364 F.2d 1 (5th Cir. 1966), 21941, Pamplin v. Mason

Docket Nº:21941.
Citation:364 F.2d 1
Party Name:Brady PAMPLIN, Sheriff of Falls County, Texas and the State of Texas, Appellants, v. Alexander MASON, Appellee.
Case Date:July 27, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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364 F.2d 1 (5th Cir. 1966)

Brady PAMPLIN, Sheriff of Falls County, Texas and the State of Texas, Appellants,


Alexander MASON, Appellee.

No. 21941.

United States Court of Appeals, Fifth Circuit.

July 27, 1966

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Howard M. Fender, Lonny F. Zwiener, Gilbert J. Pena, Asst. Attys. Gen. of Texas, Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., Austin, Tex., for appellants.

Robert L. Penrice, Waco, Tex., for appellee.

Before RIVES, WISDOM, and GEWIN, Circuit Judges.

WISDOM, Circuit Judge:

The petitioner in this habeas proceeding was convicted in the Texas courts of a misdemeanor, 1 aggravated assault upon a local peace officer. The question the case presents is whether the state court's denial of a hearing on the defendant's motion for change of venue, to avoid jury prejudice, violated his constitutional right to due process under the Fourteenth Amendment. The district court granted petitioner's writ of habeas corpus under 28 U.S.C. § 2241 and remanded the cause for a new trial in the Texas courts. We affirm.

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In August 1963 Alexander Mason, a Negro minister, active in the civil rights movement, led a sit-in demonstration in 'white' restaurants in Marlin, the county-seat of Falls County, Texas. This was the first racial demonstration in the community. 2 Shortly after, he was arrested for contributing to the delinquency of a minor. He and, presumably, the minor, had refused to leave a sit-in demonstration in an all-white restaurant in Marlin.

When he was taken to jail for the sit-in violation, Mason asked to use the telephone. The Sheriff agreed, and several deputy sheriffs accompanied Mason to their office where he made his call. After completing the call, he lay down on the office floor and refused to return to his cell. The deputies carried Mason bodily back to the third floor of the jail where they set him down. At this point, Mason seized the bars outside a cell and refused to move. Witnesses for the State testified that when the jailer, a deputy sheriff, attempted to pull Mason into the cell, Mason broke loose. He swung at one of the deputies and pushed him onto a cell bunk, knocking off his glasses and bloodying his nose.

Mason's assault case came to trial eleven days later August 23, 1963. Before presenting his case, the petitioner moved for a change of venue, stating under oath that prejudice against him prevented his obtaining a fair trial in Falls County. The court denied the motion on the ground that the Texas Code of Criminal Procedure did not provide for change of venue in misdemeanor cases. The court overruled petitioner's request that the jurors be examined individually and qualified them as a group. In the voir dire, the prospective jurors answered, together, that they did not know petitioner; had formed no opinions in the case; and had no prejudices against the Negro race or against a Negro acting as counsel for petitioner. After a one-day trial, the jury found Mason guilty, assessed a fine of $1,000, and a prison term of two years-- the maximum allowable punishment. The petitioner moved for a new trial, urging that it was error to deny a hearing on the motion for change of venue since he had witnesses available before the trial to testify that racial tension in Falls County was so high it was impossible for him to obtain an impartial jury in that county. The court overruled this motion and sentenced on the verdict. The Court of Criminal Appeals of Texas affirmed the trial court judgment, holding that the trial court's interpretation of the venue statute was consistent with a long line of Texas decisions' that the State's failure to provide for a change of venue in misdemeanor cases does not contravene the Texas Constitution. 3 Shortly thereafter, Mason filed his habeas petition in the United States District Court. That court stayed the mandate of the Texas court and released petitioner on bond pending final judgment in the federal proceeding. 4

The Texas Constitution sets out the fundamental standard that, 'In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. * * *' Vernon's Ann.St.Tex.Const. art. 1, § 10. A state's application of this state right governs, except when Fourteenth Amendment due process standards have not been satisfied. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965). The requirement of impartiality includes the entire atmosphere in which a trial is conducted. Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.

States traditionally employ change of venue procedures as an antidote to community prejudice in the jury box. For

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eighty years Texas authorized by statute a change of venue in felony cases 5 and, more recently, in misdemeanor cases arising in counties with less than 2500 population. 6 However, Texas courts have consistently construed these statutes as not authorizing venue change for trial of misdemeanors in counties in excess of 2500 persons, even in a climate of county prejudice. 7 In misdemeanor cases Texas expected defendants to rely on the voir dire examination and the motion for new trial to protect against prejudice. See e.g., Williams v. State, 1955, 162 Tex.Cr.R. 202, 283 S.W.2d 239; Scott v. State, 1962, 171 Tex.Cr.R. 568, 352 S.W.2d 726.

The federal district court, in granting the writ of habeas corpus, found that the state court's denial of...

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