Kemp v. State
| Decision Date | 09 December 1970 |
| Docket Number | No. 42298,42298 |
| Citation | 464 S.W.2d 141 |
| Parties | William Carnye KEMP, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
George R. Milner, Dallas, for appellant.
Henry Wade, Dist. Atty., Al Walvoord, Ron Walvoord, Ron Chapman, Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is sodomy; the punishment, 15 years.
The indictment alleged that on or about May 21, 1967, appellant committed the act of sodomy by using his mouth on the sexual parts of the complaining witness, Williams, age 16, for the purpose of having carnal copulation.
As applied to the allegation of the indictment, Art. 524, V.A.P.C. is not unconstitutional. Pruett v. State, No. 43, 193, 463 S.W.2d 191, decided November 25, 1970.
The record reveals that two weeks prior to the date of the offense, Williams and a 14 year old companion, Neil, visited with appellant in appellant's home. Neil had known appellant for approximately two weeks, as he had mowed appellant's yard on several occasions. During the course of their visit, Williams and Neil were invited by appellant to play ping-pong and pool, and watch his color television. Appellant also furnished the boys with food and drinks. The two boys returned to appellant's home on the day of the offense, and after playing the above mentioned games, appellant showed them nudist magazines. Subsequently, appellant invited them into his bedroom where he displayed notebooks containing pictures of persons of both sexes engaged in various sexual acts. While in the bedroom, the appellant committed the act charged in the indictment.
At the hearing on punishment two prior convictions for a like offense, in the State of Louisiana, were proved.
The sufficiency of the evidence to sustain the conviction with the maximum punishment assessed is not questioned.
Appellant's first ground of error contends that the trial court erred in permitting the state to introduce into evidence pictures depicting offenses extraneous to that for which appellant was tried. The items referred to consisted of the following: (a) one picture of appellant committing the act of oral sodomy on the complaining witness; (b) one notebook containing obscene photographs which the complaining witness was looking at while appellant committed sodomy on him; (c) fourteen notebooks containing pictures of parties of both sexes engaged in various sexual acts; (d) five pictures of appellant committing sodomy on unidentified males; (e) one picture of two other males engaged in the act of sodomy.
The picture showing appellant committing sodomy on Williams was clearly admissible in the prosecution for the offense, as was the notebook Williams was looking at during the commission of the offense.
It is a general rule that the accused can only be convicted by evidence showing he is guilty of the offense charged. Thus, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible. 23 Tex.Jur.2d 294, 295. This court has held that evidence of the commission of other crimes by the accused is admissible as an exception to the general rule to show plan or system to rebut some defensive theory and in cases such as sodomy, as evidencing the probability of the act charged and the unnatural attention toward the complaining witness, victim or accomplice. Johnston v. State, Tex.Cr.App., 418 S.W.2d 522. The pictures referred to were offered in evidence for the purpose of showing intent, scheme, design, identity and pattern of the commission of the offense. The trial court charged the jury that they could only consider such evidence for that limited purpose. Under the facts set forth in the record, this evidence was properly before the court. Johnston v. State, supra, is authority sustaining the court's ruling.
Appellant's second ground of error attacks the search made of appellant's home at the time of his arrest, and contends that the trial court erred in admitting into evidence the fruits of the search. It is appellant's contention that the affidavit upon which the warrant issued is insufficient to show probable cause upon which the warrant in question could issue, and that there was no showing that the act upon which probable cause was based occurred within a reasonable time prior to the making of the affidavit.
The affidavit upon which the search warrant issued reads:
'We, D. E. Bynum and J. M. Curtis, do solemnly swear that heretofore, on or about the 28th day of September A.D., 1967, in said County and State, One William C. Kemp and person or persons unknown did then and there unlawfully possess obscene articles and materials, to-wit: lewd, obscene and indecent photographs and materials and we have cause to believe and do believe that said obscene articles and materials are now concealed by William C. Kemp and person or persons unknown in a one story brick and frame house situated in Dallas County, Texas at 1426 Summertime Lane, City of Dallas, Dallas County, Texas which said William C. Kemp and person or persons unknown occupies, possesses, controls and has charge of.
(B) and further Officers have received information in the past twenty-four hours from an informant that he has been in the residence of William C. Kemp at 1426 Summertime Lane and has observed lewd and indecent pictures and photographs of men and boys in the act of sodomy by both oral copulation and anal copulation, of men and women in the act of intercourse and sodomy, of women committing sodomy on other women. Informant further states that William C. Kemp _ _ lewd and indecent films which he shows to juveniles who come to his house and that he takes photographs of these boys in the nude and in the act of sodomy.
'WHEREFORE, (We) ask that a warrant to search for and seize the said obscene articles and materials be forwith issued in accordance with the law in such cases provided.
J. M. Curtis
D. E. Bynum
'Sworn to and subscribed before me by D. E. Bynum and J. M. Curtis on this the 28th day of September, A.D. 1967.
W. E. Richburg
Justice of the Peace, Precinct No. 7 Place 1, Dallas County, Texas.'
As in Gaston v. State, Tex.Cr.App., 440 S.W.2d 297 (decided March 12, 1969) cert. denied, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435, the affiants do not state that they rely entirely upon the informant's hearsay. They swear of their own knowledge that on or about the day the affidavit was made that one William C. Kemp and person or persons unknown did then and there unlawfully possess obscene articles and materials, to-wit: lewd, obscene and indecent photographs and materials.
The facts which the affiants swore 'we have cause to believe and do believe' were that the obscene articles and materials they swore appellant and persons unknown unlawfully possessed 'are now concealed' by them at or in the house occupied by them (the house searched).
Affiants then state: 'My Belief as aforesaid is based on the following facts * * *.'
The facts set out in the affidavit upon which the affiants based their belief that the obscene articles and materials 'are now concealed' together with the portion of the affidavit wherein the affiants 'swear of their own personal knowledge' that appellant and person or persons unknown unlawfully possessed such obscene articles and materials, satisfies the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, both as to the information being 'credible and reliable' and that the facts upon which affiants based their belief was information that came from observation of the informant. Gaston v. State, supra; Johnson v. State, Tex.Cr.App., 440 S.W.2d 308; Nus v. State, Tex.Cr.App., 440 S.W.2d 310; Bivins v. State, Tex.Cr.App., 440 S.W.2d 312.
Testimony of Police Officer Bynum, one of the affiants, heard by the trial court in the jury's absence prior to the admission of the photographs including those of appellant engaged in the act of sodomy upon Williams, included the following:
Juvenile officers of the Dallas Police Department had received reports by telephone that 'unusual occurrences' were taking place at the home of a white man of approximately 50 years of age, in the Singing Hills area of Dallas. The officers were unable to verify the address, nor were they able to obtain a positive identification of the suspect on the basis of the telephone conversations. On September 28, 1967, a boy who was under detention at the Dallas County Juvenile Department communicated to the officers the information which served as the basis of the affidavit for search warrant. The informant identified as Charles A. Evans, age 15, stated that he had been to appellant's home and had observed the obscene material described in the affidavit.
The statute in effect at the time the search warrant here in question was issued (Art. 527 P.C. Acts of the 57th Legislature, p. 1041, effective June 16, 1961) made it unlawful to knowingly possess any obscene book, photograph, pictures and other named materials, 'or other article which is obscene.'
Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, holding that the First and Fourteenth Amendments prohibited making mere possession of obscene material a crime, was decided April 7, 1969. Art. 527 as amended in 1961 was again amended by Acts 1969, effective June 10, 1969 (Art. 527 V.A.P.C.) omitting 'mere possession' as an offense.
United States v. Hanon, 428 F.2d 101 (8th Cir.) is authority for our conclusion that the sufficiency of the affidavit to show probable cause for the search rests upon the situation...
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