No other offense has been subjected to more attacks on its constitutionality than the obscenity statute. Although it has often withstood constitutional challenge, several subsections of the Texas obscenity statute have been found unconstitutional either on the face of those sections or as applied.
The most problematic subsections include the provisions for being “patently offensive” in Section 43.21(a)(4) and two presumptions found in Section 43.23. As a result, prosecutions under the Texas obscenity statute are relatively rare.
The dissemination of obscene material is prohibited by Section 43.21 of the Texas Penal Code. The crime of disseminating obscene material refers to materials that:
- the average person, applying contemporary community standards, would find that, taken as a whole, appeal to the prurient interest in sex;
- depict or describe
- patently offensive representations or descriptions of ultimate sexual acts; normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
- patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibitions of genitals; and
- taken as a whole lack serious scientific, artistic, or literary value.
Attorney for Obscenity Crimes in San Antonio, TX
If you were charged with any criminal offense involving obscenity then contact an experienced San Antonio criminal defense lawyer at Goldstein & Orr. Our clients represent clients throughout San Antonio, TX, and the surrounding areas. Call us for a free consultation to discuss your case.
Whether you are charged with a felony or a misdemeanor, call all (210) 226-1463 to discuss your case during a free consultation. We can begin your defense today.
Definitions under the Obscenity Statute in Texas
The following terms are defined under the Obscenity Statute in Texas as follows:
- promotion is defined to include selling, providing, lending, issuing, manufacturing, giving, or participating in any form of dissemination of any material;
- the definition of “patently offensive” means so offensive on its face as to affront current community standards of decency;
- the term “performance” is defined as a play, motion picture, dance, or other exhibition performed before audiences.
- the term “material” is defined as anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, or sound, but does not include actual three-dimensional obscene devices;
- the term “wholesale promotion” is defined in terms of probation but for the purpose of resale; and
- the definition of the term “obscene device” is defined as any device, including artificial vaginas or dildos, marketed or designed as useful primarily for the stimulation of human genitalia
Obscene Display or Distribution
Under Texas Penal Code Ann. § 43.22(a), the offense of obscene display or distribution is committed when the defendant intentionally or knowingly displays or distributes an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution. The crime is charged as a C misdemeanor under § 43.22(b). Under the statute, it is the public display of obscene material that violates the statute.
The crime is defined as intentionally or knowingly displaying or distributing obscene photographs or drawings. The crime also requires that the displaying or distribution be carried out in a reckless manner when it comes to whether a person who is present will be offended or alarmed by this display or distribution. Exhibition under Section 43.23, the exhibition must occur in the context of commercial distribution or commercial gain but no such requirement is included for the display.
The crime of obscenity is defined in Section 43.23. Under that statute, the defendant, knowing the character and content, promotes any obscene material or device on a wholesale basis or possesses with intent to promote on a wholesale basis. Since 1993, the offense has been clarified as a state jail felony.
Alternatively, the offense can also be proven when a person, knowing the character and content of the material, either:
- promotes or possesses with an intent to promote any obscene material or device, or
- produces, presents, or directs an obscene performance or
- participates in a portion of that obscene performance or contributes to its obscenity.
This crime is classified as a Class A misdemeanor.
Presumptions under the Texas Obscenity Statute
The first presumption under the Texas Obscenity statute provides that a person who promotes or wholesale promotes obscene material or obscene devices or possesses them with the intent to promote or wholesale promote them in the course of business is presumed to do so with knowledge of their content and character.
The second presumption provides that a person who possesses six or more obscene devices is presumed to possess them with the intent to promote them. Under Section 43.23, the offense does not apply to those who possess obscene material or devices when the possession, participation, or conduct occurs in the course of law enforcement activities.
Attorney for Crimes under the Texas Obscenity Statute
If you were arrested for or under investigation for any type of criminal offense covered by the obscenity statute in Texas, then contact an experienced criminal defense attorney at Goldstein & Orr in San Antonio, TX. We represent clients on a wide variety of criminal offenses involving adult sexual abuse allegations throughout Bexar County, TX.
Call (210) 226-1463 to discuss your case.