preserve a complaint

that the evidence was not properly authenticated. But his objection is insufficient to preserve the

argument made on appeal that the copies of the e-mail and video are inadmissible under TEX .R.EVID .

1001 and 1002 because the State failed to produce the originals in court, the admission of a duplicate

is unfair, and the State had failed to show that the copies accurately reflected the data contained in

a computer.

Authentication of State’s Exhibits 1 and 2

We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion.

Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Willover v. State, 70 S.W.3d 841, 845

(Tex.Crim.App. 2002). We will uphold the trial court’s ruling as long as it is within the zone of

reasonable disagreement. Moses, 105 S.W.3d at 627. The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient to support

a finding that the matter in question is what its proponent claims. TEX .R.EVID . 901(a). Subsection

(b) of Rule 901 includes a non-exclusive list of examples of authentication or identification

conforming with the requirements of this rule. TEX .R.EVID . 901(b). The fourth example is as

follows:
 (4) Distinctive characteristics and the like. Appearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.

TEX .R.EVID . 901(b)(4). Thus, a letter is properly authenticated under Rule 901(b)(4) if its

appearance, contents, substance, or other distinctive characteristics, taken in conjunction with

circumstances, support a finding that the document is what its proponent claims. TEX .R.EVID .

901(b)(4). The Texas Rules of Evidence Handbook identifies another traditional method of

authentication permitted by Rule 901 known as the “reply-letter doctrine.” CATHY COCHRAN , TEXAS

RULES OF EVIDENCE HANDBOOK, ARTICLE IX: AUTHENTICATION & IDENTIFICATION , at 915-15 (6th

ed. 2005). Under this doctrine, a letter received in the due course of mail purportedly in answer to

another letter is prima facie genuine and admissible without further proof of authenticity. Id. A

reply letter needs no further authentication because it is unlikely that anyone other than the purported

writer would know of and respond to the contents of the earlier letter addressed to him. Id. Because

the reply-letter doctrine has been applied to telegrams, Judge Cochran reasons that it logically would

apply to e-mail communications. Id.

Armendariz testified at trial that he received the e-mail and attached video from Appellant

in direct response to an e-mail sent by Armendariz to Appellant inquiring whether Appellant would

send him the “horse movie” file. Under the reply letter doctrine, the e-mail is authenticated. The

e-mail is also authenticated under Rule 901(b)(4). The evidence at trial established that Appellant

showed the bestiality video to the officers in his home. In his e-mail sent to Appellant’s e-mail

address, Armendariz stated that he had been searching for the horse movie “you showed us” and

asked whether Appellant would either tell him where he found it or send him the file. In direct

response to this e-mail, Appellant replied, “I attached one clip of the Pony enjoying himself . . . .”

Armendariz expressly testified that he received the e-mail with the attached video and the officers
identified the video attached to the e-mail as the same one shown to them in Appellant’s home.

Appellant was in a unique position of knowing that Armendariz’s inquiry about the “horse movie”

concerned the bestiality video seen when the officers were at Appellant’s home. Given the

distinctive content of the e-mail and the attached video and the circumstances under which it was

received by Armendariz, we cannot conclude that the trial court abused its discretion in deciding that

the evidence was authenticated under Rule 901(b)(4). See Shea v. State, 167 S.W.3d 98, 105

(Tex.App.--Waco 2005, pet. ref’d)(State, in prosecution for indecency with a child, adequately

authenticated six e-mail communications from defendant to victim; victim testified that she came

to know defendant’s e-mail address because he would call to confirm that she had received an e-mail

from him, several messages made reference to defendant’s occupation, one message indicated

familiarity with victim’s locker number, and victim testified that content of e-mail messages was

similar to conversations she had had with defendant over the telephone); Massimo v. State, 144

S.W.3d 210, 216 (Tex.App.--Fort Worth 2004, no pet.)(trial court acted within its discretion in trial

for harassment by electronic communication in concluding that copy of certain e-mail allegedly sent

by defendant to victim was sufficiently authenticated, where e-mail referred to altercation between

defendant and victim that occurred shortly before e-mail was sent, victim recognized defendant’s

e-mail address, victim testified that only defendant and few other people knew about things

discussed in e-mail, victim testified that way in which e-mail was written was way in which

defendant would communicate, and witness testified that she saw defendant send similar threatening

e-mail to victim using same vulgarities). Issue Two is overruled.
 SUFFICIENCY OF THE EVIDENCE

In his third issue, Appellant challenges the legal sufficiency of the evidence to prove that the

bestiality video is obscene.5 Pointing to evidence that the video is considered a “viral video,”

Appellant argues that its popularity indicates that the community embraces rather than rejects it.

The information alleged that Appellant, knowing the content and character of the obscene

material, promoted or possessed with intent to promote obscene material, to wit: material depicting

sexual bestiality. Promotion of obscene material includes its presentation and exhibition. See

TEX .PEN .CODE ANN . § 43.21(a)(5). The term “obscene” is statutorily defined:

(1) ‘Obscene’ means material or a performance that:

(A) the average person, applying contemporary community standards, would
find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(I) patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated, including sexual
intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbation,
excretory functions, sadism, masochism, lewd exhibition of the
genitals, the male or female genitals in a state of sexual stimulation
or arousal, covered male genitals in a discernibly turgid state or a
device designed and marketed as useful primarily for stimulation of
the human genital organs; and

(C) taken as a whole, lacks serious literary, artistic, political, and scientific
value.

TEX .PEN .CODE ANN . § 43.21(a).

Section 43.21(a)’s definition of obscene comports with the test set forth in Miller v.

5
The third issue alleges that the evidence is legally and factually insufficient to prove that the material is
obscene. The discussion under Issue Three does not include an argument demonstrating how the evidence is factually
insufficient. Further, in his prayer, Appellant only requests that we reverse the judgment of the trial court and render a
judgment of acquittal. Therefore, we construe his brief as raising only a legal sufficiency argument.
California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). The Penal Code defines

“material” to mean anything tangible that is capable of being used or adapted to arouse interest,

whether through the medium of reading, observation, sound, or in any other manner, but does not

include an actual three dimensional obscene device. TEX .PEN .CODE ANN . § 43.21(a)(2). “Patently

offensive” means so offensive on its face as to affront current community standards of decency.

TEX .PEN .CODE ANN § 43.21(a)(4).

In determining whether material is “constitutionally obscene,” appellate courts are obligated

to independently review and evaluate the material in accordance with the three-part test set out in

Miller. Castillo v. State, 79 S.W.3d 817, 826 (Tex.App.--Dallas 2002, pet. ref’d), citing Andrews

v. State, 652 S.W.2d 370, 383 (Tex.Crim.App. 1983). This three-pronged test requires the court to

consider whether: (1) the average person, applying contemporary community standards would find

the work, taken as a whole, appeals to the prurient interest in sex; (2) the work depicts or describes

in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3)

the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller, 413

U.S. at 24, 93 S.Ct. at 2615; Andrews, 652 S.W.2d at 378. Work which does not appeal to the

prurient interest, does not depict sexual conduct in a patently offensive way, and does not lack

serious literary, artistic, political, or scientific value is constitutionally protected. See Andrews, 652

S.W.2d at 384.

Appellant introduced evidence at trial that the bestiality video is considered a “viral video,”

a description given to a video when it receives an unspecified number of “hits” on the internet. He

reasons that because the video is so popular in the internet community, community standards

embrace rather than reject the video. Appellant’s reliance on the alleged popularity of the video in

the world-wide internet community is misplaced. If the appropriate community standard is not a
national one, it is certainly not a world-wide internet standard. See Miller, 413 U.S. at 32-33, 93

S.Ct. at 2619-20; see also Berg v. State, 599 S.W.2d 802, 805 (Tex.Crim.App. 1980)(rejecting

notion that contemporary community standards could be restricted to the territorial limits of Johnson

County, and approving a jury charge submitting the issue under “the contemporary community

standards of the State of Texas”). Appellant also presented evidence through his son that the video

was popular in dorms. While college campuses are one part of the community, they do not define

the standard for the entire community. We have reviewed the video under a statewide community

standard and find that the average person in Texas would find the images depicting a woman being

sexually penetrated by a pony appeals to the prurient interest in sex, depicts sexual conduct in a

patently offensive way, and lacks serious artistic or scientific value. Issue Three is overruled.

CONSTITUTIONAL CHALLENGE

In his final issue, Appellant brings for the first time on appeal a facial challenge to the

constitutionality of the Texas obscenity statute because it criminalizes, through its definition of

“promote,” the transfer of material which can lawfully be used or viewed in private. Appellant bases

his constitutional challenge on the right of privacy under the Due Process Clause of the Fourteenth

Amendment. The State responds that Appellant’s conduct of exhibiting the obscene bestiality video

to police in his home and transmitting the video by e-mail are not constitutionally protected

activities, and therefore, Section 43.23(c)(1) of the Penal Code was constitutionally applied to him

and his conduct.

A facial challenge to a statute is the most difficult because the challenger must establish that

no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d

631, 633 (Tex.Crim.App. 1992); Ex parte Dave, 220 S.W.3d 154, 156 (Tex.App.--Fort Worth 2007,

pet. ref’d). Since a statute may be valid as applied to one set of facts and invalid as applied to
another, the challenger must first show that the statute is unconstitutional as applied to him in his

situation. Santikos, 836 S.W.2d at 633; Ex parte Dave, 220 S.W.3d at 156. That the statute may be

unconstitutional as applied to others is insufficient to support a facial challenge. Santikos, 836

S.W.2d at 633; Ex parte Dave, 220 S.W.3d at 156. When we are confronted with an attack on the

constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted

unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002). The

burden rests on the individual who challenges the statute to establish its unconstitutionality. Id.

State statutes designed to regulate obscene material must be carefully limited, because the

First and Fourteenth Amendments prohibit making an individual’s private possession of obscene

material a crime. Ex parte Dave, 220 S.W.3d at 156, citing Miller v. California, 413 U.S. 15, 23-24,

93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) and Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct.

1243, 1249, 22 L.Ed.2d 542 (1969). Obscene material itself, however, is not protected by the First

Amendment. Ex parte Dave, 220 S.W.3d at 156, citing Paris Adult Theatre I v. Slaton, 413 U.S.

49, 69, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446 (1973). The Supreme Court has expressly rejected the

argument that the constitutionally-protected right to possess obscene material in the privacy of the

home creates a correlative right to receive it, transport it, or distribute it. U.S. v. Orito, 413 U.S. 139,

141, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973); United States v. 12 200-Ft. Reels of Super 8mm.

Film, 413 U.S. 123, 128, 93 S.Ct. 2665, 2669, 37 L.Ed.2d 500 (1973); United States v. Thirty-Seven

(37) Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971); see also, United

States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412-13, 28 L.Ed.2d 813 (1971)(holding that

constitutionally-protected right to possess obscene material in the privacy of the home does not

require that the Court fashion or recognize a constitutional right for commercial purveyors of

obscene material to distribute or sell it).
 Appellant argues that the United States Supreme Court’s decision in Lawrence v. Texas, 539

U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) supports his argument that Section 43.23’s

definition of “promote” renders the obscenity statute unconstitutional because it criminalizes

constitutionally-protected conduct, that is, the possession of obscene material in the privacy of an

individual’s home. In Lawrence, the Supreme Court held unconstitutional a Texas statute which

made it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Id.,

539 U.S. at 577-78, 123 S.Ct. at 2483-84, 156 L.Ed.2d 508. The Supreme Court held that the right

to liberty embodied in the Due Process Clause protects private, consensual sexual conduct between

homosexuals from governmental intrusion. Id., 539 U.S. at 578, 123 S.Ct. at 2483-84, 156 L.Ed.2d

508. The court found that the Texas sodomy law impinged on the exercise of that liberty interest.

Id., 539 U.S. at 578, 123 S.Ct. at 2484, 156 L.Ed.2d 508.

Although Lawrence does not involve the Texas obscenity statute, the Fifth Circuit relied

heavily on Lawrence in finding a portion of the Texas obscenity statute to be unconstitutional

because it criminalized the selling, advertising, giving, or lending of any device designed or

marketed for sexual stimulation unless the defendant could prove that the device was sold,

advertised, given, or lent for a statutorily-approved purpose. Reliable Consultants, Inc. v. Earle, 517

F.3d 738, 741 (5th Cir. 2008). The Fifth Circuit determined that the statute impermissibly burdened

the individual’s substantive due process right to engage in private intimate conduct of his or her

choosing because an individual is unable to legally purchase a device in Texas. Id. The opinion

does not include in its analysis any of the Supreme Court cases holding that the

constitutionally-protected right to possess obscene material in the privacy of one’s home does not

give rise to a correlative right to receive the materials or to sell or give it to others. We decline to

follow Reliable Consultants because we do not read Lawrence as overruling this line of authority.
See Ex parte Dave, 220 S.W.3d at 159 (holding that Lawrence did not overrule Paris Adult Theatre

I v. Slaton6 in which the United States Supreme Court upheld a Georgia statute virtually identical

to the Texas obscenity statute). Further, we find that Lawrence is inapplicable to the instant case

because it did not involve the promotion of obscene materials.

The evidence admitted at trial established that Appellant committed two offenses of

promotion of obscene material, the first occurring when he presented or exhibited the material to the

officers in his home, and the second occurring when he e-mailed the video to Armendariz. Because

Appellant did not move for the State to elect upon which of those incidents it sought a conviction,

the conviction is supportable under either of the two theories. Appellant’s conviction under either

theory does not criminalize constitutionally protected conduct. While Appellant’s viewing of the

material in the privacy of his own home is protected conduct, his exhibition of the material to the

undercover police officers in the context of a business transaction involving the employment of

Appellant to set up a pornographic website is not. See Adams v. State, 804 N.E.2d 1169 (Ind. App.

2004)(rejecting defendant’s argument that his conviction for exhibiting obscene materials must be

vacated because he displayed the images at his own residence where the evidence showed that the

defendant displayed the videos because he desired to make a sale of obscene matter to the

undercover police officer in response to showing him the images on the computer). Nor does

Appellant have a right to give obscene material to others. Consequently, his transmission of the

video as an e-mail attachment is not constitutionally-protected conduct. Section 43.23(c)(1) was

constitutionally applied to Appellant and his conduct under the facts of this case. We overrule Issue

Four. Having overruled all issues for review, we affirm the judgment of the trial court.

6
413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).
May 8, 2008
ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Publish)