*1 STEELE, Appellant, Homer Clark Texas, Appellee. STATE 01-10-00788-CR,
Nos. 01-10-00789-CR. Texas, Appeals
Court (1st Dist.). Houston Aug. 2011. Discretionary Review Refused
March *2 &
Danny Easterling, Easterling Karl P.C., Houston, TX, Easterling, Appel- for lant. Miller,
Mandy Assistant Dis- Goldman Houston, TX, Attorney, trict for The State of Texas. KEYES, of Justices
Panel consists HIGLEY, and BLAND.
OPINION HIGLEY, Justice.
LAURA CARTER Steele, Appellant, appeals Homer Clark convicting indecency him judgments for por- with a child and nography. See Tex. Penal Ann. Code (2)(B) (West 2010), 21.11(a)(1), §§ 43.26(a) (West 2003). the trial court After suppress, appellant his motion to denied trial charges. to both pleaded guilty appellant’s punishment family years. his for the preceding coui't assessed Broderick Officer years’ imprisonment for informed Brinson that appellant had confided in him how he years’ imprisonment for child and *3 pursue sexually would and young assault pornography. ap- possession of child On boys. Appellant told Broderick that he peal, the trial appellant contends preferred who were boys years around 10 by denying sup- court erred his motion to old a living single Ap- and with mother. press evidence obtained as a result of a pellant young boys would offer to take the alleges illegal search that he was on the provide into his care and then everything the affidavit ground reported for them. Broderick to Officer search warrant was insufficient to estab- currently Brinson that living C.S. lish cause. We conclude that the appellant and that had with ap- C.S. lived affidavit established cause and pellant years since C.S. was 10 old. Bro- properly appel- that the trial court denied derick appellant added that had told him motion. affirm. lant’s We sexually how he had assaulted C.S. that time. He also stated that he knew of Background young boys appellant least 10 other January On Officer Brinson had had in his home sexually and assault- swore to an affidavit a warrant ed. Broderick further appel- stated that for, appellant’s apartment to search among lant was currently living 18-year- with an things, “images other of persons ap- who old, “K.A.” Additionally, named Broderick pear be the age engaged under of in reported to Officer Brinson that while posed sexual acts or in a manner to elicit cleaning appellant’s apartment several response sexual or otherwise engaging before, years photographs he found depict- sexual conduct.” The affidavit establishes ing young boys. nude Broderick also re- following: Officer Brinson was as- ported before, that five appellant months signed investigate appellant after An- had shown him a photograph, which he thony reported Thumann to the Pasadena wallet, had removed from his a depicting Department Police that he had reason to 15-year-old boy. nude When Broderick appellant sexually believe that had been asked photograph depicted, whom the ap- assaulting young boys over the course of pellant told him it was K.A. Officer Brin- preceding years. report- Thumann son also stated his affidavit that C.S. ed that appellant currently living with was born in June 1987 and K.A. was born young male named “C.S.” and that C.S. in April 1990. appellant had lived with since C.S. was 10 Officer Brinson further attested that he years filing old. After his initial report, personally had been involved in the arrest Thumann mentioned to Officer Brinson persons no fewer than 50 involved in that while inside residence sev- that, exploitation child sexual and based on before, eral he had seen photo- his own investigative experience as well as graphs depicting C.S. at 11 old. his experienced conversations with more reported Thumann that appellant was cur- investigators, he was aware that “people rently living 18-year-old with an male children, with a sexual interest people named “K.A.” trade, buy, produce, who or sell child por-
The affidavit also recounts that after nography, people who molest children Thumann, speaking with Officer Brinson ... sexually collect ... explicit [tend to] Broderick, met with Grattan repre- children, who ... photographs depicting ever, that appellant they sented had been a friend of ... rarely, dispose if ... for posses- Appellant was indicted prized they] treat[ ] [which por- with a child and additionally attest- Officer Brinson sions.” trial, ed, nography. appellant Prior to filed the evidence seized suppress collect, pho- and maintain people These from or the ob- apartment his evidence been in- they children have tographs of search, including tained as a result of the may with. These volved appellant’s own oral statements and the stages ... in various depict children complainants. Ap- statements of the two undress, totally pho- nude.... These or his motion on the contention pellant based ever, disposed if tographs rarely, are *4 the search warrant was invalid be- and are revered with such devotion by supported probable cause it was not the individual’s they kept upon are often cause. The trial court denied If a in wallets and on diskettes. person, suppress. by a of a child is taken such picture nude, the child person, depicting Suppress of Motion to Denial the child was high probability there is a appeal, appellant In his sole issue on before, after the during, or molested by contends that the trial court erred de- taking session.... photograph nying suppress his motion to because the 27, 2009, January Officer Brinson On the search warrant warrant. Officer executed the search probable insufficient as to cause and was ap- of Brinson knocked on the front door the Fourth Amendment to thus violates apartment. Appel- one-bedroom pellant’s Constitution, States section United if the door. Brinson asked lant answered nine of article one of the Texas Constitu- anyone apartment, else was inside the tion, and articles 18.01 and 18.02 of K.A. replied 18-year-old appellant See Texas of Criminal Procedure. Code in the bed. Officer Brinson asked Const, Const, IV; I, art. U.S. amend. Tex. billfold. Appellant a appellant if he had 9;§ Ann. arts. 18.01 Tex.Code Crim. Proc. Inside, Brin- handed Brinson the billfold. (West 2005). (West 2010), 18.02 K.A., photographs son found three Specifically, appellant contends and 17 old. ages at the enough to allow a affidavit was not detailed statutory and Mi- being After read the when the events magistrate to determine transported to the warnings randa the information occurred and whether station, having admitted to police appellant stale.1 young in sexual relations with engaged Review A. Standard of Specifically, boys past years. for the 30 ruling review a trial court’s engaged he had We appellant admitted that a suppress a motion to under bifurcated K.A. since he had sexual relations with v. of review. McKissick age him at the of 11 standard begun living with (Tex.App.-Houston 211 209 having taken years. Appellant admitted ref'd). al giveWe pet. time. [1st Dist.] of K.A. trial court’s to the having sexual most total deference Appellant also admitted to facts that de determination of historical while he lived relations with C.S. review de credibility, while we pend until he appellant age from the of 10 the law application of novo the trial court’s high finished school. However, challenge the appellant does not dissenting opinion the search- 1. The faults ground. hearsay. sufficiency affidavit on that being of the warrant affidavit for based on 750 Thus, manner, drawing
to facts. Id. we review de tic all reasonable infer those Davis, 154; Jones, application the trial court’s of the law novo ences. 202 S.W.3d at and seizure and cause. at 123-24. Probable cause However, our review of an affidavit in Id. if at ceases exist the time the search novo; warrant is not de support of a search issued, warrant is it be would unreasonable rather, great given deference is presume the items remain at the sus magistrate’s determination pected place. Rowell v.
cause. Id. (Tex.App.-Houston [1st Dist.] 2000), aff'd, 66 (Tex.Crim.App. S.W.3d 279 court, duty reviewing 2001) (citing Guerra court, including reviewing simply trial (TexApp.-Corpus Christi magistrate to ensure that the had a sub ref'd)). proper “The method deter concluding prob stantial basis for that the mine whether the facts Gates, able cause existed. Illinois v. search warrant have become stale is to 213, 238-39, U.S. S.Ct. examine, light type of criminal (1983).
L.Ed.2d 527 The substantial-basis *5 involved, elapsing the time be standard of review “does not mean the tween the occurrence of the out events set reviewing a stamp court should be rubber in the affidavit and the time the search but mean that the magistrate’s does deci (citing warrant was issued.” Id. carry sion the day should doubtful or Hafford State, 439, v. 989 (Tex.App. 440 cases, marginal reviewing even if the court 1999, ref'd); -Houston pet. [1st Dist.] Guer might reach a upon different result de 611). ra, 860 S.W.2d at “When the affida State, novo review.” Flores v. 319 S.W.3d indicating activity vit recites facts (Tex.Crim.App.2010) (quoting 702 W. nature, i.e., protracted LaFave, and continuous A Search and Seizure: Treatise conduct, 11.7(c) passage course of the of time § on the Fourth Amendment (4th (Lockett 2009-2010)). significant.” becomes less Id. ed. 2004 & v. State, (Tex.App. 879 S.W.2d 189 Applicable B. Law ref'd)). -Houston [14th Dist.] may No search warrant issue specific The lack of a date a search- supported by an setting unless affidavit warrant affidavit necessarily is not fatal to forth establishing proba substantial facts validity the of a search warrant. v. Jones ble cause for its issuance. Tex.Code Crim. (Tex.App. 735-38 1.06, 18.01(b) (West Proc. Ann. arts. filed). 2011, pet. -Houston [1st Dist.] 2009). & Supp. “Probable sup cause to Analysis port C. the issuance of a search warrant ex ists the mag where facts submitted to the Appellant contends that reader justify
istrate are sufficient to a conclusion of the affidavit the war object that the probably search is rant cannot discern when Thumann the filed premises to be searched the time initial report his with the Pasadena Police the warrant is issued.” Davis v. Department, when Officer Brinson was as (Tex.Crim.App.2006). In case, to reviewing signed when Officer the war Brinson rant, Thumann, an appellate court interviewed or when Officer is limited Id.; “four corners” of the affidavit. Brinson Although Jones interviewed Broderick. (Tex.Crim. specific affidavit omits the dates of events, App.1992). The supporting affidavit is in these it contains references terpreted contends, however, in a commonsensical and time. Appellant realis K.A. 1. August Accordingly, lacks a frame of reference around Bro- the affidavit these interpret would need to that one derick must have made this statement dur- disagree. time references. We ing August or after 2008. that both Thu- The affidavit establishes provides expert The affidavit also testi that appellant mann and Broderick stated mony persons sexually attracted to 18-year-old currently living with an sexually explicit children tend collect male, Appellant named K.A. contends that children, photographs of treating pho “currently” be- meaningless the word tographs prized possessions, of which specify cause the affidavit fails to when they rarely dispose. The affidavit further Broderick made these state- Thumann and persons specifically states that such collect affidavit, ments to Officer Brinson. photographs they of children whom have however, also establishes that K.A. was they been with and that often keep such Thus, Thumann and April born in Appellant, in their wallets. Broderick must have made these state- however, contends that the affidavit fails to April ments or after link disagree. this information to him. We age.2 K.A. attained Both Thumann and Broderick stated that provides: The affidavit also before, separate occasions several Mr. Broderick stated his statement each personally appel had observed that ago 5 months approximately residence, possessed, pho lant in his a Polar- [appellant] pulled out [sic] tographs young boys with whom he had picture oid out of his wallet and [sic] *6 addition, had sexual relations. In Broder- showed it to Mr. Broderick. Mr. Bro- reported ick that he knew of at least 10 picture that it was a derick stated young boys appellant other that had sexu young approximately years male of Moreover, ally in abused his home. was naked. age, [sic] recently prior as five to six months phrase “approxi- the Appellant contends warrant, appellant execution of the search mately ago” meaningless 5 months be- photograph Broderick a from had shown fails to when specify cause the affidavit 15-year-old boy. Be his wallet of a nude However, Broderick made this statement. affidavit, signed early cause we read the in birth, the affidavit K.A.’s date of 2009, in a January commonsensical and 1990, Bro- April reflects as establishes that manner, drawing all realistic reasonable derick made this statement or after inferences, magis we conclude that the Moreover, April 2008. Officer Brinson reasonably trate could have concluded affidavit, in on the also stated his “Based appellant possession continued to be in of information, I have to be- forgoing reason Flores, See pornography. lieve and believe that on or [appellant] do (holding anonymous tip re 1, the felo- August
about 2008 did commit garding activity” unspecified “narcotic offense, ny including Possession Pro- / considering all date was sufficient August 1 Pornography.” motion of Child McKissick, circumstances); signing was almost six months before the reasonably in (magistrate could have magistrate of the affidavit. The could in affi illegal ferred that described reasonably appellant have concluded davit, possession pornography, the of of child photograph showed Broderick During punishment phase report initial on December 2008. the of Offi- trial. cer Brinson testified that Thumann filed his and remand appellant’s nature mak reverse conviction protracted of continuous relevant); for a new trial. time less ing passage (Tex. State, 62 S.W.3d Morris states, majority January As the (where pet.) no App.-Waco 2009, Officer Brinson swore to an affidavit nature, activity of continuous indicates appellant’s a warrant to search reasonably have inferred magistrate could for, things, “im- apartment among other in pornography pos had his appellant ages persons appear who to be under i.e., time, period for substantial session acts age engaged sexual or Burke v. years); one-and-a-half response in a manner to elicit sexual posed (Tex.App.-Waco 655-56 engaging or otherwise sexual conduct.” 'd) (evidence of child pet. ref day. The warrant was executed the next stale). was not year prior one issuance affidavit, In his Officer Brinson averred court not err hold that the trial did We assigned investigate appel- that he was denying suppress by appellant’s Thumann, Anthony person lant after because the affidavit given about whom no details were appellant contained evidence that affidavit, warrant to the Pasadena Police reported por- continued to be in unspecified on an date that he Department the time the search warrant nography appellant believe that had had reason to and executed. sexually assaulting young boys issued been over preceding forty years. the course of the overrule sole issue. We reported appellant Thumann was cur- rently living young with a male named Conclusion that, appel- when he was inside “C.S.” of the trial judgment We affirm lant’s residence several before his court. report, he had seen nude de- picting C.S. at eleven old. The affi- dissenting. Justice KEYES davit stated that was born in June C.S. *7 KEYES, Justice, EVELYN V. 1987, making twenty-one years him old at dissenting. time the of Officer Brinson’s affidavit. reported appellant Thumann also was I respectfully dissent. The affidavit currently an living eighteen-year-old with the to search the home supporting warrant “K.A.,” April male born in named Steele, appellant, Homer was Clark hearsay hearsay The the entirely based information tak- affidavit also contained Broderick, rep- en at from two infor- of Grattan who unspecified times statements credibility mants of unknown and reliabili- appellant resented that has been a friend ty reported appellant’s family preceding who activities at of Broderick’s for the reliability similarly unspecified places forty years, times and but whose and cred- past. probable ibility the I would hold that cause was not otherwise established. Bro- accusing general was not shown on the face of the warrant derick made statements appellant pursuing sexually under home was assault- appellant’s which searched, upon the providing ing young boys. represented evidence Broderick which lived with appellant he was arrested and convicted of that C.S. had since currently was ten old and was and inde- C.S. cency living appellant appellant with a child. I would hold that the and that sexually trial had him that he had assault- denying appellant’s court erred told time, would, therefore, i.e., during I ed at some suppress. C.S.
753 concluding probable sis for cause ex pre- the time or times unspecified ists). for “Probable cause a search war further years. Broderick ceding eleven if, totality rant exists under the that, cleaning appellant’s while stated magistrate, presented circumstances before, he had apartment several probability’ at a ‘fair or there is least young depicting nude found ‘substantial chance’ that contraband or evi that, five months before his boys and of a crime will be at the dence found had shown police, appellant statement specified location.” Flores v. 319 fifteen- photograph depicting him a a nude (Tex.Crim.App.2010) S.W.3d 702 removed year-old boy, appellant had Gates, n. (quoting 462 U.S. Broderick Appellant from his wallet. told 13). at 2335 n. In reviewing S.Ct. was K.A. boy photograph that the in this warrant, appel affidavit an spe- reported No fact in the affidavit late court is limited to the “four corners” Brin- cifically or was within Officer dated affidavit. See Davis v. any or based on personal knowledge son’s (Tex.Crim.App.2006); only activity observation of his own. (Tex. Jones by the informants alleged ongoing to be Crim.App.1992). interpret sup We living young with two adult in a porting affidavit commonsensical and males, illegal. not in itself an manner, drawing realistic all reasonable appeal, appellant In his sole issue on Davis, 154; interferences. by de contends that the trial court erred Jones, at 124. nying suppress his motion to because warrant, magistrate To issue a search the search warrant (1) probable must “determine that it is now to show cause was insufficient (2) contraband ... will be on the the Fourth Amendment and thus violated (3) premises when the warrant is described Constitution, section to the United States Grubbs, 547 executed.” United States v. nine of article one of the Texas Constitu 1494, 1500, 164 126 S.Ct. U.S. tion, arti of Criminal Procedure Code (2006) (emphasis original); L.Ed.2d 195 and 18.02. See cles 18.01 U.S. Const. Proc. Ann. art. see also Tex.Code Crim. 9; IV; I, § art. amend. Tex. Tex. Const. (West 2010) 18.01(c) Supp. (providing that (West CRIM. Proc. Ann. art. 18.01 Code may not issue unless sworn search warrant (West 2005). I art. 18.02 2010), sufficient facts to estab- affidavit sets forth agree. constituting that items lish cause *8 law that search provides “[n]o Texas particu- tó be searched for are at evidence any purpose ... warrant shall issue for Davis, searched); 202 place lar to be presented unless sufficient facts are first (“Probable support cause to S.W.3d issuing magistrate prob- that satisfy of a search warrant exists the issuance in fact exist for its issu- able cause does magis- to the where the facts submitted setting affidavit ance” and sworn justify “[a] a conclusion trate are sufficient to establishing proba- facts forth substantial object probably of the search is every in in ble cause shall be filed instance time to be searched at the premises State, issued.”); requested.” which a search warrant is is Jones v. the warrant 18.01(b) 725, Ann. art. (Tex.App.-Houston 338 736 S.W.3d Tex.Code Crim. Proc. filed) (“A (West 2011, 2010); magistrate v. see also Illinois [1st Dist.] Gates, 218, 238-39, the affida- 103 S.Ct. able to ascertain from 462 U.S. must be (1983) 2317, 2332, of time of the event (holding L.Ed.2d 527 vit the closeness 76 sufficient to probable the basis for cause have substantial ba- is magistrate must 754 ver, an independent the warrant based on the affidavit recites facts “[w]hen
issue
cause.”).
judgment
probable
indicating activity
protracted
con
ie.,
tinuous
a course of conduct—
nature —
A search warrant affidavit must have a
passage
signifi
of time becomes less
specificity
“level of
...
sufficient
State,
(citing
cant.”
Id.
Lockett v.
879
supporting proba-
time” of an event
[the]
(Tex.App.-Houston
S.W.2d
189
[14th
magistrate
ble cause so that
would
ref'd)).
1994, pet.
Dist.]
have a “reasonable basis to infer that [the
at a time that
occurred
would sub-
event]
may
hearsay
An affiant
use
to show
a
belief that the ob-
stantiate
reasonable
long
cause so
as there is a sub-
ject
premises
on the
[is]
crediting
stantial basis for
it. Wilkerson
at the time the warrant
...
be searched
(Tex.Crim.
State,
v.
726 S.W.2d
545
Davis,
202
issue[s].” See
S.W.3d
State,
App.1986) (quoting Hennessy v.
660
23;
157 n.
see Peltier
(Tex.Crim.App.1983));
S.W.2d
91
(“The
(Tex.Crim.App.1981)
32
at-
facts
Jones, 338
at 734-35 (holding
S.W.3d
closely
tested to must be
so
related
information from confidential
informant
time of the issuance of the warrant
toas
was reliable and credible where affidavit
justify a finding
cause at the
previous
referred to
instances
time.”)
(quoting Heredia v.
provided
informant
correct information to
(Tex.Crim.App.1971));
police,
investigation
affiant’s own
con-
Jones,
same)
(holding
S.W.3d at 736
buy
trolled
of contraband confirmed infor-
States,
(quoting Sgro v.
United
U.S.
mation, and
supplied
second informant
206, 210,
53 S.Ct.
the magistrate to ascertain from the affi
a search warrant based on information ob-
davit that the event upon
proba
which the
tained from an informant fails to state
ble cause was founded was not so remote
ineffective”).
the affiant received the information
as to render it
proper
“The
informant,
from the
when the informant
method to determine whether
the facts
*9
information,
obtained his
supporting a search
or when the inci-
warrant have become
examine,
stale
dent
place,
is to
in
described took
the
light of the
affidavit is
type of
involved,
criminal activity
inadequate
support
the
of a
elaps
the time
issuance
ing between
search warrant.
the occurrence of the
See Schmidt v.
events
set out in the affidavit
the
421 (Tex.Crim.App.1983)
and
time the
search
(holding
warrant was issued.”
McKissick v.
affidavit
failed to recite when
209 S.W.3d
214 (Tex.App.
place
incident described took
insufficient
ref'd).
warrant).
-Houston
[1st
we
support
Dist.]
issuance of search
Ho
of a search warrant.
Here,
sup-
issuance
See
Brinson’s
Officer
Schmidt,
appellant’s
warrant for
421 (holding
the search
659 S.W.2d at
affi-
porting
entirely on information
is based
apartment
davit insufficient when it failed to state
Depart-
Police
by the Pasadena
received
in-
when affiant received information from
informants, Thumann and
from two
ment
formant, when informant obtained infor-
not state
The affidavit does
Broderick.1
mation, or when described incident took
report
initial
with
Thumann filed his
when
place).
Of-
Department,
Police
when
the Pasadena
Moreover, all
in
the information recited
case, or
assigned
was
ficer Brinson
indecency with a
regarding
the affidavit
interviewed Thu-
Officer Brinson
hearsay
was based on
in the form of
child
provide
Nor does it
mann or Broderick.
allegedly
actions taken or remarks
made
Thumann or Bro-
any information about
unspecified
past by appel-
at
times in the
derick,
alleged long-
appellant’s
other than
informants. And both the ref-
lant to the
family.
Broderick’s
friendship
time
in
erences
Officer Brinson’s affidavits to
for believ-
any
it establish
reason
Nor does
by
made
these informants re-
informant to statements
the information of either
ing
activities and
garding appellant’s alleged
and credible other than the
be reliable
of their information from the
regarding appellant’s pos-
confirmation
their statements
of execution of the search warrant
results
pornography
session of child
referred to
post
And ex
facto confirmation
itself.
years ago” and “approxi-
events “several
in a search
reliability
the
of information
mately
ago.”
5 months
The information
warrant affidavit cannot be used to estab-
the affidavit
based thus
on which
reliability
purpose
for the
of establish-
lish
required
of time
specificity
lacked the
cause to obtain the warrant
ing probable
id.; Jones,
warrant affidavit. See
search
is, therefore, no
the
There
place.
first
(requiring
photos children INC., Appellant, remotely are like None of these cases approving issuance the instant case affi- supported by an of a search warrant Tapia TAPIA Deidra d/b/a nothing more than davit based Construction, witnesses of
hearsay statements of two Appellee. credibility regard- reliability and unknown ing vague allegations No. 05-10-00635-CV. and with children Texas, Appeals Court of having place unspeci- taken reported Dallas. forty years. allega- fied times over reported abuse were at a
tions of child Aug. only specifically both of the two time when alleged victims were adults and identified ma- pornographic
when no observation of recently five terial had occurred more than Brinson’s interview prior months to Officer with Broderick. circumstances, I cannot
Under these finding the criteria for a agree cause for issuance of a search Therefore, met. I would warrant were war- that issuance of the search conclude rant violated constitutional I statutory rights, respectfully dissent.
Conclusion erred in I would hold that the trial court suppress. I denying appellant’s would therefore reverse and remand trial. case for a new