443 F.2d 634 (5th Cir. 1971), 30085, Hernandez v. Beto

Docket Nº:30085.
Citation:443 F.2d 634
Party Name:Juan D. HERNANDEZ, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
Case Date:April 15, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 634

443 F.2d 634 (5th Cir. 1971)

Juan D. HERNANDEZ, Petitioner-Appellant,

v.

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

No. 30085.

United States Court of Appeals, Fifth Circuit.

April 15, 1971

J. M. Hopper, Houston, Tex., for petitioner-appellant.

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Crawford Martin, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before WISDOM, THORNBERRY and DYER, Circuit Judges.

DYER, Circuit Judge:

Hernandez appeals from the District Court's denial, after an evidentiary hearing, of his petition for writ of habeas corpus. He asserts a deprivation of his Fourteenth Amendment rights because of the prosecutor's presentation to the state court jury, empaneled to try him for a felony offense, the fact of his two prior convictions, and because of a further violation of his rights in requiring him to stand trial in prison garb. On the latter ground we reverse.

Hernandez was convicted in the Criminal District Court of Harris County, Texas, for having killed a twelve-year-old boy while driving an automobile in an intoxicated condition. This felony offense carries a penalty of from two to five years; however, Hernandez was tried as an habitual criminal because of two prior felony car thefts, and as a result of this third conviction for a felony, he received a life sentence. 1 The two previous convictions were established in accordance with Texas procedure of long standing by stipulation in open court before the jury and by the introduction of certified copies of the judgments and sentences in each case. Counsel for Hernandez in the state trial was not aware, however, of the change in Texas law at the time of trial to the effect that if a defendant offers to fully stipulate as to prior convictions, the state cannot introduce evidence on that point. Pitcock v. State, Tex.Cr.App. 1963, 367 S.W.2d 864. Thus it is argued that there was not even a 'deliberate choice of trial strategy' concerning whether Hernandez should testify or exercise his privilege of remaining silent. In the latter event, it is argued the state would have been foreclosed from using rebuttal witnesses, who gave damaging evidence against Hernandez. 2

Hernandez does not, and indeed could not, charge his trial counsel with incompetency because counsel was unaware of Pitcock. That decision by the Texas Court of Criminal Appeals could not have appeared in an advance sheet until only a short time prior to trial. Furthermore, Hernandez' argument that he was deprived of his Fourteenth Amendment rights in publishing his two prior convictions to the jury is foreclosed by Spencer v. State, 1967, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. In that case the Supreme Court had before it three Texas recidivist statute cases and concluded that it did not violate the Fourteenth Amendment for the state to prove the prior convictions in the presence of the jury. The Court recognized that: 'By judicial gloss it appears that, at least in noncapital cases, a defendant by stipulating his prior convictions could keep knowledge of them away from the jury. See Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864. * * * In the view we take of the constitutional issue before us we consider it immaterial whether or not that course was open to any of the petitioners.' Id. at 556-557 n. 2, 87 S.Ct. at 650. This view was restated in Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, in which the Court noted that 'the rule adopted in Spencer went so far as to allow the State to enter evidence on the prior

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crimes even though a defendant might be willing to stipulate the earlier convictions.' Id. at 117, 88 S.Ct. at 263.

We turn now to Hernandez' assertion of error because he was tried in his prison garb described as a white T-shirt with 'Harris County Jail' stamped on the front, and dungarees with the same inscription on both the front and back. Hernandez had worn civilian clothes when he entered the jail, and they were available at all times, but neither he nor his counsel requested that Hernandez be permitted to wear them at the time of trial. No objection was made concerning his appearance. Nevertheless, Hernandez now urges that he was entitled to the garb of innocence instead of the garb of guilt and that he was thus deprived of the due process of law guaranteed by the Fourteenth Amendment.

Appellee counters with the argument that Hernandez made no objection; that counsel for Hernandez, as a matter of trial strategy, expected the defendant's appearance to evoke jury sympathy; and that, in any event, if there was error, it was harmless.

The record makes it abundantly clear that no objection was lodged by counsel to the prison garb worn by Hernandez because, at that time, it was common practice to try prisoners held in jail in their prisoner...

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