391 F.2d 993 (5th Cir. 1968), 24348, Tyler v. Beto

Docket Nº:24348.
Citation:391 F.2d 993
Party Name:Roland TYLER, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
Case Date:March 08, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 993

391 F.2d 993 (5th Cir. 1968)

Roland TYLER, Appellant,

v.

Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 24348.

United States Court of Appeals, Fifth Circuit.

March 8, 1968

Rehearing Denied April 19, 1968.

James E. Crowther, Houston, Tex., for appellant.

Lonny F. Zwiener, Asst. Atty. Gen., Robert E. Owen, Asst. Atty. Gen., Austin, Tex., for appellee.

Page 994

Before BELL, COLEMAN and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge:

The appellant is here in forma pauperis and on a certificate of probable cause. With the assistance of court appointed counsel he seeks reversal of the Judgment of the District Court denying the writ of habeas corpus after an evidentiary hearing and the reception of written briefs for the parties. We affirm.

The following constitutes a fair resume of what the record reveals as to the history of this appellant:

1910 Born, Jefferson County, Texas. Eighth Grade Education.
1930 Twice convicted of burglary.
1933 Convicted of burglary and theft.
1935 Convicted of burglary and theft.
1935 Escaped from Texas Penitentiary.
1938 Convicted of murder at Galveston, Texas, in the slaying of his jailer while escaping.
1942 Escaped Texas Penitentiary and at large for two months and twenty-four days.
1943 Placed in solitary for mutiny.
1943 Twice convicted of felony, theft committed while on above escape.
1947 Punished for stabbing and cutting a fellow prisoner with a dirk.
1956 Released on conditional pardon.
1956 (Three months after release) Attempted to hold up a filling station, in the course of which he shot the attendant. Convicted of attempted robbery by assault and returned to prison on revocation of the conditional pardon for murder.
December 27, 1963 By application for habeas corpus, for the first time challenged the validity of the 1938 murder conviction.

In the lapse of time since the original murder conviction in the state court, more than a quarter of a century, all participants except the defendant himself have departed for their appearances before that errorless Court on High. The trial judge is dead and so is the prosecuting attorney; the two defense attorneys are dead and so is the clerk of the court. At this late date nothing remains but the official court records and the personal testimony of the petitioner, an oft convicted perpetrator of violent and deadly crime. There is no stenographic trial transcript because Tyler, with the advice of counsel, having escaped the penalty of death for the murder of his jailer, in open court waived appeal and requested that he be sentenced forthwith. The entries in the Criminal Docket in the 56th Judicial District Court of Galveston County, Texas, as to the separate trials of this appellant and his two codefendants, who were likewise convicted and given long sentences (although Tyler was admittedly the gun handler), will be set out as Item 1 in the Appendix to this opinion. The Judgment of trial, sentence, and conviction, which appears to be regular in all respects, will likewise appear as Item 2. It is now contended that the District Court erred when if found that the Judgment Page 995 of the state court should not be set at naught. It is argued that in the state court appellant was denied the effective assistance of counsel, that he was improperly denied a determination of his sanity, and that he was likewise denied an intelligent choice as to the pursuit of his right of appeal. In support of the writ, appellant testified in the District Court. The substance of it is as follows: When the state court came to appoint counsel, Tyler indicated that he desired the assistance of Attorney John H. Austin. The court honored this request. About three days later Mr. Austin came to the jail, talked with Tyler, and stated that he was sorry that his services had been requested because both he and his wife were good friends of the slain jailer and his wife. On this occasion Austin said, 'I can't in good conscience, defend you'. Appellant then told Austin that if Austin could not defend him he was sorry but asked Austin to subpoena his mother and cousin as witnesses. Austin did not ask Appellant anything about the crime or anything involving the offense with which he was charged, nor were any arrangements made of any sort with regard to defending the appellant. This conversation lasted three minutes and appellant did not see Austin or any other lawyer from that date until the day he appeared for trial in the courtroom. On the day that he went to trial, appellant met, for the very first time, Attorney Henry Greenberg, the attorney who actually tried the case. The manner in which this attorney was selected to represent appellant was and is completely unknown to appellant. Appellant first knew that he would be represented by Attorney Greenberg when the latter mentioned this to him in the courtroom. The trial began fifteen minutes later. Attorney Greenberg made a motion for a continuance in order to have more time for the preparation of the case but this was denied. Mr. Austin, counsel originally appointed, then told the Court that he did not want to represent Tyler but the Judge declined to release him since appellant had asked for him. Let us emphasize that this is Tyler's version of what took place. Appellant admitted that Austin was at the counsel table throughout the trial and made a closing argument in his behalf, although he said this lasted for only four minutes. Of course, if the Court below had believed this testimony, or had been compelled to believe it because it was impervious to contradiction by reason of the activities of the Grim Reaper, this would constitute a glaring instance of ineffective assistance of counsel. Obviously, the District Judge did not believe it. He found '* * * that on the basis of the credible evidence in this case Petitioner was not denied the effective assistance of counsel at the state murder trial'. Credibility is for the trier of the facts and the uncontradicted testimony of a witness does not have to be accepted, Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945). The petitioner in a habeas corpus proceeding has the burden of proof to establish sufficient facts to warrant a finding of denial of constitutional rights, Scott v. Walker, 5 Cir., 1966, 358 F.2d 561; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698. Unless the trial court's findings on a habeas corpus petition are clearly erroneous they will be upheld, King v. Heard, 5 Cir., 1962, 310 F.2d 127, cert. denied 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81 (1963). The proposition has equal force where, as here, the trial judge makes a credibility determination on the evidence presented, Di Prima v. Beto, 5 Cir., 1967, 373 F.2d 797. The United States District Judge observed the witness as he gave his testimony. He was entitled to weigh his credibility against the impeachment presented by many criminal convictions. Except for a stenographic trial transcript, he had before him the official Page 996 court records. These records reflected a careful observance of the appellant's fundamental rights. The trial lasted for three full days, hardly consistent...

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