Harvie David Hensley v. State

• Court: Court of Appeals of Texas
• Decided: March 23, 2011
• Docket: 10-09-00049-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00049-CR

HARVIE DAVID HENSLEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2008-853-C2

MEMORANDUM OPINION

Harvie David Hensley was charged by indictment with ten counts of possession

of child pornography. He filed a motion to suppress all the evidence seized by law

enforcement officers or others in connection with the investigation of the case and his

arrest, as well as any testimony by law enforcement officers concerning such evidence.

The trial court denied the motion. Thereafter, pursuant to a plea bargain, Hensley

pleaded guilty to counts one and two of the indictment, and the State waived counts three through ten. The trial court then sentenced Hensley to eight years’ confinement

for each of the two counts. In one issue, Hensley appeals. We will affirm.

On November 7, 2007, Thomas Frost, a police officer for McLennan Community

College, took a statement from a teacher and several students about threats Hensley

had made concerning hand grenades and possibly bringing weapons to school. One of

the students also showed Frost pictures from Hensley’s MySpace page in which

Hensley was dressed in body armor and handling firearms. Frost therefore obtained a

search and arrest warrant for Hensley’s residence. During the execution of the search

warrant, two desktop computers and seven CD-ROMs labeled “pics” were seized.

Hensley was arrested at his place of employment. His vehicle was parked in the

parking lot of his workplace, so the police impounded and inventoried the vehicle.

Frost stated that it is their policy that “once we make an arrest and leave someone’s car

abandoned, we may become liable, so we always have it impounded and inventoried.”

Inside the vehicle, the police found a laptop case with a laptop inside of it. Seven CD-

ROMs were also located inside the laptop case and were taken into custody. All of the

computers and media from inside the residence and the car were turned over to the

Waco Police Department.

Richard Ashby, a police officer for the Waco Police Department, subsequently

previewed the seven CDs that had the title of “pics” on them. The image names

themselves were suspicious, and after Ashby actually saw the images, he contacted

Frost and advised him that he had found contraband that was not listed in the original

search warrant. Frost went to Ashby’s office, and Ashby showed him some of the

Hensley v. State Page 2 images on one of the CDs labeled “pics” that had been seized from Hensley’s residence.

Frost then obtained a second search warrant for child pornography. The second search

warrant included all of the computer and media that had previously been seized from

Hensley’s residence and car. Frost stated that it was his understanding that, pursuant

to the second search warrant, they “went through the rest of the stuff and found some

other incriminating evidence.”

In his sole issue, Hensley contends that the trial court erred in denying his

motion to suppress because the impoundment of his vehicle, which yielded the

prohibited pictures, was an illegal seizure. The State responds that the propriety of the

impoundment of Hensley’s vehicle and the resulting inventory search is immaterial

because the evidence shows that the CD-ROMs containing child pornography were not

found in the search of Hensley’s vehicle but rather in Hensley’s home pursuant to a

warrant, the validity of which is unchallenged on appeal. We agree with the State.

We will assume without deciding that the trial court erred in denying Hensley’s

motion to suppress all evidence seized from his vehicle because the impoundment of

the vehicle was an illegal seizure. We review the harm resulting from a trial court’s

erroneous denial of a motion to suppress under the constitutional standard of Rule of

Appellate Procedure 44.2(a). See Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.

2001). Constitutional error requires reversal of a judgment of conviction or punishment

unless the reviewing court determines beyond a reasonable doubt that the error did not

contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). In applying the

“harmless error” test, our primary question is whether there is a “reasonable

Hensley v. State Page 3 possibility” that the error might have contributed to the conviction. See Mosley v. State,

983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g).

Hensley states in his brief that the CD-ROMs containing the prohibited pictures

were the only evidence of the crime in this case. Officer Frost testified that he was sure

that the CD-ROMs labeled “pics” were seized from Hensley’s home and that when he

went to the Waco Police Department, Officer Ashby showed him one of the CD-ROMs

labeled “pics,” which contained incriminating images.1 Officer Ashby also testified that

the CD-ROMs labeled “pics,” or the CD-ROMs that had the title of “pics” on them,

contained the child pornography. Therefore, denying Hensley’s motion to suppress all

evidence seized from his vehicle was harmless because the evidence that formed the

basis for Hensley’s indictment and eventual plea did not result from the search of his

vehicle but from the search of his residence.

We overrule Hensley’s sole issue and affirm the trial court’s judgment.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 23, 2011 Do not publish [CR25]

1Officer Frost did admit that the warrant returns were not accurate; however, contrary to what Hensley states in his brief, Frost never changed his statement that the CD-ROMs containing the child pornography were seized from Hensley’s residence.

Hensley v. State Page 4