Phelper v. State

• Decision Date: 10 March 1965
• Docket Number: No. 37771,37771
• Citation: 86 S.Ct. 387,396 S.W.2d 396
• Parties: Ben Herbert PHELPER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 396

396 S.W.2d 396

Ben Herbert PHELPER, Appellant, v. The STATE of Texas, Appellee.

No. 37771.

Court of Criminal Appeals of Texas.

March 10, 1965.

Rehearing Denied April 14, 1965.

Certiorari Denied Dec. 6, 1965.

See 86 S.Ct. 387.

Grier H. Raggio, Robert C. Benavides, Dallas, for appellant.

Henry Wade, Dist. Atty., John Nelms, Mike Everett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted under Art. 527, Vernon's Ann.P.C. for unlawfully and knowingly having in his possession obscene pictures and his punishment was assessed at a fine of $1,000.

The state's evidence shows that appellant lived with his wife and step-son in the city of Richardson. In the early part of November, 1963, when the witness James Bartley was in the home delivering milk, appellant showed him some pictures of nude women. Subsequent to seeing the pictures, Bartley had a conversation with Detective Bob Smith of the Richardson Police Department. On November 7th Detective Smith who had some experience in photography met the appellant in a drug store and the two became engaged in a conversation relative to photography. In the conversation appellant told the detective that he took pictures and requested him to come to appellant's home and see his photographs so that he could recommend a place where he might sell or distribute them. The following day Detective Smith went to the home where appellant showed him between one and two hundred pictures which were colored slides of different girls. Of the pictures exhibited only one appeared to be obscene, it being a photograph of a woman with her pubic hair exposed. On such occasion appellant emphasized that he was interested in selling the pictures and thought the detective could use some of his contacts in helping him sell them.

After leaving appellant's home, Detective Smith had a meeting with his Chief of Police and Postal Inspector R. H. Robinson was later called. In a meeting on November 12th with the Inspector, a buyer for appellant's photographs was set up under the name of Garrett who was to correspond with appellant relative to the pictures. On December 5th Detective Smith returned to appellant's home and appellant showed him some 'series' pictures of the same girl in sequence of undressing. At that time appellant stated he was mailing the pictures to a man by the name of Garrett with whom he had had correspondence. On December 13th Detective Smith again met appellant in the drug store and appellant informed him that he was sending some more pictures to Garrett.

The state's proof further shows that on January 22nd Detective Smith again saw appellant in the drug store and introduced him to Postal Inspector Harry D. Holmes. After they had discussed going for some coffee the three went outside to where Postal Inspector Robinson and Detective Burleson were seated in an automobile. They then got in the car and the five proceeded to drive to the police station. On the way to the station Robinson and Holmes identified themselves as postal inspectors and told appellant they wanted to talk to him about the pictures After arriving at the police station appellant proceeded to sign and execute a written consent to the search of his home by Inspector Holmes without a search warrant. Appellant then accompanied Inspectors Robinson and Holmes and Officers Smith, Burleson and Robbins to his home where a search was made. In the search the officers found sixteen polaroid pictures on a bed and numerous other pictures in a night stand which were photographs of men and women in the nude. Some of the pictures showed the parties engaged in the act of sexual intercourse and other unnatural sex acts.

Testifying in his own behalf appellant stated that the reason he consented to the search of his home was because of threats of the officers and the representations made to him that they had a search warrant. He further swore that he did not sign the written consent for the search until after the search had been completed, and they had returned to the police station. Appellant admitted possessing the photographs found by the officers in his home but stated that he took the pictures upon the encouragement and a inducement of Detective Smith and a letter he had received from Garrett.

Appellant's testimony with reference to his reason for executing the written consent to search was sharply disputed by the officers as well as his claim that he was induced to take the pictures by them. Detective Smith testified that while he did have in his possession a search warrant for appellant's house he did not advise appellant of the warrant until after he had signed the written consent to search. He swore that appellant signed the consent before the search was made. He also denied having induced appellant to take and possess the photographs found as a result of the search.

The Court submitted to the jury in his charge the disputed issues relative to appellant's execution of the written waiver and consent, and instructed the jury that if they believed from the evidence or if they had a reasonable doubt thereof, that appellant did not wilfully give his consent to the search prior to the time of the search, or if he signed the waiver to search as a result of threats or after he was told by the officer that they had a search warrant, to wholly disregard the pictures in question and acquit him. The defense of entrapment was also submitted under appropriate...