Branch v. Beto
| Decision Date | 06 September 1973 |
| Docket Number | Civ. A. No. 70-H-286. |
| Citation | 364 F. Supp. 938 |
| Parties | Hamilton BRANCH, Petitioner, v. Dr. George BETO, Director, Texas Department of Corrections, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
John L. Boettner, Jr., Charleston, W. Va., Roy E. Greenwood, Huntsville, Tex., for petitioner.
Dunklin Sullivan, Austin, Tex., for respondent.
Petitioner was convicted in state court of felony theft. His punishment, enhanced under the Texas recidivist statute,1 was set at life. The conviction was affirmed by the Texas Court of Criminal Appeals in Branch v. State, 445 S.W.2d 756 (1969). After exhausting his state remedies, petitioner asks for habeas corpus relief alleging his imprisonment is illegal and in violation of the Constitution for four reasons.
First, petitioner contends that he was denied his sixth amendment right to counsel at his examining trial. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the Supreme Court held that a preliminary hearing under Alabama law was a "critical stage" of the criminal process and that an accused is constitutionally entitled to assistance of counsel at that proceeding. Since the "examining trial" under Texas law is for all practical purposes the same as the preliminary hearing under Alabama law, it is likewise a critical stage of the criminal process at which the accused is constitutionally entitled to counsel.2 However, the question whether Coleman is to be applied retroactively was foreclosed in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), where the Supreme Court held that Coleman was not to be applied to a counsel-less preliminary hearing which occurred prior to June 22, 1970. Since petitioner's examining trial was held in 1966, there is no per se sixth amendment violation.3 Even so, the question of retroactive application vel non is not necessarily controlling of this contention. In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966), the Supreme Court reasoned:
"Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim." Id. at 730, 86 S.Ct. at 1779.
With analogous rationale, the Court in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967) gave as one of the factors considered in holding Wade nonretroactive:
"In pre-Wade-Gilbert cases it remains open to all persons to allege and prove . . . that the confrontation resulted in such unfairness that it infringed his right to due process of law." Id. at 299, 87 S.Ct. at 1971.
A fortiori, in Adams, supra, the Court noted that a claim of actual prejudice "would entitle the accused to a hearing without regard to today's holding that Coleman is not to be retroactively applied." 405 U.S. at 285, 92 S.Ct. at 920. Therefore, the question that is determinative of this contention is whether petitioner can show that actual prejudice arose from his examining trial.
Essential to this issue is a factual background. Petitioner was arrested April 4, 1966, and charged with felony theft of an automobile. The examining trial was held on May 2, 1966, at which time petitioner was indigent and was not represented by counsel. He was indicted on June 28, 1966, the indictment alleging felony theft of an automobile and two prior felony convictions for enhancement under Article 63, V.A.P.C. His first trial was on October 6, 1966. The jury returned a verdict of guilty on the primary offense but the trial court4 found that the state failed to prove one of the two alleged prior felony convictions and assessed his punishment at ten years in accord with Article 62, V.A.P. C.5 as being a second offender. On November 2, 1966, petitioner's motion for new trial was granted. His second trial also ended in a guilty verdict on the primary offense. However, this time petitioner elected to have the jury assess punishment. The jury found that the state proved the two prior felony convictions and accordingly assessed his punishment pursuant to Article 63, V.A.P.C. at life. Although his motion for new trial was denied, petitioner was allowed to withdraw his notice of appeal and was granted another new trial. On August 6, 1968, petitioner was tried for the third time on the same indictment. Once again, as in his second trial, the jury found him guilty of the primary offense of felony theft and at the punishment juncture found that the state proved the existence of the two prior felony convictions. Punishment was again assessed at life.
It is observed that no portion of the examining trial was offered at the third trial6 and there is no showing that appellant gave up any rights or claimed defenses at a time when he was not represented by counsel. At the time of the third trial, petitioner had been represented by either appointed or retained counsel for over two years, he had had the benefit of discovery and cross-examination of the state witnesses in the two prior trials, and there was no confession or incriminating evidence introduced at his third trial that had been arrived at through the examining trial. Petitioner has failed to show that he was harmed in any identifiable way during the period he was not represented by counsel. Petitioner points out that under the facts of his case, he could have been charged with a misdemeanor instead of felony theft and argues that had he been represented by an attorney at his examining trial the state might have so charged him. However, we note that this option was open to the State in all three trials and since he was represented by counsel in those trials, this court fails to see how he was actually prejudiced by not having counsel at the examining trial.
Petitioner's second contention is that he was tried twice for the same offense in violation of the double jeopardy provision of the fifth amendment. The posture of this complaint is that since the trial judge at the punishment hearing in the first trial found that the State failed to prove one of the prior felony convictions alleged in the indictment, the State should have been precluded from alleging that prior conviction in the second and third trials under the rationale of Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199.
In Green, the jury was authorized under the indictment to find the defendant guilty of either first degree murder killing while perpetrating a felony or, alternatively, of second degree murder killing with malice aforethought. The jury returned a verdict of guilty of second degree murder. That conviction was reversed on appeal and the cause was remanded for new trial. At the second trial, he was tried for first degree murder. The Supreme Court held that this second trial for first degree murder placed him in jeopardy twice for the same offense. The rationale of the Court was that the jury's verdict of second degree murder is regarded as an "implicit acquittal on the charge of first degree murder." See cases collected in the annotations cited under 59 A.L.R. 1160 and 114 A.L.R. 1406.
It is petitioner's position that Green should apply so that the trial judge's finding at the first trial (that the existence of one of the prior convictions was not proved) should operate as an acquittal as to that allegation and thereby preclude the State from alleging that conviction for enhancement purposes on retrial. Although persuasive at first blush, the contention fails upon closer analysis. Traditionally, the enhancement portions of an indictment is not considered a "count" or as a "lesser included offense." Where on the one hand the Texas courts apply the rule in Green to the situation in which the defendant is convicted of a "lesser included offense" to prevent a prosecution for the greater offense on a new trial (Welcome v. State, 438 S.W.2d 99 (Tex.Cr. App.); Article 37.14, V.A.C.C.P.) on the other hand the Texas courts have held that where the enhancement allegations were ignored by a jury in a prior case, it did not prevent their reuse at a subsequent trial. Sigler v. State, 143 Tex. Cr.R. 220, 157 S.W.2d 903; Turner v. State, 471 S.W.2d 56 (Tex.Cr.App.). And on numerous occasions the Texas courts have held that allegations as to prior convictions do not constitute "counts" in the indictment. E. g. Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192; Beck v. State, 420 S.W.2d 725 (Tex.Cr.App.); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.); Baker v. State, 437 S.W.2d 825 (Tex.Cr.App.). The rationale behind this distinction appears to be grounded on an observation by Lord Campbell in an old English case:
Regina v. Clark, Dears, 198 and 201. The distinction appears to be valid because (1) the enhancement allegations are no part of the substantive offense; (2) it is but a historical fact to show the persistence of the accused, and the futility of ordinary measures of punishment as related to him; and (3) the enhancement allegations do not create a new offense but are offered for the purpose of arriving at the punishment to be assessed in the event of a present conviction. The rationale of Green does not apply because the finding of the trial court that the State failed to prove petitioner was the same person as was convicted before of a felony is not an acquittal of that prior conviction and does not erase from the public records the historical fact of his prior conviction.
Petitioner's next two contentions assert due process violations. The basis of the...
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Reed v. State
...two cases, Davis v. Bennett, 400 F.2d 279 (8th Cir. 1968), Cert. den. 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768, and Branch v. Beto, 364 F.Supp. 938 (S.D.Tex.1973) for the proposition that the appellant's prior convictions may be used for enhancement purposes upon a retrial for the same t......