733 F.2d 1103 (5th Cir. 1984), 83-1215, Weaver v. McKaskle

Docket Nº:83-1215.
Citation:733 F.2d 1103
Party Name:Frederick Douglas WEAVER, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.
Case Date:May 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1103

733 F.2d 1103 (5th Cir. 1984)

Frederick Douglas WEAVER, Petitioner-Appellant,

v.

Dan V. McKASKLE, Acting Director, Texas Department of

Corrections, Respondent-Appellee.

No. 83-1215.

United States Court of Appeals, Fifth Circuit

May 21, 1984

Sylvia Mandel, Staff Counsel for Inmates, TDC, Laurel D. Owens, Huntsville, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., El Paso, Tex., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Page 1104

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

Before POLITZ, RANDALL and JOLLY, Circuit Judges.

RANDALL, Circuit Judge:

In this habeas corpus proceeding, we are called upon to decide if the district court properly denied relief because of the appellant's failure to comply with the applicable state contemporaneous objection rule. For the reasons that follow, we affirm.

I. Factual and Procedural Background.

The appellant, Frederick Weaver, was convicted of aggravated robbery in 1977 in Texas state court. At the punishment phase of the trial, the prosecution introduced evidence of two prior convictions, one from Illinois in 1960 for automobile theft, and one from Kansas in 1965 for robbery. 1 Weaver's attorney objected to the introduction of the Illinois conviction on the grounds that Weaver had been pardoned and that it was no longer a final conviction. 2 The court overruled the objection. The jury assessed, and the court imposed, a life sentence.

In 1980, in a state habeas proceeding, the Illinois conviction was reversed by an Illinois appellate court on the ground that a bona fide doubt existed as to whether Weaver had been competent to stand trial in 1960, and no hearing had been held to determine his competency. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). As we have indicated, this was not the ground upon which Weaver objected to the introduction of the Illinois conviction at his 1977 trial.

On appeal, Weaver contends 1) that because his competency was at issue with regard to the Illinois conviction, he was not required in 1977 to comply with the Texas contemporaneous objection rule; 2) that even if the contemporaneous objection rule is applicable, he has demonstrated cause for his failure to object properly and prejudice resulting from the introduction of the Illinois conviction; and 3) that the district court erred in failing to address Weaver's contention that the full faith and credit clause required the Texas courts to reverse his 1977 conviction in light of Illinois' reversal of his 1960 conviction.

II. The Contemporaneous Objection Rule.

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state defendant procedurally defaults a claim by failing to comply with the state's contemporaneous objection rule, and that this procedural default precludes consideration of the claim in a federal habeas corpus proceeding absent a showing of cause and prejudice. Id. at 87, 97 S.Ct. at 2506. Under Texas law, a defendant's failure to object at trial to the introduction of an allegedly infirm prior conviction precludes a later attack upon the conviction that utilized the prior conviction. See Hill v. State, 633 S.W.2d 520, 525 (Tex.Cr.App.1981) (en banc). The Texas rule applies even where the alleged error is of constitutional dimension. See Hill, supra; Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1976); Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974).

Weaver argues, however, that Wainwright v. Sykes and the Texas contemporaneous objection rule are inapplicable in his case. He contends that, because no contemporaneous objection is required to preserve the issue of competency to stand trial, see Pate v. Robinson, supra, neither should one be required when the objection is to the use of a prior conviction allegedly infirm because of the defendant's incompetency. This argument is fundamentally illogical. While it is an accurate statement of the law that no contemporaneous objection with regard to competency is required at the time of the trial that the

Page 1105

defendant was allegedly incompetent to undergo, this case does not present that situation. Here, whether or not Weaver was competent to stand trial in Illinois in 1960, there is no allegation that Weaver was incompetent in Texas in 1977. It does not follow from the fact that there was a bona fide doubt in 1960 as to Weaver's competency that he was not required to raise the proper objection in 1977. Thus, we think that Wainwright v. Sykes and the Texas contemporaneous objection rule are applicable in this case.

III. Cause and Prejudice.

Weaver contends that, even if Wainwright v. Sykes is applicable, it does not bar his action because he has demonstrated cause for his failure to raise the proper objection at his 1977 trial, and prejudice resulting from the admission of the 1960 Illinois conviction. Weaver argues that if he was incompetent and incapable of understanding the proceedings against him in 1960, he can not be expected to object to that proceeding seventeen years...

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