Plunkett v. Estelle

• Decision Date: 22 July 1983
• Docket Number: No. 82-1096,82-1096
• Citation: 709 F.2d 1004
• Parties: Larry PLUNKETT, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1004

709 F.2d 1004

Larry PLUNKETT, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 82-1096.

United States Court of Appeals, Fifth Circuit.

July 22, 1983.

Danny C. Burns, Fort Worth, Tex., for petitioner-appellant.

Mark White, Atty. Gen., Maury Hexamer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I.

This is an appeal from a denial without an evidentiary hearing of a state prisoner's habeas petition. Convicted of the murder of a two year-old child, petitioner brings to this court two errors assertedly of constitutional dimension. Finding merit, we reverse.

An autopsy of two year-old April Dawn Peters found extensive bruising over virtually her entire body. She had suffered a y-shaped fracture to her skull. Her heart, liver, spleen and pancreas had been severely torn. Either the head or abdominal injuries would have caused death; the fracture occurred about one hour before the abdominal injuries. The bruises were less than twenty-four hours old.

Larry Plunkett, who lived with April's mother from time to time, was with April when she died. He explained that he had heard a thump and found April lying in the bedroom with her feet on the bed and her head on the carpeted floor. He described his extensive efforts to resuscitate, including direct heart massage, accomplished by forceful application of the hands to the chestwall. He did not explain the lapse of one hour from the time of the head injury to the suffering of abdominal injury.

A Palo Pinto grand jury indicted Plunkett, charging in two counts that

Larry Plunkett, on or about the 8th day of January, A.D.1975, and before the presentment of this indictment, in said County and State, did then and there intentionally and knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands;

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present in and to said Court that on or about the 8th day of January, A.D., 1975, in said county and state and anterior to the presentment of this indictment, Larry Plunkett did then and there recklessly cause the death of an individual, April Dawn Peters, by striking her with his hands; ...

He was convicted upon Count 1 of murder and sentenced by the same jury to fifty years in prison. His conviction was affirmed by the Texas Court of Criminal Appeals. Plunkett v. State, 580 S.W.2d 815 (Tex.Cr.App.1979). The United States District Court, adopting the recommendations of a magistrate, denied Plunkett's federal habeas petition without an evidentiary hearing. Here he contends that his conviction was unconstitutionally obtained for two reasons. First, he argues that the court's charge allowed the jury to convict for an offense not charged in the indictment. Second, he argues that he was deprived of a fair trial when the prosecutor argued the uncharged offense in closing the case.

The pertinent statutes provide:

(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; ...

Tex.Penal Code Sec. 19.02. The trial judge in the opening paragraph of his five pages of charge told the jury:

Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

The charge later stated:

Now if you find and believe from the evidence beyond a reasonable doubt that on or about the 8th day of January, 1975, in Palo Pinto County, Texas, the defendant, Larry Plunkett, did intentionally or knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands, as set forth in the indictment, then you will find the defendant guilty of murder as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and find him not guilty of murder and consider whether he is guilty of the lesser offense of involuntary manslaughter.

You are instructed that to be guilty of murder, a defendant must have acted intentionally or knowingly in causing the death of the deceased. He must have intentionally or knowingly caused the death, or he must have intended to cause serious bodily injury and have committed an act clearly dangerous to human life that caused the death of deceased. Unless defendant so acted intentionally or knowingly or with intent to cause serious bodily injury to the deceased, he cannot be convicted of murder.

Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Larry Plunkett, did cause the death of April Dawn Peters by striking her with his hands, but you have a reasonable doubt that the defendant did intentionally or knowingly cause death or that he intended to cause April Dawn Peters serious bodily injury, then you will acquit the defendant of murder, and will consider whether or not he is guilty of involuntary manslaughter.

Plunkett made no objection that the charge allowed the jury to convict for a violation of Tex.Penal Code Sec. 19.02(a)(2). The Texas Court of Criminal Appeals applied its contemporaneous objection rule and confined its review to "fundamental error." 580 S.W.2d at 821. Reversing itself on its own motion for rehearing, it found that the charge did not allow the jury to convict on a non-charged offense. In its view, while the charge was erroneous, there was no fundamental error. In affirming the conviction, the Court of Criminal Appeals conceded Plunkett's contention that allowing a conviction for an offense not charged in the indictment would be fundamental error under Texas law, but found that it did not occur.

The state court having reached the merits of Plunkett's challenge to the jury charge, there is no bar under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to its present review. Even if it could be argued that our standard of review is confined to that exercised by the Texas court, our review of claimed error in jury instructions by state judges is similar to that employed by the Court of Criminal Appeals in its inquiry into fundamental error. "An erroneous instruction will support a collateral attack on the constitutional validity of a state court's judgment only if the ailing instruction so infected the entire trial that the resulting conviction violates due process." Tyler v. Phelps, 643 F.2d 1095, 1100 (5th Cir.1981). It follows that the absence of objection has no impact in this case on our review.

II.

The Texas Court of Criminal Appeals in its review of the charge found:

[T]he charge defined murder abstractly, and then applied this definition to the facts in Paragraph 3A. Although a theory not alleged in the indictment is included in Paragraph 3A, it is important to note that this paragraph is a converse charge, directing acquittal and consideration of the lesser included offense, not directing a finding of guilt. Thus, Paragraph 3A did not authorize a conviction under Sec. 19.02(a)(2), and provided no affirmative guidance for the jury's finding of guilt.

Id. at 822.

In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the Supreme Court interpreted the requirements of 28 U.S.C. Sec. 2254(d). The Court there noted that Sec. 2254(d) drew no distinction between the factual determinations of a state trial court and those of a state appellate court when it referred to "a determination after a hearing on the merits of the factual issue." The Court stated:

This is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level.

Id. at 547, 101 S.Ct. at 769.

With the "presumption of correctness" as explicated in Sumner v. Mata in mind, we conclude that the Texas court's determination that the charge did not permit the jury to convict for a non-indicted offense is not supported by the record. With due deference to the Court of Criminal Appeals, we reach precisely the opposite result essentially because we consider a part of the record that it declined to consider. Our reading of the charge is guided by the Supreme Court. We pay "careful attention to the words actually spoken ..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). Finally, we are wary lest we fail to heed the interpretive rule that "a single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

In its first opinion, the Texas Court of Criminal Appeals concluded that the jury instructions allowed Plunkett to be convicted for murder without a finding that he intentionally or knowingly caused the child's death but only intended to cause bodily harm. 580 S.W.2d at 817-18. On rehearing en banc, the court reached the opposite conclusion. In reversing itself, the Texas court substantially altered the scope of its analytical focus. The court looked only to the language of the charge and, while considering it to be ambiguous, found, aided by a parsing of the language, that the jury had been properly confined to intentional...