Obscene Material Charge Cases
An appellate court reviews a trial court's decision to exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).
An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Id.
A defendant in an obscenity case, like any other defendant, has the right to adduce relevant, competent evidence bearing on the issues to be tried, including contemporary community standards. See Hamling, 418 U.S. at 125; Berg, 599 S.W.2d at 804-05.
Comparable materials to the allegedly obscene material may be relevant to the issue of contemporary community standards. See Berg, 599 S.W.2d at 804-05. But the trial court has the inherent discretion to limit the quantum and quality of this evidence. Berg, 599 S.W.2d at 807 (citing Hamling, 418 U.S. at 126).
In Berg v. State, 599 S.W.2d 802 (Tex. Crim. App.1980), this Court held that the trial court erred in excluding nine magazines and one film after admitting twenty-nine other magazines, one other film, and a book. We noted that the defendant had declined to call any expert witnesses and instead relied on the introduction of comparable materials.
We observed that by admitting the other comparable materials, the trial court made a finding that those materials were sufficiently probative to enlighten the jury. See Berg, 599 S.W.2d at 808.
We held that the trial court abused its discretion by excluding the other comparable material because the excluded material was more akin to the allegedly obscene materials in the case. See id.
The key to our decision was that the trial court's actions created a false impression with the jury. Id.
The trial court was within its discretion in admitting comparable materials, but it abused its discretion because a false impression was created without the similar excluded evidence. See id.
We did not hold in Berg that all sexually explicit material acquired in Texas is per se admissible in an obscenity prosecution.
The proper predicate must still be met. See United States v. Pinkus, 579 F.2d 1174, 1175 (9th Cir. 1978); Berg, 599 S.W.2d at 807-08; Commonwealth v. Dane Entertainment Services, Inc., 389 Mass. 902, 452 N.E.2d 1126, 1133 (Mass. 1983); Gill v. State, 675 S.W.2d 549, 551 (Tex. App.-Houston [14th Dist.] 1984, no pet.).