See TEX. PENAL CODE ANN. § 43.23(c)(1) (Vernon 2003). This offense constitutes a Class A 1

misdemeanor. See id. § 43.23(d) (Vernon 2003).

NUMBERS 13-05-123-CR & 13-05-124-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

BEATRICE VILLARREAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 4 

of Nueces County, Texas.

 

O P I N I O N

Before Justices Yañez, Rodriguez, and Garza

Opinion by Justice Yañez

A jury found appellant, Beatrice Villarreal, guilty of offending (1) a state law

prohibiting the sale of obscene devices, and (2) a municipal ordinance prohibiting the 1
See CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. I, § 48-18(b) (1996). This offense 2

constitutes a Class A misdemeanor. See id. at § 48-3(b) (1996).

 Appellate cause number 13-05-124-CR. 3

 See TEX. PENAL CODE ANN. § 43.23(c)(1). 4

2

operation of a sexually oriented business without a permit. The trial court then imposed 2

$1,500 in fines and terms of imprisonment amounting to one year in county jail. Appellant

appeals her conviction through six issues. We affirm.

I. Background

On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working

undercover when he visited a business, called Friends 4 Ever, to determine if it was selling

obscene materials or devices. Dominguez was aware that law enforcement agents had

previously informed the business owner that the business needed to cease selling certain

items that were considered obscene under state law. Appellant was at the business

working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator

from appellant; the vibrator was called “Lick it Lover” and resembled the male sexual

organ. A few hours after Dominguez’s purchase, police officers arrived at the business,

where they executed a search warrant and placed appellant under arrest.

In trial court cause number 04-CR-6215-4 (hereinafter “cause one”), appellant was 3

charged by complaint with having committed an offense under section 43.23(a) of the

penal code. Under this cause, it was alleged that “[o]n or about 1:30 p.m. on June 25, 4

2004 . . . in Nueces County,” appellant, “knowing the content and character of a certain

device, to-wit: a dildo and vibrator, knowingly promote[d] or possess[ed] with intent to
 See id. 5

 Appellate cause number 13-05-123-CR. 6

 See CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. I, § 48-18(b); TEX. PENAL CODE ANN.

7

§ 43.23(c)(1).

See CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. I, § 48-18(b). 8

See TEX. PENAL CODE ANN. § 43.23(c)(1). 9

3

promote said device, which was obscene.”5

In trial court cause number 04-CR-6197-4 (hereinafter “cause two”), appellant was 6

charged by information with having committed offenses under sections 48-18(b) of the

Corpus Christi Code of Ordinances (“the Code”) and 43.23(c)(1) of the penal code. Under 7

this cause, appellant was alleged to have “unlawfully intentionally and knowingly

conduct[ed] a business as a sexually oriented business within the city of Corpus Christi,

Texas, without having secured a permit issued by the Corpus Christi Chief of Police to

conduct such a business.” The cause further alleged that “[o]n or about 6:14 p.m. on June 8

25, 2004 . . . in Nueces County,” appellant, “knowing the content and character of a certain

device, to wit: erection makers (stimulators), dildo type devices, anal beads, penis pumps

and simulated vaginas, possess[ed] with intent to promote said device, which was

obscene.”9

Appellant pleaded not guilty to the State’s allegations in both causes, which were

then tried jointly before a jury. The jury found appellant guilty on all counts. With respect

to cause two, the trial court imposed a $500 fine and a six-month term of imprisonment in

county jail. As to cause one, the trial court imposed a $1,000 fine and a six-month term

of imprisonment in county jail, which was to run consecutively with the sentence imposed
 517 F.3d 738 (5th Cir. 2008). 10

Id. at 740.

11

 See TEX. R. APP. P. 38.7 (“A brief may be amended or supplemented whenever justice requires, 12

on whatever reasonable terms the court may prescribe.”).

 Lapasnick v. State, 784 S.W .2d 366, 368 (Tex. Crim. App. 1990). 13

4

in cause two.

Appellant’s original appellate brief challenged her convictions through four issues.

After the parties in the instant case submitted their briefs, the United States Court of

Appeals for the Fifth Circuit issued its opinion in Reliable Consultants, Inc. v. Earle. In

10

that opinion, the Fifth Circuit held that provisions of penal code section 43.23—criminalizing

the promotion of obscene devices—violated the Fourteenth Amendment of the United

States Constitution. In the interest of justice, we afforded appellant an opportunity to 11

raise any additional argument she may derive from Reliable. Appellant subsequently 12

submitted a supplemental brief that raised two new issues. The State filed a supplemental

brief in response.

II. Constitutionality of Section 43.23

The general rule concerning passage of an unconstitutional statute is that the law

is void from its inception and cannot provide a basis for any right or relief. Appellant thus 13

argues that her convictions under section 43.23(a) of the penal code cannot stand because

that statute is facially unconstitutional in light of the Fifth Circuit’s holding in Reliable.

In arriving at its holding in Reliable, the Fifth Circuit first sought to determine the right

placed at stake by section 43.23’s criminalization of obscene devices, stating:

Plaintiffs claim that the right at stake is the individual’s substantive due

process right to engage in private intimate conduct free from government
Reliable Consultants, 517 F.3d at 743.

14

 690 S.W .2d 260, 263-66 (Tex. Crim. App. 1985). 15

Reliable Consultants, 517 F.3d at 744.

16

 Regalado v. State, 872 S.W .2d 7, 11 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d) (Brown, C.J.,

17

concurring).

But see Varkonyi v. State, No. 08-06-00255-CR, 2008 Tex. App. LEXIS 3353, at *21-26 (Tex. 18

App.–El Paso May 8, 2008, no pet. h.) (criticizing Reliable’s legal reasoning).

5

intrusion. The State proposes a different right for the Plaintiffs: “the right to

stimulate one’s genitals for non-medical purposes unrelated to procreation

or outside of an interpersonal relationship.”14

Unlike the Texas Court of Criminal Appeals, which engaged in the same discussion twentythree years earlier in Yorko v. State, the Fifth Circuit found that the issue before it was 15

“whether the Texas statute impermissibly burdens the individual’s substantive due process

right to engage in private intimate conduct of his or her choosing,” and concluded that “the

Texas law burdens this constitutional right.”16

The two justices composing the panel majority in Reliable are not the first jurists to

take issue with section 43.23. In Regalado v. State, wherein the Fourteenth Court of

Appeals affirmed a defendant’s conviction for selling an obscene device in violation of

section 43.23, Chief Justice J. Curtiss Brown succinctly expressed his displeasure with the

statute in a concurring opinion, stating: “Here we go raising the price of dildos again.

Since this appears to be the law in Texas I must concur.” We share Chief Justice 17

Brown’s sentiments; moreover, we agree with the legal reasoning set out by the Reliable

majority. And though we embrace the Fifth Circuit’s decision, we are unfortunately 18

constrained from following it.

Fifth Circuit precedent is not binding on Texas courts, and its constitutional
 See Shpikula v. State, 68 S.W .3d 212, 225 (Tex. App.–Houston [1st Dist.] 2002, pet. ref'd) (citing 19

Vaughn v. State, 888 S.W .2d 62, 74 (Tex. App.–Houston [1st Dist.] 1994), aff’d, 931 S.W .2d 564 (Tex. Crim.

App. 1996)); see also Woodward v. Tex. Dep’t of Human Res., 573 S.W .2d 596, 598 (Tex. 1978). In

Woodward, the Texas Supreme Court stated:

[I]n the absence of a controlling decision by the United States Supreme Court, Texas courts

of civil appeals are bound by the pronouncements of the Texas Supreme Court on the law.

‘After a principle, rule or proposition of law has been squarely decided by the (Texas)

Supreme Court . . . the decision is accepted as a binding precedent by the same court or

other courts of lower rank when the very point is again presented in a subsequent suit

between different parties.’ And, until the Supreme Court states to the contrary, its

pronouncement is the law on an expressed issue.

Id. (citations omitted); see generally Stuart Buck & Mark L. Rienzi, Federal Courts, Overbreadth, and

Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes, 2002 UTAH L.

REV. 381, 427-35 (2002).

 432 F.2d 1072 (7th Cir. 1970). 20

 Id. at 1073. 21

 Id. 22

 Id. at 1074-75. 23

6

pronouncements are highly persuasive at best. An explanation for why Texas courts and 19

other state courts are not bound by the constitutional pronouncements of the federal district

and circuit courts can be found in United States ex rel. Lawrence v. Woods. In that case, 20

Lawrence was found guilty of violating an ordinance that criminalized interfering with the

duties of a police officer. While Lawrence’s appeal was pending before the Supreme

21

Court of Illinois, a federal district court, in an unrelated declaratory judgment action, held

that the interference ordinance was unconstitutional and void on its face as repugnant to

the federal Constitution. The Supreme Court of Illinois later affirmed Lawrence’s 22

conviction, and Lawrence eventually appealed to the Seventh Circuit, contending “that the

Supreme Court of Illinois failed to follow, under the supremacy clause, the federal district

court’s ruling . . . that the interference ordinance is constitutionally void on its face.” The 23

Seventh Circuit rejected Lawrence’s contention, explaining:
 Id. at 1075-76. 24

Ex parte Young, 209 U.S. 123, 163 (1908). 25

See Yorko, 690 S.W .2d at 261-266. We have little reason to believe that the court of criminal 26

appeals now takes issue with its holding in Yorko. In Ex parte Dave, 220 S.W .3d 154, 159-60 (Tex. App.–Fort

W orth 2007, pet. ref’d), the Second Court of Appeals rejected the appellant’s argument that section 43.23 of

7

The Supreme Court of the United States has appellate jurisdiction

over federal questions arising either in state or federal proceedings, and by

reason of the supremacy clause the decisions of that court on national law

have binding effect on all lower courts whether state or federal. On the other

hand, because lower federal courts exercise no appellate jurisdiction over

state tribunals, decisions of lower federal courts are not conclusive on state

courts.

Of course in a given factual setting when a lower federal court has

jurisdiction over the subject matter and the parties, its adjudication is the law

of the case and its judgment is binding on all other courts, subject only to the

appellate process. But that is not the situation here. The district court’s

declaration that the interference ordinance is unconstitutional was made in

an unrelated case and at a time when petitioner’s appeal from his conviction

was pending in the Supreme Court of Illinois. In these circumstances, we

hold that the federal court’s ruling was not binding on the state appellate

tribunal.24

Just as state courts are not bound by declaratory judgments, a lower federal court’s

issuance of an injunction—as done by the Fifth Circuit in Reliable—also fails to directly

bind state courts. As expressed by the United States Supreme Court in Ex parte Young:

“It is proper to add that the right to enjoin an individual, even through a state official, from

commencing suits under circumstances already stated, does not include the power to

restrain a court from acting in any case brought before it, either of a civil or criminal nature

. . . .”25

This Court thus remains duty-bound, for better or worse, to follow the rulings of the

court of criminal appeals, which has held—in contrast to the Fifth Circuit—that section

43.23 does not violate the due process clause of the Fourteenth Amendment. Because 26
the penal code violated the due process clause of the Fourteenth Amendment, and the court of criminal

appeals refused appellant’s subsequent petition for discretionary review. 

 See Hernandez v. State, 161 S.W .3d 491, 497 (Tex. Crim. App. 2005). 27

 See id. 28

 See id. at 498.

29

8

we must follow the court of criminal appeals’ holding that section 43.23 is constitutional,

we reject the argument in appellant’s supplemental brief that contests her convictions for

promoting an obscene device. For the same reason, we also reject appellant’s contention

that the holding in Reliable warrants a reversal of her conviction for operating a sexually

oriented business without a permit. The two issues in appellant’s supplemental brief are

therefore overruled.

III. Entrapment

A. Applicable Law

When appellant raised the defense of entrapment at trial, she had the burden of

producing evidence to establish every element of that defense. She had to present a 27

prima facie case that (1) she engaged in the conduct charged; (2) because she was

induced to do so by a law enforcement agent; (3) who used persuasion or other means;

and (4) those means were likely to cause persons to commit the offense. Once she 28

made a prima facie showing of each element, the State then had the burden of persuasion

to disprove entrapment beyond a reasonable doubt. In reviewing a challenge to the legal 29

sufficiency of the evidence to support a jury’s rejection of a defense to prosecution, we use

the same standard used in reviewing the sufficiency of the evidence to support a verdict

of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the
 See Saxton v. State, 804 S.W .2d 910, 914 (Tex. Crim. App. 1991). W e review a challenge to the 30

legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable

to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the

essential elements of the offense. Wilson v. State, 7 S.W .3d 136, 141 (Tex. Crim. App. 1999). Under this

standard, the fact-finder is the exclusive judge of the witnesses’ credibility and the weight given to the

evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts

in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944

S.W .2d 642, 647 (Tex. Crim. App. 1996).

 Hernandez, 161 S.W .3d at 500.

31

 Id. 32

 Id. 33

 See id. at 501.

34

9

rejection of the defense.30

When an entrapment defense is presented at trial, the fact-finder is authorized to

weigh the evidence and draw a conclusion as to whether that evidence establishes

entrapment as a matter of fact or law. In reviewing a jury’s rejection of an entrapment 31

defense, we determine whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

criminal offense beyond a reasonable doubt and also could have found against the

defendant on the issue of entrapment beyond a reasonable doubt. This review must take 32

into account that the trier of fact, not the appellate court, was free to accept or reject all or

any portion of any witness’s testimony. In cases where the entrapment defense is 33

asserted, the fact-finder may disbelieve some or all of a witness’s testimony, even when

that testimony is uncontradicted.34

B. Discussion

Appellant testified she told Dominguez that she could not sell any of the obscene

devices he was browsing, but that he ultimately induced her to sell the vibrator. According
 See id. at 500.

35

10

to her testimony, the inducement occurred in the following manner:

When [Dominguez] got [the vibrator] out of the container he said, again, that

he didn’t think it was considered something that I couldn’t sell to him and

since he was a regular customer he didn’t find that there was anything wrong

with it and why would I risk selling anything to a customer who had shopped

there frequently.

Based on this testimony, appellant asserts on appeal that she made a prima facie showing

of every element of the entrapment defense. She further contends that the State did not

carry its burden to disprove the entrapment defense beyond a reasonable doubt because

it failed to rebut the aforementioned testimony. Appellant thus argues that entrapment was

established as a matter of law.

Listening to appellant’s testimony from the witness stand, a reasonable trier of fact

could have either (1) concluded that this was “an appalling example of police misconduct

and law enforcement trickery run rampant,” or (2) concluded “from appellant’s words,

appearance, demeanor, and tone that [she] was indulging in post hoc creativity.”35

Dominguez provided testimony that raised credibility concerns and created a disputed fact

issue with regards to appellant and her testimony, presenting matters that were for the jury

to resolve. Dominguez testified that appellant invited him to browse through obscene

devices. He also stated that when he initially began looking at the vibrator, appellant

commented, “Hey, whoever you buy that for they’re really going to like it.” According to

Dominguez, he never told appellant that she should sell the vibrator to him because he was

a regular customer. Based on this testimony and the reasonable inferences drawn

therefrom, the jury had reason to disbelieve appellant’s claim that she was induced to sell
CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. I, § 48-1(a) (1996). 36

TEX. LOC. GOV’T CODE ANN. § 243.003(a) (Vernon 2005). 37

CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. IV, § 48-18(b) (Ord. No. 22596, § 2, 38

6-11-1996) (emphasis added). Chapter 48 states that a person “conducts business” if that person “[o]perates

a cash register, cash drawer or other depository on business premises” or “[d]isplays or takes orders from any

person for any merchandise, goods, entertainment or other services offered on the business premises.” Id.

ch. 48, art. I, § 48-2 (1996).

11

the vibrator. Given the record before us, we conclude the evidence is legally sufficient to

support both the verdict of guilt and the rejection of appellant’s entrapment defense.

Appellant’s entrapment issue is overruled.

IV. Municipal Ordinance

Chapter 48 of the Code regulates “sexually oriented businesses to promote the

public health, safety and welfare of the citizens of Corpus Christi, and to establish

reasonable and uniform regulations to prevent the concentration of sexually oriented

businesses in the city.” A municipality’s authority to create such regulations is derived 36

from chapter 243 of the local government code (“Chapter 243”), which states that “[a]

municipality by ordinance . . . may adopt regulations regarding sexually oriented

businesses as the municipality or county considers necessary to promote the public health,

safety, or welfare.” Appellant was convicted of offending section 48-18(b) of the Code, 37

which states that “[a] person commits an offense if that person conducts a business as a

sexually oriented business within the City of Corpus Christi unless a permit is issued by the

chief of police for the conduct of such business.” The term “sexually oriented business” 38

is defined in the Code and Chapter 243. Under the Code, the term means the following:

An adult cabaret, adult lounge, nude studio, adult modeling studio, love

parlor, adult bookstore, adult movie theater, adult video arcade, adult movie

arcade, adult video store, adult motel, adult novelty shop, adult arcade,
Id. ch. 48, art. I, § 48-2 (emphasis added). 39

See TEX. LOC. GOV’T CODE ANN. § 243.002 (Vernon 2005). This Court’s understanding of the 40

Code’s definition—with respect to how terms modify or qualify other terms—is expressed through the following

outline:

An adult cabaret, adult lounge, nude studio, adult modeling studio, love parlor, adult

bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store,

adult motel, adult novelty shop, adult arcade, adult encounter parlor, escort agency, or other

commercial enterprise

(1) the primary business of which is the regular

(a) offering of a service or

(b) the selling, renting, or exhibiting of devices or any other items

intended to provide sexual stimulation or sexual gratification to the customer; OR

(2) which regularly

(a) sells, rents or exhibits pictures, whether motion or still, or 

(b) sells, rents or exhibits devices or any other items

distinguished or characterized by an emphasis on matter depicting, describing, or

relating to "specified sexual activities" or "specified anatomical areas."

See CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 48, art. I, § 48-2. The relevant difference between the

Code and the local government code is that the local government code contains the first prong, but not the

second.

12

adult encounter parlor, escort agency, or other commercial enterprise the

primary business of which is the regular offering of a service or the selling,

renting, or exhibiting of devices or any other items intended to provide sexual

stimulation or sexual gratification to the customer or which regularly sells,

rents or exhibits pictures, whether motion or still, or sells, rents or

exhibits devices or any other items distinguished or characterized by

an emphasis on matter depicting, describing, or relating to “specified

sexual activities” or “specified anatomical areas.”

39

The term, as defined in Chapter 243, does not include the bolded language. Chapter 243

thus applies only to commercial enterprises that sell, rent, or exhibit certain items as part

of their primary business, while the Code applies to these enterprises in addition to those

that regularly sell, rent or exhibit, certain items.40

Appellant challenges the legality of section 48-18(b) by contending that the Code

conflicts with the legislative intent of Chapter 243. She states that “[the Code] attempt[s]

to do that which [Chapter 243] did not intend for it to do: to bring under its purview
 Gordon v. State, 757 S.W .2d 496, 502 (Tex. App.–Houston [1st Dist.] 1988, pet. ref’d) (citing Utter 41

v. State, 571 S.W .2d 934, 937 (Tex. Crim. App. 1978)).

Id. 42

Id. 43

 Id. 44

13

commercial establishments which did not sell . . . particular items or devices as its primary

business.” Though appellant recognizes that the Code’s definition of a sexually oriented

business brings more commercial establishments within its purview than there would have

been under Chapter 243's definition, she never argues that section 48-18(b) is

unconstitutionally overbroad or vague as a result. Appellant’s brief simply contends that

the ordinance’s wider reach evidences its conflict with the legislative intent of Chapter 243,

and states that “[t]o the extent a city ordinance is in conflict with the general statute, IT IS

VOID.” Limited to this argument on appeal, we find against appellant.

There is a presumption that a city ordinance is valid, and the party attacking it has

the burden of showing invalidity. An ordinance that is inconsistent with state legislation 41

is impermissible. However, the fact that there is state legislation on a particular subject 42

does not automatically preempt that subject from city regulation. Local regulation, 43

ancillary to and in harmony with the State’s legislation, is acceptable.44

The ordinance in the instant case is not inconsistent with the law of this State. We

first note that Chapter 243 does not contain a series of State-enforced regulations; rather,

it contains a series of regulatory proposals that local governments may copy should they

wish to promulgate their own regulations governing sexually oriented businesses. Second,

the Code does not conflict with the legislative intent of Chapter 243—it does not impede
 See TEX. LOC. GOV’T CODE ANN. § 243.001(a) (Vernon 2005). 45

See id. § 243.003. 46

 See City of Weslaco v. Melton, 158 Tex. 61, 308 S.W .2d 18, 21-22 (1957) (upholding an ordinance 47

prohibiting the sale of raw milk, even though it was conceded that the prohibited milk complied with all federal,

state, and county regulations, was wholesome for human consumption, and the respondent held the

necessary permits).

 See Gordon, 757 S.W .2d at 502 (citing City of Sweetwater v. Geron, 380 S.W .2d 550, 552 (Tex. 48

1964)).

14

local governments from (1) remedying problems arising from “the unrestricted operation

of certain sexually oriented businesses” or (2) adopting regulations to govern such 45

businesses. Finally, the fact that a business owner may be required to obtain a permit 46

under the Code’s definition of a sexually oriented business, but would not have been

required to do so under the more limited scope of Chapter 243’s definition, does not

automatically warrant the conclusion that a conflict exists.47

It is possible that appellant intends to assert that the Code’s definition of a sexually

oriented business is preempted by Chapter 243’s definition. In other words, appellant is

asserting that the State has defined “sexually oriented business” and Corpus Christi may

not change the term’s meaning by adding language that broadens its reach. Courts have

held, however, that any legislative intention to limit the power of local governments must

appear with unmistakable clarity, and a review of Chapter 243 does not reveal, with

48

unmistakable clarity, an intent to prohibit local governments from altering the definition of

a sexually oriented business. It is conceivable that such an intent was not established

because the legislature foresaw the possibility that a municipality would choose to expand
 See generally TEX. LOC. GOV’T CODE ANN. § 243.0075 (Vernon 2005) (“The municipality may license 49

any lawful business or occupation that is subject to the police power of the municipality.”); Ex parte Woodall,

154 S.W .3d 698, 702 (Tex. App.–El Paso 2004, pet. ref’d) (stating that “a city may enact reasonable

regulations to promote the health, safety, and general welfare of its people as a valid exercise of its police

power”).

 See Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980). 50

See TEX. R. APP. P. 38.1(h) (stating that a “brief must contain a clear and concise argument for the 51

contentions made”).

15

Chapter 243’s definition in order to more effectively exercise its police powers.49

Determining if an alteration is constitutionally permissible is a matter that is ultimately

predicated upon whether it is “arbitrary and capricious, having no substantial relation to the

general welfare.” Nothing in appellant’s brief, however, permits us to entertain this latter 50

inquiry.

We find that appellant has not satisfied her burden to prove the invalidity of section

48-18(b). Furthermore, because appellant has failed to show why this Court should reject

the Code’s definition of a sexually oriented business, we need not address her challenge

to the sufficiency of the evidence that she operated a “sexually oriented business” as that

term is defined by Chapter 243. Appellant’s second issue is therefore overruled.

V. Double Jeopardy

In her third issue, appellant contends that her Fifth Amendment guarantee against

double jeopardy was violated when she was charged and convicted for (1) operating a

sexually oriented business without a permit and (2) promoting an obscene device. She

fails to provide, however, any argument on appeal explaining how the Double Jeopardy

Clause was violated. As a consequence, we find that appellant has waived her third

issue.51
 Ponce v. State, 89 S.W .3d 110, 117 (Tex. App.–Corpus Christi 2002, no pet.). 52

16

VI. Legal Sufficiency Challenge

Appellant received one conviction for promoting, or intending to promote, an

obscene device at 1:30 p.m., and a second conviction for committing the same offense at

6:14 p.m. Both offenses were said to have occurred on June 25, 2004. Appellant

challenges the legal sufficiency of the evidence supporting the latter conviction on the basis

that there was no evidence that she promoted, or intended to promote, an obscene device

on June 25, 2004, at 6:14 p.m. The State responds by directing our attention to Ponce v.

State, wherein this Court stated that “[t]he ‘on or about’ language of an indictment allows

the State to prove a date other than the one alleged in the indictment as long as the date

is anterior to the presentment of the indictment and within the statutory limitations period.”52

The State thus contends that “although the jury charge was unnecessarily specific

concerning the time of the offense as ‘[o]n or about 6:14 p.m. on June 25, 2004,’ the

evidence measured against the hypothetically correct jury charge adequately proved that

the offense occurred before the presentment of the indictment and within the limitations

period.”

Though the State’s brief accurately presents the law to this Court, we still find

ourselves plagued by the fact that the State’s brief does not assert that appellant

promoted, or intended to promote, an obscene device on more than one occasion or in

more than one manner. The brief only discusses the one instance in which appellant sold

the vibrator to Dominguez at 2:00 p.m. Presuming that appellant was prosecuted for this

act under cause one, which charged her with promoting an obscene device on or about
 The jury charge included the following instruction: “A person who possesses six or more obscene 53

devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.”

See TEX. PENAL CODE ANN. § 43.23(f) (Vernon 2003).

 See Regalado, 872 S.W .2d at 11 (finding that appellant, as sales clerk of an adult book store, was 54

in possession of dildos within store); Myers v. State, 781 S.W .2d 730, 732 (Tex. App.–Fort W orth 1989, no

pet.) (finding that the jury could find beyond a reasonable doubt that appellant knowingly possessed obscene

devices with the intent to promote them because the State “established that appellant, as the sole employee

on duty, was in charge of the store, had possession of and control over dildos and other sexually-oriented

devices, knew the obscene character of the devices, and was promoting the dildos and other items by offering

them for sale”); Kennedy v. State, 774 S.W .2d 822, 825 (Tex. App.–El Paso 1989, no pet.) (“The jury in this

case could reasonably conclude that the Appellant, as sole employee on duty, stationed at an overlook post,

responsible for making sales facilitated by the merchandise displays, was in charge of and responsible for the

static exhibition of these obscene devices. As a result, there was sufficient evidence that Appellant was in

possession of these devices and in keeping with his job responsibilities, intended to promote them via the use

of these static exhibits.”); see also Hall v. State, 646 S.W .2d 489, 491 (Tex. App.–Houston [1st Dist.] 1982),

rev’d on other grounds, 661 S.W .2d 101 (Tex. Crim. App. 1983).

 T EX. PENAL CODE ANN. § 43.21(c)(1). 55

17

1:30 p.m., we have searched the record for evidence of a second unlawful act that would

justify her conviction for promoting an obscene device on or about 6:14 p.m., as set out in

cause two.

Though not asserted by the State, a reading of the State’s complaint and the jury

charge leads us to believe that appellant—in addition to being prosecuted for promoting

an obscene device by selling to Dominguez—was prosecuted for a second act of

promotion stemming from her possession of six or more obscene devices. Under cause 53

two, the State asserted that appellant possessed, with the intent to promote, “erection

makers (stimulators), dildo type devices, anal beads, penis pumps and simulated vaginas.”

Other than the “dildo type device” that appellant sold to Dominguez, there was no proof

that appellant promoted, through the act of selling, any of the other aforementioned items.

There was evidence, however, that appellant, as a sales clerk, possessed numerous

amounts of the other unsold items (far more than six). We conclude that such 54

possession may constitute a second act of promotion under section 43.23(c)(1), because 55
TEX. PENAL CODE ANN. § 43.23(f).

56

 See generally Jackson v. Virginia, 443 U.S. 307, 319 (1979). 57

18

section 43.23(f) states that “[a] person who possesses six or more obscene devices or

identical or similar obscene articles is presumed to possess them with intent to promote

the same.” Accordingly, because there is legally sufficient evidence that appellant

56 57

possessed more than six obscene devices on a date anterior to the presentment of the

indictment and within the statutory limitations period, we overrule appellant’s legal

sufficiency challenge.

VII. Conclusion

We affirm the trial court’s judgments.

 

 

LINDA REYNA YAÑEZ,

Justice

Publish. TEX. R. APP. P. 47.2(b).

Opinion delivered and filed this 

the 3rd day of July, 2008.