Opinion
No. 08-04-00312-CR
August 31, 2005. DO NOT PUBLISH.
Appeal from the County Criminal Court No. 1 of El Paso County, Texas, (TC# 20030C17899).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
Appellee was charged by information with the offense of promotion of an obscene device. This is a State's appeal from the trial court's order dismissing the complaint.
I. SUMMARY OF THE EVIDENCE
On September 15, 2003, two undercover officers, a male and a female, entered the Trixx Adult Bookstore. Various sexual devices were on sale in the store. The officers saw a crystal cock vibrator displayed behind the store counter. They questioned the Appellee, a store employee, with regard to the possible uses of the device. He showed them the device and stated that the device would arose and gratify the female undercover officer in that it would give her an orgasm. The officers purchased the device. Ten days later Appellee was arrested for violating Tex. Penal Code Ann. § 43.23(c)(1) (Vernon Supp. 2004-05) which proscribes an individual from promoting an obscene device. On October 11, 2004, a hearing was held on Appellee's motion to dismiss the complaint. The parties respective arguments centered around whether the statute in question was unconstitutional because it prevents individuals from using dildo type devices in violation of the right to sexual privacy. The court granted the motion to dismiss the complaint on the ground the statute was unconstitutional.II. DISCUSSION
In Issue Nos. One and Two, Appellant contends that the right to privacy is not fundamental, and the right to privacy does not guarantee a fundamental right to sexual privacy or a right to use, sell, or purchase obscene devices outside the home. Secondly, Appellant asserts that the statute proscribing the promotion bears a rational relationship to a legitimate government interest such that it survives judicial scrutiny. The applicable statute, Tex. Penal Code Ann. § 43.23(c)(1) (Vernon Supp. 2004-05), provides:(c) A person commits an offense if, knowing its content and character, he:
(1) promotes or possesses with intent to promote any obscene material or obscene device. . . .
"Obscene device" is defined in Tex. Penal Code Ann. § 43.21(a)(7) (Vernon 2003) as:
"Obscene device" means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.
"Promote" is defined in Tex. Penal Code Ann. § 43.21(a)(5) (Vernon 2003) as:
"Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.When determining the constitutionality of a criminal statute, the reviewing court will review the holding of the trial court de novo without reverence to the ruling of the trial court. Owens v. State, 19 S.W.3d 480, 483 (Tex.App.-Amarillo 2000, no pet.). The statute at issue is presumed to be valid and all doubts are to be resolved in favor of the statute's constitutionality. Id. There is a recognized and constitutionally protected zone of privacy under both the United States and Texas constitutions. Carey v. Population Serv. Int'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977), Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 1681-83, 14 L.Ed.2d 510 (1965), and Texas State Employees Union v. Texas Dept. of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). The Supreme Court of the United States has held that the only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in the guarantee of personal privacy. Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The right to privacy protects activities relating to marriage, procreation, contraception, motherhood, family relationships, and child rearing and education. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65, 93 S.Ct. 2628, 2639, 37 L.Ed.2d 446 (1973); Roe, 410 U.S. at 152-53, 93 S.Ct. at 726. Appellant argues the statute prohibiting the sale of obscene devices does not unconstitutionally infringe on privacy. In Yorko v. State, 690 S.W.2d 260, 261-62 (Tex.Crim.App. 1985), the court reviewed the facial constitutionality of the statute prohibiting promotion of obscene devices. The court did not find "in the language of the Constitution or in the principles of the Supreme Court cases" any fundamental right to use obscene devices. Id. at 265. The court added that if such a right exists, its exercise is protected by Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969) (holding "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime"). Analogizing to cases limiting Stanley and upholding the denial of access to obscene material outside the home, the Yorko court held that the State may criminalize promotion and sale of obscene devices. Yorko, 690 S.W.2d at 265-66. The court's holding followed cases such as United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 128, 93 S.Ct. 2665, 2669, 37 L.Ed.2d 500 (1973), which held that "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others." Thus, the courts distinguish between mere possession of obscene devices and their sale. Appellee argues that if there is a constitutional right to sell contraceptives, there must be a constitutional right to sell dildos. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (recognizing a constitutional right to sell contraceptives). The Court of Criminal Appeals has distinguished between contraceptives and obscene devices, rejecting Appellee's argument. Yorko, 690 S.W.2d at 266. Statutes restricting promotion or sale of contraceptives infringe on a recognized fundamental right, namely, the decision to bear a child. Id. at 265-66. In Yorko, the court found no fundamental right to stimulate human genital organs with an obscene device; therefore, restricting the promotion of such devices does not infringe on any recognized fundamental right. Id. at 263-65. Thus, the court concluded that the statute did not violate a right of privacy afforded protection under the United States or Texas constitutions. Id. at 266. Appellee further asserts that one's right to engage in sexual behavior privately at home is infringed upon by the statute. We disagree. First, the right to use obscene devices is not prohibited by the statute, and the prohibition against promotion has been held not to infringe on any right that might exist to use obscene devices at home. Yorko, 690 S.W.2d at 265-66. Second, the Supreme Court expressly noted that it has never held that a fundamental right to sexual privacy exists under the constitution. Carey, 431 U.S. at 695, 97 S.Ct. at 2021 n. 17. Likewise, the majority in Yorko did not recognize sexual privacy as a fundamental right. See Yorko, 690 S.W.2d at 267. However, Appellee urges that society's perception of and attitudes toward sexuality have become more tolerant, the liberties guaranteed by substantive due process have moved out of the marital bedroom and into the public sphere of commercial interactions and private interactions between consenting adults. In this light, Appellee asserts that the United States Supreme Court case of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) undermines the Texas Court of Criminal Appeals holding in Yorko. In Lawrence, the Supreme Court decided if sex between two members of the same sex can be denied by law when practiced in the privacy of their apartment. See Lawrence, 539 U.S. at 564, 123 S.Ct. at 2476. While the Supreme Court struck down the sodomy law in Texas, we note the Supreme Court specifically excluded from its analysis any aspect of public conduct or prostitution. Id. at 577, 123 S.Ct. at 2483; rather, the holding applied to private sexual conduct. Id. at 578, 123 S.Ct. at 2484. Therefore, we do not perceive that the Lawrence holding that the Texas sodomy statute furthered no legitimate interest implies that commercial promotion of sexual devices is constitutionally sanctioned. If legislation interferes with the exercise of a fundamental right, the act is subject to strict scrutiny. Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973). If the legislation does not burden a fundamental right, then the act faces only minimal scrutiny, namely, the rational basis standard. Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 2271-72, 138 L.Ed.2d 772 (1997). It is appropriate for the State to act to protect the social interest or order, morality, and decency by restraining commercial dealing in non-communicative objects designed or marketed for use primarily for the stimulation of human genital organs. Yorko, 690 S.W.2d at 265. Accordingly, we sustain Issue Nos. One and Two, and we find that the court erred in granting Appellee's motion to dismiss the complaint. We reverse the court's order dismissing the complaint and remand the cause for further proceedings not inconsistent with this opinion.