COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-06-092-CR

EX PARTE

VALERIA JOYCE DAVE

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	FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

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	OPINION

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	Appellant Valeria Joyce Dave appeals the trial court’s order denying her application for writ of habeas corpus on the ground that the misdemeanor obscenity statute under which she is charged in the underlying case is facially unconstitutional.  We affirm.

	Appellant is an employee of Dreamer’s, a sexually-oriented business in Kennedale, Texas.  No one under the age of eighteen is allowed on the premises, and Dreamer’s offers no on-premises entertainment.  Instead, its customers may purchase videotapes and DVDs for off-premises viewing only.  The State alleges that appellant sold two videotapes containing obscene materials to two different undercover police officers.  Thereafter, appellant was charged with two counts of promoting obscenity. 

	Section 43.23 of the Texas Penal Code provides that a person commits an offense if, knowing its content and character, she “promotes or possesses with intent to promote any obscene material or obscene device.”1

	In her issue on appeal, appellant argues that the trial court improperly denied her request for habeas relief because section 43.23 unconstitutionally restricts the right of privacy embodied in the Due Process Clause of the Fourteenth Amendment.2  Appellant contends that the First Amendment protects an individual’s right to privately possess and view obscene materials, and the Fourteenth Amendment protects a merchant’s right to sell those materials at a sexually-oriented business such as Dreamer’s, where no one under age eighteen is allowed in the store, and the materials sold there are not viewed on the premises.  Appellant further contends that these rights are fundamental constitutional rights. 

	A criminal defendant may challenge the facial constitutionality of a statute via a pretrial application for writ of habeas corpus.3  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.4   The burden rests on the individual who challenges the statute to establish its unconstitutionality.5

	A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.6  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 her in her situation.7  That the statute may be unconstitutional as applied to others is insufficient to support a facial challenge.8

	State statutes designed to regulate obscene material must be carefully limited,9 because the First and Fourteenth Amendments prohibit making an individual’s private possession of obscene material a crime.10  Obscene material itself, however, is not protected by the First Amendment.11  Thus, the constitutionally-protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to sell or give it to others,12 nor does it require the courts to fashion or recognize a right to distribute such material.13

	Indeed, “commerce in obscene material is unprotected by any constitutional doctrine of privacy.”14   Consequently, the Supreme Court has held that “the States have a legitimate interest in regulating commerce in obscene material”15 and has consistently and explicitly upheld the constitutionality of statutes regulating the distribution of obscenity.16  Legitimate state interests include “stemming the tide of commercialized obscenity”17 in order to protect the public quality of life, the community environment, and the social interest in order and morality.18  An obscenity statute is constitutional if it is rationally related to the government’s advancement of these interests.19

	In this case, the protection of these interests is at stake, even though Dreamer’s has safeguards in place to protect against exposure to juveniles and passersby.20  Allowing the sale of obscene material would adversely affect the public quality of life by creating the potential for widespread dissemination of obscene material into the community.21  Further, once the material leaves Dreamer’s premises, there is no way to ensure that it will, as appellant suggests, be viewed only by a consenting adult in the privacy of his home.  Instead, there is a very real danger that it could be given to or viewed by a juvenile or a nonconsenting adult.22  The States may regulate based on the natural tendency that obscene material kept in a private area will not remain so once it leaves that area.23

	Appellant recognizes these well-established authorities, but argues that they address only challenges brought under the First Amendment and not under the Due Process Clause of the Fourteenth Amendment.  We disagree.  The Supreme Court in Paris Adult Theatre I addressed the scope of the right to privacy guaranteed by the Fourteenth Amendment and concluded that it does not protect the sale or other distribution of obscene material.24  In light of this clear pronouncement, we hold that the sale of obscene material is not protected by the Due Process Clause of the Fourteenth Amendment.25

	Appellant also argues that, since Paris Adult Theatre I, Orito, and Reidel were decided, the Supreme Court has, in Lawrence v. Texas,26 expanded the right to privacy embodied in the Due Process Clause of the Fourteenth Amendment “into the public sphere of commercial transactions between consenting adults.”  Lawrence did not, however, involve the sale or distribution of obscene materials, and it is completely inapposite to this case.  It holds only that the right to liberty embodied in the Due Process Clause protects private, consensual sexual conduct between homosexuals from governmental intrusion.27  Further, appellant’s argument is directly contradicted by Lawrence itself, which expressly states that this right “does not involve public conduct.”28

	Morever, the Supreme Court has commanded, “	[i]f a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”29  The Court later reaffirmed this command, stating, “We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.”30

	In Paris Adult Theatre I, the Supreme Court upheld as constitutional a Georgia obscenity statute virtually identical to the Texas obscenity statute at issue here.31  The Supreme Court has also held that States may prohibit the sale of obscenity in order to protect the public quality of life and the social interest in order and morality.32  This Supreme Court precedent has direct application to appellant’s case and has not been overruled by Lawrence or any other Supreme Court decision.  Therefore, we decline to hold section 43.23 unconstitutional based on Lawrence.33

	For all these reasons, we hold that there is no constitutionally-protected right, under either the First or the Fourteenth Amendment, to sell obscene material,34 and that the State has a legitimate interest in regulating  commerce in obscene material.  We further hold that section 43.23, which prohibits the sale of obscene material, is rationally related to the government’s advancement of this legitimate interest.  Accordingly, section 43.23 is both facially constitutional and constitutional as applied to appellant.  Therefore, we overrule appellant’s issue and affirm the trial court’s order denying habeas relief.

								JOHN CAYCE

								CHIEF JUSTICE

PANEL A:  CAYCE, C.J.; DAUPHINOT and WALKER, JJ.	

PUBLISH

DELIVERED:  February 22, 2007