Overuling the 2000 obscenity case that took place in Dallas, Texas regarding a resident, Jesus Castillo, employee of Keith’s Comics.

The Texas State Court of Appeals should have overturned the 2000 obscenity case that took place in Dallas, Texas regarding a resident, Jesus Castillo, employee of Keith’s Comics. This court case was not overturned, and I believe this conviction is wrong on the basis of the evidence provided in his defense as well as infringement of his human rights. I will defend the evidence that should have overturned his initial conviction with support from philosopher Edwin Baker. I will also scrutinize the grounds to which the Texas Court of Appeals applied the obscenity ruling to Mr. Castillo by criminalizing him. The definition of obscenity, will be carefully analyzed, yet I am adamant that Mr. Castillo case is deserving of a mistrial and an outright proclamation of injustice.

To begin with, Mr. Castillo was among one of various employees in the city who sold print material that contained sexually explicit materials. This is a fact that was presented by a licensed private investigator by the name of Michael Christopher. It could be argued that Mr. Castillo was targeted among many performing similar work duties in the city on the basis of sex, race or national origin. While this idea is not presented in court documents, it is important to note that Mr. Castillo was among many employees carrying out the same work, yet he is the only one being criminalized for this work. The court should have addressed this, and thus is problematic that it did not. Additionally, his first and last name connotes those of an ethnic Latino minority – one that has a history of being oppressed by displacements, racism and criminalization, especially in a border state like Texas. The history of our immigration has a very grim past, especially in regards to xenophobia and the criminalization of the marginalized immigrant or minority. During the 1930’s, up to 2 million people of Mexican ancestry were relocated to Mexico, even though as many as 1.2 million were born in the United States. Additionally, in the decade of Mr. Castillo’s sentencing, the Pew Research Center found that Latinos accounted for 40% of all people sentenced to federal crimes, even though they made up only 13% of the U.S. adult population. In addition, pertaining to this same decade, The Sentencing Project released a study that stated Texas had one of the highest incarceration rates, exceeding the national rate in regards to the incarcerated Hispanic population. Also, it is important to note that as an employee, Mr. Castillo was only performing and abiding by his occupational duties. Mr. Castillo did not own fully or partially Keith’s Comics – yet he was being held responsible as an owner would be for the idea behind the foundation of this retail store and the authored distribution of all comics.

To continue, The Supreme Court ruled in the 1957 case of Butler v. Michigan that the law cannot “reduce the adult population…to reading only what is fit for children.” This Michigan law made it a misdemeanor to sell or make available to the general reading public any book containing language "tending to the corruption of the morals of youth." This law was enacted due to a critical book published in 1954, Seduction of the Innocent, that claimed a direct link between juvenile delinquency and comics. Yet, the dynamics of comics in our country that depict “G” rated to “R” rated or even “XXX” rated should have the same protections as movies and music do. Movies are restricted to audiences in years of age at the theater and at the time of rent. Music does the same, as minors are not allowed to purchase explicit material. The comics that were being sold in Mr. Castillo’s place of employment also had similar restrictions at the moment of view and purchase in terms of age restrictions. Mr. Castillo did not break the law by selling these comics to a minor or allowing a minor to view these comics. In contrast, Mr. Castillo abided by the law when he sold an adult comic to a consenting adult who obtained this material from the adult section. Scenes like these are common around the nation as an expert on these matters – Scott McCloud stated in Mr. Castillo’s defense. Mr. McCloud is an award-winning author and comic book artist. He testified that sixty-eight percent of comic book readers were over the age of eighteen. The economic power that those over eighteen have in comparison to those less than eighteen years of age supports the fact that such purchasing scenes are constantly repeated around the nation. Therefore, there should have been no targeted criminalization on Mr. Castillo’s behalf, when he was not and is not the only retail adult comic book employee in the surrounding city of Dallas or around the nation.

It is important to note the lack of respect and honor for academia and professional sources present in Mr. Castillo’s defense. The complete ignorance of expertise presented disregards a fair and just trial for Mr. Castillo. A fair and just trial goes against a respected, old Greek myth called the Areopagitica story. This story encouraged all discourse from both sides. Athena – what could now be considered a judge, was challenged in her beliefs and most importantly was an active listener. No one was struck down or much less punished for what was said. Athena made logical decisions based on fairness. Yet, in contrast to this Areopagitica story, court documents in Mr. Castillo’s case show that the appellate justices abused their judicial power by continually overruling points of error that Mr. Castillo fairly presented.

The criminalization applied for the selling of a comic book because it is deemed obscene in a legal retail store that has sold many of the same kind in previous occasions is unjust. Mr. Castillo was charged with a misdemeanor obscenity ruling for selling a sexually explicit comic book to an undercover Dallas police officer named Reynerson. Mr. Castillo argued that the evidence was legally and factually insufficient to support his conviction and that the comic book was not constitutionally obscene. The court said that when Reynerson took the comic book to the counter and handed it to the appellant with the front cover showing, and left the store having paid for it, is evidence enough that Mr. Castillo knew of the obscene content as he placed the comic book in a bag himself and handed it to Reynerson. Reynerson said the comic book depicted genitals in a state of arousal and contained acts of sodomy, masturbation, excretory functions, sadism, and masochism. Reynerson described one scene in which a demon, transformed into a tree, penetrated a female with its roots. After reviewing the book and comparing it to other materials, he concluded the book was obscene. Reynerson did not know the book was the second in a four-part series. However, he purchased the book individually and did not remember seeing any of the other volumes. According to Reynerson, his level of scrutiny in defining obscenity was enough judgment to label the comic book obscene, and thus allow the state of Texas to rest its case on his testimony.

It is appalling to fathom the thought of a Texas State Court of appeals accepting the testimony of a police officer’s level of scrutiny in the determination of the criminalization of obscene material. Yet, this did indeed occur in Mr. Castillo’s case. The Court cited the Tex. Pen. Code Ann. § 43.23 (c)(1) (Vernon 1994) as support for the obscenity misdemeanor against Mr. Castillo. This code says that if a person commits an offense if, knowing its content and character, he promotes or posses with intent to promote any obscene material or obscene device then he is in violation of this code. Obscene is then defined as 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 sex 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 genitals; and



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

Tex. Pen. Code Ann. § 43.21(a)(1) (Vernon 1994).

The court then addressed Mr. Castillo’s first and third points of error, where he contended that the evidence was legally and factually insufficient to establish beyond a reasonable doubt his knowledge of the content and character of the book. Additionally, Mr. Castillo contended that the evidence was factually insufficient to establish the book as patently offensive, appealed to the prurient interest, and lacked serious artistic and literary value.

In the second point of error, Mr. Castillo criticized the “paucity of proof” presented by the State on knowledge and argued that the evidence was factually insufficient when considering proof offered to negate scienter. In particular, Mr. Castillo asked the Court to review the photographs of the comic book store, which illustrate the “predominantly non-adult nature of the store and its inventory.” Mr. Castillo argued that simply because the book was inappropriate for children it was “not dispositive of a sexually obscene character” because Keith's offered comic books in the same section with “themes of violence with little or no sexual content” and for which a warning would be appropriate.

The jury was in possession of the comic book. The fact that the two defense experts did not find the material to be obscene did not prevent the jury from deciding it (1) lacked serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of the community. See Beier v. State, 681 S.W.2d 124, 127 (Tex. App.-Houston [14th Dist.] 1984), rev'd on other grounds, 687 S.W.2d 2 (Tex. Crim. App. 1985) These decision of the court turned to be extremely detrimental to Mr. Castillo’s case, as the Court completely disregarded his claims, and upheld the criminalization of the obscenity standard.

I would like to present Justice Brennan’s dissent in the Miller vs. California (1973) case as my standard for supporting Mr. Castillo. Justice Brennan stated that offensive material was protected as long as it did not fall into the hands of a child or was imposed on a captive audience. Mr. Castillo abided by Justice Brenna’s opinion as the undercover officer, Reynerson was neither a child as he was over the age of 18 and the selling of one comic book to Reynerson is not applicable to being imposed “on a captive audience.” Justice Brennan’s level of scrutiny indicated that the suppression of unprotected obscene material was permissible to avoid exposure to unconsenting adults and to juveniles, neither of which is applicable to Mr. Castillo’s case.

In terms of academic support that is highly respected and honored unlike the appellate justices in Mr. Castillo’s case, I present philosopher Edwin Baker to support Mr. Castillo’s rightful acts in his place of employment. Baker believed that freedom of speech was not primarily a means to a marketplace of ideas, or truth, or democracy. Instead, he urged the view that liberty of speech was integral to individual self-fulfillment and so needs to be treated as a universal right of human dignity. Freedom of speech could be applied to Mr. Castillo’s decision to accept the terms of employment, follow them lawfully and when persecuted, defend himself as a means of self-fulfillment that Baker describes as a universal right of human dignity.