Fransaw v. Lynaugh

• Citation: 810 F.2d 518
• Decision Date: 23 February 1987
• Docket Number: No. 85-2635,85-2635
• Parties: Clifton FRANSAW, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 518

810 F.2d 518

Clifton FRANSAW, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of

Corrections, Respondent-Appellee.

No. 85-2635

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Feb. 23, 1987.

Rehearing Denied April 6, 1987.

Clifton Fransaw, pro se. Palestine,

Jim Mattox, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner Clifton Fransaw is serving a life sentence in a Texas prison for the offense of voluntary manslaughter. After his conviction was affirmed, Fransaw unsuccessfully sought a writ of habeas corpus from the state courts. He then instituted the present federal habeas proceedings. The district court denied Fransaw's petition, and we affirm.

Facts and Proceedings Below

In September 1980, a Texas grand jury indicted Fransaw for the August 31, 1980 murder of Tyrone Boyd. The first paragraph of the indictment charged Fransaw with having "intentionally and knowingly" caused Boyd's death by shooting him with a gun. This constituted murder as defined by Tex.Penal Code Ann. Sec. 19.02(a)(1). The second paragraph accused Fransaw of intending to cause Boyd "serious bodily injury" and causing his death by committing an act clearly dangerous to human life, namely, shooting Boyd with a gun. This constituted murder as defined by Tex.Penal Code Ann. Sec. 19.02(a)(2). For enhancement purposes, the third and final paragraph of the indictment alleged that Fransaw had been previously convicted of robbery.

Fransaw pleaded not guilty to both murder counts, and trial before a jury commenced on September 14, 1981. After the testimony of the state's first two witnesses, Fransaw decided to seek a plea bargain with the prosecution. In exchange for Fransaw's guilty plea to the indictment's first paragraph, the state dismissed the second paragraph predicated on section 19.02(a)(2). The trial judge accepted this plea arrangement. However, at the sentencing hearing two months later, in November 1981, a misunderstanding surfaced. The trial judge imposed a fifty-year sentence, which Fransaw's counsel believed was ten years longer than what the judge had originally promised. When this disagreement could not be resolved, the judge gave Fransaw the option of withdrawing his guilty plea, and Fransaw did so.

On December 14, 1981, about a month later, Fransaw was tried before a second jury on the original indictment, including both the first and second paragraphs. In his instructions, the judge charged the jury on murder under both the first and second paragraphs of the indictment, thus authorizing conviction of murder either under section 19.02(a)(1) or under section 19.02(a)(2). The judge also included a charge on the offense of voluntary manslaughter. It is evident (and not disputed) that the precise same shooting was the basis for the charge under section 19.02(a)(1) as well as for the charge under section 19.02(a)(2) and the conviction of voluntary manslaughter. Under Texas law, voluntary manslaughter is committed "under circumstances that would constitute murder under Section 19.02 of this Code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause." Tex.Penal Code Ann. Sec. 19.04(a). At the time of trial, Texas law held that voluntary manslaughter was in all cases a lesser offense included in the charge of murder. See Paige v. State, 573 S.W.2d 16, 18 (Tex.Crim.App.1978) ("Since the evidence here was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove voluntary manslaughter, the lesser included offense."); Brooks v. State, 548 S.W.2d 680, 682 (Tex.Crim.App.1977) (referring to voluntary manslaughter as a lesser included offense of murder); Selman v. State, 627 S.W.2d 543, 544 (Tex.App.--Amarillo 1982), aff'd, 663 S.W.2d 838 (Tex.Crim.App.1984) (en banc); Ethridge v. State, 634 S.W.2d 382, 384 (Tex.App.--Austin 1982), aff'd, 648 S.W.2d 306 (Tex.Crim.App.1983) (en banc). ¹

On December 15, 1981, the jury convicted Fransaw of voluntary manslaughter ² and two days later, upon proof of his prior felony conviction, the jury sentenced him to life imprisonment. The Texas Court of Appeals affirmed the conviction in a published opinion, Fransaw v. State, 671 S.W.2d 539 (Tex.App.--Houston [14th Dist.] 1982), and the Texas Court of Criminal Appeals refused Fransaw's petition for discretionary review.

Fransaw then petitioned the state courts for a writ of habeas corpus. On July 25, 1984, the state trial court recommended denial of the writ and on January 9, 1985, the Texas Court of Criminal Appeals accepted this recommendation.

Having exhausted his state avenues of relief, Fransaw turned to the federal courts. On February 19, 1985, he petitioned the United States District Court for the Southern District of Texas for a writ of habeas corpus. The district court denied this petition and also denied Fransaw's request for a Certificate of Probable Cause. On March 10, 1986, this Court granted Fransaw's motion for a Certificate of Probable Cause and this appeal followed.

Discussion

Reading Fransaw's pro se brief in this Court liberally, we believe it arguably raises four related issues. First, Fransaw objects that the jury charge may have confused the jurors into convicting him of voluntary manslaughter under section 19.02(a)(2)--alleged in the previously dismissed paragraph--rather than section 19.02(a)(1). ³ Fransaw's underlying assumption in this connection is that the double jeopardy clause barred reinstatement of the section 19.02(a)(2) count after the state dismissed it as part of the plea bargain. As will be shown, this assumption is incorrect, so we need not parse the charge to determine whether a reasonable juror could have been misled into convicting Fransaw of voluntary manslaughter as a lesser included offense of section 19.02(a)(2) murder. ⁴ See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979) (stating that whether a jury instruction accords the defendant his constitutional rights "depends upon the way in which a reasonable jury could have interpreted the instructions"); Tarpley v. Estelle, 703 F.2d 157, 160 (5th Cir.) (same), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).

The second issue Fransaw raises is based on the same assumption as the first. He appears to argue that we must view the indictment as if it did not contain the section 19.02(a)(2) paragraph. He then asserts that the allegedly confusing jury charge, in creating the possibility of conviction of voluntary manslaughter as a lesser offense under section 19.02(a)(2), violated the Sixth and Fourteenth Amendments by permitting his conviction of a crime not charged in the indictment. See Tarpley, 703 F.2d at 160 (granting habeas relief under these amendments because "a reasonable juror could have understood the charge to allow conviction of an offense other than the one for which Tarpley was indicted"). This argument, like Fransaw's first, is unmeritorious because of the erroneous assumption that the double jeopardy clause prevented the state from reinstating the second paragraph of the indictment.

Third, Fransaw asserts that his conviction of voluntary manslaughter, even if imposed as a lesser offense only under section 19.02(a)(1), is barred by the Sixth and Fourteenth Amendments because he was not specifically indicted for voluntary manslaughter. This claim fails in light of the lesser included offense doctrine.

Finally, Fransaw contends in this Court that by reinstating the section 19.02(a)(2) charge, the state "constructively amended" the indictment in violation of state law. ⁵ Fransaw raised this issue in his state court habeas proceedings, where it was implicitly rejected. ⁶ However, Fransaw did not raise this issue below. Hence, we will not consider it because of our well-established practice of refusing to address issues raised for the first time on appeal. See Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.1985); Baker v. Estelle, 711 F.2d 44, 46 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984). ⁷

A. Double Jeopardy

The Fifth Amendment's double jeopardy clause "guards against Government oppression," United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978), and has roots in three common-law pleas that banned the state from retrying a person previously "acquitted, convicted, or pardoned for the same offense." Id. at 2192. In light of this common-law heritage, it is not surprising that the Supreme Court has stated that the double jeopardy clause itself incorporates "three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984) (same). In what has become a classic and oft-quoted passage, the Supreme Court explained that the "underlying idea" of the double jeopardy clause

"is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). ⁸

Naturally, no question of double jeopardy arises unless jeopardy has first attached sometime prior...