West v. State

• Decision Date: 25 September 1972
• Docket Number: No. 45090,45090
• Citation: 489 S.W.2d 597
• Parties: Alton A. WEST, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 597

489 S.W.2d 597

Alton A. WEST, Appellant, v. The STATE of Texas, Appellee.

No. 45090.

Court of Criminal Appeals of Texas.

Sept. 25, 1972.

Rehearing Denied Feb. 7, 1973.

William J. Gillespie, Phil Brummett, Lubbock, for appellant.

Thomas J. Purdom, County Atty., and Joel Howard, Asst. County Atty., Lubbock, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of exhibiting obscene matter. Punishment was assessed at thirty days confinement and a $200.00 fine. The jail term was probated for a period of one year.

Appellant challenges the validity of his conviction on four grounds. He argues that: (1) a hearing was not held prior to the issuance of the search warrant authorizing the seizure of the material in question in derogation of his rights under the First, Fourth and Fourteenth Amendments to the United States Constitution; (2) the evidence is insufficient to support the conviction; (3) the material in question is not obscene as a matter of law; and (4) the evidence shows that appellant is a projectionist, which category of persons is specifically excluded from the provisions of Article 527, Vernon's Ann.P.C.

The record reflects that Officers Garrett and Daniels of the Lubbock Police Department received information that obscene movies were being shown at the Cinne-Arts Theater located in that city. On November 18, 1969, the officers, acting on the basis of this information, went to the theater, paid the admission price and viewed the films which were being exhibited. Believing these films to be obscene, the officers contacted Harold O. Brown, who was then an assistant county attorney for Lubbock County; and Brown aided the officers in preparing an affidavit for a search warrant.

On November 19, 1969, Brown, the officers and Justice of the Peace Wayne LeCroy went to the theater for the purpose of viewing these films. When they arrived at the theater, Brown advised appellant of the purpose of the visit and requested that appellant contact his attorney so that the attorney might be present. They then entered the theater and began viewing the films which were being shown. Approximately ten minutes later, Phil Brummett, appellant's attorney, arrived. While viewing the films, appellant's counsel and the assistant county attorney discussed with Justice of the Peace LeCroy 'whether or not it was erotic and such as that and to what extent' and 'made comments about the nature of the film.'

After having viewed these films, Officers Garrett and Daniels signed the affidavit and swore to the truthfulness of the statements made therein. Justice of the Peace LeCroy then issued the search warrant, the film was seized, and appellant was arrested.

The First Amendment to the Constitution of the United States is based on the philosophy that the free exchange of divergent views is the best means of solving the problems which confront this country. It protects the right to receive communication ¹ as well as protecting the right to communicate. ² However, '(t)he First Amendment protects the communication of Ideas, not all communication.' Deeds v. State, 474 S.W.2d 718 at 720. Thus, incitement to illegal action, ³ libel, ⁴ 'fighting words' ⁵, and obscenity, ⁶ while communicative, do not express ideas and have been found to be unprotected by the First Amendment. Expression of ideas through the medium of motion pictures is included within the free speech and free press guaranties of the First Amendment. Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed.2d 1098 (1952).

Because prior restraints upon protected speech suppress the very freedom which the First Amendment was designed to protect, ⁷ any system of prior restraints is presumed to be constitutionally invalid until its validity has been proved by the state. E.g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The procedures utilized to suppress obscenity must be designed so as to 'ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line.' Bantam Books, Inc. v. Sullivan, supra. Since this line is often so uncertain, 'the separation of legitimate from illegitimate speech calls for . . . sensitive tools . . .' Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

Political and social expressions must be allowed to be communicated while they are timely. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). Where the state attempts to suppress communication, whether by injunction, ⁸ seizure of allegedly obscene matter, ⁹ or denial of mail privileges, ¹⁰ prompt and adequate judicial scrutiny of possible violation of First Amendment rights is required. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964).

The seizure of allegedly objectionable publications for evidentiary purposes can act as a prior restraint on speech. Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). For this reason, the procedural requirements are more stringent for a lawful seizure of allegedly obscene material than they are for nonspeech related types of contraband. Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

Appellant argues that his pre-trial motion to suppress evidence seized pursuant to the search warrant should have been granted because: (1) an adversary hearing must be held prior to the issuance of a search warrant authorizing the seizure of an allegedly obscene motion picture, and (2) such a hearing was not held in the instant case.

The United States Supreme Court has not yet determined whether an adversary hearing must be held prior to the seizure of a motion picture, ¹¹ and, as we noted in Bryers v. State, Tex.Cr.App., 480 S.W.2d 712, other courts are 'sharply in conflict' on this issue. ¹²

At the time the search in issue in the instant case was conducted, Article 527, Sec 9, V.A.P.C., did not require that an adversary hearing be conducted prior to the seizure of allegedly obscene matter. Since that time this statute has been amended so as to require such a hearing. We decline to determine the constitutional necessity for such a hearing, for, assuming Arguendo that an adversary hearing is required, we conclude that a hearing was held in the instant case prior to the issuance of the search warrant.

The purpose for requiring a hearing prior to the issuance of a search warrant is to provide protection against governmental suppression of nonobscene expression. Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969) cert. denied, 397 U.S. 920, 90 S.Ct. 929, 25 L.Ed.2d 101; Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969) cert. denied, 396 U.S. 985, 90 S.Ct. 477, 24 L.Ed.2d 449. The adversary requirement is added due to the feeling that:

'The seizure of film after no more than an Ex parte determination of probable cause is essentially a prior restraint of expression--especially inimicable to the First Amendment--and clearly lacks the sensitivity required by the Constitution.' Fontaine v. Dial, 303 F.Supp. 436 at 439 (W.D.Tex.1969).

However, the hearing need not be a 'fully matured action at law.' Tyrone, Inc. v. Wilkinson, supra, 410 F.2d at 641. The state need not prove obscenity beyond a reasonable doubt, only that probable cause exists for the issuance of the warrant. E.g., Overstock Book Company, Inc. v. Ferdon, 426 F.2d 643 (9th Cir. 1970); Tyrone, Inc. v. Wilkinson, supra; United States v. Little Beaver Theatre, Inc., 324 F.Supp. 120 (S.D.Fla. 1971). The question of obscenity Vel non must await the trial on the merits. Morever, since time is of the essence in these cases, both with regard to protecting the dissemination of protected communication and to prohibit the distribution of obscenity, exhibitors must be prepared to defend their films on short notice against a charge of obscenity. Braha v. Texas, 319 F.Supp. 1331 (W.D.Tex.1970).

In the instant case, the film in question was viewed by the magistrate in the theater in which it was being exhibited to the public and in the presence of counsel for appellant and for the state. Both appellant and his attorney were aware that the purpose of the magistrate's visit was to determine whether probable cause existed for the seizure of the films. Counsel for appellant and for the state discussed the nature of the film with the magistrate. Appellant has not shown that he was denied the right to present any relevant evidence on the issue of probable cause; that he was denied adequate time for preparation; or, that he requested a continuance for preparation purposes. Instead, he 'takes the position that the informal gathering which took place at the theater could not be considered an adversary hearing by any stretch of the imagination . . ..' We disagree.

The term 'adversary hearing' has no magical meaning which connotes only a proceeding in a court house with robed judges presiding. All that term does require is that an exhibitor or speaker have a fair opportunity to present reasons why a seizure should not take place. See, Braha v. Texas, supra; Star-Satellite, Inc. v. Rosetti, 317 F.Supp. 1339 (S.D.Miss.1970); Cambist Films, Inc. v. Illinois, 292 F.Supp. 185 (N.D.Ill.1968). See also, Lee Art Theatre, Inc. v. Virginia, supra at fn. 11. Under the facts presented in the case at bar, we find that a constitutionally sufficient adversary hearing was held prior to the seizure of the film. Appellant was afforded his right to counsel, and counsel for appellant was...