Dissenting Opinion By
Justice JAMES.I take no issue with the majority’s opinion the material is obscene and unprotected by the First Amendment. I also take no issue with the majority’s opinion (1) the State’s failure to" present the content and character of the entire comic book series does not render the evidence legally and factually insufficient; and (2) the evidence is legally sufficient to establish beyond a reasonable doubt appellant’s knowledge of the content and character of the book. My disagreement is in the majority’s conclusion the evidence of appellant’s knowledge of content and character is not so weak as to render appellant’s conviction manifestly unjust. Because I do not find in the record sufficient evidence appellant had knowledge of the sexually explicit character and content of the offending comic book to overcome the presumption of appellant’s innocence, I respectfully dissent.
In conducting a factual sufficiency review, we must show deference, although not absolute deference, to the fact finder. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000). The degree of deference must be proportionate with the facts we can glean from the trial record, considering only those few matters bearing on credibility that can be fully determined from the transcribed record before us on appeal. Id. Unless the available record clearly reveals a different result is appropriate, we must defer to the jury’s determination of the weight to give contradictory testimonial evidence because resolution often turns on credibility and demeanor of witnesses. Id. When we find the evidence supporting conviction factually insufficient, we must detail all of the evidence and show how it is insufficient. Id. Accordingly, I will detail the relevant evidence concerning appellant’s knowledge of the character and content of the offending comic book.
At the outset, relying solely on circumstantial evidence, the majority equates appellant’s extensive knowledge of comic books in the store’s inventory with his implied recognition of the specific obscene character and content of “Demon Beast Invasion.” The majority then builds upon that tenuous equation the further improvisation that, because the book was shelved in the adults-only section of the store and had a not-for-children label on its cover, appellant “was undisputably familiar with ‘Demon Beast Invasion.’ ” To the contrary, appellant testified he knew the comic book by its front cover only and had never seen its contents. When asked for the comic book, appellant told Reynerson the book was not in stock and offered to order it for him. When Reynerson returned with a copy of the comic book, he handed it to appellant with the front cover up. Appellant received payment from the officer and placed it in a bag. Contrary to the majority’s opinion, the cover does not place appellant on notice of the comic book’s content and character. The title on *829the cover, “Demon Beast Invasion,” may be characterized as violent, but not sexually explicit. Moreover, although the majority characterizes the cover as depicting a “nude female,” it actually depicts a cartoon line-drawing of a female figure, either nude or partially nude, and it suggests no sexually specific content. It does not reveal any genitals and does not suggest a state of arousal. In fact, Reynerson described the cover as “It appears to be a nude female” (emphasis added). Additionally, Reynerson testified he took the comic book back to his office to compare it to other materials to determine if it met the criteria of the penal code. This is some evidence from the State the character and content of the book could not be readily determined from its cover or the label on the cover. The strongest evidence adduced by the State was Reynersoris testimony that all of the comic books he saw bearing the “Absolutely Not for Children” label contained sexually explicit depictions. However, this testimony does not add anything to the issue of appellant’s knowledge because comic books shelved in the restricted area of Keith’s Comics containing violent themes were also given this warning label.
Appellant admitted he was familiar with the title of “Demon Beast Invasion,” and knew it was on three shelves restricted to adult readers because of the violent and sexual nature of the comic books placed there. He testified he had not seen the contents until they were presented at trial. His testimony was consistent with the testimony of Reynerson that appellant saw only the front cover of the comic book before he placed it in a bag and handed it to the officer. Appellant denied seeing the “absolutely not for children” label. If Reynerson had to take the book back to his office to determine its character and content, how can it be said it is “undisputa-ble” that the restricted location of the comic book and appellant’s observation of the cover placed him on notice of the character and content of “Demon Beast Invasion”?
The majority’s opinion relies heavily on Burden v. State, 55 S.W.3d 608 (Tex.Crim.App.2001), to sustain the jury’s inferred finding of appellant’s knowledge based on this limited circumstantial evidence. I respectfully suggest this reliance is misplaced. In Burden, an undercover detective purchased an obscene videotape from a defendant employed in the Star Adult Video Center. Id. at 610. The offending video was purchased by first selecting a box bearing the title: “Hardcore Schoolgirls Volume 5.” Id. The box had several sexual statements and eleven sexually explicit scenes. Id. Only sexually explicit videos were sold there. Id. at 611. The defendant testified the store had between twenty-five and thirty thousand videotapes, he knew the character of the films was sexually explicit, and he had a general understanding of what was on most of the tapes. Id. However, he denied he knew the exact content of the particular tape the detective purchased from him. Id. The court of criminal appeals held section 43.28(c)(1) does not require a defendant to have knowledge that what he promotes is legally obscene; the section requires only proof a defendant have knowledge of the material’s sexually explicit character and content. Id. at 613. The defendant’s own testimony provided direct evidence he had the requisite criminal scienter for conviction under section 43.23(c)(1). Id. at 614.
This is not so with the case before us. Here, Keith’s Comics is primarily a mainstream magazine store carrying an inventory of comic books and action figures that have no sexually explicit contents. Only on three shelves in a restricted area are violent and sexually explicit books sold. Both sexually explicit and violent comic books bear the same warning label. The *830cover of “Demon Beast Invasion” does not reveal its sexually explicit content and character. The direct evidence of appellant’s criminal scienter or knowledge of the content and character of the comic book Reynerson purchased in this case consists of (a) appellant’s denial he had ever seen its contents and assertion he did not know from its cover its sexually explicit contents; (b) the restricted area contained both violent and sexually explicit materials; and (c) the warning label for children was on both types of books. Nevertheless, the majority’s opinion relies solely upon the location where the book was displayed, the front cover, and the warning label to provide circumstantial evidence sufficient to prove appellant’s knowledge of the book’s content and character.
In criminal prosecutions implicating First Amendment rights of free expression, the State must prove the defendant had the requisite criminal scienter. See Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Without this requirement, the State could “work a substantial restriction on the freedom of speech and press.” Id.
With my conclusion that the cover conveyed no notice of its sexually explicit content, I would conclude the evidence falls far short of overcoming the constitutional and statutory presumption of innocence and proving beyond a reasonable doubt the requisite criminal scienter. See Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2002); Tex. Pen.Code ANN. § 2.01 (Vernon 1994); Randle v. State, 826 S.W.2d 943, 945 n. 3 (Tex.Crim.App.1992). I would apply the factual sufficiency formulation in Johnson, 23 S.W.3d at 11, to conclude the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination.
Accordingly, I respectfully dissent from that portion of the majority opinion finding the evidence factually sufficient. Because I would conclude the evidence is factually insufficient and remand for a new trial, I would not address the merits of the remaining points of error.