Parker v. Ellis, 17047.

• Decision Date: 29 September 1958
• Docket Number: No. 17047.,17047.
• Citation: 258 F.2d 937
• Parties: George Lee PARKER, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

258 F.2d 937 (1958)

George Lee PARKER, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.

No. 17047.

United States Court of Appeals Fifth Circuit.

August 29, 1958.

Rehearing Denied September 29, 1958.

George Lee Parker, in pro. per.

Linward Shivers, Asst. Atty. Gen., Will Wilson, Atty. Gen., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the court below committed error in declining to issue writ of habeas corpus¹ based upon appellant Parker's application claiming that he was denied due process of law under the Fourteenth Amendment in that he was tried before a Texas State Court when he was not represented by counsel, was sick and unable to defend himself, and the evidence was insufficient to support his conviction of the crime of forgery. The trial court issued an order to appellee Ellis, General Manager, Texas Prison System, to show cause why the writ should not be granted and to bring before the court the proceedings upon which the judgment of the State Court had been rendered.

In response to this order appellee brought before the court below copies of the indictment, capias, charge of the court, verdict, judgment, sentence and mandate, along with the docket entries of the District Court of the Sixty-ninth Judicial District, Moore County, Texas, attaching also the prison and criminal record of appellant. He drew the court's attention to the fact that appellant had appealed from the judgment of conviction, and that said judgment had been affirmed by the Court of Criminal Appeals of Texas. Appellee also exhibited with his return certificate of the trial judge,² and attached copies of proceedings in petition for habeas corpus which appellant had filed in a Texas State Court and the order there entered.

The court below ordered that the application for writ of habeas corpus be heard upon affidavits, (cf. 28 U.S.C.A. § 2246) and it was heard upon the application and the various other documents filed by appellant in his own behalf upon the return of the appellee and upon a transcript of the proceedings at the trial, which had been obtained by appellant through the assistance of a firm of lawyers and a doctor.

The facts presented to the court below were without dispute on any material point, and may be summarized as follows:

Appellant Parker, age sixty-six, was indicted by the Grand Jury of Moore County, Texas, for forging the name of Elzie Quattlebaum and Phoebia Quattlebaum on seven checks. On November 3, 1954, the case came on for hearing, and he stated that he was ready for trial and desired to be tried by jury.³

The State offered the testimony of Elzie Quattlebaum that he did not recognize the checks drawn on the account of Phoebia Quattlebaum, that he did not sign his name to any of the checks, that he knew and recognized the defendant, but did not authorize the defendant to sign his name to the checks in any manner, nor did his mother Phoebia. The Vice-President of the First State Bank of Dumas, Texas, testified that the appellant opened an account with that bank and that the checks in question were deposited to this account. A teller in the same bank testified that the appellant, with her assistance, opened the account with the bank by depositing three of the checks in question with her and that she saw the appellant endorse the checks for deposit. Sheriff John Easley testified that the accused admitted to him that he wrote the checks in question.

Parker did not take the witness stand, but called seven witnesses who testified to his good character. Sheriff Easley testified in rebuttal without objection that he had evidence of seven prior convictions for forgery, as shown by a F.B.I. report in the sheriff's office. The jury returned a verdict of guilty and fixed the punishment at seven years in the State Penitentiary. The court's judgment was entered accordingly, but the sentence ordered incarceration for not less than two nor more than seven years. March 23, 1955, the Court of Criminal Appeals affirmed the judgment of the State District Court.⁴

August 29, 1955, appellant made application to the Criminal Court of Appeals of Texas for a writ of habeas corpus where, for the first time, he raised the issue that he was denied representation by counsel and that he was ill at the time of the trial.⁵ His petition set forth at length that he was wrongfully convicted of forgery, admitting, however, that he was guilty of the offense of passing a forged instrument.⁶ The application for habeas corpus was denied by the State Court and application for certiorari was denied by the United States Supreme Court, 350 U.S. 971, 76 S.Ct. 444, 100 L.Ed. 843.

In his appeal from the order of the court below denying issuance of the writ of habeas corpus,⁷ appellant relies on two points: "because of petitioner's physical condition, continuance of the case was requested which was promptly denied by the trial court;" and that petitioner "then asked the trial judge to appoint an attorney to defend him as he was without funds to employ a lawyer;" it being contended that both of these actions taken by the Texas trial court were in violation of appellant's constitutional rights. He does not argue in his brief the point stressed in his motion for a new trial and in the various proceedings conducted by him in the Texas Courts, that the verdict was contrary to the evidence. This last point will not be considered further, therefore, because it is palpably without merit and because it has been abandoned.

Nor is there any show of merit in appellant's claim based upon his physical condition. As far as we can tell from this long and confused record, appellant never made the contention, until his brief before this Court, that he requested a continuance of the case because of his physical condition. In all other instances he had been content merely to stress the fact that his health was bad. The transcript of the trial proceedings does not show that appellant ever advised the court before whom he was being tried that he was physically incapacitated, or that he ever asked any continuance or any other relief based thereon. He did place on the stand several lay witnesses for whom he had worked. Some said that he was ill at times, others that he showed no sign of illness. All of them testified that he always put in a full day's work when he was working for them.

The state judge who tried appellant certified that he seemed in full possession of faculties, and that, otherwise, he would not have proceeded with the trial.⁸

In his brief before us on the contention that the failure of the court to furnish him an attorney violated his constitutional rights, appellant claims that he requested the appointment of an attorney. An examination of the record fails to reveal that such a contention was made in the various other pleadings, arguments and statements made before the Texas Courts. The record of the trial, pertinent portions of which are copied in footnote 3, supra, does not disclose any request by appellant that counsel be appointed to represent him.

The question, therefore, comes down to whether the State of Texas was bound, under the Fourteenth Amendment, to provide a lawyer to represent appellant in his trial before the jury. The State of Texas furnishes legal representation only to those charged with capital offenses.⁹ That Texas is not alone in its practice is shown in the decision of the Supreme Court of the United States in Betts v. Brady, 1942, 316 U.S. 455, 469, 62 S.Ct. 1252, 1261, 86 L. Ed. 1595. In that case the Supreme Court discussed at length whether every person charged with a criminal offense in a state court is entitled to legal representation, and answered the question in the negative. Its conclusion is epitomized in these words:¹⁰

"This material demonstrates that, in the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems proper, to appoint counsel where that course seems to be required in the interest of fairness."

The concluding paragraph of the opinion (316 U.S. at page 473, 62 S.Ct. at page 1262) reads thus:

"As we have said, the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel."

The rule of Betts v. Brady was recently considered by the Supreme Court in the light of its subsequent decisions, and the majority of the court adhered to the idea that the concept of due process was "less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights;" and that, in a State Court trial, the absence of legal representation is not fatal to a conviction unless the trial was lacking in "that fundamental fairness essential to the very concept of justice." See Crooker v. State of California, 1958, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and Cicenia v. La Gay, 1958, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, and cf. Gray v. Ellis, 5 Cir., 257 F.2d 159.

A careful examination of the record of appellant's trial and of all of the proceedings which have been had...