474 F.2d 981 (5th Cir. 1973), 72-2896, Thomas v. Beto

Docket Nº:72-2896.
Citation:474 F.2d 981
Party Name:Alonzo THOMAS, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.
Case Date:February 28, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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474 F.2d 981 (5th Cir. 1973)

Alonzo THOMAS, Petitioner-Appellee,

v.

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

No. 72-2896.

United States Court of Appeals, Fifth Circuit.

February 28, 1973

Rehearing Denied April 2, 1973.

Rehearing and Rehearing En Banc Denied April 23, 1973.

Crawford Martin, Atty. Gen., Roland Daniel Green, III, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.

Phoebe Lester, Houston, Tex. (Court appointed), for petitioner-appellee.

Before ALDRICH [*], SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The Director of the Texas Department of Corrections appeals from a judgment granting habeas corpus relief to an inmate. As the district court correctly recognized, our holdings in Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967) and Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), fixed the applicable law. 1 Its judgment was based upon a determination that the constitutional error of trying the petitioner in jail garb was not harmless beyond a reasonable doubt. However, Hernandez requires that this court independently review the Texas trial court record, and that perusal leads us to a different conclusion as to the probable impact on the minds of the jury of the petitioner's proscribed prison garb appearance-we conclude it was harmless beyond a reasonable doubt. We therefore reverse.

As the opinion on rehearing in Hernandez emphasized, each case must be considered in its own factual context. 443 F.2d at 637. The procedure for such consideration by this court is also defined in that case in these terms:

"Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of * * * [the prison garb worn by the defendant] on the minds of an average jury." Harrington v. California, 1969, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284. Before "a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; cf. United States v. Manning, 5 Cir. 1971, 440 F.2d 1105; Simpson v. Wainwright, 5 Cir. 1971, 439 F.2d 948.

443 F.2d at 637.

The crime for which Thomas was tried was the robbery of a grocery store. The

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prosecution produced the following testimonial evidence. Mrs. Estelle Vaughn was employed as a checker-stocker and cashier at the store. After making a positive identification of the defendant, she stated that he watched the operation of the cash registers at the store for approximately thirty minutes, then walked up to the vacant cash register in the checking line next to her own. While a cigarette stand located between her position and that cash register prevented Mrs. Vaughn from physically seeing the defendant manipulate the buttons necessary to open the cash drawer, she did see the cash drawer when it came open and she saw Thomas take money out of the drawer with both hands then audaciously step back into her line with the stolen money still visible in his fist and ask for a package of cigarettes. Recovering from her stunned disbelief, Mrs. Vaughn confronted Thomas by saying,...

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