dissenting.
I am compelled to file this dissenting opinion because the majority opinion erroneously concludes that the State’s evidence that was presented in this cause is sufficient to establish beyond a reasonable doubt that prior to the sale of an obscene magazine to an undercover vice officer the appellant, Steven Wesley Carroll, knew the content and character of the magazine, i.e., that any rational trier of fact could find beyond a reasonable doubt that prior to the sale of the magazine in question the appellant had knowledge of the content and character of the magazine. The evidence that was adduced in this bench trial, however, was insufficient, not sufficient, to show that prior to the sale of the magazine in question to the undercover vice officer the appellant knew the content and character of the magazine, and I do not believe that any rational trier of fact could find that the evidence is sufficient to sustain the implicit finding of the trial judge, that prior to the sale of the magazine in question the appellant knew the content and character of the magazine.
On direct appeal, in an unpublished opinion, the Houston [First] Court of Appeals reversed the judgment of the trial court, holding that “Without the use of the unconstitutional presumption contained in Section 43.23(3), the evidence is insufficient to support a finding that the appellant knew the content and character of the magazine.” Carroll v. State, No. 01-83-0229-CR, September 27, 1984.
There is, however, nothing in the record on appeal to support the finding by the court of appeals, that in finding the appellant guilty the trial judge either expressly or implicitly invoked or applied in this cause the presumption provided by the provisions of V.T.C.A., Penal Code, Section 43.23(e). Thus, the majority opinion correctly finds that the court of appeals erred in holding that the trial judge implicitly invoked and applied in this cause the above presumption.
The majority opinion also correctly holds that to prove the offense of promotion of obscenity, see Y.T.C.A., Penal Code, Section 43.23, the State need not use or rely upon any particular kind of evidence as its proof; i.e., it may establish its case either by direct or circumstantial evidence or by a combination of both. In this instance, the State, in proving its case against the appellant, attempted to use both direct and circumstantial evidence. However, it failed *917dismally in its efforts to prove that before the magazine in question was sold to the undercover vice officer the appellant had knowledge of the content and character of the magazine.
Notwithstanding the State’s abysmal failure to muster sufficient proof to show that before the magazine in question was sold to the undercover vice officer the appellant had knowledge of the content and character of the magazine, the majority opinion nevertheless, but erroneously, concludes that the evidence is sufficient to sustain the finding by the trial judge that prior to the sale of the magazine in question the appellant had knowledge of the content and character of the magazine.
The majority opinion is dead wrong for several reasons.
First off, I find that the majority opinion erroneously fails to invoke and apply the correct test that is to be used on appeal in judging the sufficiency of the evidence, which is whether from the facts that the State presented in this cause any rational trier of fact could find beyond a reasonable doubt that prior to the sale of the magazine in question to the undercover vice officer the appellant knew the content and character of the magazine. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which the test was first formulated. The majority opinion, instead of using the correct appellate test, in judging whether the evidence is sufficient to show beyond a reasonable doubt that prior to when the magazine in question was sold to the undercover vice officer the appellant knew the content and character of the magazine, opts instead to merely conclude: “From both the circumstantial and direct evidence against the appellant, the trial court could rightfully determine that appellant knew the character and content of ‘Super #3’ at the time he sold it to Officer Wong.” However, from the facts that were adduced, and the law that is applicable to this case, the majority opinion’s conclusion is simply dead wrong, and that is why I must dissent.
The second reason why I find that the majority opinion’s conclusion is clearly erroneous is that it is based upon insufficient, and not sufficient, facts. The following are all of the possible incriminating facts from which any rational trier of fact could find beyond a reasonable doubt that prior to the sale of the magazine in question to the undercover vice officer appellant knew the content and character of the magazine:
1. The appellant picked up 2 boxes at United Parcel Service, which were addressed to both Empire Distributors and appellant at 1307 Wilcrest, # 259, which is appellant’s home address;
2. An assumed name certificate, reflecting that the business Empire Distributors was owned by a person with the same name as appellant, was admitted into evidence;
3. The appellant then took the boxes to a place of business, The Palace Bookstore, located at 7637 ⅝ Long Point, which was an adult bookstore; however, no evidence was presented to show what, if any, relationship the appellant might have had with The Palace Bookstore;
4. Once inside of the bookstore, the appellant unloaded magazines from the boxes onto a counter;
5. He then took the magazines and placed them in plastic cellophane wrappers;
6. He then handed the magazines to another person, who then sealed the wrappers with a heat lamp;
7. He then placed the magazines on shelves;
8. The undercover vice officer picked up one of the magazines off a shelf, took it to a counter, handed the magazine and a $20 bill to appellant, who handed the magazine and money to the other person to make change for the purchase, which he did, and, after putting the magazine in a bag, that person returned the magazine and change to the undercover vice officer; and
9. Appellant “appeared” to have looked at the cover of the magazine twice.
*918Clearly, the above facts are insufficient, and not sufficient, to support the trial judge’s implicit finding that prior to when the magazine in question was sold to the undercover vice officer the appellant had knowledge of the content and character of the magazine. Furthermore, the above facts are insufficient to establish that any rational trier of fact could find that prior to the sale of the magazine in question the appellant had knowledge of the content and character of the magazine.
The third reason why I find that the majority opinion’s conclusion is clearly erroneous is because it erroneously states that the undercover vice officer testified “that, during this process, appellant saw the cover of the magazine ... at least twice.” The undercover vice officer testified to no such thing. The record clearly reflects only the following regarding what the undercover vice officer observed: “[By the prosecuting attorney]: How many occasions was it that Mr. Carroll [the appellant] appeared to be looking at the cover of the magazine, sir? [My emphasis] A: At least twice.” Thus, the undercover vice officer never testified that he actually saw appellant look at the front cover of the magazine at least twice; he only testified that it “appeared” to him that appellant twice saw the front cover. Contrary to the majority opinion, I believe that there is a world of difference between the phrases “appearing to have seen” and “actually seeing.” Furthermore, in Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984), this Court expressly stated that “the fact that the cover of a magazine might be objectionable does not make the magazine legally obscene. It is the content and character of the magazine, not the cover, which determines whether the magazine is legally obscene.” Having authored that statement, I can attest that it was not meant to be used as any test in judging on appeal the sufficiency of the evidence in obscenity cases, but was merely an expression that I found might be applicable to that cause, as to whether the evidence established beyond a reasonable doubt that the defendant had knowledge of the content and character of the obscene material he was convicted of promoting.1
The fourth reason why I find that the majority opinion’s conclusion is clearly erroneous is that it seizes upon irrelevant and immaterial facts that pertain to the interior of The Palace Bookstore to support its conclusion. This evidence only reflects or indicates that the appellant either knew or should have known that when the magazine in question was sold to the undercover vice officer he was then situated or located in a “dirty” book store.
I pause to point out that there is no evidence in the record that might tend to reflect or indicate what, if any, relationship or connection the appellant might have had with The Palace Bookstore. For all this record shows, appellant was nothing more than a delivery person, who, after picking up merchandise addressed to him at United Parcel Service, then delivered same to The Palace Bookstore, and thereafter assisted another person in making the magazines available to those members of the general public who enjoy perusing such magazines. I also pause momentarily to point out that there is no evidence that might reflect or indicate what, if any, relationship or connection the other person had with The Palace Bookstore.
The appellant, however, was not on trial for being present in a “dirty” book store or for assisting another person in making the magazines he delivered to The Palace Bookstore available to the general public; instead, he was on trial for having sold an allegedly obscene magazine to an undercover vice officer, having at the time knowledge of the content and character of the magazine. Of course, if the evidence had established that the appellant was not the primary actor, but at most was responsible for the actions of the primary actor, he could have been convicted as a party to the commission of the offense. Beier v. State, 687 S.W.2d 2 (Tex.Cr.App.1985). However, *919there is no evidence that might tend to reflect or indicate that the appellant was a party to the commission of the offense.
The fifth reason that the majority opinion’s conclusion is clearly erroneous is because it reads too much into this Court’s En Banc per curiam opinion of Gonzales v. State, 689 S.W.2d 231 (Tex.Cr.1985), in which this Court refused the State’s petition for discretionary review.2 In Gonzales v. State, supra, all that this Court stated and held was that it agreed in part with the opinion by the Houston [First] Court of Appeals, but disagreed in part to the reasoning used by the court of appeals in holding that the evidence adduced in that cause was insufficient. Nowhere in the opinion does it expressly state that this Court disapproved or reversed the holding of the court of appeals that the evidence was insufficient. By refusing the State’s petition for discretionary review, this Court implicitly approved the holding by the court of appeals that the evidence was insufficient to sustain the verdict of the jury in that cause.
Many persons, including the author of the majority opinion, have either misinterpreted or want to read too much into what this Court stated and held in Gonzales v. State, supra. This, however, reflects only a lack of appreciation of the history of that case, which I will now present.
After a jury trial, the defendant Gonzales was convicted of selling an obscene magazine to an undercover vice officer. On direct appeal to the Houston [First] Court of Appeals, Gonzales asserted, inter alia, that the jury should not have been instructed on the presumption provided by the provisions of Section 43.23(e), supra. The court of appeals agreed with Gonzales. Relying upon this Court’s decision of Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983), which was not then final because the State’s motion for rehearing had been granted, but which held that the above statutory presumption was an infringement upon freedom of expression and could not be used to establish guilty knowledge on the part of the defendant of the content and character of obscene material, the court of appeals ordered Gonzales’ conviction reversed because of the erroneous instruction to the jury. Both Gonzales and the local district attorney filed petitions for discretionary review; Gonzales asserted in his petition that “the judgment should be reformed to show an acquittal”; the local district attorney asserted in his petition that because Davis v. State, supra, had not become final, his petition should be granted, “so that this case can be decided in accordance with [this Court’s decision on the State’s motion for rehearing in] Davis v. State, supra.” On October 19, 1983, this Court denied the State’s motion for rehearing in Davis v. State, supra, upholding the original decision, that because a First Amendment freedom was implicated at the outset in that cause the above presumption could not be used to obtain the defendant’s conviction, and rejected the State’s contentions that (1) our original opinion was in conflict with People v. Kirkpatrick, 32 N.Y.2d 17, 343 N.Y.S.2d 70, 295 N.E.2d 753 (1973), appeal dismissed for want of a substantial federal question sub nom., Kirkpatrick v. New York, 414 U.S. 948, 94 S.Ct. 283, 38 L.Ed.2d 204 (1974), and (2) that the action by the Supreme Court represented a ruling on the merits.
On November 30, 1983, this Court, in a per curiam unpublished opinion, granted both the State’s and the defendant Gonzales’ petitions for discretionary review, and entered therein the following order: “The judgment of the Court of Appeals is vacated and the case is ordered remanded to the Court of Appeals for the First Supreme Judicial District for reconsideration of the sufficiency of the evidence to support the conviction in light of this Court’s decisions in Davis v. State, supra; Hall v. State, 661 S.W.2d 101 (Tex.Cr.App.1983); and Skinner v. State, 652 S.W.2d 773 (Tex.Cr.App.1983).”
*920On remand, after reviewing the facts of the case, the court of appeals held that the evidence was insufficient to support the verdict of the jury. See Gonzales v. State, 676 S.W.2d 437 (Tex.App.—1st—Houston 1984). In reviewing the evidence the court of appeals found that the most that the State had established was (1) the defendant Gonzales had sold the magazine in question and (2) he had personally viewed the sex acts depicted on the front and back covers. Relying upon this Court’s statement in Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984), that “It is the content and character of the magazine, not the cover, which determines whether the magazine is legally obscene,” which the court of appeals erroneously assumed was some sort of test that this Court had formulated to judge the sufficiency of the evidence in obscenity cases, the court of appeals nevertheless reached the right conclusion that the evidence was insufficient to establish that the defendant Gonzales had knowledge of the content and character of the obscene magazine in question that he sold to an undercover vice officer, and ordered that an acquittal be entered on his behalf.
In Gonzales v. State, 689 S.W.2d 231 (Tex.Cr.App.1985), when this Court refused the State’s petition for discretionary review, it pointed out that it disapproved the reasoning that the court of appeals had used in reaching its conclusion that the evidence was insufficient. However, in refusing the State’s petition, this Court did not expressly disapprove the holding by the court of appeals that the evidence was insufficient; it merely, albeit done implicitly, through an express disclaimer, held that the reasoning that the court of appeals had used in reaching its conclusion that the evidence was insufficient was faulty. Neither the local district attorney nor the State Prosecuting Attorney filed a motion for rehearing.
Without evidence of how the appellant knew the content and character of the magazine’s material, prior to the time it was sold to the undercover vice officer, nothing warrants the inference that he knew it. No testimony was adduced that the appellant acknowledged that he knew the character and content of the magazine. There is no evidence of an admission by the appellant that he knew the character and content of the magazine. Although there is evidence reflecting the appellant was physically present when the magazine was sold to the undercover vice officer, mere presence alone without evidence of knowledge of the content and character of the magazine in question and intentional participation is insufficient to sustain a conviction. Cf. Beier v. State, supra. Under Beier v. State, supra, the evidence is insufficient to establish that the appellant was a party to the commission of the offense. Furthermore, from the facts of this case, another person, not the appellant, actually sold the magazine to the undercover vice officer. In addition to Beier v. State, supra, also see Goodman v. State, 667 S.W.2d 135 (Tex.Cr.App.1984); Rausher v. State, 663 S.W.2d 840 (Tex.Cr.App.1984).
Therefore, it should not be questioned by anyone that under the facts that were adduced in this cause no rational trier of fact could find beyond a reasonable doubt that prior to when the magazine in question was sold to the undercover vice office the appellant knew the content and character of the magazine. “One cannot have the intent to promote or assist the sale of obscene material unless he has knowledge of the content and character of the material. Since selling obscene material is an offense only if the seller had knowledge of the content and character of the material, no person lacking this knowledge can possess the intent to promote or assist the sale of obscene material.” Beier v. State, supra, at page 4.
For all of the above reasons, I respectfully dissent to the majority opinion’s conclusion that “From both the circumstantial and direct evidence against the appellant, the trial court could rightfully determine that appellant knew the character and content of ‘Super # 3’ at the time he sold it to Officer Wong.”
. In light of the majority opinion, after today, promoters of obscene material should put a photograph of Snow White and the Seven Dwarfs or something similar on the front and back covers of all their magazines.
. Under this Court’s decision, Gonzales v. State, supra, has no precedential value. See Shannon v. State, 693 S.W.2d 390 (Tex.Cr.App.1985); Williams v. State, 692 S.W.2d 100 (Tex.Cr.App.1985); Hill v. State, 690 S.W.2d 900 (Tex.Cr.App.1985); Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).