381 F.2d 619 (5th Cir. 1967), 24043, Brooks v. State of Texas

Docket Nº:24043.
Citation:381 F.2d 619
Party Name:Charles Wallace BROOKS, Appellant, v. STATE OF TEXAS et al., Appellees.
Case Date:July 10, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 619

381 F.2d 619 (5th Cir. 1967)

Charles Wallace BROOKS, Appellant,

v.

STATE OF TEXAS et al., Appellees.

No. 24043.

United States Court of Appeals, Fifth Circuit.

July 10, 1967

Page 620

William F. Callejo, Dallas, Tex., for appellant.

W. John Allison, Jr., William F. Alexander, Asst. Dist. Attys., Henry Wade, Crim. Dist. Atty., Dallas County, Tex., James M. Williamson Asst. Dist. Atty., Dallas County, Dallas, Tex., for appellee State of Texas.

Before RIVES, WISDOM and GOLDBERG, Circuit Judges.

RIVES, Circuit Judge:

This appeal is from denial of the writ of habeas corpus. Brooks was convicted on a jury's verdict on October 26, 1964, in the Criminal District Court of Dallas County, Texas, of assault with intent to rape. 1 His conviction was affirmed by the Court of Criminal Appeals of Texas on January 19, 1966. 2 That court denied his applications for habeas corpus on March 25, 1966 and April 29, 1966. Thus, he has exhausted the remedies available in the courts of Texas. See 28 U.S.C.A. § 2254.

His application for habeas corpus to the federal district court asserted many grounds. The district court, after an evidentiary hearing, entered findings of fact and conclusions of law and denied the writ. A careful reading and study of the record and exhibits, including the proceedings in the State trial court, convinces us that on his trial for assault with intent to rape Brooks was denied the effective assistance of counsel. We therefore reverse with directions.

Most of the pertinent facts are stated in the opinion of the Court of Criminal Appeals of Texas (note 2, supra). The testimony of the prosecutrix, her positive identification of Brooks, another witness' equally positive identification of Brooks as he left the prosecutrix's room, the circumstances of Brooks' flight from the rooming house, and Brooks' own written confession made it clear that there was no reasonable possibility of a successful defense except on the ground of insanity. A copy of Brooks' confession is attached as Exhibit I to this opinion.

The attempted rape occurred at about 12:30 A.M. on July 10, 1964, when, according to the prosecutrix, Brooks burst through her bedroom door, '* * * the lock came completely off the door.' Four days later, at 3:30 A.M., on July 14, 1964, Brooks was arrested while asleep in an automobile belonging to a Baptist preacher.

The prosecuting attorney had Brooks examined by a psychiatrist, who made a letter report, copy of which is attached as Exhibit II to this opinion.

Bearing most directly on the legal test in Texas for criminal responsibility 3 is

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the last sentence of the second paragraph of the letter report: 'I feel that he does have some recognition of right and wrong but that there is a good deal of impairment in this area of his ability to form judgments.' The thought which Dr. Holbrook meant to convey by that sentence is elucidated in a letter which he wrote to another attorney later appointed to represent Brooks on his appeal to the Court of Criminal Appeals of Texas. Copy of that letter is attached as Exhibit III to this opinion. There, referring to his previous letter report, Dr. Holbrook said: 'I stated I felt he had some dim recognition of right and wrong, as well as the nature and consequence of his acts, but I felt this was not of the same quality that might be expected of the average person or even the average felon.'

Dr. Holbrook testified at the federal habeas hearing in response to a leading question on cross-examination by counsel for respondents: 'Q. (By Mr. Caperton) He did have recognition of right from wrong? A. Yes, sir, I said he had some dim recognition of right and wrong.' Dr. Holbrook had no knowledge of whether court-appointed trial counsel knew that he had examined Brooks. Obviously, that counsel never interviewed Dr. Holbrook. Dr. Holbrook also testified: 'Q. Had you been consulting this attorney, and if you had seen that letter, would you have advised that attorney to have that man examined at the time of that trial? A. Yes, sir.' Continuing, Dr. Holbrook further testified that he again saw Brooks on May 15, 1966, 'that there was quite a change in the man's mental condition from the time I saw him in August, 1964 and when I saw him in May, 1966.' Dr. Holbrook's report as of the later date is attached as Exhibit IV to this opinion.

The indictment was returned on August 14, 1964. An attorney was appointed for Brooks on September 15, 1964. The case was tried on October 26, 1964. On November 5, 1964, appointed counsel filed a pro-forma motion for new trial assigning only one ground, 'that the verdict is contrary to the law and evidence.' A month later on December 4, 1964, when Brooks was sentenced to not less than two nor more than thirty-five years, that motion for new trial was withdrawn. Brooks then gave notice of appeal.

Nonetheless, after appealing, Brooks filed a pro se motion for new trial in which, among other grounds, he claimed that he 'was afforded only one opportunity to confer with defense counsel before trial,' and that his appointed counsel was 'too young and inexperienced for such a serious case.' No ruling was entered on that motion.

Appointed counsel who represented Brooks on his criminal trial had his office in Dallas, Texas, where the federal habeas corpus hearing was held. There is not explanation for that counsel's failure to testify, notwithstanding the ample notice to respondents' counsel afforded by the application for habeas corpus and Brooks' pro se motion for new trial. Brooks' testimony as to the extent of his pretrial conference with his appointed counsel is not contradicted by any evidence in the record:

'Q. * * * Do you know that on the 15th of September the Court appointed you counsel?

'A. No, sir.

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'Q. When did you first find that out?

'A. October 23rd or 24th.

'Q. What date was that?

'A. Friday.

'Q. This was three days before the trial?

'A. Yes, sir.

'Q. Is this the first time you ever saw your court-appointed counsel?

'A. Yes.

'Q. Did your court-appointed counsel ask you about having had any mental illnesses?

'A. Yes.

'Q. Did he ask you about the history of illnesses?

'A. Yes, sir.

'Q. Did he appear surprised when you told him?

'A. No, sir, not really.

'Q. Did he, at that time, seem to you that he may have known about your mental history?

'A. I couldn't say, because I don't know.

'Q. Did he ask any questions that day?

'A. Yes, sir, several questions.

'Q. What was the nature of those questions?

'A. When he first arrived he questioned me about the violation, and during the course of our conversation he asked me what I was doing on the hospital floor, and I told him, and he pursued my mental record on that date.

'Q. And then, you were on the hospital floor of the county jail?

'A. Yes, sir.

'Q. And he inquired as to why you were there?

'A. Yes, sir.

'Q. About how long did he spend with you in this interview?

'A. About 20 minutes.

'Q. Could it have been as much as 30 minutes?

'A. No, sir.

'Q. Could it have been as little as 15 minutes?

'A. It could have been, yes, sir.

'Q. So you say between 15 and 25 minutes?

'A. Yes, sir.

'Q. After learning about your mental illness and your history, did he express any opinion to you at that time?

'A. Yes, sir, he did.

'Q. What was that opinion?

'A. As he was about to leave the jail, I asked if I could give him the names of some witnesses, he said he didn't feel it was necessary because he didn't think the District Attorney's office would prosecute me.

'Q. And this was Friday before the trial was set for Monday?

'A. Yes.'

The transcript of the proceedings in the Criminal District Court evidences appointed counsel's totally inadequate preparation of Brooks' only possible defense-- that of insanity. A thorough and timely interview with his client would have disclosed commitments to at least three different mental institutions during 1962 and 1963 and two attempts to commit suicide. Instead, counsel waited until the Friday before the Monday on which the case was set for trial to interview Brooks for between 15 and 25 minutes. It was then too late to have Brooks examined by another psychiatrist and there was no such attempt. A late subpoena for Dr. Holbrook could not be served because he was out of the city. Evidently counsel made an oral motion to continue for, after the prosecution had rested its case in chief, counsel stated:

'MR. WINDHAM: The Defendant at this time renews the Motion for Continuance to give him time to get medical testimony as to the question

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of insanity in this case. The witness called was out of town and could not testify, at this time.

'THE COURT: What time Counsel did you first find out that the witness was going to examine this Defendant?

'MR. WINDHAM: This morning was the first time.'

However, as the Texas Court of Criminal Appeals stated, 399 S.W.2d at 359, 'No written motions were made for a continuance as required by statute.'

Finally, in desperation, appointed counsel called the prosecuting attorney to the stand. He proceeded to extract from that attorney testimony which prejudiced, instead of helped, his client:

'Q. You told me this morning, Mr. Vance, the specific reason why you wanted to hurry and get the man to trial.

'A. Yes, because the information in the jail is that this man and another man are...

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