Beto v. Stacks

• Decision Date: 28 February 1969
• Docket Number: No. 25751.,25751.
• Citation: 408 F.2d 313
• Parties: Dr. George J. BETO, Director, Texas Department of Corrections, Appellant, v. Don A. STACKS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 313 (1969)

Dr. George J. BETO, Director, Texas Department of Corrections, Appellant, v. Don A. STACKS, Appellee.

No. 25751.

United States Court of Appeals Fifth Circuit.

February 28, 1969.

Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., A. J. Carubbi, Jr., Executive Asst. Atty. Gen., Hawthorne Phillips, Lonny F. Zwiener, Asst. Attys. Gen., for appellant.

Mack Kidd, Austin, Tex., for appellee.

Before GEWIN, PHILLIPS^* and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Don A. Stacks, appellee herein, convinced the court below that a constitutional malediction in his one-stage recidivist trial entitled him to a writ of habeas corpus. We agree that the hallowed writ was properly issued.

The background of Stack's trial is as follows. In July of 1960, appellee was indicted by the Grand Jury of Travis County, Texas for the offense of robbery by assault.¹ The indictment alleged the robbery offense in paragraph one and a prior conviction for felony theft in paragraph two. Under Article 62 of the Vernon's Ann. Texas Penal Code, a prior felony conviction may be used to enhance or increase a sentence if the prior conviction is "of the same nature" as the primary offense charged in the indictment.² Since robbery and theft are "of the same nature"³ Stack would have received an enhanced sentence of life imprisonment had he been convicted. As it turned out, however, the submission of Stack's case resulted in a hung jury and a mistrial was declared.

In January, 1961, Stack was indicted once again for robbery by assault. This time appellee was indicted under Article 63 of the Texas Penal Code,⁴ and two prior convictions, instead of one, were used for enhancement purposes. In addition to the felony theft conviction, the new indictment charged Stack with a 1957 conviction for violation of the Federal Narcotics Act. At trial, both convictions were read to the jury and proved in evidence.⁵ Stack was then found guilty and the judge imposed the mandatory sentence of life imprisonment.

In February, 1967, appellee's conviction for violation of the Federal Narcotics Act was declared null and void by a federal district court under authority of Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, and Euziere v. United States, 10 Cir. 1957, 249 F.2d 293. The conviction was set aside because narcotics introduced at appellee's trial had been unlawfully seized by state police officers in violation of appellee's Fourth Amendment rights.⁶

Appellee next made application for writ of habeas corpus to the Court of Criminal Appeals of Texas. That court denied his application without written opinion on March 10, 1967.

On October 18, 1967, the United States District Court for the Western District of Texas granted Stack's petition for habeas corpus. The court found that Stack "was denied a fair and impartial trial as guaranteed by the Constitution of the United States and of the State of Texas, due to the fact that said void Federal Narcotics Act conviction was read to the jury upon petitioner's prior trial and was considered by the jury in reaching its verdict therein." A motion for rehearing was denied on December 12, 1967, and this appeal followed.

The State of Texas contends in this court that the writ of habeas corpus should not have issued. It summons various arguments in support of this view, but all, directly or indirectly, depend upon the Supreme Court cases of Spencer v. Texas, 1957, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606; and Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. In view of this fact, we use these cases as our point of departure.

In Spencer v. Texas the Supreme Court held in a 5 to 4 decision that allowing prior convictions to be read and proved to the jury for purposes of enhancement during a one-stage recidivist trial was not constitutionally frangible. In thus upholding the constitutionality of the Texas procedure, however, even the majority on the Court recognized its latent prejudice. While they did not believe such prejudice reached constitutional dimensions they did acknowledge the minimal state interest involved in admitting evidence of prior convictions during trial instead of afterwards.

These misgivings were prophetic of Burgett v. Texas, supra. Whereas Spencer only considered the general "fairness" of the Texas procedure for trying habitual offenders, Burgett dealt with its constitutional effects when tainted by the use of a void conviction. The Court found that the use of a constitutionally infirm conviction rendered the one-stage recidivist trial "inherently prejudicial." 389 U.S. 115, 88 S.Ct. 258, 19 L.Ed.2d 319. In vacating the Texas conviction, the Court commented on the differences between Burgett and Spencer:

"Our decision last term in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, is not relevant to our present problem. In Spencer the prior convictions were not presumptively void. Moreover, the contention was that the guilt phase of the trial was prejudiced by the introduction of the evidence of prior crimes. As the Court noted, `in the procedures before us, * * * no specific federal right — such as that dealing with confessions — is involved; reliance is placed solely on a general "fairness" approach\' Id, at 565, 87 S.Ct. at 654, 17 L.Ed.2d at 615. In this case, however, petitioner\'s right to counsel, a `specific federal right,\' is being denied anew. This Court cannot permit such a result unless Gideon v. Wainwright 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 is to suffer serious erosion."

The State of Texas argues on this appeal that Spencer and not Burgett is applicable to the facts of the case before us. As indicated, infra, however, we find Burgett the relevant authority.⁷

The State's specific contentions are as follows: 1) that appellee was denied no specific "federal right" as that term is used in Burgett, 2) that Burgett does not apply to the denial of the Fourth Amendment rights because the denial of such rights does not affect the integrity of the fact-finding process, 3) that the cautionary instruction of the trial court to the jury cured any prejudice which might have resulted from the State's improper use of a void conviction, 4) that the absence of prosecutorial bad faith in alleging and proving the narcotics conviction was an antidote to otherwise prejudicial conduct, and 5) that the federal narcotics conviction was surplusage because under Article 62 of the Texas Penal Code appellee's sentence could have been enhanced to life imprisonment solely by the use of the valid theft conviction.

In response to appellant's first argument, we do not find Burgett v. Texas distinguishable from the present case on the ground that appellee herein was denied no specific "federal right." Burgett v. Texas, 389 U.S. at 115, 88 S. Ct. 258, 19 L.Ed.2d 319. Burgett involved the use for purposes of enhancement of a conviction that was presumptively void under the Sixth Amendment. The present case involves the use of a conviction for purposes of enhancement that is definitely void under the Fourth Amendment. Whatever the differences between these two constitutional rights, and whatever the seriousness of their respective impingements, they are both rights guaranteed by the United States Constitution and made applicable to the states by the Fourteenth Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. As such they are both "specific federal rights" as that term is used in Burgett.

Appellant's next argument asks us to distinguish Burgett from the instant case on the ground that Fourth Amendment rights are of a lesser status than Sixth Amendment rights. While it is true that the use of evidence resulting from an unlawful search and seizure is less likely to affect the integrity of the fact-finding process than the denial of counsel at trial, cf. Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L. Ed.2d 601 and Gideon v. Wainwright, supra, the creation of such a constitutional hierarchy is not part of the rationale of Burgett. Perhaps if one of the questions before the Supreme Court in Burgett had been whether or not to make its decision retrospective, the severity of the threat to the integrity of the fact-finding process would have been a relevant consideration. Cf. Linkletter v. Walker, supra; Johnson v. State of New Jersey, 1966, 384 U.S. 719, 727-728, 86 S.Ct. 1772, 16 L.Ed.2d 882, 889; Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453, 460; Stovall v. Denno, 1967, 388 U.S. 293, 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1204. But retrospectivity was not considered by the Supreme Court in Burgett and is not a question before this court either.⁸ More importantly, a constitutional right is not to be disparaged because it bears less directly than another on the fact-finding process. The issue before this court turns on "the limitations which the Constitution places on state criminal procedures." Burgett v. Texas, 389 U.S. at 114, 88 S. Ct. at 261. Such limitations include not only "The recent right-to-counsel cases, starting with Gideon v. Wainwright * * *," but also "The exclusion of evidence seized in violation of the Fourth and Fourteenth Amendments * * *." Burgett v. Texas, 389 U.S. at 114, 88 S. Ct. at 261. Since the Constitution requires that the fruits of an unlawful search and seizure be excluded at the first trial, no reason appears to allow a conviction based upon such tainted evidence to prejudice the defendant at a subsequent trial.⁹ To permit such a practice is to allow the accused to "suffer anew" the denial of his constitutional rights. Burgett v. Texas, 389 U.S. at 115, 88 S.Ct. 258.

Appellant calls our attention to the cautionary instructions given the jury at Stack's trial. It...