Petition for Writ of Certiorari — Acosta v. Texas (No. 05-1574)

() Supreme Cou U.S.

051574 JUN 7 - 2006

GEFCE OF TRE CLERK

No. 05-

In the

Supreme Court of the United States

IGNACIO SERGIO ACOSTA,

Petitioner,

V.

STATE OF TEXAS

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals

Eighth District of Texas, El Paso, Texas

PETITION FOR WRIT OF CERTIORARI

RocerR Jon DIAMOND

Counsel of Record

2115 Main STREET

SANTA Monica, CA 90405

(310) 399-3259

(310) 392-9029 Fax

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTIONS PRESENTED

1. Does Texas Penal Code Section 43.34(c)(1), which,

among other things prohibits the giving of a dildo to another

_ person, violate the Ninth Amendment and substantive Due

Process Clause of the Fourteenth Amendment to the United

States Constitution?

2. Is the utilization by an adult in private of a dildo a

fundamental right under the Constitution?

3. Is the right to sexual privacy a right which was

retained by the People in the Ninth Amendment to the United

States Constitution?

PARTIES TO THE PROCEEDINGS

Petitioner: — Ignatio Sergio, Acosta is the defendant in the

underlying criminal case.

Respondent: The State of Texas, by the El Paso County

District Attorney, is prosecuting Petitioner

Acosta.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... i

PARTIES TO THE PROCEEDINGS ............ ii

TAME OP CONTENTS ©... ie iii

TAME OF AUTHOMIING .... 5... .6 5... iv

TABLE OF APPENDICES .............26.%- vii

PETITION FOR WRIT OF CERTIORARI ......... i

WINE ee, 1

STATEMENT OF JURISDICTION ............. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................--. 2

STATEMENT OF THECASE ................ 3

STATEMENT OF PROCEDURAL HISTORY ...... 4

REASONS FOR GRANTING THE WRIT ......... 4

I. There Is A Split Among The State Courts On The

Federal Constitutional Question Regarding The

Validity Of Anti-Dildo Statutes .............. 4

II. The Recent Decision By This Court in Lawrence v.

Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d

508 (2003) Justifies A Reexamination Of The Anti

ee ee ie 13

CAME i ss eek os bP eK cas Hamre ee 24

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Bowers v. Hardwick,

478 U.S. 186, 106 S.Ct. 2841,

WARN MEWS 6 8 68 8k 4% parka Oe ex 17, 18-19, 23

Carey v. Population Services International,

431 U.S. 678, 97 S.Ct. 2010 (1977) ........

Eisenstadt v. Baird,

405 U.S. 438, 92 S.Ct. 1029,

BE Ue See CPD ek ks 6b Res

Griswold v. Connecticut,

381 U.S. 479, 85 S.Ct. 1678,

Oe Ree re Cle) ek oe ee ee ee es

Lawrence v. Texas,

539 U.S. 558, 123 S.Ct. 2472,

Se hee ee LE os ii eS es ce

Meyer v. Nebraska,

262 U.S. 390, 43 S.Ct. 625,

OF Rte Pes Ch PES). oe ee kee oivaeiees

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833, 112 S.Ct. 2791,

SOF hc OTe CRE oe ws ace

Poe v. Ullman,

367 U.S. 497, 81 S.Ct. 1752,

0 2 ee Ce a aa ee ee eS

Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705,

ee Re GEOTOE Ko e's 6:6. 9 64 kid po owhbie Oe 15

Sewell v. Georgia,

435 U.S. 982 96 S.Ct. 1635,

I TENTED ob voc veh inc bee | 23

Williams v. Attorney General,

376 F.3d 1232 (ith Cir. 2004)... 2. we 5, 20

Williams v. King, _U.S.__,

ee MO eee 5

Williams v. Pryor,

ae FU. 28 NZS TE) on ccc eves 5, 20

STATE CASES

PHE v. State of Mississippi,

SPF ee RAE bes Ci awakes wh eh 11

Kametches v. State of Georgia,

ge COR, TAL, 20k Dee BORO PTOD 6 6 kh ERS 11

People v. Seven Thirty-Five East Colfax, Inc.,

Pr Fie SURED ek oe SEER tee 5, 10

Regalado v. State of Texas,

oe @ Rb go. | | | TRE set nen are ae tr 3 Oe

Sewell v. State,

233 S.E.2d 187(1977)

State of Kansas v. Hughes,

792 P.2d 1023(1990)

State of Louisiana v. Brenan,

772 So.2d 64 (2000)

T.K.’s Video, Inc. v. State of Texas,

891 S.W.2d 287(1994)

Yorko v. State of Texas,

690 S.W.2d 260 (1985) ..... owe, 34:32. FF; 23

Vil

3LE OF APPENDICES

APPENDIX A:

Court of Appeals Eighth District Unpublished

Rete OE FI ong ce ees ce pewee Ge la

APPENDIX B:

October 11, 2004 Order of County Criminal

Core Dr Ee 6 ok ee EE 10a

APPENDIX C

Post Card dated March 22, 2005 Notifying Petitioner

Of Action Taken By Court of Criminal Appeals .. Ila

APPENDIX D

Letter From Chief Clerk of Texas Court of Criminal

Appeals dated April 20, 2006 .............. 12a

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Ignacio Sergio Acosta (“Acosta”) respectfully

prays that a Writ of Certiorari issue to review the judgment

and opinion of the Court of Appeals, Eighth District of Texas,

filed on August 31, 2005, which reversed the order of

dismissal of October 11, 2004. The Court of Criminal

Appeals of Texas denied discretionary review on March 22,

2006.

OPINIONS BELOW

The unpublished opinion (August 31, 2005) of the Court

of Appeals, Eighth District of Texas, is not reported. State

v. Acosta, 2005 Tex. App. LEXIS 7170 (Tex. App.-El Paso

2005). It is Appendix A at 1a-7a.

The October 11, 2004 order of the County Criminal Court

Number One, El Paso County, Texas dismissing the

complaint, is not reported. It is Appendix B at 10a.

On March 22, 2006 the Court of Criminal Appeals of

Texas denied discretionary review without a written order. It

was delivered per curiam, en banc, with no judges dissenting.

A copy of the post card notifying Petitioner of the action

taken by the Court of Criminal Appeals of Texas is Appendix

C at lla.

A letter from the Chief Clerk of the Texas Court of

Criminal Appeals dated April 20, 2006 confirming that the

court denied discretionary review on March 22, 2006 without

a written order is Appendix D at 12a. :

2

STATEMENT OF JURISDICTION

The Court of Appeals, Eighth District of Texas, issued its

Opinion on August 31, 2005, which reversed the dismissal by

the County Criminal Court Number One, El Paso County,

Texas.

On March 22, 2006, the Court of Criminal Appeals of

Texas denied discretionary review. This Petition for a Writ

of Certiorari is filed within 90 days of the denial of the

Petition for Discretionary Review. See Rule 13(1) of the

Supreme Court Rules. This Court’s jurisdiction is invoked

pursuant to 28 United States Code Section 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. IX

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others

retained by the People.

U.S. Const. amend XIV, sec.1

. . . No state . . . shall deprive any person of life,

liberty, or property, without due process of law. . . .

Texas Penal Code Scction 43.23(c)(1) provides, in part,

as follows:

(c) A person commits an offense if, knowing its

content and character, he:

(1) Promotes or possesses within intent to promote

any obscene material or obscene device. . . .

”

3

Texas Penal Code Section 43.21(a)(7) provides as follows:

“*Obscene Device’ means a device including a dildo

or artificial vagina, designed or marketed as useful

primarily for the stimulation of human genital

organs.”

Texas Penal Code Section 43 .21(a)(5) provides as follows:

“*Promote’ means to manufacture, issue, sell, give,

provide, lend, mail, deliver, transfer, transmit,

publish, distribute, circulate, disseminate, present,

exhibit , or advertise, or to offer or agree to do the

same.”

STATEMENT OF THE CASE

The following summary of the evidence is taken directly

from the opinion of the Court of Appeals. On September 15,

2C93, two undercover officers, a male and female, entered the

Trixx Adult Bookstore. Various sexual devices were -.i sale

in the store. The officers saw a crystal cock vibrator

displayed behind the store counter. They questioned Acosta,

a store empioyee, with regard to the possible uses of the

device. He showed ther the device and stated that the device

would arouse and gratify the female undercover officer in that

it would give her an orgasm. The officers purchased the

device. Ten days later Acosta was arrested for violating

Texas Penal Code Ann. §43.23(c)(1)(Vernon Supp. 2004-05)

which proscribes an individual from promoting an obscene

device. On October 11, 2004 a hearing was held on Acosta’s

motion to dismiss the complaint. The parties’ respective

arguments centered around whether the statute in question was

unconstitutional because it prevents individuals from using

dildo type devices in violation of the right to sexual privacy.

4

The court granted the motion to dismiss the complaint on the

ground the statute was unconstitutional.

STATEMENT OF PROCEDURAL HISTORY

On August 31, 2005 The Eighth District Court of Appeals

reversed the Order of Dismissal and remanded the case for

trial. The State requested publication of the decision because

no Texas appellate courts have addressed the constitutionality

of the statute after the decision by this Court in Lawrence v.

Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508

(2003). On September 14, 2005 the Eighth District denied the

State’s motion to publish the decision. On March 22, 2006

the Court of Criminal Appeals denied Acosta’s Petition for

Discretionary Review.

REASONS FOR GRANTING THE WRIT

I. There Is A Split Among The State Courts On The

Federal Constitutional Question Regarding The

Validity Of Anti-Dildo Statutes

The highest courts of Colorado, Kansas, and Louisiana

have held unconstitutional anti-dildo statutes of their states,

whereas the highest courts of Georgia, Mississippi, and Texas

have upheld such statutes. These states’ highest courts did not

limit their rulings to the commercial distribution of dildos.

Rather, they agreed that the issue was whether the statutes

interfered with the private use of such devices. They

disagreed with each other on the constitutional result, but not

on the effect of the statutes.

Recently, the identical Alabama anti-dildo statute was

examined by the United States District Court for the Northern

District of Alabama. That court concluded that the Alabama

5

anti dildo statute was unconstitutional, Williams v. Pryor, 220

F.Supp.2d 1257 (N.D. Ala. 2002). Even though the statute,

like the Texas statute in the instant case, did not, on its face,

specifically prohibit individuals from actually using dildos,

the District Court concluded that the statute’s restrictions

effectively interfered with the private use of dildos; therefore

the District Court reached the issue of the constitutional right

of privacy.

Although the Eleventh Circuit reversed the District

Court’s invalidation of the Alabama anti dildo statute

(identical to the Texas anti dildo statute here) in a split

opinion, even the majority agreed that the Alabama statute

had to be examined in terms of its impact on private use.

That is, the majority reached the question of whether adults

do have a constitutional right of sexual privacy. Williams v.

Attorney General of Alabama, 378 F.3d 1232 (11" Cir.

2004). The dissent agreed with the majority that the statute

impacted the private use of dildos and that it would have to be

considered in the context of the alleged private right of sexual

privacy. The dissent concluded that the Alabama anti dildo

statute was unconstitutional. It interfered with the right to

engage in sexual activity in private. This Court denied

certiorari sub nom Williams v. King, _. U.S. __, 125 S.Ct.

1335 (2005).

le v. Seven Thirty-Five East Colfax, Inc., 697

P.2d 348 (Colorado Supreme Court 1985), the Colorado

Supreme Court struck down virtually the identical statute. In

the case the State of Colorado filed a civil action for

injunctive relief to have certain “sex toys” declared obscene.

The Colorado Supreme Court dealt directly with the same

statutory provision included in the Texas Penal Code, a

prohibition against the promotion of obscene devices. The

-_

6

Colorado statute in question made it illegal to promote or

possess with intent to promote any obscene device and an

obscene device was defined as a dildo designed or marketed

as useful primarily for the stimulation of human genital

organs. 697 P.2d at 369. The Colorado Supreme Court

stated, :

“The statutory scheme, in its present form,

impermissibly burdens the right of privacy of those

seeking to make legitimate medical or therapeutic use

__.of such devices. The effect of the statute now written

is to equate sex with obscenity. The state has

demonstrated no interest in the broad prohibition of

these articles sufficiently compelling to justify the

infringement on the privacy right of those seeking to

use them in legitimate ways. Thus, we hold the

statutory prohibition against the promotion of obscene

devices to be unconstitutional.” 697 P.2d at 370.

It must be emphasized that the Colorado statute in

question was identical to the Texas statute herein.

Specifically, the statute attempted to reach the commercial

distribution of dildos, not simply the private possession of

dildos. Still the Colorado Supreme Court held the statute

violated the right of privacy.

In addition to the Colorado Supreme Court invalidating

the identical statute at issue here, the Louisiana Supreme

Court did the same thing in State of Louisiana v. Brenan, 772

So. 2d 64 (2000).

In the Brenan case Ms. Christine Brenan was arrested

three times for selling dildos. Ms. Brenan was convicted at

trial but the State Court of Appeal reversed her conviction,

739 So. 2d 368. The Louisiana Supreme Court granted the

7

Sstate’s writ application and then affirmed the decision of the

Court of Appeal. The Louisiana Supreme Court noted that

the Kansas and Colorado Supreme Courts had struck down

their statutes but that the Texas Court of Criminal Appeals

and the Georgia Supreme Court had rejected similar

challenges. The Louisiana Supreme Court went on to

conclude that the prohibition against the promotion of obscene

devices such as dildos bore no rational relationship to any

legitimate state interest. Thus, the statute was held to be in

violation of the Due Process Clause of the Fourteenth

Amendment. The Court stated that vibrators “ . . . remain an

important tool in the treatment of anorgasmic women who

may be particularly susceptible to pelvic inflammatory

diseases, psychological problems, and difficulty in marital

relationships. . . .”

The Louisiana Supreme Court noted that “ . . . there are

many medical and health journals which discuss sex therapy

and the medical uses of sexual devices in the course of

treatment of sexual dysfunction.” 772 So. 2d at 76.

In State of Kansas v. Hughes, 792 P.2d 1023 (Kan. 1990)

the Kansas Supreme Court also held unconstitutional a Kansas

statute prohibiting the dissemination of obscene devices. Just

as Mr. Acosta in the instant case was arrested and prosecuted,

so too was Mr. Randy Hughes arrested and prosecuted for

promoting obscenity by selling two obscene devices in

violation of a Kansas statute. Specifically, he was arrested

in his store in Wichita, Kansas for selling a vibrator kit with

a dildo attachment. Just as the trial court below dismissed the

case, the trial court in the Kansas case also dismissed the case

and the state appealed. Likewise, the statute at issue in

Kansas was a statute that prohibited the commercial

distribution of dildos.

8

In contrast the high courts of Colorado, Kansas, and

Louisiana, are to the decisions of the high courts of Texas,

Georgia, and Mississippi. In Yorko v. State of Texas, 690

S.W. 2d 260 (1985), the Texas Court of Criminal Appeals

(the highest criminal court in Texas) upheld the

constitutionality of the anti dildo statute, the same one which

is the subject of this case.

The majority of the Texas Court of Criminal Appeals in

Yorko v. State of Texas, supra, stated that the issue presented

was the following:

“Does the Due Process Clause of the Fourteenth

Amendment guarantee a citizen the right to stimulate

his, her or another’s genitals with an object designed

or marketed as useful primarily for that purpose?. . .”

Id. at 263.

The four justice majority went on to state,

“_.. Wehold it is also appropriate for the state to act

to protect the ‘social interest in order and

morality’... or ‘decency’ . . . by restraining traffic

in non-communicative objects designed or marketed as

useful primarily for the stimulation of human genital

organs.”

The four justice majority stated that there was a distinction

between contraceptives and obscene devices.

In conclusion, the four justice majority of the Texas Court

of Criminal Appeals stated,

“We hold that the rationale justifying the State’s

exercise of the police power against obscene

9

expression - that is, the protection of the social interest

in order and morality - also justifies the State in

criminalizing the promotion of objects designed or

marketed as useful primarily for the stimulation of

human genital organs... .” Id. at 266.

The three justices who dissented stated the issue was

different. Justice Clinton stated the question presented in a

different way:

“Whether the constitutional right of personal privacy

is broad enough to encompass a person’s decision to

engage in private consensual sexual activity that

includes stimulating human genital organs with an

object designed to be primarily useful for that

purpose?” Id. at 267.

Justice Clinton went on to conclude,

“... It is sufficient that there is a constitutional right

to personal privacy broad enough to encompass a

person’s decision to engage in private consensual

sexual activity in any manner or means not proscribed

by law.” Id. at 268

Justice Teague filed a separate dissenting opinion. Justice

Teague stated,

“If the state may not deny acu*s «0 contraceptive

devices, how can it deny access .. human sexual

devices that, as a matter of common knowledge, have

much therapeutic value, and are harmless in

themselves.” Id. at 272.

10

Justice Teague went on to say,

“It is common knowledge today that a person who has

problems dealing with sexual behavior can suffer from

depression and anxiety reaction, to such an extent that

such a problem can cause an identity problem as far as

self-image and self- confidence is concerned. It is also

common knowledge today that trained experts in the

field of human sexual behavior use sexual aids such as

a dildo, in their endeavors to cure their male and

female patients’ sexual problems. ....” Id. at 273.

Justice Teague continued,

“.. . [In this instance, appellant had the right to

privacy and the dildo he possessed within intent to

sell. Thus, such falls without the prohibitive zone of

the police power of the state.” Id. at 273.

Justice Teague concluded,

“The statutes, encompassing dildos, are

unconstitutional. .. .” Id. at 273.

Justice Miller also filed a separate dissenting opinion.

Thus, ever since May 22, 1985, the Texas Court of Criminal

Appeals’ decision in Yorko v. State of Texas, has stood by

the narrowist of margins, a four to three vote.

Strangely, the four judge majority of the Texas Court of

Criminal Appeals did not mention the decision of the

Colorado Supreme Court in People v. Seven Thirty -Five East

Colfax, Inc., 697 P.2d 348 (Colorado Supreme Court 1985).

Not only did the majority fail to cite the Colorado Supreme

1]

Court case , which was handed down on February 25, 1985,

the dissenting judges ignored it also.

The Texas Court of Criminal Appeals did not mention this

Colorado Supreme Court case even though it was decided on

February 25, 1985. Perhaps the Texas Court of Criminal

Appeals was not aware of the Colorado case because the

Supreme Court of Colorado did not get around to denying a

rehearing petition until April 15, 1985, about five weeks

before the Texas Court of Criminal Appeals decided the

Yorko case. The Texas Court of Criminal Appeals was not

adverse to citing other state court decisions because it did rely

on Sewell v. State, 233 S.E.2d 187 (Ga. 1977), where the

Georgia Supreme Court held constitutional a similar statute,

even though that case was not as close to the Texas statute as

was the Colorado statute invalidated by the Colorado Supreme

Court. A year later the Georgia Supreme Court upheld the

statute again in Kametches v. State of Georgia, 242 Ga. 721,

251 S.E. 2d 232 (Supreme Court of Georgia 1978).

Likewise, the Supreme Court of Mississippi in PHE v

State of Mississippi, 877 So. 2d 1244 (Mississippi Supreme

Court 2004) upheld the Mississippi statute prohibiting the

distribution of dildos. Given this split among the high courts

of the states of Colorado, Kansas, Louisiana on the one hand

and Georgia, Mississippi, and Texas on the other, it is

extremely important for this court to grant certiorari to

resolve this important issue.

There are three intermediate Texas appellate court

decisions that have been published which have reaffirmed the

Yorko decision.

Regalado v. State of Texas, 872 S.W.2d 7 (1994) is a

decision by the Fourteenth District Court of Appeals of

12

Texas. A jury found a defendant guilty of possessing obscene

devices with intent to sell them. The defendant received a 30

day jail sentence and a $250 fine. Believing it to be

constrained by the Texas Court of Criminal Appeal’s decision

in Yorko v. State, the three judge panel upheld the conviction.

Justice Curtis Brown filed the following concurring opinion:

“Here we go raising the price of dildos again. Since

this appears to be the law in Texas I must concur.”

In T.K.’s Video, Inc. v. State of Texas, 891 S.W. 2d 287

(1994) a three judge panel of the Court of Appeals in Fort

Worth affirmed a conviction. The defendant violated the anti

dildo statute and was sentenced to pay a fine of $10,000.

Again the Texas intermediate appellate court was bound by

Yorko v. State.

Finally, in Webber v. State of Texas, 21 S.W. 3d 726

(2000), the Court-of Appeals affirmed a conviction for the

promotion of an obscene device ( a dildo). The defendant

was sentenced to 30 days in jail and ordered to pay a fine of

$4,000.00.

Justice Bea Ann Smith filed a concurring opinion joining

the court in affirming the conviction. However Justice Smith

stated,

“I do not understand why Texas law criminalizes the

sale of dildos. As Justice Brown so aptly noted, ‘Here

we go raising the price of dildos again.’ Regalado v.

State, 872 S.W. 2d 7, 11 (Tex. App.- Houston [14"

Dist.] 1994, pet. ref'd) (Brown, J., concurring). Even

less do I understand why law enforcement officers and

prosecutors expend limited resources to prosecute

13

such activity. Because this is the law, I reluctantly

concur.”

II. The Recent Decision By This Court in Lawrence v.

Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508

(2003) Justifies A Reexamination Of The Anti Dildo

Statutes

As the United States of America fight. ore and more for

freedom in foreign countries we recognize that we need to

preserve our freedoms at home. This Court has been at the

forefront in recognizing the fundamental right of personal

freedoms and the importance of those freedoms in a pluralistic

society.

For at least the past eighty years, the concept of a right to

privacy as an integral part of substantive due process and

constitutionally protected liberty, interpreted by this Court has

existed to restrain the reach of government into the personal

lives of the people. As early as 1923 this Court said in Meyer

v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67

L.Ed.2d 1042 (1923):

“While this court has not attempted to define with

exactness the liberty thus guaranteed [by the Due

Process Clause of the Fourteenth Amendment], the

term has received much consideration and some of the

included things have been definitely stated. Without

doubt, it denotes not merely freedom from bodily

restraint but also the right of the individual to

contract, to engage in any of the common occupations

of life, to acquire useful knowledge, to marry,

establish a home and bring up children, to worship

God according to the dictates of his own conscience,

and generally to enjoy those privileges long

14

recognized at common law as essential to the orderly

pursuit of happiness by free men.”

Since that time, substantive due process has evolved to

specifically include a right of privacy in the sanctity of the

home, a right of sexual privacy for unmarried persons, a right

of privacy to make choices regarding childbirth, a right of

privacy in the body, and ultimately a right of consenting

adults to make all choices regarding sexuality without fear of

prosecution.

As society’s perception of and attitudes toward sexuality

have become more tolerant and more liberal, so have this

Court’s interpretation of the Due Process Clause in this

context. The liberties guaranteed by substantive due process

have moved out of the martial bedroom and into the public

sphere of commercial interactions and private interactions

between consenting adults.

A substantive due process right to sexual privacy, as

interpreted by the courts, can be traced back at least as far as

the 1960s, in cases involving the right to possess and use

contraceptives. In Griswold v. Connecticut, 381 U.S. 479,

85 S.Ct. 1678; 14 L.Ed.2d 510 (1965), this Court invalidated

a State statute that criminalized aiding and abetting the use of

contraceptives. The Court held that this statute

unconstitutionally invaded the right of privacy of married -

couples in the marital bedroom, a “right of privacy older than

the Bill of Rights~older than our political parties, older than

our school system.” Id. 486. The opinion of this Court

focused on a zone of privacy created by the penumbras of

several fundamental guarantees, including the First, Third,

Fourth, Fifth, and Ninth Amendments to the Constitution.

Id., 483-85. Justice Harlan’s and Justice White’s separate

concurrences, however, argued vehemently that this right of

15

privacy was to be found in the Due Process Clause of the

Fourteenth Amendment. Id., 500, 502; see also Poe v.

Ullman, 367 U.S. 497, 522, 81 S.Ct. 1752, 6 L.Ed.2d 989

(1961), (Opinion of Harlan, J., dissenting). Several years

later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029,

31 L.Ed.2d 349 (1972), this Court extended this right to

include within its scope certain decisions regarding sexual

conduct by non-married persons. Although the decision to

strike down the law prohibiting distribution of contraceptives

to unmarried persons was premised on the Equal Protection

Clause, this Court also recognized that the law impaired the

exercise of a fundamental personal right of privacy in this

context: “If the right of privacy means anything, it is the right

of the individual, married or single, to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to

bear or beget a child.” Id., 453. The substantive due process

right of sexual privacy was thus begun.

The Griswold and Eisenstadt opinions formed the basis for

the landmark decision in Roe v. Wade, 410 U.S. 113, 93

S.Ct. 705, 35 L.Ed.2d 147 (1973). This Court stated: “This

right of privacy, whether it be founded in the Fourteenth

Amendment’s concept of personal liberty and restrictions

upon state action, as we feel it is, or... in the Ninth

Amendment’s reservation of rights to the people, is broad

enough to encompass a woman’s decision whether or not to

terminate her pregnancy.” Id. 153. However, this Court

noted that this “fundamental right” to privacy was not

absolute, and that the “compelling state interest” in protecting

the heath of the mother and the potential human life could

justify a state’s limitations on the right to an abortion at later

stages of the pregnancy. Id., 153-63.

16

In Carey v. Population Services International, 431 U.S.

678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), this Court held

unconstitutional a New York state law prohibiting the sale or

distribution of contraceptives to anyone under sixteen years of

age, prohibiting the display or advertisement of

contraceptives, and the distribution of contraceptives by

anyone other than a pharmacist. In striking down this law,

this Court explicitly stated that the personal privacy rights

involving marriage, procreation, contraception, family

relationships, child rearing, and child education all derived

from the liberty interest inherent in the Due Process Clause.

Id, 684-685. Importantly, this Court said, “. . . A total

prohibition against the sale of contraceptives, for example,

would intrude upon individual decisions in matters of

procreation and contraception as harshly as a direct ban on

their use.” This Court continued, “. . . [T]he same test must

be applied to state regulations that burden an individual’s

right... by substantially limiting access to the means of

effectuating that decision as applied to state statutes that

prohibit the decision entirely.” This Court significantly stated,

“ , . [S]uch access is essential to the exercise of the

constitutionally protected right.” Id. 687-88 (emphasis

added).

This Court further expounded upon these concepts in

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), stating:

“These matters, involving the most intimate and

personal choices a person may make in a lifetime,

choices central to personal dignity and autonomy, are

central to the liberty protected by the Fourteenth

Amendment. As the heart of liberty is the right to

define one’s own concept of existence, of meaning, of

the universe, and of the mystery of human life.

17

Beliefs about these matters could not define the

attributes of personhood were they formed under

compulsion of the State.

-~This Court’s cases discussed above establish the

framework for the landmark ruling by this Court in Lawrence

v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508

(2003). It is this recent decision by this Court, which

reversed the Texas Court of Appeals, which undermines the

narrow four to three decision by the Texas Court of Criminal

Appeals 20 years ago in Yorko v. Texas, 690 S$.W. 2d 260

(1985). In Lawrence v. Texas, this Court had the occasion to

review the judgment of the Texas Court of Appeal (41 S.W.

3d 349), which affirmed a conviction of the defendants

engaging in homosexual conduct. The case arose from the

County Criminal Court at Law Number Ten in Harris County

Texas. This Court held unconstitutional the Texas statute

which made it a crime for two persons of the same sex to

engage in certain intimate sexual conduct. This Court in

Lawrence v. Texas overruled its prior decision in Bowers v.

Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140

(1986), which had sustained a Georgia statute involving

homosexual conduct.

Justice Kennedy, writing for the majority in Lawrence v.

Texas, stated,

Liberty protects the person from unwarranted

government intrusions into a dwelling or other private

places. In our tradition the State is not omnipresent in

the home. And there are other spheres of our lives

and existence, outside the home, where the State

should not be a dominant presence. Freedom

extends beyond spatial bounds. Liberty presumes

an autonomy of self that includes freedom of

18

thought, belief, expression and certain intimate

conduct.”

Justice Scalia dissented in Lawrence and acknowledged

that the majority’s decision called into question all state laws

based upon traditional “morals,” including “state laws against

. Obscenity.” Justice Scalia, in his dissent, correctly

acknowledged that the majority’s decision effectively decreed

the end of all morals legislation. | The promotion of

majoritarian sexual morality is not a legitimate state interest.

This Court in the Lawrence case explicitly recognized that

the right of privacy derived from the Due Process Clause is

no longer confined — if it ever was — solely to the sanctity of

the home. Rather, this Court suggested, “liberty of the

person [involves] both... spatial and more transcendental

dimensions.” Id. 2474. Furthermore, in striking down

Texas’s sodomy law, this Court reiterated that ,”[i]t is a

promise of the Constitution that there is a realm of personal

liberty which the government may not enter.” In light of this

Court’s holding in Lawrence, as well as the liberalization of

both society’s attitudes regarding adult sexuality in general

and court rulings on this subject in particular, Petitioners urge

this Court to rule that the Texas statute which outlaws the sale

and distribution of sexual devices violates the substantive right

of liberty as guaranteed by the Due Process Clause of the

United States Constitution and as retained by the People under

the Ninth Amendment.

In suggesting that the majority power of a state may not

enforce its own views of morality on the whole of society

through criminal sanctions without some compelling

justification, this Court reiterated its belief that “[oJur

obligation is to define the liberty of all, not to mandate our

own moral code.” Id. (quoting Casey, 505 U.S. at 833)

19

(emphasis added). Moreover, in overruling Bowers v.

Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140

(1986), the Lawrence Court noted that the history and

tradition of sexual mores and sexual control by the state were

in fact more ambiguous and complicated than previously

thought; this Court stated furthermore that “[h]istory and

tradition are the starting point but not in all cases the ending

point of substantive due process inquiry.” Lawrence, 2479

(citation omitted). In “defining the liberty of all,” this Court

ultimately ruled that consensual sodomy was a practice that

the states could not prohibit because the private sexual lives

of adults is a matter encompassed within the protections of

substantive due process as implicated by the Fourteenth

Amendment to the Constitution. Id. 2484. Again, “[iJt is a

promise of the Constitution that there is a realm of personal

liberty which the government may not enter.” Id.

This Court in the Lawrence case added,

“Had those who drew and ratified the Due Process

Clauses of the Fifth and Fourteenth Amendments

known the components of liberty in its manifold

possibilities, they might have been more specific.

They did not presume to have this insight. They knew

times can blind us to certain truths and later

generations can see that laws once thought necessary

and proper serve only to oppress. As the

Constitution endures, persons in every generation can

invoke its principles in their own search for greater

freedom.” Id., 2482 (Emphasis added).

That the State of Texas is wrong in its assertion that the

statute is constitutional because it only prohibits commercial

transactions involving dildos is evident from the recent federal

litigation in Alabama involving the Alabama dildo statute. In

20

an excellent opinion by U.S. District Court Judge Smith, the

United States District Court for the Northern District of

Alabama struck down the Alabama statute which prohibited

the commercial distribution of dildos. See Williams v.

Pryor, 220 F.Supp.2d 1257 (N.D. Alabama 2002). The

District Court concluded that the statute unconstitutionally

burdened the dildo users’ fundamental right to employ sexual

devices within her private, adult, consensual sexual

relationship. In a two to one decision, the Eleventh Circuit

Court of Appeals in Williams v. Attorney General, 378 F.3d.

1232 (11" Cir. 2004), reversed the District Court and ruled

that the statute was constitutional. However, the two judge

majority which reversed the District Court agreed with the

District Court that if there is a constitutional right to use a

dildo in private (which it refused to recognize), a statute

prohibiting the sale of the dildo to the user would be

unconstitutional. !

Circuit Judge Rosemary Barkett filed a persuasive

dissenting opinion which relied heavily upon this Court’s

decision in Lawrence v. Texas, supra. Circuit Judge Barkett

noted that the Alabama statute in question made it a crime to

sell sexual devices. The statute in question in Williams v.

Attorney General of Alabama, supra, was a statute that did

cover the commercial distribution of sexual devices. While

it is true Lawrence v. Texas involved a criminal conviction

for sexual activity conducted in private, Circuit Judge

Barkett’s dissenting opinion was not limited to private sexual

activity. Rather, as stated, the case wherein she dissented

dealt specifically with the commercial distribution of sexual

devices.

The major argument made by the State of Texas was that

the State of Texas has the right to ban the commercial

distribution of dildos even if the private use of a dildo could

21

not be made a crime. However, as dissenting Circuit Judge

Barkett noted in footnote 2 of her dissenting opinion, even the

two judge majority of the Eleventh Circuit acknowledged

there was no real difference between a ban on the distribution

of dildos and the prohibition against using dildos. The

Eleventh Circuit majority stated,

“ . . . For purposes of constitutional analysis,

restrictions on the ability to purchase an item are

tantamount to restrictions on the use of that item.

Because a prohibition on the distribution of

sexual devices would burden an individual’s ability to

use the devices, our analysis must be framed not

simply in terms of whether the Constitution protects

the right to sell and buy sexual devices, but whether

it protects a right to use such devices.” (Emphasis in

original). 378 F.3d at 1242.

Accordingly, all three circuit judges of the Eleventh

Circuit were in agreement that it was constitutionally

irrelevant whether the devices in question were sold or being

used.

If the State of Texas were correct, that it can distinguish

the sale of sexual devices from the use of sexual devices, then

this Court was wrong in Eisenstadt v. Baird, 405 U.S. 438,

92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), which held

unconstitutional a Massachusetts statute that prohibited the

distribution of contraceptive devices. This Court held that

the distributor of the contraceptive device did have standing

to challenge the statute with respect to its impact on private

conduct. This Court noted that the statute in question for

Massachusetts did prohibit the distribution of contraceptive

devices. It is also noteworthy to recognize this Court in

Eisenstadt_v. Baird rejected the desperate attempt by

22

Massachusetts to support its statute by contending that it was_.

a health measure. This Court saw through the argument and

concluded that the purpose of the statute was to deter certain

sexual relations. This Court emphasized that it was irrelevant

whether the recipient of the materials was married or not.

This Court in Lawrence v. Texas, supra, also noted its

prior decision in Carey v. Population Services International,

431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), which

struck down a state of New York statute which forbid the sale

or distribution of contraceptive devices to persons under 16

years of age. The Carey decision completely destroys the

State’s argument in the instant case that the dildo statute in

question does not prohibit the private use of the dildo and

therefore must be constitutional. If this argument were valid

the Carey decision would have been different.

This Court in Carey responded to a similar argument as

follows:

“Restrictions on the distribution of contraceptives

clearly burden the freedom to make such decisions. A

total prohibition against sale of contraceptives , for

example, would intrude upon individual decisions in

matters of procreation and contraception as harshly as

a direct ban on their use. Indeed, in practice, a

prohibition against all sales, since more easily and less

offensively enforced, might have an even more

devastating effect upon the freedom to choose

contraception. . . .” 431 U.S. at 687; 97 S.Ct. at

2017.

: In summary, the State of Texas may not get around

Lawrence v. Texas, supra, by attempting to distinguish

private conduct from the distribution of devices which

23

facilitate such conduct. Indeed, the decision of the Texas

Court of Criminal Appeals in Yorko v. State of Texas did not

limit its holding to commercial sales. The Texas high court

reached the ultimate issue of sexual privacy and resolved the

issue against such an asserted right.

It was the Yorko decision on sexual privacy (that it is not

protected by Due Process) which the Court of Appeals

(Eighth District) followed in its decision below.

Acosta is not asking this Court to do what it did in

Lawrence v. Texas, which was to overrule a prior decision.

There is no prior decision by this Court upholding an anti

dildo statute. This Court did in Sewell v. Georgia, 435 U.S.

982 96 S.Ct. 1635, 56 L.Ed.2d 76 (1978) dismiss for want of

a substantial federal question the appeal in that case involving

the Georgia anti dildo statute but that refusal to hear the case

certainly cannot be deemed to be the functional equivalent of

a decision on the merits such as this Court had in Lawrence

v. Texas, supra, when it had to deal with the prior decision of

Bowers v. Hardwick, supra. Nevertheless, if this Court does

feel Sewell v. Georgia, supra, set a national precedent, this

Court should not hesitate to reexamine that decision by

granting certiorari in this case.

The State of Texas may not assert that its citizens, unable

to purchase dildos in Texas, may purchase them in some other

state (where they are legal) and bring them to Texas to use.

If the State of Texas can outlaw them, so could any other

state. Texas may not rely upon other states to supply dildos.

If the right to use a dildo to masturbate in private is

fundamental, it cannot be restricted by forcing persons to

travel to other states. Each state is obligated to follow the

Constitution.

24

It should also be remembered that the statute extends

beyond commercial transactions. It prohibits one person from

giving, providing, lending, or transferring a dildo to another

person. While the statute may not directly and expressly

prohibit the use of a dildo, the effect of the statute is to

prohibit its use. Even the courts which have upheld these

types of statutes have acknowledged their effects upon use.

Thus, the right to use the dildo is squarely presented by this

Petition.

CONCLUSION

For the foregoing reasons, Petitioner Ignacio Sergio

Acosta respectfully requests that this Court grant certiorari to

decide whether Texas can constitutionally interfere with the

fundamental right of sexual privacy.

Respectfully submitted,

ROGER JON DIAMOND

Counsel of Record

2115 Main Street

Santa Monica, CA 90405

(310) 399-3259

(310) 392-9029 Fax

Counsel for Petitioner

la

APPENDIX A

COURT OF APPEALS OF TEXAS

EIGHTH DISTRICT, EL PASO

No. 08-04-00312-CR

[Filed August 31, 2005]

THE STATE OF TEXAS,

Appellant,

V.

IGNACIO SERGIO ACOSTA,

)

)

)

)

)

)

Appellee. )

)

On Appeal from the County Criminal Court No. |

of El Paso County, Texas

(TC# 20030C17899)

Before Barajas, C.J., McClure, and Chew, JJ.

OPINION

Appellee was charged by information with the offense of

promotion of an obscene device. This is a State’s appeal from

the trial court’s order dismissing the complaint.

2a

I. SUMMARY OF THE EVIDENCE

On September 15, 2003, two undercover officers, a male

and a female, entered the Trixx Adult Bookstore. Various

sexual devices were on sale in the store. The officers saw a.

crystal cock vibrator displayed behind the store counter. They -

questioned the Appellee, a store employee, with regard to the

possible uses of the device. He showed them the device and

stated that the device would arouse and gratify the female

undercover officer in that it would give her an orgasm. The

officers purchased the device. Ten days later Appellee was

arrested for violating TEX. PENAL CODE ANN. § 43.23(c)(1)

(Vernon Supp. 2004-05) which proscribes an individual from

promoting an obscene device.

On October 11, 2004, a hearing was held on Appeliee’s

motion to dismiss the complaint. The parties respective

arguments centered around whether the statute in question

was unconstitutional because it prevents individuals from

using dildo type devices in violation of the right to sexual

privacy. The court granted the motion to dismiss the

complaint on the ground the statute was unconstitutional.

Il. DISCUSSION

In Issue Nos. One and Two, Appellant contends that the

right to privacy is not fundamental, and the right to privacy

does not guarantee a fundamental right to sexual privacy or a

right to use, sell, or purchase obscene devices outside the

home. Secondly, Appellant asserts that the statute proscribing

the promotion bears a rational relationship to a legitimate

government interest such that it survives judicial scrutiny. The

applicable statute, TEX. PENAL CODE ANN. § 43.23(c)(1)

(Vernon Supp. 2004-05), provides:

3a

(c) A person commits an offense if, knowing its

content and character, he:

(1) promotes or possesses with intent to promote

any obscene material or obscene device... .

“Obscene device” is defined in TEX. PENAL CODE ANN.

§ 43.21(a)(7) (Vernon 2003) as:

“Obscene device” means a device including a dildo or

artificial vagina, designed or marketed as useful

primarily for the stimulation of human genital organs.

“Promote” is defined in TEX. PENAL CODE ANN.

§ 43.21(a)(5) (Vernon 2003) as:

“Promote” means to manufacture, issue, sell, give,

provide, lend, mail, deliver, transfer, transmit,

publish, distribute, circulate, disseminate, present,

exhibit, or advertise, or to offer or agree to do the

same.

When determining the constitutionality of a criminal

statute, the reviewing court will review the holding of the trial

court de novo without reverence to the ruling of the trial

court. Owens v. State,19 S.W.3d 480, 483 (Tex. App.-

Amarillo 2000, no pet.). The statute at issue is presumed to

be valid and all doubts are to be resolved in favor of the

Statute’s constitutionality. /d.

There is a recognized and constitutionally protected zone

of privacy under both the United States and Texas

constitutions. Carey v. Population Serv. Int’l, 431 U.S. 678,

685, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675 (1977),

Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S. Ct.

4a

1678, 1681-83, 14 L. Ed. 2d 510 (1965), and Texas State

Employees Union v. Texas Dept. of Mental Health and Mental

Retardation, 746 S.W.2d 203, 205, 31 Tex. Sup. Ct. J. 33

(Tex. 1987). The Supreme Court of the United States has held

that the only personal rights that can be deemed

“fundamental” or “implicit in the concept of ordered liberty”

are included in the guarantee of personal privacy. Roe v.

Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d

147 (1973). The right to privacy protects activities relating to

matriage, procreation, contraception, motherhood, family

relationships, and child rearing and education. Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 65, 93 S. Ct. 2628, 2639,

37 L. Ed. 2d 446 (1973); Roe, 410 U.S. at 152-53, 93 S. Ct.

at 726. Appellant argues the statute prohibiting the sale of

obscene devices does not unconstitutionally infringe on

privacy.

In Yorko v. State, 690 S.W.2d 260, 261-62 (Tex. Crim.

App. 1985), the court reviewed the facial constitutionality of

the statute prohibiting promotion of obscene devices. The

court did not find “in the language of the Constitution or in

the principles of the Supreme Court cases” any fundamental

right to use obscene devices. /d. at 265. The court added that

if such a right exists, its exercise is protected by Stanley v.

Georgia, 394 U.S. 557, 568, 89 S. Ct. 1243, 1249, 22 L. Ed.

2d 542 (1969) (holding “the First and Fourteenth

Amendments prohibit making mere private possession of

obscene material a crime”). Analogizing to cases limiting

Stanley and upholding the denial of access to obscene material

outside the home, the Yorko court held that the State may

criminalize promotion and sale of obscene devices. Yorko,

690 S.W.2d at 265-66. The court’s holding followed cases

such as United States v. 12 200-Foot Reels of Super 8mm.

Film, 413 U.S. 123, 128, 93 S. Ct. 2665, 2669, 37 L. Ed. 2d

500 (1973), which held that “the protected right to possess

Sa

obscene material in the privacy of one’s home does not give

rise to a correlative right to have someone sell or give it to

others.” Thus, the courts distinguish between mere possession

of obscene devices and their sale.

Appellee argues that if there is a constitutional right to sell

contraceptives, there must be a constitutional right to sell

dildos. See Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct.

1029, 31 L. Ed. 2d 349 (1972) (recognizing a constitutional

right to sell contraceptives). The Court of Criminal Appeals

has distinguished between contraceptives and obscene devices,

rejecting Appellee’s argument. Yorko, 690 S.W.2d at 266.

Statutes restricting promotion or sale of contraceptives

infringe on a recognized fundamental right, namely, the

decision to bear a child. Jd. at 265-66. In Yorko, the court

found no fundamental right to stimulate human genital organs

with an obscene device; therefore, restricting the promotion

of such devices does not infringe on any recognized

fundamental right. Jd. at 263-65. Thus, the court concluded

that the statute did not violate a right of privacy afforded

protection under the United States or Texas constitutions. /d.

at 266.

Appellee further asserts that one’s right to engage in

sexual behavior privately at home is infringed upon by the

statute. We disagree. First, the right to use obscene devices

is not prohibited by the statute, and the prohibition against

promotion has been held not to infringe on any right that

might exist to use obscene devices at home. Yorko, 690

S.W.2d at 265-66.

Second, the Supreme Court expressly noted that it has

never held that a fundamental right to sexual privacy exists

under the constitution. Carey, 431 U.S. at 695, 97 S. Ct. at

2021 n.17. Likewise, the majority in Yorko did not recognize

6a

sexual privacy as a fundamental right. See Yorko, 690 S.W.2d

at 267.

However, Appellee urges that society’s perception of and

attitudes toward sexuality have become more tolerant, the

liberties guaranteed by substantive due process have moved

out of the marital bedroom and into the public sphere of

commercial interactions and private interactions between

consenting adults. In this light, Appellee asserts that the

United States Supreme Court case of Lawrence v. Texas, 539

U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003)

undermines the Texas Court of Criminal Appeals holding in

Yorko. In Lawrence, the Supreme Court decided if sex

between two members of the same sex can be denied by law

when practiced in the privacy of their apartment. See

Lawrence, 539 U.S. at 564, 123 S. Ct. at 2476. While the

Supreme Court struck down the sodomy law in Texas, we

note the Supreme Court specifically excluded from its analysis

any aspect of public conduct or prostitution. Jd. at 577, 123

S. Ct. at 2483; rather, the holding applied to private sexual

conduct. /d. at 578, 123 S. Ct. at 2484. Therefore, we do not

perceive that the Lawrence holding that the Texas sodomy

statute furthered no legitimate interest implies that commercial

promotion of sexual devices is constitutionally sanctioned.

If legislation interferes with the exercise of a fundamental

right, the act is subject to strict scrutiny. Roe v. Wade, 410

U.S. 113, 155, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147 (1973).

If the legislation does not burden a fundamental right, then the

act faces only minimal scrutiny, namely, the rational basis

standard. Washington v. Glucksberg, 521 U.S. 702, 728, 117

S. Ct. 2258, 2271-72, 138 L. Ed. 2d 772, 117 S. Ct. 2302

(1997). It is appropriate for the State to act to protect the

social interest or order, morality, and decency by restraining

commercial dealing in non-communicative objects designed or

Ta

marketed for use primarily for the stimulation of human

genital organs. Yorko, 690 S.W.2d at 265. Accordingly, we

sustain Issue Nos. One and Two, and we find that the court

erred in granting Appellee’s motion to dismiss the complaint.

We reverse the court’s order dismissing the complaint and

remand the cause for further proceedings not inconsistent with

this opinion.

/s/

RICHARD BARAJAS, Chief Justice

August 31, 2005

' In Appellee’s brief, he maintains that Chapter 5.54 of the El

Paso Municipal Code regulates and establishes a licensing scheme

for businesses that sell, among other things, devices intended to

afford sexual gratification. Appellee reasons that this ordinance

supercedes the state prohibition against the promotion of obscene

devises. We note that El Paso Municipal Code Title 5, Chapter

5.54, § 5.54.010 states that the purpose of the ordinance is to

regulate sexually-oriented businesses in order to promote the safety,

morals, and general welfare of the citizens and to prevent

deleterious secondary effects of such establishments within the city.

We fail to see how the ordinance is inconsistent with the

prosecution of individuals for promoting obscene devices.

8a

COURT OF APPEALS OF TEXAS

EIGHTH DISTRICT, EL PASO

No. 08-04-00312-CR

[Filed August 31, 2005]

THE STATE OF TEXAS,

Appellant,

IGNACIO SERGIO ACOSTA,

)

)

)

v. )

)

)

Appellee. )

)

On Appeal from the County Criminal Court No. 1

of El Paso County, Texas

(TC# 20030C17899)

Before Barajas, C.J., McClure, and Chew, JJ.

JUDGMENT

The Court has considered this cause on the record and

concludes there was error in the trial court’s order dismissing

the complaint. We therefore reverse the court’s order

dismissing the complaint and remand the cause for further

proceedings not inconsistent with this opinion. This decision

shall be certified below for observance.

9a

IT IS SO ORDERED THIS 31°' DAY OF AUGUST,

2005.

/s/

RICHARD BARAJAS, Chief Justice

10a

APPENDIX B

IN THE COUNTY COURT OF

EL PASO COUNTY, TEXAS

COUNTY CRIMINAL COURT AT LAW

NUMBER ONE

No. 20030C17899

[Filed October 11, 2004]

THE STATE OF TEXAS,

)

)

Vv. )

)

IGNACIO SERGIO ACOSTA, )

)

ORDER ON DEFENDANT’S MOTION

TO DISMISS COMPLAINT

On the 11" day of October, 2004, this Court heard and

considered Defendant’s Motion to Dismiss Complaint in the

above-entitled and numbered cause. IT IS ORDERED,

ADJUDGED, and DECREED that the Defendant’s Motion to

Dismiss Complaint be GRANTED.

SIGNED AND ENTERED on this 11" day of October, 2004.

/s/

~ALMA TREJO, JUDGE

County Criminal Court At Law Number One

lla

APPENDIX C

COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1471-05

[Filed March 22, 2006]

STATE OF TEXAS

Vv.

IGNACIO SERGIO ACOSTA

a

ON APPEAL FROM EL PASO COUNTY

08-04-00312-CR

OPINION

On this day, the Appellee’s petition for discretionary

review has been refused.

/s/

Louise Pearson, Clerk

APPENDIX D

COURT OF CRIMINAL APPEALS

P.O. Box 12308, CAPITOL STATION

AUSTIN, TEXAS 78711

April 20, 2006

Roger Jon Diamond

2115 Main Street

Santa Monica, California 90405-2215

RE: Ignacio Sergio Acosta

PD-1471-05

Dear Mr. Diamond:

Our records show that the above petition for discretionary

review was timely filed and entered on this court’s docket on

December 19, 2005.

On March 22, 2006, this court refused the above petition

for discretionary review. See Rule 69.1 of the Texas Rules

of Appellate Procedure. The petition was refused without

written order and was delivered per curiam, en banc, with no

judges dissenting.

13a

__ The record was returned to the 8th Court of Appeals on

April 12, 2006.

Very truly yours,

/s/

Abel Acosta

Chief Deputy Clerk