Black v. Beto

• Decision Date: 13 July 1967
• Docket Number: No. 24263.,24263.
• Citation: 382 F.2d 758
• Parties: Francis Marion BLACK, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections (Board of Pardons and Paroles of Texas and/or A. C. Turner, Pat Bullock, and Jack Ross, members of such Board, substituted as Appellees), Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

382 F.2d 758 (1967)

Francis Marion BLACK, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections (Board of Pardons and Paroles of Texas and/or A. C. Turner, Pat Bullock, and Jack Ross, members of such Board, substituted as Appellees), Appellees.

No. 24263.

United States Court of Appeals Fifth Circuit.

July 13, 1967.

William E. Gray, Houston, Tex., for appellant.

Gilbert J. Pena, Lonny F. Zwiener, Asst. Attys. Gen. of Texas, Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst., R. L. (Bob) Lattimore, Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., Austin, Tex., for appellees.

Before TUTTLE, Chief Judge, and THORNBERRY and GODBOLD, Circuit Judges.

TUTTLE, Chief Judge:

Appellant was tried in June, 1938, in the District Court in Brewster County, Texas, for the murder of his adopted son. The jury found him guilty, and the conviction was upheld on appeal to the Texas Court of Criminal Appeals. Black v. Texas, 137 Tex.Cr.R. 173, 128 S.W.2d 406 (1939). At the trial, appellant's signed confession was introduced in evidence against him. In this appeal from the district court's denial of his petition for a writ of habeas corpus, the only grounds for reversal urged relate to the issue of voluntariness of that confession, and the procedure for determination of that issue prescribed by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964).

Appellant's first contention is that he is entitled to have the voluntariness of his confession determined by a Texas court in accord with valid state procedures, under the requirements announced in Jackson v. Denno. The district court rejected this contention on two grounds. First, it decided that since appellant's counsel failed to object to the admission of the confession on the precise ground that it was involuntary, appellant effectively waived that objection. Second, it decided that in any event, the constitutional requirements of Jackson v. Denno were fully satisfied by an inquiry into the voluntariness of appellant's confession conducted by the federal district court in a prior habeas proceeding in 1961.

Appellant's second assertion, upon which the first is premised, is that his confession was involuntary, at least when examined in the light of present, retroactively applicable standards. On this point, the district court stated that it had reviewed all of the relevant evidence adduced, both in this proceeding and in the prior habeas corpus hearing conducted in the district court in 1961, and concluded that appellant's confession "was freely and voluntarily given, with a full understanding of the consequences thereof."

In Jackson v. Denno, supra, the Supreme Court held that the New York procedures for determining the voluntariness of a confession, under which that issue was presented to the trial jury unless the trial judge made a preliminary finding that it could not be deemed voluntary under any circumstances, was constitutionally invalid. The Court held that a defendant had a constitutional right to a fair hearing and reliable determination of the voluntariness of a confession not influenced by its truth or falsity, and that this right cannot be satisfied by submitting the issue of voluntariness to the jury trying the issue of guilt.

Turning to the question of what remedy to afford Jackson, the Court held that "the further proceedings to which Jackson is entitled should occur initially in the state courts rather than in the federal habeas corpus court," and remanded the case with instructions to the district court to allow the state a reasonable time to afford Jackson a satisfactory hearing on the issue of voluntariness — notwithstanding the fact that the district court had already conducted an independent review and found that there was "no good reason to conclude that the confession of the defendant was involuntary."

The State concedes in its brief that the procedure followed by the trial court in this case was equivalent to that condemned by the Supreme Court in Jackson — i. e., the confession was submitted to the trial jury with instructions to disregard it if they found it to be involuntary, without a prior independent determination of voluntariness by the trial court. The district court decided, however, that Black need not be afforded the relief accorded Jackson by the Supreme Court because he effectively waived any objection to the use of the confession against him based on a claim of involuntariness, by his failure to raise that specific objection at his trial. We cannot agree with this conclusion.

It is true that Black's attorney did not make a precise challenge to the admission of the confession on the ground that it was not voluntarily made. However, when the confession was tendered in evidence, counsel did request permission to conduct an examination of the police officer who took the statement from Black. In the course of that interrogation, a number of questions, some of them suggesting the possible presence of coercive influences bearing on Black's confession, were put to the officer, and at the conclusion of the examination, Black's attorney stated: "We object to the introduction of the confession and don't think that...