Attorney Michael Gibson, who specializes in defending obscenity and 1st Amendment cases in the state, told XBIZ that the current law states that a person possessing six or more of these devices proves presumption that he or she intends to promote their use.
"A jury can presume intent to sell and deliver," Gibson said.
Police reportedly confiscated 120 obscene devices — defined by Texas law as "a device including a dildo or artificial vagina designed or marketed as useful primarily for the stimulation of human genital organs."
Gibson also said anyone who assists or encourages the sale also is considered guilty, but police refused to arrest Somethin' Sexy owner Gary Evans, who asked police to arrest him instead of the saleswoman.
Evans said he kept the sex toys in a separate cabinet, which only was opened upon request from customers.
"I just assumed it was OK to put them out, but we never put them out in plain sight," Evans said.
However, the investigating officer wrote in his affidavit that the fact that Evans made an effort to conceal the toys proved he knew they were illegal to sell.
John Grace, Lubbock County's assistant district attorney, did not comment specifically on the case, but specified that selling novelty items — products whose purpose is clearly not for sexual use — is not considered illegal according to the obscenity law.
"What’s considered obscene in L.A. is different than Lubbock and different than Des Moines," Grace said. "The community ultimately decides what is obscene."
Evans was unavailable for comment at press time, and it is unclear what his next legal step will be. He did say, however, that Somethin' Sexy remains open for business.
