Franklin v. Lynaugh
| Decision Date | 30 July 1987 |
| Docket Number | 86-2883,Nos. 86-2538,s. 86-2538 |
| Citation | 823 F.2d 98 |
| Parties | Donald Gene FRANKLIN, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark Steven, Allen Cazier, George Scharmen, San Antonio, Tex., for petitioner-appellant.
William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GEE, RANDALL, and DAVIS, Circuit Judges.
There is small occasion for us to rehearse the sickening facts of this murder, one in which an innocent victim who stepped into the wrong place at the wrong time was stabbed, raped and left to bleed to death for five days in the July sun of Texas. These are set forth at length in the various opinions on direct appeal, e.g., 606 S.W.2d 818 (Tex.Crim.App.1979). Nor need much be said on the law, it having developed and set against petitioner's contentions over the course of the twelve years since his crime. We affirm the trial court's judgment denying habeas relief on the basis of that court's opinions, adding a few observations chiefly based on events occurring since that court ruled.
Of petitioner's points, the most nearly meritorious is that complaining of an improper reference to petitioner's post-arrest silence after he had received Miranda warnings. Since the handing down of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), comments by the prosecutor on the post-arrest silence of a defendant after the administration of Miranda warnings have been taboo. The Supreme Court has now held, however, that such a question as the prosecutor asked in this case does not require a grant of habeas relief where no use of the fact of petitioner's silence is permitted by the court. Greer v. Miller, --- U.S. ----, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Here there was none; a sustained objection and an instruction to disregard followed hard on the improper question. It was never heard of again. Greer is on all fours; it controls.
The next most troubling was a statistics-based claim that the Texas murder statute is applied in a discriminatory way against blacks who murder whites. Petitioner's claims in this respect have been resolved against him by the Court's opinion in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
Finally, we were concerned by petitioner's contention that the wording of the...
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