Broadway v. Beto
| Citation | 338 F. Supp. 827 |
| Decision Date | 30 September 1971 |
| Docket Number | Civ. A. No. 4-1432. |
| Parties | Rodney Gene BROADWAY v. Dr. George J. BETO, Director, Texas Department of Corrections. |
| Court | U.S. District Court — Northern District of Texas |
Don Gladden, Fort Worth, Tex., for plaintiff.
Crawford C. Martin, Atty. Gen., Austin, Tex., by Robert C. Flowers and Dunklin Sullivan, Asst. Attys. Gen., for defendant.
This habeas corpus action was brought for the purpose of seeking to vacate petitioner's judgment of conviction and sentence in Cause No. 72364, State of Texas v. Rodney Gene Broadway, in Criminal District Court No. 3, Tarrant County, Texas.
In late 1965 and the first month of 1966, Rodney Broadway and a confederate, Burton Tarbell, were engaged in the past time of prowling the streets of Fort Worth in an automobile during late night and early morning hours until they located a woman driving alone in a car. Their practice was to follow the woman to her home, where one of them would jump out, hit her over the head as she walked from her driveway to her front door, and drag her, caveman style, to their car, take her to a lonely place on the outskirts of town and rape her several times, with oral sodomy committed on her en route. They were caught redhanded in their last attempt, and admitted being involved in certain other similar transactions where the rapes were consummated. However, they denied being implicated in any of such incidents in Fort Worth where the women were killed. A jury convicted Broadway of rape by force on Mrs. Ethel Kennemer in a transaction which occurred about a week before his arrest, and assessed his penalty at life imprisonment. The conviction was affirmed in Broadway v. State, Tex.Cr.App., 418 S.W.2d 679 (1967). It is that judgment and conviction which he here seeks to set aside.
Broadway was represented on his trial of the rape case by able and experienced counsel.1 The defense was insanity. Though the record of that trial2 shows that they were familiar with the fact that a proceeding had originally been filed in the Juvenile Court and that Broadway was sixteen years of age at the time he was indicted, they raised no question about the validity of the indictment or the authority of the district court to try Broadway as an adult after he reached seventeen years of age.
The attack on the conviction grows out of the fact that Broadway was a juvenile under Texas law at the time of the commission of the offense. The rape of Mrs. Kennemer occurred on January 13, 1966. Broadway was born on August 14, 1949, and was therefore sixteen years of age in January, 1966. The indictment against him was returned on April 19, 1966. He was tried on October 25, 1966, after he had become seventeen.
Broadway claims that the Juvenile Court had exclusive jurisdiction over him during his minority insofar as this offense was concerned unless it relinquished such jurisdiction to the district court in the manner provided by the Juvenile Delinquency Act in force in Texas in 1966; and that the attempt here made by the Juvenile Court to waive jurisdiction was void because it violated his constitutional right to a hearing, with him and his counsel present, after due notice to him and his parents and to confrontation with witnesses, under the rules laid down in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The respondent says: (1) The conviction is valid under the well recognized rule in Texas that a male person over seventeen years of age may be tried as an adult for an offense committed before his seventeenth birthday, and that the age of the accused at the time of his trial was the controlling factor insofar as the respective powers of the district court and the juvenile court were concerned. (2) Questions as to validity of the indictment and the proceedings against Broadway in district court on account of his age did not render the proceeding void, and Broadway waived his right to complain by not raising such questions in the criminal trial. (3) If it should be determined that a waiver of jurisdiction on the part of the Juvenile Court was necessary, the proper procedure is not to set aside the conviction, but to have a constitutional de novo hearing by the Criminal District Court No. 3 for the purpose of making a nunc pro tunc determination of the propriety of waiving jurisdiction.
Though the petitioner's brief argues that no judge could fairly re-determine the question of waiver after knowing that a jury had returned a verdict of guilty, his trial brief filed herein concludes with the following:
Habeas corpus remedies in the state court have been exhausted. The application was denied by the state convicting court after a hearing with Broadway and his retained counsel present. That decision was affirmed by the Court of Criminal Appeals without a written opinion. There was some question as to whether the applicant was afforded an opportunity to present any evidence beyond court records; and for that reason, this Court decided to hear the matter anew to enable it to reach a decision in the light of all relevant evidence offered.
This Court has now held an extensive evidentiary hearing consuming about three hours during a night session and one-half of the following day, with Broadway and his two retained counsel present and participating. The testimony of twelve witnesses was heard, and many documents were received in evidence. Broadway, then twenty-one years of age and appearing to be mature beyond his years, testified in his own behalf, freely admitting the offenses. Good briefs have been filed by counsel for the respective parties. After thorough consideration of the evidence and the briefs and extensive legal research on its own, the Court has reached the conclusion that the application for writ of habeas corpus should be denied for the reasons hereinafter given.
At about 3:30 A. M. on January 13, 1966, Mrs. Kennemer, a 37 year old mother of two children, drove her husband to the bakery where he had to go to work at 4:00 A. M. All of the round trip drive of less than five miles from their home to the bakery and back was in Arlington Heights, a thickly populated residential area in the west part of Fort Worth, Texas. Mrs. Kennemer made the trip in her gown and a heavy top coat. As she neared her home on the return from the bakery, she got the impression that she was being followed by some persons in another car; so she started to hurry from her automobile into her house as soon as she stopped in her driveway. The other car pulled up fast, and the brakes were slammed on just after she had got her feet on the ground. Broadway jumped out, ran up behind her, and struck her a hard blow on the back of her neck near the base of head and followed with several more blows. He then dragged her in a dazed condition to his car, where she was put in the back seat with Broadway sitting on top of her. His cohort, Burton Tarbell, was under the steering wheel when they rode up, and remained in the car with the engine running at all times. As he drove away, Broadway was pushing Mrs. Kennemer down in the seat with his left arm, and had his clenched right fist cocked in a threatening manner. He repeatedly told her that he would kill her if she screamed. On the way from the Kennemer home to the lonely woods on the outskirts of town where they took her, Broadway moved off Mrs. Kennemer and began to tear at her clothes. When he got her gown up, he committed oral sodomy on her. He then changed places with Tarbell, and Tarbell went through the same procedure. When they reached their destination in the woods, Tarbell raped Mrs. Kennemer in the back seat. He then got out of the car, and Broadway entered and raped her. Under threats, they then tried to make her commit oral sodomy on them. She gagged, and they abandoned that course; but Tarbell raped her again. It was nearing day-light by that time; and Mrs. Kennemer convinced them that if her children awakened and found her gone, they would call her husband and he would cause a search to be made for her. Broadway and Tarbell discussed what they should do with her. Broadway was skeptical of whether she would tell on them, and she thought from his talk and actions that he wanted to kill her. She begged for her life and promised not to report the matter to anyone. She convinced Tarbell, and he argued with Broadway that they had never killed any woman they thought would not tell on them. He finally persuaded Broadway that they would be safe in taking her back. They returned to the neighborhood of her home, and let her out far enough from her house to give them ample opportunity get away.
During the entire course of the ordeal, Mrs. Kennemer was threatened time after time with being killed if she screamed or did not do as she was told.
Mrs. Kennemer was with Broadway and Tarbell over two hours. A good part of that time was while they were driving on brightly lighted streets. They never had anything over their faces at any time. She had more than adequate opportunity to observe and study their faces as she sat between them in the front seat on the return trip. She heard Tarbell address...
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