         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-01-00692-CR
                                     NO. 03-01-00693-CR
                                     NO. 03-01-00694-CR
                                     NO. 03-01-00695-CR


                                   Roy Neal Martin, Appellant

                                                &

                                  Rachel L. Martin, Appellant

                                                &

                                 Melissa Diane Mayo, Appellant

                                                &

                               James Edward Mayberry, Appellant

                                                v.

                                  The State of Texas, Appellee



               FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
                 NOS. 2C01-01310, 2C01-01309, 2C01-01253 & 2C01-01252,
                   HONORABLE JOHN BARINA, JR., JUDGE PRESIDING




               Appellants Roy Martin, Sr., Rachel Martin, Melissa Mayo, and James Mayberry appeal

from their convictions of the offense of promotion of obscene materials. See Tex. Pen. Code Ann. '

43.23(c)(1) (West 1994). The jury assessed the punishment of appellant Roy Martin, Sr. at

confinement in the county jail for fifteen days and a fine of $4,000, of appellant Rachel Martin at
confinement in the county jail for one day and a fine of $800, of appellant Melissa Mayo at

confinement in the county jail for one day, and of appellant James Mayberry at confinement in the

county jail for 120 days and a fine of $4,000.

               Appellants were tried jointly; they were represented by the same attorney both on trial

and on appeal; they raise the same issues on appeal. Appellants assert that the material they were

convicted of promoting was not obscene. Also, they assert that the trial court erred in refusing to

strike or reform the jury, in restricting appellants= opening statement, in allowing the prosecutor to

testify, in admitting evidence without establishing a chain of custody, in instructing the jury, and in

refusing to admit evidence offered by appellants. Also, Roy Martin urges that the evidence is

insufficient to show he was a party to the alleged offense. We will affirm the judgment against each

appellant.

               Appellant Roy Martin was convicted of promoting and possessing with the intent to

promote, knowing its content and character, the obscene videotape entitled AA Transvestite=s First

Blow Job.@ Appellant Rachel Martin was convicted of promoting and possessing with the intent to

promote, knowing its content and character, the obscene videotape, AOriental Action.@ Appellant

Melissa Mayo was convicted of promoting and possessing with the intent to promote, knowing its

content and character, the obscene videotape entitled ABi-Nanza.@ Appellant James Mayberry was

convicted of promoting and possessing with intent to promote, knowing its content and character,

the obscene videotape entitled ABlack Pepper.@

               A person commits an offense if, knowing its content and character, he promotes or

possesses with intent to promote any obscene material. See Tex. Pen. Code Ann. ' 43.23(c)(1)


                                                  2
(West 1994). APromote@ means to issue, sell, give, provide, deliver, transfer, distribute, or to offer or

agree to do the same. See id. ' 43.21(a)(5).

                Obscene is statutorily defined.


             (1) AObscene@ means material or a performance that:

                  (A) the average person, applying contemporary community standards, would
                      find that taken as a whole appeals to the prurient interest in sex;

                  (B) depicts or describes:

                        (i) patently offensive representations or descriptions of ultimate sexual
                            acts, normal or perverted, actual or simulated, including sexual
                            intercourse, sodomy, and sexual bestiality; or

                       (ii) patently offensive representations or descriptions of masturbation,
                            excretory functions, sadism, masochism, lewd exhibition of the
                            genitals, the male or female genitals in a state of sexual stimulation or
                            arousal, covered male genitals in a discernibly turgid state or a device
                            designed and marketed as useful primarily for stimulation of the human
                            genital organs; and

                  (C) taken as a whole, lacks serious literary, artistic, political, and scientific
                      value.


Id. ' 43.21(a). AMaterial@ means anything tangible that is capable of being used or adapted to arouse

interest, whether through the medium of reading, observation, sound, or any other manner. See id.

' 43.21(a)(2). APatently offensive@ means so offensive on its face as to affront current community standards

of decency. Id. ' 43.21(a)(4).

                In their seventh point of error, appellants urge that no rational jury could have found

obscene the videotapes they were charged with promoting. An appellate court is required to conduct an

                                                     3
independent review of the alleged obscene material to determine whether it is obscene. Miller v.

California, 413 U.S. 15, 25 (1973). Obscenity cases are one of the rare instances in which an appellate

court is constitutionally required to sit as a thirteenth (or in this a misdemeanor case, a seventh) juror. See

Davis v. State, 658 S.W.2d 572, 581-82 (Tex. Crim. App. 1983). Appellants argue that the videotapes

in this case are neither patently offensive, nor do they appeal to a prurientCthat is, sick, morbid, or

shamefulCinterest in sex. See Brockett v. Spokane Arcades, 472 U.S. 491 (1985). Appellants urge that

these videotapes are simply Aplain vanilla porno@ tapes appealing to a normal, healthy interest in sex. In

applying the required statewide standard, appellants contend such images would not offend the average

person in the state of Texas, nor would an average person find such images sick, morbid, or shameful. See

Tex. Pen. Code Ann. ' 43.21(a)(1) (West 1994); Berg v. State, 599 S.W.2d 802, 806 (Tex. Crim. App.

1980). Having viewed each of the videotapes, we disagree with appellants and find that each of the

videotapes is obscene.

                 The videotape entitled AA Transvestite=s First Blow Job@ shows images including bondage

and sado-masochistic activities. A transsexual individual instructs a young Asian transvestite to manually

and orally stimulate a bound male until he ejaculates.1



        1
         The affidavit supporting the arrest warrant for the arrest of Roy Martin, and an affidavit for a
search warrant accurately describe the videotape as follows:

            A TRANSVESTITE=S FIRST BLOW JOB, running time with pre-movie
            promotional segment, approximately 54 minutes.

                 The first 2 minutes of the film is devoted to an advertisement for 1-800-291-
            9447 (WHIP) and shows scenes of bondage and sado-masochistic activities.
            Included in this segment is a scene in which a woman is shown attaching a large

                                                      4
hemostat-like device to the labia of another woman where several other of the
devices have already been attached.

     The actual feature runs approximately 48 minutes. It begins with a trans-
sexual bringing a young Asian male into a residence. The trans-sexual assists the
Asian male in cross-dressing in female lingerie and applying make-up and wig.
Another male is caught in the residence and bound and hooded by the trans-
sexual. The trans-sexual proceeds to spank the male with hands, riding crop, etc.
 The Asian male, now completely dressed as a woman, enters and the trans-sexual
alternates spanking the bound male and the Asian. At one point the Asian male
ties a rope around the bound male=s genitalia. The remainder of the feature,
approximately 18 & 2 minutes is devoted to the Asian male, under the direction
of the trans-sexual, manually and orally stimulating the bound male until, during
manual stimulation, the bound male ejaculates.



                                       5
                 The videotape entitled AOriental Action@ shows images including male-female genital

sex, fellation, cunnilingus, anal sex, male ejaculation, and group scenes of the same activities. 2


        2
           The affidavit supporting the arrest warrant for the arrest of Rachel Martin and the affidavit
for a search warrant accurately describe the videotape as follows:

            ORIENTAL ACTION VOL. 2, running time approximately 60 minutes.

                 One male/one female showed genital sex twice, fellation 3 times, cunnilingus
            3 times, anal sex 3 times, manual/digital stimulation of the genitals and/or anus 7
            times, a device to stimulate the genitals and/or anus once or more means of
            stimulating the genitals and/or anus in combination 3 times and a male ejaculation
            once.

                2 females, cunnilingus once, manual/digital stimulation of the genitals twice
            and cunnilingus in combination with manual/digital stimulation of the genitals
            once.

                Group scenes included 10 instances of genital sex, fellation 27 times,




                                                    6
cunnilingus 6 times, anilingus once, manual/digital stimulation of the genitals/anus
12 times and two or more means of genital and/or anal stimulation 19 times,
including fellatio/fellatio/cunnilingus, anilingus and digital stimulation of the
genitals and genital sex combined with fellatio, among others. A male was shown
ejaculating 6 times.


                                         7
                 The videotape entitled ABi-Nanza@ shows similar images in a ranch setting, including

fellatio, cunnilingus, anilingus, anal sex, male ejaculation, and simultaneous combinations of these

acts involving several participants. 3

                 The videotape entitled ABlack Pepper@ shows images of mixed races engaging in

fellation, cunnilingus, anilingus, anal sex, and combinations of these acts performed simultaneously in

groups.4


        3
          The affidavit supporting the arrest warrant for the arrest of Melissa Mayo and an affidavit for
a search warrant accurately describe this videotape as follows:

            Your affiant subsequently watched the movie and found the following: scenes
            involving two males showed fellatio 3 times, anal sex twice, manual/digital
            stimulation of the genitals and/or anus 3 times and ejaculation twice; scenes
            between one male and one female displayed 3 instances of genital sex, fellatio 2
            times, cunnilingus once, manual/digital stimulation of the genitals and/or anus 3
            times, some combination of these acts 10 times including but not limited to,
            genital sex combined with manual/digital stimulation of the genitals and/or anus
            and fellatio and cunnilingus combined with manual/digital stimulation of the
            genitals and/or anus. There was one instance of male ejaculation. Scenes
            involving 3 or more participants showed genital sex 3 times, fellatio 5 times, 3
            instances of cunnilingus, manual/digital stimulation 6 times, 4 instances of
            multiple sexual activities such as, but not limited to, males simultaneously
            performing fellatio on each other and fellatio and cunnilingus performed
            simultaneously, etc. There were 2 instances of male ejaculation.
        4
           The affidavit supporting the arrest warrant issued for the arrest of James Mayberry and an
affidavit for a search warrant accurately describe this videotape as follows:

            BLACK PEPPER, VOL. 15 ran for approximately 1 hour and 59 minutes. This
            included promotional video for phone sex services which included graphic sexual
            activity, descriptions of which are included in the following.

                 One male/one female scenes showed genital sex 22 times, fellatio 14 times,
            cunnilingus 5 times, anilingus once, anal sex 3 times, manual/digital stimulation of
            the genitals and/or anus 7 times, stimulation of the male genitalia with the breasts
            once and 7 instances in which two or more means of stimulating the genitals

                                                     8
and/or anus were used simultaneously. A male ejaculating was shown 6 times.

   One scene was devoted solely to a lone female masturbating,
manually/digitally.

     Scenes between 2 females showed genital sex once, cunnilingus 18 times,
manual/digital stimulation of the genitals and/or anus 15 times, stimulation of the
genitals and/or anus 7 times and two or more means of stimulating the anus and/or
genitals were shown 4 times. These included manual/digital stimulation of the
anus combined with manual/digital stimulation of the genitals and cunnilingus,
among other combinations.

     Group scenes included genital sex 4 times, fellatio 5 times, cunnilingus twice,
manual/digital stimulation twice, and two or more means of genital and/or anal
stimulation in combination 14 times. This included, among others, fellatio
combined with cunnilingus and manual/digital stimulation and genital and anal
sex in combination. There were two instances showing a male ejaculating.


                                         9
                These videotapes promoted by appellants depict patently offensive representations of

perverted sexual acts, lewd exhibitions of the male and female genitals in a state of stimulation and arousal

that would appeal to a prurient interest in sex; the videotapes taken as a whole have no serious literary,

artistic, political, or scientific value; applying a contemporary statewide community standard, we hold that

these videotapes are obscene. The jury made a rational finding that the videotapes were obscene.

Appellants= seventh point of error is overruled.

                In their first point of error, appellants assert that the trial court Aerred in refusing to strike or

reform the jury panel, after the court found that the defendant had met the initial burden under Batson of

demonstrating that the State had disproportionately used its peremptory strikes against African-American

veniremen, and the State offered pretextually race-neutral reasons for the exercise of those strikes.@

                At the close of jury voir dire, and after the parties made their peremptory strikes, but before

the jury selected was sworn and before the panel was released, appellants moved the trial court to strike or

reform the jury pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). Appellants insisted that the State

had made race-based peremptory strikes. Appellants, not being of the same race as the prospective jurors

who were peremptorily challenged, asserted a Athird party@ equal protection claim on behalf of the African-

Americans who had been excluded from service on the jury. See Powers v . Ohio, 499 U.S. 400 (1991).

The court then conducted a Batson hearing.

                A Batson challenge should be determined in a three-step process. See Purkett v. Elem,

514 U.S. 765, 767-68 (1995). In the first step, the opponent of the peremptory challenge must make a


                                                       10
prima facie case of racial discrimination. Id. In the second step, the burden shifts to the proponent of the

challenge to come forward with a race-neutral explanation; this step does not demand an explanation that is

persuasive, or even plausible; at this step of the inquiry, the issue is facial validity of the prosecutor=s

explanation; unless a discriminatory intent is inherent in the prosecutor=s explanation, the reason will be

deemed race-neutral. Id. In the third step, if a race-neutral explanation has been tendered, the trial court

must then decide whether the opponent of the challenge has proved purposeful discrimination; it is not until

the third step that the persuasiveness of the justification for the challenge becomes relevant; this is the step in

which the trial court determines whether the opponent of the challenge has carried the burden of proving

purposeful discrimination. Id.

                 Here, it is uncontroverted that no African-American served on the jury. The State

exercised peremptory challenges excluding four African-Americans from service on the jury. A showing

that all four African-Americans who were in the strike zone were challenged by the State made a prima

facie showing of racial discrimination. The State offered explanations for the strikes it had exercised.

                 Without obtaining the court=s ruling on the second step of the process, appellant, apparently

believing the State had stated race-neutral reasons for their strikes, immediately entered into the third step of

the process. Appellant cross-examined the prosecutor attempting to show that the State=s explanations for

its strikes against the four African-American panel members were pretextual and not truly race-neutral.

                 When the cross-examination of the prosecutor ended, appellants= counsel made a brief

argument and the trial court ruled that Athe State provided race-neutral explanations for its strikes, and we

will proceed with the jury selected.@ Implicit in the court=s ruling was a finding that appellants had not


                                                        11
persuaded the court that the State=s reasons were pretextual. Appellants made no other objections at that

time. The jury was sworn, the remaining members of the panel were discharged, and the trial commenced.

                 Initially, appellants complain that, A[b]ecause the trial court in this case never made a finding

as to the plausibility of the reasons proffered by the State, ruling instead that the reasons were >race-neutral,=

the Batson inquiry at the trial court level was never completed.@ Appellants argue that this Aleaves this

Court with two options: (1) remand the case to the trial court for an ultimate finding on the third step of the

Batson inquiry, or (2) make its own finding from the record whether the State met its burden of rebutting

appellants= prima facia case of racial discrimination in the exercise of its perempteries.@ Appellants argue

that Aif, as here, a court collapses the second and third step, that is reason enough to reverse the case, as the

United States Supreme Court did in Purkett.@ However, the circumstances were different in Purkett v.

Elem, 514 U.S. 765, 767-68 (1995), than the circumstances in this case.

                 In Purkett v. Elem, the Eighth Circuit Court of Appeals held that in the second step of the

Batson hearing, the prosecutor must not only give race-neutral reasons for its strikes but also that such

reasons should be at least minimally persuasive. Elem, 514 U.S. at 768. The Supreme Court reversed the

Eighth Circuit holding that the Eighth Circuit had misplaced the burden of persuasion. The Supreme Court

ruled that in the second step of the Batson hearing, the prosecutor=s reasons for peremptorily striking a

prospective juror need not be persuasive and might be even Aimplausible or fantastic.@ Id. Here, the trial

court=s ruling was that appellant had failed to persuade the court that the State=s explanations for its strikes

were not race-neutral.




                                                       12
                We must let stand the trial court=s ruling at the conclusion of the Batson hearing unless it

was clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 365-66 (1991); Pondexter v.

State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996); Rhoades v. State, 934 S.W.2d 113, 123 (Tex.

Crim. App. 1996); Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App. 1990). The four appellants tried

jointly were entitled to a total of twelve peremptory strikes and the State was entitled to twelve peremptory

strikes. See Tex. Code Crim. Proc. Ann. art. 35.15(c) (West 1989). The four African-American panel

members on whom the State used peremptory strikes were panel members one, nineteen, twenty-two, and

twenty-seven. Originally, there were forty panel members but several, including one African-American,

were challenged for cause.

                The prosecutor testified that he struck panel member nineteen and another panel member

who was not African-American because they were both army retirees. The prosecutor explained that in his

experience he had found that retired military people were more liberal than other members of society. The

prosecutor implied that he did not want liberal people on this jury. On appeal, appellants do not seriously

question the prosecutor=s challenge of panel member nineteen. The prosecutor explained that he exercised

a peremptory strike against panel member twenty-seven because he had twice been convicted of driving

while intoxicated. The prosecutor also explained that he used peremptory strikes against three non-African-

American panel members because they also had been convicted of driving while intoxicated.

                Clearly, the prosecutor=s reasons for peremptorily striking panel members nineteen and

twenty-seven were race-neutral. The reasons given for the strikes were legitimate ones and were not shown

to be pretextual or sham reasons.


                                                     13
                The prosecutor testified that he exercised a peremptory strike against panel member one

because he appeared to be inattentive during both the State=s and defense counsel=s voir dire. AHe was not

paying attention at all to the proceedings . . . didn=t even know what I was asking or [what was] going on . .

. . He was not even paying attention when the defense counsel was talking to him.@ The prosecutor

admitted that another panel member who served on the jury had closed his eyes momentarily during voir

dire. This does not necessarily show that the panel member who closed his eyes momentarily was

inattentive. The prosecutor gave a race-neutral reason for striking panel member number one. Appellants

did not rebut the prosecutor=s explanation for striking juror number one.

                The prosecutor testified that he exercised a peremptory strike against panel member

twenty-two because when he questioned her on two occasions Ashe was not very responsive . . . . She

didn=t seem to care very much about being here . . . . I didn=t feel she would be a good juror.@ Appellants

most strenuous complaint is about the strike exercised against panel member twenty-two. On appeal, using

the reporter=s record, completed long after trial and long after the trial court=s ruling, appellants make an

exhaustive comparative analysis of the State=s use of its peremptory challenges.

                Relying on Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991), appellants argue

that AWhile a comparative analysis need not be raised at trial in order to preserve it for appeal, . . .

nevertheless in this case, such comparative analysis was raised at trial by the Defense, though not analyzed

as thoroughly as it has been here, because the record was not available at that time.@5


        5
         Unfortunately, Young has not been overruled. See Young v. State, 826 S.W.2d 141 (Tex.
Crim. App. 1991) (Campbell, J., dissenting, joined by McCormick, P. J.) (opinion denying State=s
motion for rehearing, Benavides, J., dissenting, joined by McCormick, P. J., Campbell, J., and White,

                                                     14
J.). On remand, Young v. State, 848 S.W.2d 203 (Tex. App.CDallas 1992, pet. ref=d) (Onion, J.,
dissenting). Young v. State, 856 S.W.2d 175 (Tex. Crim. App. 1993) (opinion refusing State=s
petition for discretionary review, Maloney, J., dissenting, joined by McCormick, P. J., and White, J.).
These dissents strenuously disagree with allowing the comparative analysis to be made from the record
on appeal. As Judge Maloney says, it is Atantamount to a sandbag [of the trial judge] of the greatest
magnitude.@ Young, 856 S.W.2d at 177.


                                                  15
                The prosecutor told the panel that the State=s evidence would include Asome pretty graffic

[sic] stuff@ that they might not want to see but that it would be each juror=s duty to watch the videotapes to

determine whether the defendants had violated the law. The prosecutor then elicited a response from each

panel member individually concerning whether he or she could accept that duty of watching the videotapes if

selected as a juror. In their brief, appellants summarize the panel members= responses. Eighteen answered

AYes,@ sixteen AYes, sir,@ one AI can,@ one AYes, I can,@ one AUh-huh,@ one ANo,@ and one AHuh-uh.@

                Later, after the prosecutor explained to the panel the range of punishment provided for the

charged offense, he elicited a response from each panel member individually concerning whether she or he

could consider the whole range of punishment if the defendants were found guilty of the charged offense.

On appeal, appellants show the panel members= responses: Twenty-two answered AYes,@ twelve AYes, sir,@

one AI could,@ one ASure,@ one AUh-huh, panel member three ANot impartially,@ panel member eleven AI

couldn=t consider nothing.@ Panel member twenty-two answered both questions, AYes, sir.@ Continuing

their comparative analysis, appellants summarize the remainder of the State=s voir dire as follows:


              Other than in the course of these two questions, the sum total of words spoken by all
        veniremembers during the prosecutor=s entire voir dire was 113 words. There were 12
        one-word sentences, 4 two-word sentences, 2 three-word sentences, 3 four-word
        sentences, 2 five-word sentences, 2 seven-word sentences, 1 eight-word sentence, 2
        thirteen-word sentences, and 1 seventeen-word sentence . . . . In other words, not one
        veniremember volunteered anything regarding the case. Twenty-six of the forty
        veniremembers, like [panel member twenty-two], remained entirely silent throughout the
        State=s voir dire except in response to the two questions outlined above. Sixty-seven of the
        113 words spoken were uttered by two veniremembers.


                Appellants adroitly summarize their argument:


                                                     16
              A review of the record will demonstrate that the disparate treatment of the two
        veniremen complained of, as compared to the treatment of other, non-African-American
        veniremen, supports only a finding that the prosecutor=s reasons were a mere pretext for
        race-based discriminatory exercise of peremptory strikes. Particularly as to [panel member
        twenty-two], the prosecutor noted that it was not her attitude or other quality not
        susceptible to transcription that caused him to strike her, but the length of her answers.
        This is uniquely reviewable on appeal, and may be one of the only circumstances where the
        appellate court, reviewing the Acold record,@ is in a better position than the trial court to
        weigh its veracity, because the cold record lends itself to counting.


                 We disagree with appellants= argument that this appellate court is in a better position to

determine from a cold record whether the State offered pretextual reasons for peremptorily challenging

panel member twenty-two. The trial court observed the demeanor of all of the panel members during voir

dire and noted the manner (promptness, delay, voice inflection, attitude, and the like) in which they

responded to the prosecutor=s and defense counsel=s questions. The trial court was acquainted with and

observed the demeanor of the prosecutor during voir dire and when he testified about his reasons for

striking the panel members. In addition to observing the panel members, the best evidence concerning

purposeful discrimination will often be the demeanor of the attorney who exercises the challenge.

Hernandez, 500 U.S. at 364-66. Because the trial court=s finding turns largely on an evaluation of

credibility, a reviewing court should ordinarily give these findings great deference. Id. A trial court=s finding

on the issue of discriminatory intent should not be overturned unless its determination is clearly wrong. Id. at

368-69. After reviewing the voir dire, the Batson hearing, and the remainder of the record, we find that the

trial court=s ruling was not clearly wrong. Appellants= first point of error is overruled.




                                                      17
                In their second point of error, appellants insist that the trial court erred in refusing to allow

defense counsel to tell the jury Awhat he expected the State=s evidence would not show@ in his opening

statement. Immediately after the State=s opening statement, defense counsel addressing the jury said: AGood

morning, y=all. Let me tell you what the evidence is not going to show you in this case.@ The prosecutor

objected. Defense counsel stated that he was entitled Ato argue what the State=s evidence was lacking,

what evidence they will be lacking.@ The trial court sustained the State=s objection, telling defense counsel

that he could tell the jury Awhat you anticipate your evidence is going to show.@ The Code of Criminal

Procedure provides that either after the State=s opening argument or after the testimony of the State=s case-

in-chief has been presented, the Anature of the defenses relied upon and the facts expected to be proved in

their support shall be stated by defense counsel.@ See Tex. Code Crim. Proc. Ann. art. 36.01(a)(5), (b)

(West Supp. 2002).

                Because the record does not show by bill of exception, either formal or informal, what

defense counsel=s opening statement would have been, nothing is presented for review. See White v. State,

181 S.W. 192, 193 (Tex. Crim. App. 1916); McBride v. State, 7 S.W.2d 1091, 1094 (Tex. Crim. App.

1928). Moreover, the statute does not allow defense counsel to argue in his opening statement what he

thinks will be lacking in the State=s proof. The proper time to argue the State=s lack of proof is in jury

argument after the close of evidence. Defense counsel did make an opening statement concerning the

evidence that would be presented in appellant=s defense. Appellants= second point of error is overruled.

                In their third point of error, appellants urge that the trial court erred in allowing the




                                                      18
prosecutor to testify, over objections, to their identity. 6 The appellant argues, Athe admittedly common


        6
            Defense counsel objected in a similar manner when each appellant was identified.

            Q:             Okay. During this time did another person enter the business?

            R:             Yes.

            Q:             And do you know who that person was?

            R:             I later determined or learned that that was Roy Martin.

            Q:             Okay. Is Mr. Martin in the courtroom today?

            R:             He=s seated to Ms. Martin=s left, in the white shirt.

            Mr. Danford:    Your Honor, may the record reflect he=s identified Mr. Martin in this
                            case?




                                                     19
practice of prosecutors asking, in the presence of the jury, that >the record indicate that the witness has

identified the Defendant,= is a practice which should be halted by this Court. At its best, it is testimony by

the prosecutor; at its worst, it is an invitation - one all too often accepted - for the trial judge to comment on

the weight of the evidence.@

                 However, where a defendant was identified in court merely as the man Awearing an orange

shirt and a light beige/tan leisure suit,@ the appellate court admonished prosecutors saying, AWe do urge,

however, that prosecutors follow the better practice of using the talismanic words >Let the record reflect . . .

.=@ Rohlfing v. State, 612 S.W.2d 598, 601-602 n.2 (Tex. Crim. App. 1981). Although appellants=

argument is interesting, we hold proper the method of identification used here, and in almost every case

before us. If the record does not show that a defendant was identified in court as appellants were here,

defendants will contend that they were Anever properly identified in court as the actual perpetrator of the

offense.@ Rohlfing, 612 S.W.2d at 600. Appellants= third point of error is overruled.

                 In their fourth point of error, appellants assert that the State failed to establish a proper

chain of custody showing that the videotapes admitted in evidence and exhibited to the jury were the same




          Mr. Fahle:         Object to counsel testifying, Your Honor. The record will speak for
                             itself.

          THE COURT: Overruled. For the record, the witness has identified Mr. Martin.




                                                       20
videotapes purchased from appellants. On several occasions, James Naramore, an investigator for the Bell

County Attorney=s Office, purchased videotapes from appellants, who were employees at the Adult Video

store. Naramore purchased the videotapes with money furnished him by Houston Johnson of the Harker

Heights Police Department. After Naramore purchased the videotapes, he and Johnson individually viewed

the videotapes and marked the boxes in which the tapes were purchased. The boxes and videotapes were

left in the custody of the Harker Heights Police Department. Before trial, about a year later, Naramore

again viewed the tapes. He testified that the videotapes admitted in evidence were the same tapes that he

had viewed after they were purchased from appellants.

                Appellants complain that the trial court limited their cross-examination of

Naramore concerning his Aastonishing[ly] good long time memory@ about the contents of the videotapes.

From our review of the record, we are unable to find that the trial court abused its discretion in limiting

appellants= cross-examination of Naramore. There was no evidence that the tapes had been tampered with.

We hold that the videotapes were sufficiently well identified to be admitted in evidence and exhibited to the

jury. Appellants= fourth point of error is overruled.

                In their fifth point of error, appellants complain of the trial court=s refusal to admit in

evidence Defendants= Exhibit Twenty-nine. The defense offered the testimony of John Bailey, Ph.D. Dr.

Bailey was a research and clinical psychologist and a professor of psychology at Northwestern University.

Dr. Bailey testified that he had been conducting research in human sexuality in a study funded by a grant

from the National Institutes of Health. In this study, Dr. Bailey testified that he used pornographic

videotapes as stimuli for the research subjects. Dr. Bailey had prepared a videotape compilation,


                                                    21
Defendants= Exhibit Twenty-nine, which included pornographic clips used in his research. Appellants

contend that this videotape compilation was relevant and admissible before the jury to show that videotapes

like those promoted by them, when taken as a whole, had serious scientific value. The record concerning

the exclusion of Defense Exhibit Twenty-nine shows:


        [Defense Counsel]:       Your honor, we=d move for admission of Defendant=s Exhibit
                                 Number 29.

        [Prosecutor]:            Renew my objection, Your Honor.

                                 (At the Bench, off the record.)

        [Defense Counsel]:       Judge, we would offer this 29 as an offer of proof.

        THE COURT: Okay.


The record does not clearly show that the court ruled on the State=s objection and it does not clearly show

what the court ruled on appellants= offer of proof.

                In order for a complaint concerning the exclusion of evidence to be considered on appeal,

the record must contain the excluded evidence; absent a showing of what the evidence is that was excluded,

nothing is presented for review. See Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984);

Adams v. State, 969 S.W.2d 106, 112 (Tex. App.CDallas 1998, no pet.). In order for this Court to

consider appellants= point of error, this Court would need to actually see the videotape, Defense Exhibit

Twenty-nine. Because appellants did not make Defense Exhibit Twenty-nine a part of the appellate record

by a bill of exception, either formal or informal, they have waived their complaint about Defense Exhibit

Twenty-nine being excluded from evidence. See Stewart, 686 S.W.2d at 122; Gonzales v. State, 63

                                                      22
S.W.3d 865, 878 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Oldham v. State, 5 S.W.3d 840, 847

(Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). We are unable to review the merits of appellants= point

of error. Point of error five is overruled.

                 In their sixth point of error, appellants complain that the trial court erred in charging the jury

that appellants need only know the Acontent or character@ of the videotapes they allegedly promoted rather

than requiring that appellants know the Acontent and character@ of the videotapes. The informations alleged

that appellants knew the Acontent and character@ of the videotapes they allegedly promoted. The trial court

charged the jury that a person commits the offense of obscenity if, knowing its Acontent and character@ he or

she promotes, or possesses with intent to promote, any obscene material. See Tex. Pen. Code Ann. '

43.23(c)(1) (West 1994). However, the application paragraph of the charge only required that the jury find

appellants knew the Acontent or character@ of the videotapes. Appellants= objection to the charge on this

ground was not made until the middle of defense counsel=s closing jury argument and again after the jury had

retired to deliberate; these objections were untimely. See Tex. Code Crim. Proc. Ann. art. 36.14 (West

Supp. 2002).

                 Therefore, we must first decide whether the jury charge submitted was erroneous. If the

charge was erroneous, because the objections were untimely, we must then decide whether the charge

caused egregious harm that deprived appellants of a fair and impartial trial. See Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984). The State is not required to prove that a defendant knew the

videotapes were legally obscene. See Burden v. State, 55 S.W.3d 608, 614 (Tex. Crim. App. 2001). It




                                                       23
is only required that a defendant have knowledge of the sexually explicit content and character of the

material. Id.

                 The words Acontent@ and Acharacter@ are not statutorily defined. AContent@ is defined as

something that is contained: the thing, things, or substance in a receptacle or an enclosed space. Websters

Third New International Dictionary 492 (Philip B. Gove ed., 1961). ACharacter@ is defined as the

aggregate of features and traits that form the apparent individual nature of some person or thing. The

Random House Dictionary of the English Language 247 (unabridged, Jess Stein ed., 1979).

                 It would only be necessary that the jury find that appellants knew the contents of the

videotapes were sexually explicit or that the character and nature of the videotapes were sexually explicit.

We hold that the trial court did not err in charging the jury in the disjunctive. However, in the alternative, if

the trial court erred in its jury charge, from our review of the entire jury charge, the evidence heard by the

jury, including the contested issues and the weight of the probative evidence, and the argument of counsel,

we conclude that appellants were not egregiously harmed by the charge, if it were erroneous, and that

appellants were not deprived of a fair and impartial trial. Appellants= sixth point of error is overruled.

                 In the eighth point of error, appellant Ray Martin insists that the evidence is insufficient to

support his conviction either as a party or as a principal to the offense charged. The jury charge allowed

appellant Martin=s conviction if he either acted alone, or as a party, to the offense of promoting an obscene

videotape, by encouraging, aiding, or attempting to aid Rachel Martin to promote the obscene videotape,

AA Transvestite=s First Blow Job.@




                                                       24
                 A person is criminally responsible for an offense committed by the conduct of another if

acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs,

aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. ' 7.02(a)(2)

(West 1994). Appellant argues that he was merely present at the scene of the offense and therefore he is

not guilty of committing the offense of which he has been convicted.

                 The first time Naramore entered the Adult Video store to purchase videotapes, he selected

four tapes; one of the tapes was AA Transvestite=s First Blow Job.@ Naramore brought the four tapes to the

counter and discussed his purchase with Rachel Martin, the only employee in the store at that time. Rachel

Martin assured Naramore that, as marked on the boxes, the tapes were XXX rated. During Naramore=s

conversation with Rachel Martin, Roy Martin entered the store and joined the conversation. Rachel Martin

then went some other place in the store. Roy Martin walked behind the counter near the cash register. Roy

Martin looked at the boxes containing the videotapes and on a piece of paper totalled the sale price of the

tapes. Roy Martin told Naramore the amount of the purchase price, but said he was not on duty that day

and that Rachel Martin would have to actually ring up the sale. Rachel Martin returned to the counter and

Roy Martin told her he had Atallied up the sale.@ Rachel Martin Arefigured it, and came up with the same

total amount.@ Naramore paid Rachel Martin for the tapes and left the store.

                 This evidence is sufficient to support the jury=s finding and verdict that appellant Roy Martin

was guilty of the offense charged, either as a principal actor or, as a party to the offense by aiding or

attempting to aid Rachel Martin in promoting the obscene videotape, A Transvestite=s First Blow Job. The

eighth point of error is overruled.


                                                      25
                 The judgments are affirmed.




                                                __________________________________________

                                                Carl E. F. Dally, Justice

Before Justices Kidd, Yeakel and Dally *

Affirmed

Filed: November 7, 2002

Do Not Publish




*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
    Govt. Code Ann. ' 74.003(b) (West 1998).




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