legislature can regulate obscenity without violating First Amendment
How later courts described this case
- legislature can regulate obscenity without violating First Amendment
Written by the judges who cited it.
The opinion
BAKER, Justice,
dissenting.
I respectfully dissent from the majority’s conclusion regarding point of error number one because it is a classic example of elevating form over substance.
The majority reverses and remands this cause because it concludes that appellant’s notice of the substance of the State’s amendment to the information was insufficient since the order itself did not set out the amendment which the trial court granted. The majority notes that although the motion set out the amendment which the State desired, the trial court’s order does not recite the amendment which the court would allow. They reason that a defendant would not have notice of the amended charges against him unless the trial court’s order set out the substance of the amendment or until the indictment itself was physically changed. See TEX.CODE CRIM.PROC.ANN. art. 27.11 (Vernon 1989); Oliver v. State, 646 S.W.2d 242, 245 (Tex.Crim.App.1983).
*731 The record reflects that the State filed its motion to amend the information on April 6, 1988. This motion contained the State’s request to amend the information by adding the words “oral and anal” after the words “patently offensive representations of or descriptions of” in the information filed against appellant. A copy of the motion was served upon appellant’s counsel. Appellant’s co-counsel was informed on April 11, 1988, that the trial court was granting the motion.
The record reflects that the State’s motion and the trial court’s order are all part of one instrument, and the trial court’s order specifically says that the State’s foregoing motion is granted and the information is hereby amended. This order was signed effective April 6,1988. On April 14, 1988, appellant filed a new motion for pretrial hearing requesting, under article 27.-11, that the hearing be set ten days from the date of presentment of the information or amended information. A pretrial hearing was held on May 23, 1988, at which time appellant asked for an additional ten days which was denied. Appellant pleaded nolo contendere on May 31, 1988.
In my view, to hold that the trial court’s order must set out the substance of the amendment when the order is part and parcel of the motion to amend which contains the specific amendment requested is to elevate form over substance, particularly when the record is without dispute that appellant had notice of the amendment for a period of more than ten days before trial. Under the facts of this case, I would hold that appellant had sufficient time to familiarize himself with the charges against him so that he could respond appropriately, and I would overrule point one.