Gonzales v. State

689 S.W.2d 231 (1985)

Ismael GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 952-84.

Court of Criminal Appeals of Texas, En Banc.

April 17, 1985.

*232 Clyde F. DeWitt, III, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., & Timothy G. Taft & Tim Horan, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. & Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

Appeal is taken from a conviction for obscenity. After the jury found appellant guilty, the court assessed punishment at 5 days and a $1,000.00 fine. The Court of Appeals reversed appellant's conviction. Gonzales v. State, 676 S.W.2d 437 (Tex.Ap. Houston [1st] 1984). The reversal by the Court of Appeals was based on the holding that the trial court reversibly erred in submitting a charge to the jury on the presumption provided by V.T.C.A., Penal Code, Section 43.23(e). See Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984); Davis v. State, 658 S.W.2d 572 (Tex.Cr. App.1983).

In its petition for discretionary review, the State maintains that the Court of Appeals erroneously found that the evidence was insufficient to prove that appellant had knowledge of the content and character of the alleged obscene material. Such finding by the Court of Appeals was based on language within this Court's opinion in Shealy v. State, supra. The State appropriately notes that the question of sufficiency of the evidence was not before this Court in Shealy v. State, supra.

We agree with the Court of Appeals that appellant's conviction must be reversed due to submission of a charge on Section 43.23(e), supra. As is true in every case, refusal of discretionary review by this Court does not constitute an endorsement or adoption of the reasoning employed by the Court of Appeals. This is true where the petition is refused without opinion, as is the usual practice, as well as where the petition is refused with a brief opinion disavowing the reasoning employed by the Court of Appeals, as in the instant case. See Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).

The State's petition for discretionary review is refused.