Carter v. State , 388 S.W.2d 191 ( 1965 )

388 S.W.2d 191 (1965)

Walter Gray CARTER, Sr., and Geneva Elizabeth Carter, Appellants,
v.
The STATE of Texas, Appellee.

No. 37868.

Court of Criminal Appeals of Texas.

February 24, 1965. Rehearing Denied April 7, 1965.

John Cutler, Houston, for appellants.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is the possession of lewd photographs as denounced by Article 527 Vernon's Ann.P.C.; the punishment against each appellant, a fine of $100.00.

No statement of facts accompanies the record.

Appellant attacks the constitutionality of the above Act on the following grounds:

(1) That the second paragraph of Section 5 of the Act exempts certain classes of motion pictures and daily and weekly newspapers from the operation of the statute. Such a classification is not unreasonable or arbitrary, and within the power of the Legislature to exclude, Ex Parte Tigner, 139 Tex. Crim. 452, 132 S.W.2d 885.

(2) That Section 3 sets the area for determination of contemporary community standards at an area not less than the State itself. As we read this section it prescribes the same standard as is set forth in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498; and is followed by this Court in Baxter v. State, Tex.Cr.App., 363 S.W.2d 475.

(3) That Section 6 renders the entire statute uncertain and gives the prosecutor election to proceed criminally or civilly against one violating the terms of the Act. Appellant cites no authority in support of his contention and we are aware of none.

No reversible error appearing, the judgment is affirmed.