Martinez v. Estelle

• Decision Date: 20 February 1980
• Docket Number: No. 78-2923,78-2923
• Citation: 612 F.2d 173
• Parties: Johnny R. MARTINEZ, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 173

612 F.2d 173

Johnny R. MARTINEZ, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 78-2923.

United States Court of Appeals Fifth Circuit.

Feb. 20, 1980.

Richard J. Jauma, Staff Counsel for Inmates, Texas Dept. of Corr., Huntsville, Tex., for respondent-appellee.

R. E. Drewett, Asst. Atty. Gen., Austin, Tex., for petitioner-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SIMPSON, TJOFLAT and HILL, Circuit Judges.

SIMPSON, Circuit Judge:

Johnny R. Martinez was convicted of possession of heroin in a Texas state court. His sentence was set, as Texas law required, at life imprisonment because of his two prior felony convictions. Tex. Penal Code Ann. art. 63 (1962) (repealed and recodified as Tex. Penal Code Ann. § 12.42(d)). Martinez asserted in his habeas corpus petition to the federal district court ¹ that one of the prior felony convictions is void because a confession was admitted as evidence without a reliable determination of its voluntariness as required by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). He urges on appeal, as he did below, that the Texas statute requiring life imprisonment upon the third felony conviction was therefore erroneously applied. Tex. Penal Code Ann. art. 63 (1962). The district court held that although the Jackson v. Denno requirements for determination of voluntariness were not met, petitioner had failed to allege facts which would "show that his version of the events, if true, would require the conclusion that his confession was involuntary." Procunier v. Atchley, 400 U.S. 446, 551, 91 S.Ct. 485, 488, 27 L.Ed.2d 524 (1971). The petition was denied. We reverse because petitioner's version of the events relating to the confession, if true, demonstrates that the confession was not voluntarily made.

The Procedural History

In 1962 Martinez was convicted by a Texas jury of robbery by assault; Judge Mace B. Thurman, Jr. presided over the trial. Four years later he was convicted of passing a forged instrument, with Judge Thurman again the presiding judge. His possession of heroin conviction followed in 1969. He filed a motion seeking a new trial because the presiding judge (Judge Blackwell) had participated as a member of the prosecution in one of his previous felony convictions. The motion was granted. After reindictment on the same charges Martinez again found himself in Judge Thurman's court. A jury found him guilty of possession of heroin. Because of the two prior felony convictions, Judge Thurman sentenced Martinez to life imprisonment as mandated by the Texas statute.

Martinez appealed to the state appellate court, alleging, among other grounds, that the prior robbery conviction was void because the trial judge in the 1962 robbery trial did not make an independent determination of the voluntariness of the written confession introduced by the State against him. If the confession was not voluntarily given the robbery conviction is void. A void conviction may not be used to enhance an individual's sentence under the Texas statute. Burgett v. State of Texas, 389 U.S. 109, 112-13, 88 S.Ct. 258, 260-61, 19 L.Ed.2d 319 (1967). Judge Thurman, the presiding judge at the robbery trial, filed a certification with the state appellate court indicating that he had determined the voluntariness of Martinez's confession before allowing it into evidence. ² The Texas Court of Criminal Appeals affirmed the conviction and the life sentence with a cryptic reference to the voluntariness issue. ³ By his federal habeas petition Martinez sought relief on two grounds: (1) that the life sentence was improperly based on a void conviction, and (2) that he was denied due process because he received a harsher sentence upon retrial of the possession charge. The district court granted relief on the second ground. We reversed. Martinez v. Estelle, 527 F.2d 1330 (5th Cir. 1976), Cert. denied, 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292.

Petitioner returned to the district court to challenge the constitutional validity of the 1962 robbery conviction and the life sentence which depended upon the conviction. The district court found that the requirements of Jackson v. Denno were not met. Record, vol. 1 at 29-34. Judge Thurman's certification of voluntariness was not given "much weight", even though this court placed "some reliance" on a similar certification in State of Texas v. Graves, 380 F.2d 676, 680 (5th Cir. 1967). Record, vol. 1 at 32. Instead the district court relied on Smith v. State of Texas, 395 F.2d 958 (5th Cir. 1968), wherein the court held that the live testimony of the state trial judge, that he had determined voluntariness, did not in those circumstances satisfy Jackson v. Denno. However, habeas relief was denied because Martinez failed to "show that his version of the events, if true, would require the conclusion that his confession was involuntary." Record, vol. 1 at 32, Quoting Procunier v. Atchley, supra, 400 U.S. at 451, 91 S.Ct. at 488.

The 1962 Robbery Conviction

The evidence at petitioner's 1962 robbery trial was to the effect that the twenty year old Martinez, accompanied by four other youths, drove his parents' car to a grocery store in Austin, Texas. He parked nearby and remained in the vehicle while the others went into the store. One remained outside as a sentry; the others entered and demanded twenty dollars from the cashier, claiming the store manager had told them to pick it up. The cashier refused. One youth then threatened the cashier with a knife while another held his arms. The money was taken from the cash register. Almost simultaneously the owner arrived with pistol in hand. The sentry alerted his comrades and all fled as the owner fired three shots in the air. The sentry jumped into the car with Martinez and it sped away. The remaining three youths fled on foot, but Martinez picked one up several blocks from the scene. They then drove to a local dance. Later that evening Martinez saw a policeman waiting by the car, so he left and returned for the car some time later.

Eventually petitioner was picked up and questioned concerning the robbery. The investigating policeman testified that Martinez readily gave a verbal statement concerning his participation in the robbery, but was reluctant to sign a written confession. Martinez was taken to the assistant district attorney's office where, after approximately twenty minutes, he agreed to sign a statement. A typewritten confession was prepared and given to Martinez to read. After taking an oath, Martinez signed the statement. Record, vol. 2 at 492.

Before the confession was read into evidence the defense attorney questioned the policeman about the events leading to the confession. The officer testified that no coercion was used and that Martinez had only been told that giving the statement was "the proper thing to do." The defense counsel objected to introduction of the confession on the grounds that it was not voluntary. The trial judge responded: "I don't think the state has proved the elements of it yet. I don't think you have proved the elements of the confession yet for me to rule on it." Record, vol. 2 at 379. After the state established several additional facts the objection was overruled and the confession was read to the jury.

When the prosecution rested and After it read the confession in evidence Martinez was called as a witness on his own behalf. Although he did not deny his presence and participation at the scene of the robbery, he claimed that he merely drove the other four youths to the grocery store so they could "collect" some money the manager owed one of them. He denied having any knowledge of the planning or execution of the robbery. He said that he sped away only because he heard shots and was understandably afraid, not because he was guilty.

According to Martinez, he signed the confession because the assistant district attorney and the police started talking to him about his wife and children and said the judge might go easier on him if he signed a statement. He further testified that the written confession did not accurately reflect what he told the police. Martinez's version did not include the necessary element of scienter. He claims he signed the statement unaware of its contents because he is illiterate in the English language. He purportedly demonstrated his illiteracy by unsuccessfully attempting to read the confession aloud at trial. Martinez has completed the eighth grade and the investigating officer testified that Martinez said he could read English.

After presentation of all the evidence, the trial judge submitted the issue of voluntariness to the jury, instructing them to disregard it if they determined it was not voluntarily given.

The Law of Voluntariness of Confessions

We begin with the basic proposition that an accused is deprived of due process if his conviction rests wholly or partially upon an involuntary confession, Lego v. Twomey, 404 U.S. 477, 483, 92 S.Ct 619, 623-24, 30 L.Ed.2d 618 (1972), even if the statement is true, Rogers v. Richmond, 365 U.S. 534, 541-42, 81 S.Ct. 735, 739-40, 5 L.Ed.2d 760 (1961), and even if there is ample independent evidence of guilt. Payne v. State of Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975 (1958). The test for voluntariness is whether under the "totality of the circumstances" the statements are the product of the accused's "free and rational" choice. Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968).

Prior to the Supreme Court decision in Jackson v. Denno most courts followed one of three approaches in determining the voluntariness of confessions. Under the New York rule the trial judge makes a preliminary determination of the voluntariness of the confession and excludes it only if under no circumstances could it...