Phelper v. State, No. 37771

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation86 S.Ct. 387,396 S.W.2d 396
Docket NumberNo. 37771
PartiesBen Herbert PHELPER, Appellant, v. The STATE of Texas, Appellee.
Decision Date10 March 1965

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

Page 398

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...

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72 practice notes
  • United States v. Venizelos, No. 80 Cr. 282.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 6 Agosto 1980
    ...denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); Maxwell v. Stephens, 348 F.2d 325, 337 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965) (Blackmun, 38 Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 697-98, 4 L.Ed.2d 668 (1960); Maxwell v. St......
  • Universal Amusement Co., Inc. v. Vance, Civ. A. No. 73-H-528.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 3 Julio 1975
    ...obscenity, including both the old and new Texas statutes. Their language has been supplanted by the Miller quintet. 4 Phelper v. State, 396 S.W.2d 396 (Tex. Cr.App.1965), Moore v. State, 470 S.W.2d 391 (Tex.Civ.App. — San Antonio 1971), writ ref'd n. r. e., Bryers v. State, 480 S.W.2d 712 (......
  • State v. Schaffel, No. CR
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
    • 16 Diciembre 1966
    ...841. A relative may waive the constitutional right of his kin. Maxwell v. Stephens, 8 Cir., 348 F.2d 325, 337, cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353; Rees v. Payton, 4 Cir., 341 F.2d 859, 862, remanded on other grounds, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583; Woodard......
  • Huffman v. United States, No. 23781
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Octubre 1971
    ...refused to upset findings of obscenity in cases of photographs depicting overt sexual activity. Thus in Phelper v. Texas, 382 U.S. 943, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965), the Court denied certiorari to a conviction for possessing obscene photographs. Many of the photographs were "of men a......
  • Request a trial to view additional results
72 cases
  • United States v. Venizelos, No. 80 Cr. 282.
    • United States
    • U.S. District Court — Southern District of New York
    • 6 Agosto 1980
    ...denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); Maxwell v. Stephens, 348 F.2d 325, 337 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965) (Blackmun, 38 Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 697-98, 4 L.Ed.2d 668 (1960); Maxwell v. St......
  • Universal Amusement Co., Inc. v. Vance, Civ. A. No. 73-H-528.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 3 Julio 1975
    ...obscenity, including both the old and new Texas statutes. Their language has been supplanted by the Miller quintet. 4 Phelper v. State, 396 S.W.2d 396 (Tex. Cr.App.1965), Moore v. State, 470 S.W.2d 391 (Tex.Civ.App. — San Antonio 1971), writ ref'd n. r. e., Bryers v. State, 480 S.W.2d 712 (......
  • U.S. v. Peterson, Nos. 73-2086-73-2091 and 73-2523
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 19 Agosto 1975
    ...We find particularly persuasive in arriving at that result Maxwell v. Stephens (8th Cir. 1965) 348 F.2d 325, Cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965), Reh. denied, 382 U.S. 1000, 86 S.Ct. 532, 15 L.Ed.2d 490 (1965). There, Mr. Justice (then Circuit Judge) Blackmun, up......
  • State v. Schaffel, No. CR
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
    • 16 Diciembre 1966
    ...841. A relative may waive the constitutional right of his kin. Maxwell v. Stephens, 8 Cir., 348 F.2d 325, 337, cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353; Rees v. Payton, 4 Cir., 341 F.2d 859, 862, remanded on other grounds, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583; Woodard......
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