Woodbury v. Beto

• Decision Date: 02 July 1970
• Docket Number: No. 27871.,27871.
• Citation: 426 F.2d 923
• Parties: Dennis WOODBURY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

426 F.2d 923 (1970)

Dennis WOODBURY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 27871.

United States Court of Appeals, Fifth Circuit.

May 7, 1970.

Rehearing Denied July 2, 1970.

Fletcher L. Yarbrough, Dallas, Tex. (Court-appointed) for petitioner-appellant.

Dennis Woodbury pro se.

Crawford C. Martin, Atty. Gen. of Texas, Charles T. Rose, Charles R. Parrett, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before WISDOM, AINSWORTH, and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

Dennis Woodbury, petitioner in this habeas proceeding, and Joan Brock were indicted in Angelina County, Texas, in December 1960 for the murder of William S. Carpenter, a druggist in Tyler, Texas. On the night of November 8, 1960, Brock arranged to meet Carpenter at his drugstore after he had closed it. Both Brock and Woodbury had guns. They entered the drugstore, struck Carpenter on the head, and took money from the cash register and narcotics from the shelves. When they left the store they placed Carpenter in the back seat of the car with Brock. Woodbury drove out the highway to a secluded spot in Angelina County where they threw Carpenter across a fence and shot him in the chest and head. They then returned to Woodbury's residence in San Antonio.

Tyler police traced the car to Woodbury thanks to the alertness of a night-watchman who had seen the car parked by a supermarket and had taken down the license number. San Antonio police picked up Woodbury at about 1:00 a. m. on November 10, 1960. He was taken to the city jail and booked, but not questioned at that time. While in jail he was permitted to use a telephone to attempt to reach local attorneys.

Brock pleaded not guilty to the offense of murder with malice, was tried in the District Court of Angelina County, Texas, found guilty by the jury, and sentenced to a maximum term of life imprisonment. Woodbury was tried on the same charge but the trial ended in a mistrial when the jury could not decide on the punishment. He was later retried in the District Court of Ellis County, Texas, found guilty, and sentenced to life imprisonment. On appeal, the Texas Court of Criminal Appeals sustained the conviction. Woodbury v. State, 1962, 172 Tex.Cr.R. 379, 357 S.W.2d 399. Brock who had already been convicted, testified at the second but not the first trial.

Petitioner first filed an application for writ of habeas corpus in the 175th District Court of Bexar County, Texas. The court denied his application, with instructions that he file an application in the Court of Criminal Appeals. Petitioner next filed his application for writ of habeas corpus with the Texas Court of Criminal Appeals. This application was denied without written order on August 31, 1965. March 10, 1967, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division. April 10, 1967, that court held a pre-trial hearing in this matter. At the hearing petitioner was represented by an attorney appointed by the court. Before the court at that time was a copy of the transcript of the proceedings in the District Court of Ellis County, Texas, the brief filed in the Court of Criminal Appeals on behalf of petitioner, the brief filed in the Court of Criminal Appeals on behalf of the State of Texas, the opinion of the Court of Criminal Appeals affirming the judgment of the trial court, and the statement of facts from the state court.

After consideration of the discussion at the pre-trial hearing on April 10, 1967, and after consideration of all the records, the court, on April 21, 1967, ordered petitioner's application dismissed. From this Order of Dismissal, petitioner appealed to this Court, which vacated the judgment of the lower court and remanded the case with instructions to dismiss without prejudice to petitioner's right to reapply in the State Court in which he was convicted, 395 F.2d 189. This Woodbury did. On September 4, 1968, his writ application in the 40th Judicial District Court of Ellis County, Texas, was denied with the notation: "foregoing dismissed because matters alleged are deemed to be res judicata, coram nobis previously passed on, and not in the interest or fairness of justice." On November 15, 1968, petitioner's writ in the Court of Criminal Appeals was denied. On January 28, 1969, he reapplied for a Writ of Habeas Corpus in the United States District Court for the Northern District of Texas. After a full evidentiary hearing, the district court denied the petitioner's application for habeas corpus relief. We affirm.

* * *

(1) The petitioner argues that his warrantless arrest was illegal because the arresting officers did not have sufficient probable cause to believe that a felony had been committed. The facts that were developed at Woodbury's state court trial¹ and at his hearing in the district court clearly indicate that the arresting officers had sufficient knowledge of facts "to justify a man of reasonable caution and prudence in believing that the arrested person had committed * * * an offense".² Miller v. United States, 5 Cir. 1966, 356 F.2d 63, 66, cert. denied, 384 U.S. 912, 86 S.Ct. 1357, 16 L.Ed.2d 365. See United States v. Trabucco, 5 Cir. 1970, 424 F.2d 1311, Part II.

(2) Woodbury contends that he was not advised of his right to consult with an attorney and that he was physically and mentally coerced into making incriminating statements and leading the authorities to the location of the decedent's body. There is no merit to these contentions. When Woodbury was arrested during the early morning hours of November 10, 1960, in San Antonio, Texas, he was not at that time questioned by any of the arresting officers, nor were any statements made by him. He was afforded an opportunity to consult with an attorney. Woodbury did in fact secure the services of an attorney who filed a writ of habeas corpus on his behalf. Woodbury himself testified that at no time during his initial incarceration was he subjected to either physical or mental abuse.

(3) By the time Woodbury was placed in the custody of the Tyler authorities for transfer to Tyler, a warrant for his arrest had been issued. He was not questioned during the trip to Tyler, nor was he questioned upon his arrival and incarceration. Woodbury was questioned for a limited period of time on both November 11...