Savery v. State

• Citation: 767 S.W.2d 242
• Decision Date: 08 March 1989
• Docket Number: No. 09,09
• Parties: Winsor Thomas SAVERY, Appellant, v. The STATE of Texas, Appellee. 88 104 CR.
• Court: Court of Appeals of Texas

Page 242

767 S.W.2d 242

Winsor Thomas SAVERY, Appellant, v. The STATE of Texas, Appellee.

No. 09 88 104 CR.

Court of Appeals of Texas,

Beaumont.

March 8, 1989.

As Corrected March 16, 1989.

Dexter M. Patterson, The Woodlands, for appellant.

Carole Clark, Conroe, for appellee.

OPINION

BROOKSHIRE, Justice.

The Appellant, Winsor Thomas Savery, takes the position that he is appealing from a denial of an application for a writ of habeas corpus. The denial of this writ was entered by the County Court at Law # 1 of Montgomery County on April 8, 1988. The applicant had been previously convicted in the County Court at Law # 1 of Montgomery County, in a jury trial, for the possession of child pornography.

The transcript from the County Clerk was not received in the designated period of time. However, the counsel for the Applicant or Appellant obtained an extension of time for filing the Statement of Facts. Appellant, or Applicant, concedes that the transcript had not been filed timely with the Appellate Clerk and that even the grace period for filing such had expired on September 15, 1987.

Later, there was a Petition for Discretionary Review filed with the Court of Criminal Appeals which was denied in December of 1987. Our Court of Appeals issued its mandate on January 13, 1988. Applicant concedes that his conviction had become final and he filed an Application for Writ of Habeas Corpus on February 23, 1988. The trial court denied his post-conviction Application for Writ of Habeas Corpus.

Savery's first point of error is:

"The judgment below is void because it was obtained in violation of Stanley v. Georgia, 394 US 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969)."

Savery argues that this prosecution, simply and unequivocally, is specifically prohibited by Stanley v. Georgia, supra. He argues that the prosecution began with the County Attorney's office and the Sheriff's office asking the District Judge for a search warrant to obtain obscene material from the Appellant's home. Savery maintains he can possess child pornography legally, if it is in his home. There were no allegations, he says, in the search warrant, that there was any type of distribution or commercial obscenity but that simply the defendant [Appellant] was in possession of this pornography of children in his home, which is protected, he says, by the First Amendment.

Savery filed two motions to suppress after he was actually charged with possession of child pornography. Both motions were overruled. Savery adamantly declares that all the material seized was taken from the defendant's home and, further that there was not one item of any alleged child pornography that was not seized at Savery's home.

The position taken by Savery under his Point of Error One, demonstrates that his sole defense is that the child pornography was located in the defendant's home. Tacitly Savery acquiesces that, if the child pornography had been located in some place other than his own home, then the charge and conviction would be valid and the conviction would not be contra to Stanley, supra. Stanley, supra, is the authority relied upon by Savery to sustain his point of error one.

Upon oral submission of the case, the applicant took the position that the paramount issue was a First Amendment right. We conclude that the case sub judice is different and meaningfully distinguishable on the facts from the case of Stanley, supra. The child pornography statute is a separate and distinct legislative enactment and a separate and distinct concept which is treated differently under the First Amendment of the U.S. Constitution.

New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), dealt directly with the issue of child pornography and its interplay with the First Amendment protections. In Ferber, supra, the Supreme Court held that the First Amendment, basically, does not forbid a state from prohibiting child pornography. Even the possession of child pornography may be prohibited. In capsule form, the high court took the position that the legislative intent and purposes in enacting the statute, which protects and safe-guards the welfare of children of tender age, are tested by different criteria and such statutes on child pornography pass muster under the First Amendment. A statute prohibiting child pornography, therefore, generally, is constitutionally permissible. There is a compelling, overriding interest in the states to safeguard the well-being, safety and morals of a minor which does, indeed, justify prohibitive legislation, disallowing child pornography. In Ferber, supra, the court set out, in 458 U.S. 747, at page 757, 102 S.Ct. 3348, at page 3354, 73 L.Ed.2d 1113, at page 1122, as follows:

"[We] have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights...." (Emphasis added)

The Legislature of our State enacted a child pornography statute that prohibits the possession of material which contains, substantially, a film image that visually depicts a child younger than 17 years of age at the time the film image of the child was made, who is engaging in sexual conduct. TEX. PENAL CODE ANN. sec. 43.26 (Vernon Supp.1989).

In other words, there is an important distinction as to child pornography and general obscenity and the States' governments have a greater area of legislative prerogative in prohibiting child pornography. Savery argues that this type of material should be treated as if it were general obscenity rather than child pornography. It is obviously logical and evident that the mere possession of this type of material or this type of film, or picture, necessarily has been created by a market which, in turn, has its foundation in the harmful sexual exploitation of children of tender age. If possession of this sort of film, which depicts a young child engaging in sexual conduct, is constitutionally protected, the same will create a demand for such child pornography which will bring about a tragic supply. In sum, children of tender age would be exploited sexually and otherwise to their extreme, long-lasting detriment. These children would be badly emotionally scarred, inter alia. To sustain Savery's position (as to child pornography and involving child pornography) would simply eviscerate Ferber, supra. And, in harsh reality, to allow an individual to possess child pornography would simply defeat the State's vital and proper interest in curtailing the exploitation of young children.

A parallel case is State v. Modeen, 28 Ohio St.3d 64, 502 N.E.2d 634, 635, (1986). Modeen, supra, addressed the issue of seizing child pornography from an individual person's home based on a statute which prohibited the possession of such child pornography. In Modeen, supra, the following issue or question was certified to the Supreme Court of Ohio. The issue was:

"... 'Does the First Amendment to the United States Constitution prohibit the state of Ohio from enacting a criminal statute which prohibits the private possession of child pornography?' "

Ohio prevailed; Ohio's statute was upheld.

We conclude that the Ohio case of State v. Meadows, 28 Ohio St.3d 43, 28 Ohio St.3d 354, 503 N.E.2d 697 (1986) is the controlling Ohio decision. Chief Justice Celebrezze held that the Ohio statute which criminalizes the knowing, in-home possession of materials that show minors participating or engaging in sexual activity, masturbation, or bestiality did not violate the First Amendment. Celebrezze, C.J., further held that such a criminalizing statute is justified by the interest of a State government in protecting the privacy, health, emotional welfare and well-rounded growth of its young citizens, coupled with a State's undeniable interest of safeguarding the future of its society as a whole. Further, these State interests are strongly compelling reasons which authorize a limited First Amendment intrusion, if any intrusion exists.

The Texas Legislature has obviously determined that it was necessary to prohibit possession of child pornography in order to halt sexual exploitation and abuse of children. We, here, shall not attempt to second-guess the Legislature's judgment. The Legislature may have determined that child pornography is even more damaging to the child victim than sexual abuse or prostitution, inasmuch as the helpless child's actions are reduced and memorialized on a recording or film and that type of pornography may haunt and damage the child for many long years in the future after the original misdeed occurred. Indeed, the effect is devastating and of long duration on the child who has been photographed performing certain acts. That child must go through his adult life with the knowledge that the recording or picture or photograph or film exists and may, at some time in later years, be distributed or circulated.

A solemn statutory enactment of the Legislature is cloaked with a strong presumption of constitutionality. Our solemn mandate is to determine whether the Legislature's chosen statutory means runs contrary to, or unreasonably invades, First Amendment protected rights. We hold that the Texas statute is fully constitutional under the First Amendment and also constitutional as the First Amendment is made applicable to the states by the Fourteenth Amendment. We squarely hold that TEX.PENAL CODE ANN. sec. 43.26 (Vernon Supp.1989), which prohibits possession of materials depicting images of a child participating or engaging in sexual activity, masturbation or bestiality does not violate the First Amendment or the Fourteenth Amendment. We hold further that Texas has a compelling interest in safeguarding its children's privacy and protecting those children from cruel, physiological and psychological, mental and emotional abuse resulting from sexual seduction, exploitation and mistreatment brought about and resulting from child pornography....