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3: "The jury may measure the essentially factual issues of prurient appeal <br />and patent offensiveness by the standard that prevails in the forum <br />community, and need not employ a 'national standard'." <br />As stated above the basic guideline for determining what is obscene is through <br />an evaluation of the material utilizing the forum community standard. In Smith v <br />United States, 97 S. Ct. 1756 (1977) the Court amplified its consideration of the <br />community standard when it stated that community standards are required to be <br />applied by the jury in accordance with its understanding of the tolerance of the <br />average person in the community. The result being that the 'ur has the discretion <br />to determine what appeals to the prurient interests and what is patently offensive <br />in its community. "State law cannot define the contemporary community standards <br />for appeal to the prurient interest and patent offensiveness that under Miller v <br />California are applied in determining whether or not material is obscene . . . <br />Though state legislatures are not completely foreclosed from setting substantive <br />limitations for obscenity cases, they cannot declare what community standards <br />shall be . . . " [Smith v United States (1759)] <br />The conduct regulated by the Texas Legislature is defined in the <br />Texas Penal Code Subchapter 43B, "Obscenity". The following is that portion of <br />Chapter 43 which regulates the sale, distribution and display of obscene material: <br />43.21. Definitions <br />In this subchapter: <br />(1) "Obscene" means having as a whole a dominant theme that: <br />(A) appeals to the prurient interest of the average person applying <br />contemporary community standards; <br />(B) depicts or describes sexual conduct in a patently offensive way; <br />and <br />(C) lacks serious literary, artistic, political, or scientific value. <br />(2) "Material" means a book, magazine, newspaper, or other printed or written <br />material; a picture, drawing, photograph, motion picture, or other <br />pictorial representation; a play, dance, or performance; a statue or <br />other figure; a recording, transcription, or mechanical, chemical, or <br />electrical reproduction; or other article, equipment or machine. <br />-3- <br />EVER00323 <br />