Autry v. Estelle

Decision Date17 June 1983
Docket NumberNo. 83-2053,83-2053
Citation706 F.2d 1394
Parties13 Fed. R. Evid. Serv. 1096 James David AUTRY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Provost, Umphrey & McPherson, Charles D. Carver, Port Arthur, Tex., for petitioner-appellant.

Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

James David Autry asks that we set aside his death sentence imposed by a Texas court upon his conviction for murdering a clerk while attempting to rob a convenience store. Autry argues that in five respects the United States District Court was in error in refusing his petition for writ of habeas corpus: first, the state trial court wrongfully denied immunity to a necessary defense witness; second, an oral statement was illegally admitted; third, an extraneous offense was improperly admitted at the sentencing phase; fourth, there was insufficient evidence of an attempted robbery; and fifth, there was insufficient evidence that it was Autry who killed the clerk. Finding each claimed error to be without merit, we affirm the district court's dismissal of the petition for habeas corpus.

I.

On the evening of April 20, 1980, Port Arthur, Texas police received a report of a shooting at a Sak-N-Pak grocery store. Arriving officers found Joseph Broussard, a Catholic priest, lying dead on his back with a telephone in his hand, shot through the neck and head; Shirley Drouet, the grocery clerk, seated near a grocery display dying of a gunshot to the forehead; and Anthanasios Svarnas, a Greek seaman, lying seriously wounded in the store parking lot. The cash register was turned to an off position, its register tape showing that the last sales were of cigarettes. Nothing was taken from the cash register or the victims, although Broussard had cash in his wallet as did Drouet in her purse.

Within four hours, John R. Sandifer arrived at the Port Arthur police station accompanied by his two sons, John Alton and Mark. Based on his statement John Alton Sandifer was arrested and an arrest warrant for Autry was issued. Two pistols, of .32 and .38 caliber, brought to the station by the Sandifers were secured as evidence. Mark Sandifer had taken the pistols from James David Autry shortly before the stationhouse trip. Port Arthur police officers Gary Martin and Bill Edmonds were told by radio of the outstanding warrant and at about 1:45 a.m. arrested Autry at the trailer-house he shared with John Alton Sandifer. Detective Edmonds told Autry he was being arrested for the two murders at the Sak-N-Pak store, Drouet having died in the meantime, and gave full Miranda warnings. Officers searched the trailer with Autry's consent and, at 3:00 a.m., took him before Judge Knowles, a state magistrate, who gave the warning required by Texas statute. 1

After the appearance before the magistrate and for the next two hours, until approximately 5:30 a.m., Detectives Waylon Hughes, R.B. White and Calise Blanchard questioned Autry at the stationhouse. Autry made no statement and Hughes and Blanchard left for breakfast. Shortly thereafter, Officer Gary Martin, who had not participated in the earlier questioning, seeing that Autry was alone in an interrogation cubicle, talked with Autry about the shootings, and at 6:30 a.m. Autry signed a written statement. The questioning then stopped and Autry was placed in a cell. But Officer Martin did not then know that Autry had terminated his earlier interview with a written statement that did not incriminate him, and ended as follows: "I have nothing else to say 'cause every time I say something or give a fact they say I'm a liar."

A little over six hours later, at about 1:00 p.m., Autry was in response to his request taken to the "booking room" where he was allowed to telephone his mother. Officer John Anderson testified at trial that he had no connection with the Autry case but happened to be in the room when Inspector Baxter brought Autry in to use the telephone. Baxter dialed a number and Autry spoke to the person on the other end. Anderson recounted what he heard for the jury:

Q. What did you hear the defendant say?

A. Whoever he was talking to on the other end he told them that he was in Port Arthur Jail. And that he was charged with two counts of murder.

Q. What happened then?

A. Okay. There was kind of a pause. And I assume whoever was on the other end was saying something. And he said that he had gone into this store and he was going to rob it but it just gone bad.

Q. What did he say then?

A. He said that he started shooting but once he started he just couldn't stop.

Q. Okay. Did he say anything else?

A. If I remember right towards the end of the conversation he stated that whoever was on the other end should not worry because he was going to get out of it.

Autry was indicted for capital murder under Tex.Penal Code Sec. 19.03(a)(2). That statute provides that a person commits the offense of capital murder if he intentionally commits the offense of murder "in the course of committing or attempting to commit ... robbery." Before trial and after a hearing, Autry's motion to suppress his written statement was granted. The state trial court found that the police officers had not honored Autry's request to remain silent. He denied Autry's motion to suppress his oral statements overheard by Officer Anderson. At trial, it was developed that Autry's telephone call from the booking room was to his mother. The oral statements were admitted over his objection that they were tainted by the illegality that accompanied the written statement he had given approximately six and one-half hours earlier.

John Richard Sandifer, Judy Francis Sandifer and Mark Sandifer testified for the state. All had been granted immunity over Autry's objection. Despite Autry's request, Texas refused to grant immunity to John Alton Sandifer, and, out of the jury's presence, he invoked the Fifth Amendment when called by Autry at trial.

The jury returned a verdict of guilty and, after a sentencing proceeding, answered "yes" to the first two questions required by Tex.Code Crim.Proc. art. 37.071(b). These answers under Texas law mandated the sentence of death which followed. 2

On direct appeal to the Texas Court of Criminal Appeals, Autry assigned three grounds of error: (1) that there was insufficient evidence that the killing occurred during the course of a robbery or attempted robbery; (2) that circumstantial evidence was insufficient to exclude the hypothesis that another was guilty; and (3) that Autry's oral telephone statements should not have been admitted. The Court of Criminal Appeals affirmed on January 16, 1982, Autry v. State, 626 S.W.2d 758, and denied Autry's motion for rehearing on February 10, 1982. The Supreme Court denied certiorari on October 4, 1982. Autry v. Texas, --- U.S. ----, 103 S.Ct. 180, 74 L.Ed.2d 147.

The 252nd District Court of Jefferson County, Texas then on November 5, 1982, issued a Death Warrant to be executed on December 17, 1982. Autry's state habeas effort ended with its denial by the Texas Court of Criminal Appeals on December 14, 1982. That same day, Autry filed for federal habeas in the United States District Court for the Eastern District of Texas. That court, on December 15, 1982, stayed the execution, pending evidentiary hearings held on January 5 and 6, 1983. On January 14, 1983, the district court denied Autry's habeas petition and vacated the stay. At the same time, he issued a certificate of probable cause. Autry's execution date was then set a second time by the state court for February 21, 1983. Autry's unopposed request to this court for stay of execution pending appeal was granted by this panel on February 17, 1983.

All issues presented to this court in this collateral attack have been presented to the state courts of Texas, either on direct appeal or by habeas, and no question of exhaustion of remedies is presented.

We turn to the claims, pausing only at the standard of review. This is a collateral attack upon a state court conviction found valid by the highest court of that state. The collateral character of the attack and the concern of federalism it triggers result in marked differences in the standard of review from that controlling the direct appeal of federal convictions. We will note these differences as they surface with each distinct claim of Autry, emphasizing now only our awareness throughout both that we review the solemn judgment of a state's highest court, and that it is the Great Writ that brings Autry to this court.

II.

Autry urges that his conviction or death sentence, or both, must be set aside for five reasons. We will review them seriatim, noting at the outset that despite the bifurcated adjudication of guilt and sentence under Texas law, error that infects only the sentencing phase entitles a defendant to a new jury trial upon guilt as well. Tex.Code Crim.Proc. art. 44.24(b). Thus, while our focus will shift with the claims from the trial to the sentencing phases, the consequence of constitutional error is the same--a new trial.

A.
1. Immunity Grants--The Factual Background

Autry first urges that he was denied his Fifth, Sixth and Fourteenth Amendment rights by the state's refusal to grant immunity to John Alton Sandifer, said to be a "critical defense witness," while granting immunity to three other Sandifers--John Richard, the father; Mark, the other son; and Judy Francis, Mark's wife. Before the state opened its case and after jury selection, the state requested the immunity grants. The trial court, out of the jury's presence, conducted a hearing on the state's request. At the...

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