dissenting.
After a bench trial, Kenneth Alan Yorko, appellant, was convicted of “possesspng] with intent to sell an obscene device, namely, a dildo, knowing the content and character of the device.” Punishment was assessed at three days’ confinement in the Harris County jail and a $750 fine.
This offense is circumscribed by the provisions of V.T.C.A., Penal Code, Sections 43.21(a)(7) and 43.23(c)(1). The latter provides in part that a person commits an offense if, knowing its content and character, he possesses any obscene device with intent to promote it. The word “promote” is statutorily defined to mean “to manufac*269ture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do same.” “Obscene device” is statutorily defined to mean “a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” Sec. 43.21(a)(7), supra.
A “dildo” is not defined in the Penal Code. However, its common definition is that it is an inanimate object or device, designed in the form of an erect penis, which, in its manufactured state, can only be seen or touched. See Hall v. State, 661 S.W.2d 101 (Tex.Cr.App.1983) (Teague, J., Concurring Opinion). A dildo may be used to stimulate human genital organs, but it need not be so used.
There are no exceptions provided in the statute. Any person who, knowing its content and character, possesses with intent to “promote” a dildo is guilty of violating the statute. A physician, a psychiatrist, or a psychologist may be guilty of committing such crime. Whether the promotion of the object occurs in the privacy of one’s bedroom or out in the general public makes no difference. A husband who provides his wife with a commercially available vibrator in the form of a dildo in the privacy of their bedroom may be just as guilty as a psychologist who provides the wife such in the privacy of his office.
In the trial court, appellant filed a motion to quash the information, asserting therein that V.T.C.A., Penal Code Sections 43.-21(a)(7) and 43.23(c)(1) were both unconstitutional, “under the due process ... [clause] of the Fourteenth Amendment to the Constitution of the United States and the equivalent provision of the Constitution of Texas.” The motion was denied by the trial court. On appeal, appellant further argued that the statutes violated his right to privacy guaranteed under the Fourteenth Amendment to the Federal Constitution. He lastly argued that the statutes are an excessive use of the State’s police power under the Texas Constitution.
The Fourteenth Court of Appeals, in a unanimous opinion by its Chief Justice, Hon. J. Curtiss Brown, affirmed, see Yorko v. State, 681 S.W.2d 633 (Tex.App.1984) and held that the above statutes are not unconstitutional under either the United States or Texas’ Constitutions.
In rejecting appellant’s assertion that the statutes are unconstitutional, the Court of Appeals started with the premise that a dildo is an “obscene device” and that one has no right of privacy to an obscene device. It held: “The United States Supreme Court has stated that there is no privacy right implicit in obscene displays in public places. Paris Adult Theatre I v. Slaton, 413 U.S. 2628, 2640 (1973). The right to privately possess obscene material [or an obscene device] is simply not at issue when such material is offered for sale to the public. Goodwin v. State, 514 S.W.2d 942, 944 (Tex.Cr.App.1974).”
In Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir.1981), cert. denied 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982), the Fifth Circuit had occasion to address the validity of Sec. 43.21(a)(7), supra. That Court pointed out that the language of the Texas statute is patterned on the Georgia obscenity statute, Ga.Code Sec. 26-2101(c), and also pointed out that the Georgia Supreme Court, see Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), had rejected the defendant’s assertion that the statute was vague and overbroad and found no constitutional problem with Georgia’s prohibition of the sale of such devices. The Fifth Circuit next pointed out that the United States Supreme Court had dismissed Sewell’s appeal for want of a substantial federal question. Sewell v. Georgia, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). It then concluded: “Thus, the constitutional propriety of the Texas counterpart to this Georgia obscenity provision is clear.” (1028).
This Court’s majority opinion in this cause correctly points out that we do not have a transcription of the statement of the facts, or a stipulation of evidence, before us. We do not even have the dildo that *270appellant was convicted of possessing. Thus, in making the determination whether the above statutes are constitutionally valid, we are dealing with an extremely sparse record on appeal.
I find that the gist of what appellant asserts before us is that he claims that he has a constitutional right to privacy that authorizes him to sell dildos in public to those persons who desire them. Appellant, however, does not claim that what he wants to sell is protected by the First Amendment. This is easily understandable when one considers that there is no case authority that stands for the proposition that the sale of an object or device such as a dildo is protected by the First Amendment provisions of either the Federal or State Constitutions. E.g., Hall v. State, 661 S.W.2d 101 (Tex.Cr.App.1983) (Teague, J., Concurring Opinion).
Appellant claims, however, that prosecution for sale of a dildo “is nonsensical; that the State cannot articulate any reason, compelling or otherwise, why public sale of a dildo should be outlawed.”
I believe what Justice Stewart stated in the dissenting opinion he filed in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), which case held that a Connecticut law which prohibited the distribution of contraceptive devices unconstitutionally intruded upon the right of marital privacy, is responsive to appellant’s statement: “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution.” Except for the fact that we are dealing with a sexual device, I adopt and approve all of what Justice Stewart has stated as far as it may be applied to this cause.
It is not now open to question that each State has the right, under its police power, to safeguard the health, comfort, safety, morals, and general welfare of its citizens by such laws as are reasonable and necessary for that purpose. Lochner v. New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937 (1905). The exercise of this power is a legitimate legislative function, and this Court does not sit as a superlegislative body to determine the desirability or propriety of statutes enacted by the Legislature. Griswold v. Connecticut, supra, 381 U.S., at 482, 85 S.Ct. at 1680.
If a law is legislatively enacted under the police power of the State to protect the health, comfort, safety, morals, and general welfare of its citizens, and such has a real, substantial relation to that object, the courts will not strike it down upon grounds merely of public policy or expediency. Lombardo v. Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934).
Courts favor the constitutionality of statutes and the cardinal principle of statutory construction is to save, not to destroy. Our courts are obligated to uphold such laws and avoid doubts as to the constitutionality whenever possible. The courts should be reluctant to strike down a statute as unconstitutional unless and only when it is absolutely necessary on the facts or circumstances presented by the particular case. In the field of constitutional law, no stronger presumption exists than that which favors the validity of a statute. A legislative act must be sustained unless it is clearly invalid beyond a reasonable doubt. The strength of this presumption is nurtured by an appreciation of the needs of the people and by a recognition that laws are directed to problems manifested by experience. The courts will not exert ingenuity to find reasons for holding a statute invalid; rather, they will sustain its validity even if it is valid by the narrowest of margins. This is particularly true when *271the statute pertains to governmental policies established in the interest of public health, safety, morals, and welfare, Vernon v. San Antonio, 406 S.W.2d 236 (Tex.Civ.App.—Corpus Christi 1966), and the statute does not involve proscribing that which is constitutionally protected.
Thus, where there is a challenge to the constitutionality of a statute, it is vested with a presumption of validity and this Court must construe it so as to uphold its constitutionality when possible. V.T.C.A., Penal Code, Section 1.05(b); Art. 5429b-2, Sec. 3.01(1), V.A.C.S.; Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979).
I agree that the issue before us does not implicate the doctrine of vagueness, because the terms of the statute clearly put one on notice that which is proscribed. Conally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
But, the doctrine of overbreadth, a legal concept parallel to the doctrine of vagueness, does not speak to the issue of notice and adequate standards, but, instead, speaks to the issue of whether the language of the statute is so broad that it criminalizes conduct protected under the Constitutions. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski, et al. v. Eastland, et al., 387 U.S. 82, 87 S.Ct. 1425, 18 L.E.2d 577 (1966).
Before Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.E.2d 419 (1973), which held that printed material was not protected by the First Amendment to the United States Constitution if the material, when viewed as a whole, appeals to the prurient interest in sex, and the material portrays “Sexual conduct in a patently offensive way, in which, taken as a whole [does] not have serious literary, artistic, political, or scientific value,” was decided, this Court had stated the following: “The legislature [of Texas] has made certain activities in obscenity the subject of criminal liability, and, with the exception of private possession for personal use, Stanley v. Georgia,1 the federal constitution does not immunize those properly convicted from the sanctions imposed.” Bryers v. State, 480 S.W.2d 712, 716 (Tex.Cr.App.1972).
In light of what the majority opinion states and holds, it is obvious to me that it fails to appreciate the importance that human sexual devices play in our present society, opting instead to put all human sexual devices under the umbrella labeled “obscene devices.”
A “dildo,” however, is not a human sexual device that is covered by a first amendment protected expression right, for the simple reason that it expresses nothing. See Andrews v. State, 652 S.W.2d 370 (Tex.Cr.App.1983); Hall v. State, supra; also see Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed.2d 1138 (1925).
However, the majority appears to hold that because this inanimate object has been declared by the Legislature to be an “obscene device” there is no way that one might have a constitutionally protected right to privacy in such an object.
An “Obscene device” is legislatively defined to be a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs. Sec. 43.21(a)(7).
However, therein lies the problem. Nowhere does the statute prescribe any guidelines or standards by which one might make the factual determination whether what is called “a dildo” is an “obscene device.” Facial overbreadth will not be invoked, however, when a limiting construction can be placed on the challenged statute. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).
It is not now open to debate that the above statutes include far reaching prohibitions that the State cannot legitimately control. Red Bluff Drive-In, Inc. v. Vance, supra. Also see the dissenting opinion that Judge Clinton has filed in this cause.
Appellant does not refer us to any legal authority, and my research has yet to re*272veal any, that expressly states or holds that knowing possession of a dildo in public, however such object or device might be defined, with intent to sale, is either a Federal or State constitutionally protected right. Thus, this appears to be a case of first impression.
It is obvious that appellant’s attack upon the statutes rests in his claim that they infringe upon his constitutional right to privacy, i.e., the constitutional right to privacy is without a zone of privacy which might otherwise surround a seller or giver of an object such as a dildo. E.g., Goodwin v. State, 514 S.W.2d 942 (Tex.Cr.App.1974).
What is the real legal distinction between a seller or giver of rubbers or contraceptive devices and a seller or giver of dildos? The Supreme Court has seen fit to give the seller or giver of rubbers or contraceptive devices a constitutional right to privacy but has not yet seen fit to give the seller or giver of a human sexual device, such as a dildo, such a right. Should, however, in resolving this issue, it not be true that, as Judge Clinton points out in the dissenting opinion he has filed in this cause: “It is sufficient that there is a constitutional right to personal privacy broad enough to encompass a person’s decision to engage in private consensual sexual activity in any manner or means not proscribed by law?”
In this regard, I am aware of the constitutional attacks that have been made against the Georgia statute, which is in all things like our own statute. See Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), appeal dism’d sub nom. Sewell v. Georgia, supra; Teal v. State, 143 Ga.App. 47, 238 S.E.2d 128 (1977), appeal dism’d sub nom. Teal v. Georgia, 435 U.S. 989, 98 S.Ct. 1639, 56 L.Ed.2d 79 (1978); and Simpson v. State, 144 Ga.App. 657, 242 S.E.2d 265 (1978), appeal dism’d sub nom. Simpson v. Georgia, 439 U.S. 887, 99 S.Ct. 241, 58 L.Ed.2d 233 (1978). On each occasion, the United States Supreme Court has dismissed the appeal for want of a substantial federal question. In light of Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the dismissals by the Supreme Court may constitute adverse decisions on the merits of the Federal constitutional claim appellant attempts to assert in this cause. Nevertheless, a careful reading of what the members of the Supreme Court have said in the above cases easily leads one to conclude that they have not yet answered the question that is before this Court.
The majority opinion makes a valiant, but unsuccessful, effort to draw a distinction between the sale or receipt of a sexual behavioral device, such as a dildo, and the sale and use of contraceptive devices.
However, but because of what the Supreme Court stated and held in Griswold v. Connecticut, supra, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Carey v. Population Services International, et al. 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), its efforts are actually without merit.
I would hold that appellant had the constitutional right to sell or give away the dildo he was prosecuted and convicted for possessing. The above challenged statutes are overbroad because they reach a constitutionally protected right. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
If the State may not deny access to contraceptive devices, how can it deny access to human sexual devices that, as a matter of common knowledge, have much therapeutic value, and are harmless in themselves. We have come too far in the study of human sexual behavior of the human male and female since the day Kinsey, Pomeroy, and Martin wrote their work Sexual Behavior in the Human Male (1948), and their sequel, Sexual Behavior in the Human Female (1953), and have learned too much from the scientific research compiled by such persons as Kaplan, Caplan, Silvergalp, Lapichio, Green, Masters, Johnson, McCarthy, McCary, Ryan, Lee, Ellis, Pomeroy, and others to turn the clock back to more unenlightened times, and to approve the distinction the majority attempts *273to draw. The majority’s efforts should not be applauded.
It is common knowledge today that a person who has problems dealing with sexual behavior can suffer from depression and anxiety reaction, to such an extent that such a problem can cause an identity problem as far as self-image and self-confidence is concerned. It is also common knowledge today that trained experts in the field of human sexual behavior use sexual aids, such as a dildo, in their endeavors to cure their male and female patients’ sexual problems. In fact, a Dr. William Simon of Houston, who is an eminently qualified expert in the field of human sexual behavior, has testified that it should be lawful for persons who are not licensed and certified psychologists to distribute, disseminate, give away, or lend such a sexual device as a dildo to others. As to harmful effects, Dr. Simon has testified that “Insofar as I can see no significant chance of harm or risk to the individual exists. This kind of self-prescribing doesn’t strike me as being at all untoward and indeed may well serve many people who have neither the money nor the sophistication to seek more professional help.” Hall v. State, supra, at p. 307 of the transcription of the statement of facts.
It is axiomatic that a regulation valid for one sort of enterprise, or in a given set of circumstances, may be invalid for another sort, or for the same enterprise under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. Nebbia v. New York, 291 U.S. 502, 524, 54 S.Ct. 505, 78 L.Ed. 940 (1934).
Under the State’s police power, as long as the law is reasonable, as applied, and that the means selected have a real and substantial relation to the object sought to be attained, provided that it does not infringe upon or burden a constitutionally protected right, it will be upheld. “If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio ...” Nebbia v. New York, supra.
In this cause, it is not disputed that appellant was squarely on notice that his possession for sale of an unconstitutionally protected device or object, a dildo, was penally prohibited. Without more, the above principles of law would control the disposition that must be made of appellant’s contention.
However, in this instance, appellant had the right to privacy in the dildo he possessed with intent to sell. Thus, such falls without the prohibited zone of the police power of the State. Cf. Smith v. State, 478 S.W.2d 518 (Tex.Cr.App.1972); Deeds v. State, 474 S.W.2d 718 (Tex.Cr.App.1971). In this instance, the statutes as applied to appellant’s act of knowingly possessing in public what has been labeled by the Legislature an obscene device are overbroad, and violate a constitutionally protected right. Cf. McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974).
However, but as the Supreme Court pointed out in Carey, supra, such a business as manufacturing and selling such sexual devices as dildos may be regulated in ways that do not infringe protected individual choices. Notwithstanding this principle of law, regulations imposing a burden on such must be narrowly drawn to express only those interests, such as safeguarding health, maintaining medical standards, etc.
It should be obvious to anyone that from the little information that the Legislature had before it when it enacted the above statutes, governing the prohibition of knowing public possession, with intent to sell, of a dildo, it did not have before it sufficient evidence to justify what it did on the basis of the health, safety, morals, or general welfare of the public.
The statutes, encompassing dildos, are unconstitutional. For the above reasons, I must respectfully dissent to the majority opinion sustaining the statutes.
. 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).