*1 Lopez 384 S.W. 2d this court wrote:
“Aftеr confession has been admitted jury, evidence to the the defendant may still relating adduce evidence to its
voluntariness, may which evidence
considered other judge with the issue of its voluntariness. judge “If trial from all concludes the evidence that the confession should admitted, will withdraw have been he jury may shall,
it. Otherwise the defendant, upon request of the be in- structed to the they effect that cannot consider the confession be- unless beyond lieve that it reasonable doubt voluntarily made.” It is obvious from thе record that the judge trial did not conclude from the evi- dence offered after was ad- confession mitted confession with- should be
drawn, request ap- and we find from the
pellant do so. issue voluntariness as raised before the jury was submitted to them under instructions objections. addressed no
Remaining convinced this cause was submission, properly original decided on appellant’s motion for rehearing is over-
ruled.
William Carnye KEMP, Appellant,
The STATE of Texas, Appellee.
No. 42298. Appeals Court of Criminal of Texas. Dec. Rehearing On March *2 games, playing
after mentioned above appellant magazines. nudist showed them Subsequently, appellant invited into them displayed his bedroom where he notebooks containing persons of pictures of both sexes engaged in various sexual acts. While bedroom, appellant committed charged act indictment. hearing punishment prior At the on two offense, for like convictions State Louisiana, proved. sufficiency The of the evidence sus- to Milner, Dallas, appellant. George for R. pun- tаin the with conviction the maximum questioned. ishment assessed is not Walvoord, Wade, Henry Atty., A1 Dist. Walvoord, Chapman, Malcolm Ron Ron Appellant’s first of error con- Fin- Dade, P. Camille Elliott James in permit- tends that the trial court erred strom, Attys., Asst. Dist. Jim ting the to into state introduce evidence Austin, Vollers, Atty., for the D. State’s pictures depicting offenses extraneous State. The appellant that for was tried. the follow- items referred consisted of
OPINION appellant ing: (a) picture of commit- one sodomy com- ting the of oral on the act WOODLEY, Presiding Judge. witness; plaining con- (b) one notebook sodomy; punishment, is The offense taining photographs years. looking complaining at witness was while him; sodomy (c) on appellant committed The indictment on or about containing pictures fourteen notebooks 21, 1967, May appellant committed the act engaged in parties of both sexes various sodomy by using mouth on his the sex- acts; (d) appellant sexual five witness, complaining ual parts Wil- males; committing sodomy on unidentified liams, purpose having for age picture engaged males (e) one of two other copulation. carnal sodomy. in the act of allegation applied As to the the indict- picture showing appellant commit- ment, Art. unconsti- V.A.P.C. clearly ad- sodomy on ting Williams Pruett tutional. No. offense, prosecution for the missible 191, decided November looking as notebook Williams prior that two weeks record reveals during the commission of offense. offense, Williams date Neil, general is a rule that can It the accused year companion, visited with old showing he only be convicted appellant home. Neil had Thus, charged. guilty the offense appellant approximately known two he has committed other weeks, evidence that appellant’s yard as he had mowed wholly discon- crimes that are remote and During several occasions. the course visit, from the offense with which nected their and Neil were in- Williams ordinarily inadmissible. Tex. charged is play ping-pong vited court has held that 295. This Appel- color pool, and television. watch Jur.2d other crimes commission boys with food and lant also furnished exception as an the accused admissible boys The two returned to drinks. system; or offense, plan rule show general day on the lant’s home theory occupies, and in pos- to rebut some defensive cases sesses, sodomy, evidencing probаbil- and has charge such as controls of. ity of the act and the unnatural at- “MY IS BELIEF AS AFORESAID witness, complaining tention toward THE BASED ON FOLLOWING accomplice. victim or Johnston *3 FACTS: pic- Tex.Cr.App., 418 522. The to tures were offered referred (A) been We have the ex- informed intent, scheme, showing purpose for the istence by of the set out facts foregoing design, pattern and of the commis- reliable, trustworthy credible and citizen sion court of the offense. The trial Dallas, Dallas County, they only jury that cоuld consider such purpose. that (B) evidence for limited Under and further Officers received have record, forth in facts set evi- information the past twenty-four properly dence was before the court. hours from an informant that he has John- authority supra, ston sustain- been in the residence C. of William ruling. ing the court’s Kemp at 1426 Lane and Summertime has lewd observed and indecent Appellant’s second of error at- boys photographs and of men and appellant’s tаcks the made of search home sodomy by copulation act of both oral arrest, at the time contends that and and and copulation, anal of men women trial admitting court erred in into evi- sodomy, the act of intercourse and dence the fruits of the search. It women on other committing sodomy lant’s upon contention that that women. Informant further states issued to _ warrant is insufficient Kemp in- lewd and Willian C. cause probable upon show which war- juve- decent films which he to shows in question issue, rant could and that there he niles who to his and that come house showing was no the act which boys in photographs takes these probable cause based occurred within sodomy. in the act of nude and prior making of reasonable time “WHEREFORE, (We) ask that a war- affidavit.
rant
for and
the said
search
seize
The affidavit
which the search
and
be forwith
obscene articles
materials
warrant
reads:
the law
issued
issued in accordance with
provided.
such cases
“We,
Bynum
Curtis,
E.
and
do
D.
M.
J.
Curtis
M.
J.
heretofore,
solemnly swear
on or
Bynum
D. E.
A.D.,
day
September
about the 28th
County
in said
and
One Wil-
subscribed before me
“Sworn
and
Kemp
persons
liam
and
C.
un-
on this
Bynum
D.
and
E.
M. Curtis
J.
unlawfully
known did then and there
September,
day
the 28th
A.D.
materials,
possess
articles and
obscene
to-
Richburg
E.W.
lewd,
photo-
wit:
obscene and indecent
graphs
Peace,
materials
we have
and
and
cause
Precinct No. 7
Justice
County,
Dallas
Texas.”
Place
and do
that said ob-
to beliеve
believe
and
are now
scene articles
materials
State, Tex.Cr.App.,
As in
Gaston
Kemp
per-
and
concealed William C.
12, 1969)
March
cert.
(decided
S.W.2d 297
story
a one
persons
son or
unknown in
denied,
24 L.Ed.
in Dallas
frame house situated
brick and
they
do
2d
the affiants
not state
at
County, Texas
1426 Summertime
rely entirely upon
hear
the informant’s
Lane,
County,
Dallas
City
knowledge
say.
of their
They swear
own
Kemp
day
that on
the affidavit
said
C.
and
or about
Texas which
William
per-
suspect
tеlephone
Kemp
made that one William
on the basis of the
C.
28, 1967,
son or
there
persons
September
unknown did
conversations. On
boy
ma-
unlawfully possess obscene
who was under
at the Dallas
articles
detention
terials,
lewd,
County
Department
indecent
to-wit:
obscene and
communicated
Juvenile
the officers
photographs and materials.
information
served as the basis
the affidavit
The facts which the affiants
“we
swore
The informant
identified
warrant.
have cause
believe and do believe” were
Evans,
A.
stated that
age
Charles
that the
articles
and materials
had
home
had ob-
been
un-
swore
described
served
obscene material
lawfully possessed “are now concealed”
the affidavit.
occupied by
at or in the house
them
them
The statute in
time
*4
(the
effect
the
searched).
house
question
in
was issued
warrant here
“My
as
Affiants
state:
belief
(Art.
by
as amended
Acts
the
527 P.C.
of
following
is based on the
facts
aforesaid
16,
1041,
p.
Legislature,
effective
57th
June
»
* * *
knowingly pos-
1961) made it unlawful
book,
any
photograph,
sess
obscene
upon
in
facts set out
the affidavit
materials,
ar-
named
“or other
and other
the
that
affiants based
belief
their
is obscene.”
ticle which
the obscene articles and materials “are now
together
portion
the
concealed”
with
Georgia, 394 U.S.
Stanley v.
of
wherein the affiants “swear
the
holding that
22 L.Ed.2d
personal knowledge”
appel
their own
that
pro-
Amendments
First and Fоurteenth
person
or
un
lant and
possession of obscene
making mere
hibited
lawfully possessed
such
articles
crime,
April
decided
material
materials,
requirements of
satisfies the
in 1961 was
as amended
Art.
527
Aguilar v.
378 U.S.
effective
by Acts
again amended
in
omitting
both as to the
12 L.Ed.2d
V.A.P.C.)
(Art. 527
June
being
formation
“credible and reliable”
an offense.
possession” as
“mere
that
facts
which affiants
the
Hanon,
428 F.2d
v.
States
United
their belief was information that came
authority
conclusion
for our
(8th Cir.) is
from observation
the informant. Gaston
of
sufficiency
the affidavit
State,
that
State, supra;
Tex.Cr.
Johnson
rests
for the search
probable cause
show
State,
Tex.
App., 440 S.W.2d
Nus
existing at the time
upon the situation
310; Bivins
Cr.App., S.W.2d
warrant,
though
of the search
the issuance
Tex.Cr.App., 440
S.W.2d
un
declared
subsequently
statute was
Bynum,
one
Testimony
Police Officer
Gomez,
parte
Ex
also
See
constitutional.
affiants,
in
the trial court
heard
denied,
308, cert.
prior
to the admission
jury’s absence
937, 87 S.Ct.
photographs including
those of
State, Tex.Cr.App., 394 S.W.2d
Perez
sodomy
engaged
lant
the act of
Cir.)
(5th
Beto
also Gomez v.
Williams,
following:
included the
F.2d 766.
alleges
ground of error
De-
third
Appellant’s
officers of the Dallas Police
Juvenile
charging that
erred
telephone
court
partment
reports by
had received
and Neil
Williams
occurrences” were
tak-
the state’s witnesses
“unusual
witnesses,
in-
such
in that
ing place
accomplice
home of a
man
were
white
a comment
approximately
years
age,
Sing-
constituted
struction
charge
The court’s
ing Hills area of
The officers
the evidence.
weight
Dallas.
address,
witnesses Wil-
jury that the
nor
verify
were unable to
were
instructed
accomplice witnesses
they
positive
able to obtain a
identification
and Neil
liams
law,
of other
“Evidence of
commission
instructed
as a matter of
further
admissible
appellant
crimes
the accused is
jury
that the
could
convict
part
gestae
testi-
of the rеs
or to show
accomplice
unless
believed the
intent, motive,
crime,
scien-
mony
appellant
to be true
showed
ter,
Evidence
system, and malice.
charged,
be
of the offense as
guilty
to dis
admissible
testimony
their
was corrob-
other crimes
also
not then unless
testifies
the accused when he
credit
orated.
behalf,
his failure
or to show
own
judgment
affirmed.
reformed,
de
or to controvert
to have
theory
These
advanced
him.
fensive
ONION, Judge (dissenting).
prohibiting
rule
exceptions
general
of other crimes are discussed
evidence
(No.
Pruett
immediately hereinafter.
greater
detail
opinion
43,193) this court
a unanimous
however,
remembered,
It must be
upheld
constitutionality
of Article
crime
of another
though
even
V.A.P.C., under
which this
proceed
instant
may
relevant
sodomy,
with the offense of
admit
not be
should
ing,
such
despite
opinion
fed
of the three judge
other
the commission
ted unless
eral
court
Buchanan et al. v. Charles
accused
clеarly proved and the
crime
*5
Batchelor,
al.,
et
F.Supp.
(N.D.
308
729
perpetrator.”
its
to have been
is shown
Tex.)
contrary.1
the
It is not
this
State,
Tex.Cr.
133
v.
also Sumner
See
ground that I dissent to the
affirmance
501,
453.
112
R.
S.W.2d
this case.
the
though when
are occasions
There
Admission
Extraneous
play.
into
exceptions do not come
Offenses
In
his first
of error
State, 416 S.W.
recently in Hafti v.
Only
contends
permitting
the trial
court erred
824,
court, speaking through Judge
this
2d
pic-
State to introduce into evidence
Belсher, said:
depicting
tures
offenses extraneous to that
appears to be consistent
“The rule
for
(State’s
which he was tried
Exhibits
testimony
state leaves
if the
through 22)
3
seized in a search of
identity of
intent or
question as to
home some four months after the
independent crime
defendant,
of an
proof
offense.
Also,
is
there
where
is not admissible.
state’s
support testimony to
positive
general
“The
speaking
rule in all English
of-
case,
independent
proof
other
jurisdictiоns is that an accused is
entitled
2d
1 Branch
not admissible.
is
fenses
be tried on the accusation
made
2601;
31,
188;
200,
Branch 2d
Sec.
5
Sec.
pleading
State’s
and not on some collateral
306,
197; Story v.
crime,
Sec.
23
or for being
generally.
a criminal
Tex.Jur.2d
296;
266, 296 S.W.
State, 107 Tex.Cr.R.
The
is
rule
now deemed axiomatic and is
161,
State,
134
138 Tex.Cr.R.
Taylor v.
jurisdictions.”
followed
all
Young
277;
854.”
A.L.R.2d
42
State,
164,
S.W.2d
159 Tex.Cr.R.
pellant. photo- The State also introduсed graph appellant committing showing the ap ground of error his second sodomy on very Williams with act court erred in ad pellant contends which note- well as a mitting, fruits of the objection, the over book examining dur- which Williams search of home. This conten ing alleged. act claim that the part on the tion warrant *6 did not testify nor offer probable to show issued insufficient any positive There proof defense. cause. the State’s case. No issue as identity, intent, system, еtc., design, was raised even The affidavit which by cross-examination or otherwise. warrant issued reads: theory rebut, defensive this not a circumstantial case, and the “We, Curtis, Bynum D. E. and M. do J. extraneous offenses were not a’part heretofore, solemnly that on or swear gestae. res There was no evidence in A.D., September, about day the 28th record that State’s Exhibits 3 through 22 County and said One were any or during time used exhibited persons or Kemp person William C. and commission of the offense or unlawfully there unknown did and were even in at that existence Nei- time. materials, possess and obscene articles ther Williams nor Neil ex- identified such lewd, photo- indecent to-wit: obscene and hibits. and we have graphs and materials cause said circumstances,.
Under these that believe and do believe cannot I agree now that articles materials are conceal- through State’s Exhibits and person Kemp were and or admissible in ed Surely evidenсe. C. William guilty story mere brick plea persons of not in a one charge unknown sodomy under in Dallas the first and situated Coun- mode of Article frame house Lane, V.A.P.C., City ty, is not sufficient at 1426Summertime to authorize Texas proof Dallas, County, Texas of extraneous offenses which Dallas demonstrat- ing and or Kemp that the accused is a said C. generally. criminal William occupies, possesses, Can it be said in con- view of- offenses, etc., fered charge such extraneous of. trols and has “MY BAS- BELIEF AS FORESAID IS Peace,
ED FACTS: Pre- ON THE FOLLOWING “Justice 1, Dallas cinct 7 Place No. informed the ex- (A) have been We County, Texas.” set facts out foregoing istence of reliable, trustworthy citi- A careful such affidavit re- reading credible and County, probable zen of veals that the alleged Dallas cause hearsay by any solely upon unaided received (B) and further have Officers independent or surveillance corroboration twenty-four past hours information personal knowledgе affiants. he has been from an informant Kemp at 1426 the residence of C. William majority para- the first seizes has lewd observed Summertime Lane graph per- to indicate some photographs indecent part sonal knowledge on the of the affiants boys sodomy men act of citing Gaston v. copulation, copulation both oral and anal cert. den. U.S. inter- in the act of men and women find nothing I in the sodomy, of women commit- course and majority opinion in to indicate Gaston Inform- ting women. sodomy on other is a similar It is case.2 that the af- true ant further states William C. they rely entirely upon fiants do not state films Kemp_lewd and indecent hearsay, an informant’s but it is also true who come juveniles which he shows to fact, contrary. do state the photo- to his he takes house they swear is based “My belief as foresaid graphs boys of these nude and in on the following facts.” The facts of sodomy. act clearly hearsay. support follow are To conclusion that had no personal the affiants “WHEREFORE, (We) ask that a war- only knowledge one need look to rant to search for and seize the said testimony (Police of one of affiants obscene articles and materials forrnth majority Officer forth in the Bynum) set issued in accordance with the law opinion.3 provided. such cases Since, M. Curtis my probable opinion, the cause “J. Bynum “D. E. hearsay, entirely upon is based must we *7 “Sworn to and before subscribed me if determine the two affidavit meets Bynum D. E. and M. Curtis this on pronged Aguilar 378 test of v. U.S. J. the 28th day September, 108, A.D. 1967. 1509, 84 12 L.Ed.2d S.Ct. 723. rely majority’s 2. If it mony given be the intent to at the time trial to concurring opinion probable support this writer’s cause for the issuance magistrate. attention to directed footnote of a search warrant concurring opinion (1) #2 writer’s Such evidence was not shown to State, (No. 42,- given magistrate Ruiz v. 457 894 (2) S.W.2d have been 439). was, if it not shown to it was have been oath, (3) under not was included in Bynum, affiants, 3. Officer one of tеs- affidavit for a warrant. tified, jury, Amendment, in the absence of the on the Fourth United States Con probable ; I, 9, issue of cause. He related that stitution Article Sec. Texas Con September 28, 1967, year ; 18.01, on a 15 old stitution Articles 18.02 previously 18.21, V.A.C.C.P.; State, with whom he was not ac- Hall v. Tex. quainted Cr.App., and who under detention was at 394 McLennan v. S.W.2d County Department State, 83, the Dallas Juvenile 109 3 S.W.2d Tex.Cr.R. “runaway incorrigible corrig- particularly 525, as a 100 A.L.R.2d See 531. opinions State, concurring ible” him the informa- communicated to in Gaston v. 297, tion which formed the basis the af- 440 301 and S.W.2d can, State, (No. fidavit for search warrant. Ruiz S.W.2d 894 457 course, 42,439). be no reliance such testi- 148 clearly magistrate affidavit fails to meet the support no reason in of this require-
latter half of the barrelled Perhaps double conclusion. even impor- more ment of Aguilar. tant is Aguilar’s the fact that other test ” * * * has not been satisfied. In Aguilar the Court wrote: For the set forth reasons in this writer’s “Although an bemay affidavit based opinion Tеx. concurring in Gaston v. hearsay information and need not 297, Cr.App., mere state S.W.2d personal reflect the direct observations hearsay ment that the was source States, affiant, United Jones “reliable, credible,” etc., offered sub 257, 697, 725, 4 L.Ed.2d U.S. S.Ct. hearsay. crediting stantial basis magistrate 233,] A.L.R.2d must [78 States, See United U.S. Jones underlying be informed of some of S.Ct. L.Ed.2d 697. Since circumstances from which the informant not prong Aguilar second test was concluded that the narcotics where met, there is no need to consider whether were, he claimed and some of the meet the was sufficient underlying circumstances from prong both must be satisfied first since informant, officer concluded that entirely on hear probable if cause is disclosed,
whose need not see say. also Ruiz See States, Rugendorf v. United 376 U.S. opinion, foot concurring (No. 42,439), 887,] 84 S.Ct. L.Ed.2d [11 pre Thus, another reason note No. 2. ‘credible’ or his information ‘reliable.’ sented for reversal. Otherwise, ‘the inferences from the facts complaint’ which lead will be Relating Search Other Matters ‘by drawn not a neutral and detached Seizure magistrate,’ requires, as the Constitution instead, by but police officer ‘engaged It further observed competitive enterprise in the often private possession photo mere crime,’ out ferreting v. Unit- Giordenello Stanley graphs longer crime. is no States, supra, ed at 78 S.Ct. U.S. Georgia, 394 U.S. at 1509;] L.Ed.2d at [2 Johnson in effect at the The statute States, supra, at v. United question time оf the search warrant or, 440,] at L.Ed. [92 527, V.A.P.C., (Article as amended issued case, by in this inform- an unidentified light clearly unconstitutional 1961) (emphasis supplied) ant.” Georgia, supra, as mere Stanley possession quickly legislature moved and the states case at bar the affidavit Article V.A. to amend the statute. See “by reli- the affiants have been informed P.C., as amended able, trustworthy citizen credible did County, The affiants Texas.” Phelper, Tex.Cr.App., 442 parte In Ex their attempt support their claim portion holding any underlying informant was “reliable” *8 Phelper 527, supra, under which Article circumstances. convicted, unconstitution- States, Spinelli United 393 U.S. Stanley al, holding applied the this court S.Ct. L.Ed.2d Today Georgia, supra, fully retroactive. aby stated FBI “informed had been upon the 8th Circuit majority relies without informant” confidential reliable in United States Appeals’ opinion Court description informant. further of the uphold Hanon, 428 F.2d the search war- validity of the affidavit for Court said: of the unconstitutionality despite rant I do Phelper. holding in that his statute and “Though the affiant swore agree. ‘reliable,’ he offered confidant The record the search also reflects discussion second question place error, rehearing months took some four the motion for alleged granted. had after the offense. The officers aside. affirmance set knowledge of such offense until judgment and the cause reversed picture found in of the remanded. Upon investigation оffense. further photograph they finally suc use of DOUGLAS, Judge (dissenting). discovering identity ceeded in complaining If witness. the search original out in For the reasons set invalid, question presented wheth then a Presiding majority opinion discovery er the of the offense and Woodley, be Judge this conviction should complaining not the witness were affirmed. poisonous “fruits Nardone tree.” States, 338, 341, United S.Ct. respectfully U.S. I dissent from the reversal L.Ed. Silverthorne rehear- Silvertone the conviction the motion for States, Lumber ing. Co. v. United 251 U.S. 319; Wong L.Ed. Sun v. ROBERTS, joins in this J., dissent. States, United Santiago Tex.Cr.
App., University also 758. See
of Pennsylvania Law “The Review Fruits of the Tree Poisonous Revisited
Shepardized,” 56 Review Calif.Law being illegal,
The search erred the court admitting its fruits. Phillip BATISTE, Appellant, Morris stated, For the reasons I would reverse and remand. Texas, Appellee. The STATE of
No. 43505.
MORRISON, Judge (dissenting). Appeals Court of Criminal of Texas. I join portion in that my brother March Onion’s dissent which he discusses “admission of extraneous offenses.” Since
I am convinced that this case should reason,
reversed for this I need not reach the other issues discussed his dissent.
OPINION ON APPELLANT’S FOR MOTION
REHEARING ODOM, Judge. rehearing,
On hold we now court committed reversible error ad- mitting, objection, over the fruits
search of home.
For reasons set forth Judge (in dissenting opinion), Onion