Ex parte Kelly, 45860

Decision Date19 July 1972
Docket NumberNo. 45860,45860
Citation484 S.W.2d 773
PartiesEx parte Emmett Julian KELLY.
CourtTexas Court of Criminal Appeals

Stephen T. Elder, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal in a habeas corpus proceeding under Article 11.07, Vernon's Ann.C.C.P., and Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

The contention of the applicant is that he was tried in jail clothes and this infringed on his right to be presumed innocent. He was convicted in 1969 for the offense of robbery. His punishment was assessed by the court at thirty-five years. On appeal, this Court affirmed the conviction in Kelly v. State, Tex.Cr.App., 471 S.W.2d 65 (1971). The sufficiency of the evidence was not challenged. The only complaint then was that the trial court erred in overruling his motion for continuance. This was held to be without merit.

The applicant now relies upon Hernandez v. Beto, 443 F.2d 634, 637 (April 15, 1971), where the Court of Appeals for the Fifth Circuit granted relief because Hernandez had been tried in jail clothes. The attorney in that case testified that he did not object to Hernandez being tried in jail clothing because he did not think it would do any good to object.

In the present case, the convicting court held a hearing on the application for habeas corpus. Trial counsel testified that he did not object because he thought such an objection would be overruled. Neither counsel nor the applicant objected that he was tried while wearing jail clothing.

Robert R. Scott, an attorney in private practice at the time of the hearing, testified that he was the prosecutor in the court presided over by the Honorable E. B. Duggan when the applicant was convicted. Scott also testified that during the two and one-half years he had prosecuted, Judge Duggan, upon request, would arrange to have any defendant tried in civilian clothes. Further, he testified that the reputation of the Judge prior to the decision in Hernandez v. Beto, supra, was that he would always allow any defendant who so desired to be tried in civilian clothes. Scott also testified that on one occasion before the trial of Donald Lee Hammons, Judge Duggan furnished one of his own suits to Hammons who wore it during the trial.

Similar testimony was given by Fred Fisher,...

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6 cases
  • Williams v. Beto
    • United States
    • U.S. District Court — Southern District of Texas
    • October 2, 1973
    ...relief on the failure of the defendant or counsel to make formal objection to a trial in jail clothes. See, e. g., Ex Parte Kelly, 484 S.W.2d 773, 774 (Tex.Cr.App.1972); Simmons v. State, supra, 480 S.W.2d at 634; Barber v. State, 477 S.W.2d 868, 870 (Tex.Cr. App.1972); Williams v. State, 4......
  • Ex parte Bagley
    • United States
    • Texas Court of Criminal Appeals
    • May 15, 1974
    ...Court in habeas corpus cases. Ex parte Roberts, Tex.Cr.App., 502 S.W.2d 802; Ex parte Kirby, Tex.Cr.App., 492 S.W.2d 579; Ex parte Kelly, Tex.Cr.App., 484 S.W.2d 773; Ex parte Kirk, Tex.Cr.App., 478 S.W.2d 503; Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706; Ex parte Meadows, Tex.Cr.App., 418 ......
  • Batson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 1, 1973
    ...error.' All things considered we believe that the best rounded exposition of the 'cloak of innocence' problem is found in Ex parte Kelly, Tex.Cr.App., 484 S.W.2d 773, from which we quote in 'The contention of the applicant is that he was tried in jail clothes and this infringed on his right......
  • Pittman v. State, 45886
    • United States
    • Texas Court of Criminal Appeals
    • December 20, 1972
    ...Ellis v. State, 468 S.W.2d 406 (Tex.Cr.App.1971); Ex Parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972); and Ex Parte Kelly, 484 S.W.2d 773 (Tex.Cr.App.1972). Appellant's third ground of error is that 'The district court erred in refusing to grant defendant's motion for mistrial after the prose......
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