Savery v. State

782 S.W.2d 321, 1989 WL 162800
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1990
Docket09-88-104 CR
StatusPublished
Cited by7 cases

This text of 782 S.W.2d 321 (Savery v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Savery v. State, 782 S.W.2d 321, 1989 WL 162800 (Tex. Ct. App. 1990).

Opinions

OPINION

BROOKSHIRE, Justice.

Winsor Thomas Savery revisited. Basically, parts of this appeal were presented to us by way of an application for writ of habeas corpus. ■ We denied the writ of ha-beas corpus in an opinion delivered March [323]*3238, 1989. A concurring opinion was filed. See Savery v. State, 767 S.W.2d 242 (Tex. App.— Beaumont 1989).

In this appeal the Appellant presents seven points of error.

Appellant firstly and dogmatically argues that the judgment below is void because the same was obtained in violation of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). This first point of error is similar to a contention presented in the habeas corpus proceeding. The Appellant argues the record is clear that all of the materials seized were seized from the Appellant’s home and that there was not one item of alleged child pornography introduced into evidence that was not seized actually from the Appellant’s homestead. Appellant still insists that Stanley, supra, eviscerates the judgment. In his brief the Appellant points out that, in our original opinion denying the habeas corpus, we decided that the possession of child pornography can be regulated by the State legislature. Candidly, Appellant says he has no general disagreement with this proposition except that possession of child pornography in the home is protected because of Stanley and the First Amendment to the Federal Constitution. Appellant vehemently argues that home possession cannot be prohibited.

We hold child pornography is subject to State prohibition, regulation and criminalization. We hold Texas possesses power to prohibit and avert child pornography, including forbidding possession in a home. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Again, it is startlingly clear that under Savery’s first point of error his sole defense is that the child pornography was located in the Appellant’s home. Savery tacitly acquiesces in the proposition that if the child pornography had been located in some place other than his own homestead, then the charge and conviction would be valid and the resulting adverse judgment would not be contrary to Stanley, supra.

First Amendment Rights

Appellant maintains that the paramount issues were his First Amendment rights. We think we correctly held that the Texas child pornography statute was and is a separate and distinct legislative enactment narrowly drafted and is a separate and distinct proper legislative prerogative which does not offend the First Amendment. We hold the First Amendment does not forbid a state of the Union from prohibiting child pornography — even its possession in a home. We determine TEX. PENAL CODE ANN. sec. 43.26 (Vernon 1989) is valid.

The sovereign States are empowered to regulate pornographic depictions of children. This power is soundly based. A State’s interest in protecting and safeguarding the physical, psychological, mental and emotional well-being of a minor is compelling. A self-governing democracy depends for its future life on the healthy, well-rounded maturation process of its children and young people into responsible adult citizens. Indeed, the prevention of sexual exploitation and abuse of children constitutes an appropriate State objection of paramount importance. We reiterate that Ferber, supra, was a holding that the First Amendment does not forbid a sovereign state from prohibiting child pornography. Even the possession of child pornography may be prohibited, the possession being a first step in distribution. Certainly the sale and distribution of child pronogra-phy can constitutionally be forbidden. Hence, TEX. PENAL CODE ANN. sec. 43.26 (Vernon 1989) is constitutional. See Savery v. State, supra; see and compare State v. Madeen, 28 Ohio St.3d 64, 502 N.E.2d 634, 635 (1986).

We conclude that the Ohio case of State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986) is a well reasoned case and a parallel situation to our case sub judice. In Meadows, supra, the Court held that the Ohio statute which criminalizes the knowing, in-home, private possession of materials that show minors participating or engaging in sexual activity, masturbation or beastiality did not run contrary to the First Amendment to the United States Constitution. Point of error one is overruled.

[324]*324 The Search Warrant Issue

Appellant’s point of error number two advances that the trial court erred in not granting the Appellant’s motion to suppress the fruits of the search warrant. The motion attacks a probable cause affidavit. Hence, the search warrant, itself, is challenged. It is fair and correct to state that upon the oral submission of the case Appellant conceded, at least partially, that the standards set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) no longer set forth the correct, current standards. Appellant maintains that even the less onerous standards and tests as set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), were not met by the State. Appellant, therefore, contends that the State’s entire case rests on the validity of the probable cause affidavit to search the Appellant’s home.

A basic thrust of the argument is that the affidavit involved is without probable cause because that affidavit is based upon what an officer was told by Mr. G.W. “Bunky” Henry; and the affidavit relies on Bunky Henry’s statements being credible and Bunky being credible. Although Appellant concedes that the record positively shows that Bunky Henry received his information from a person named in the affidavit, Brad Henry, Appellant argues that there was no showing in the probable cause affidavit that Brad Henry was a credible person. Hence, Appellant argues the information possessed by Bunky Henry and passed by Bunky to the affiant officer had to rest and be based upon the credibility of Brad Henry. We cannot agree. Brad’s credibility, according to the Appellant, was not shown in any way in the affidavit. Again we disagree.

The Appellant additionally attacks the credibility of Bunky Henry, stating that Bunky’s credibility was merely assumed by the affiant-officer because Bunky was a resident of Montgomery County and had no previous criminal record. It must be stressed in this case that the direct, first informant to the affiant-officer was known. This case is not a situation where the informant was not disclosed to the issuing magistrate. The affiant-officer who obtained the search warrant fully disclosed the name, the address, the work, the length of residence, and the lack of any criminal record on the part of his informant, Bunky, who was disclosed to District Judge Shee-han, an independent magistrate, who issued the warrant.

The Supporting Affidavit

The supporting affidavit was in detail. The affiant did not rely on the verbal statements of what might be termed the sub or second informant.

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Cite This Page — Counsel Stack

Bluebook (online)
782 S.W.2d 321, 1989 WL 162800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savery-v-state-texapp-1990.