Carter v. Estelle

• Decision Date: 18 November 1982
• Docket Number: No. 80-1981,80-1981
• Citation: 691 F.2d 777
• Parties: Albert H. CARTER, Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 777

691 F.2d 777

Albert H. CARTER, Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.

No. 80-1981.

United States Court of Appeals Fifth Circuit.

Nov. 18, 1982.

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Arnold Anderson Vickery, Houston, Tex., for petitioner-appellee.

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

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Before POLITZ and RANDALL, Circuit Judges, and PARKER ^*, District Judge.

RANDALL, Circuit Judge:

On petition for panel rehearing and rehearing en banc, the State of Texas has asked us to reconsider our panel holding, 677 F.2d 427 (5th Cir. 1982), in the light of the Supreme Court's recent decision in Tibbs v. Florida, --- U.S. ----, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). We are in agreement with the State that Tibbs has had a significant impact in the law of double jeopardy. As a result, we take this opportunity to modify several statements made in our earlier opinion in the light of Tibbs. However, as we show infra, the result in the case remains unchanged, and we reaffirm our conclusion that a writ of habeas corpus was properly granted by the district court, 499 F.Supp. 777, in this case.

The byzantine procedural history of the case is dwelt upon in considerable detail in our panel opinion and will not be repeated here. Suffice it to say that petitioner Carter was indicted for and convicted of embezzlement in 1972, his conviction was reversed by the Texas Court of Criminal Appeals in 1974, Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974), and he was subsequently reindicted, tried, and convicted in the same year. Carter then filed one of his many habeas corpus petitions in federal court, claiming that his 1974 conviction was barred by double jeopardy because the 1972 conviction had been reversed for evidentiary insufficiency. We held that Carter's habeas petition met the requirements of the exhaustion doctrine ¹ and agreed that his 1974 reconviction violated the rule of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Relying on our recent decision in Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982), we concluded that the 1978 decisions in Burks and Greene applied retroactively to the 1974 conviction and affirmed the district court's grant of habeas relief.

On June 7, 1982, a week after our opinion was issued, the Supreme Court decided Tibbs, and held that although reversals by an appellate court for evidentiary insufficiency continue to create a double jeopardy bar under Burks, reversal of a conviction because it was against the weight of the evidence does not preclude retrial. The State of Texas now claims that the reversal of Carter's conviction was based on the weight and not the insufficiency of the evidence, and hence that Burks is inapplicable. ²

It is perhaps an inevitable consequence of Tibbs that unsuccessful prosecutors will be tempted to recast every reversal for evidentiary insufficiency by an appellate court as a reversal based on weight so as to gain the "second bite at the apple," Bullard, supra, at 1362, forbidden them by the Constitution. But the Supreme Court's opinion in Tibbs itself makes clear that this strategy will meet with only limited success:

(T)rial and appellate judges commonly distinguish between the weight and sufficiency of the evidence. We have no reason to believe that today's decision will erode the demonstrated ability of judges to distinguish legally insufficient evidence from evidence that rationally supports a verdict.

--- U.S. at ----, 102 S.Ct. at 2220 (footnote omitted).

The Supreme Court earlier in the opinion had itself given a succinct explanation of the difference between the two standards:

A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The "weight of the evidence" refers to "a determination (by) the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other."

Id. at ----, 102 S.Ct. at 2216 (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (Tibbs II )).

Burks v. United States and Greene v. Massey carved a narrow exception from the understanding that a defendant who successfully appeals a conviction is subject to retrial. In those cases, we held that the Double Jeopardy Clause precludes retrial "once the reviewing court has found the evidence legally insufficient" to support conviction. Burks, supra, (437 U.S.) at 18, 98 S.Ct., at 2150; Greene, supra, (437 U.S.) at 24, 98 S.Ct., at 2154. This standard, we explained, "means that the government's case was so lacking that it should not have even been submitted to the jury." Burks, supra, (437 U.S.) at 16, 98 S.Ct., at 2149 (emphasis original).

Id. --- U.S. at ----, 102 S.Ct. at 2217.

A reversal on (the) ground (that the verdict is against the great weight of the evidence), unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a "thirteenth juror" and disagrees with the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves.

Id. at ----, 102 S.Ct. at 2218.

The Supreme Court then considered the reversal of the first conviction in Tibbs v. State, 337 So.2d 788 (Fla.1976) (Tibbs I ), and decided whether it rested on lack of weight or sufficiency.

A close reading of Tibbs I suggests that the Florida Supreme Court overturned Tibbs' conviction because the evidence, although sufficient to support the jury's verdict, did not fully persuade the court of Tibbs' guilt. The plurality based its review on a Florida rule directing the court in capital cases to "review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not".... References to the "interests of justice" and the justices' own "considerable doubt" of Tibbs' guilt mark the plurality's conclusions. Those conclusions, moreover, stem from the justices' determination that Tibbs' testimony was more reliable than that of Nadeau. This resolution of conflicting testimony in a manner contrary to the jury's verdict is a hallmark of review based on evidentiary weight, not evidentiary sufficiency.

Any ambiguity in Tibbs I, finally, was resolved by the Florida Supreme Court in Tibbs II. Absent a conflict with the Due Process Clause, ... that court's construction of its prior opinion binds this Court. In Tibbs II, of course, the court unequivocably held that Tibbs I was "one of those rare instances in which reversal was based on evidentiary weight." 397 So.2d 1120, 1126 (1981) (per curiam).

Id. --- U.S. at ----, 102 S.Ct. at 2220-21 (footnotes omitted). The Court added in a footnote, id. at ---- n. 24, 102 S.Ct. at 2221 n. 24, that Greene v. Massey stands for the proposition that "the meaning attached to an ambiguous prior reversal is a matter of state law." Thus, both from its own reading of Tibbs I, the relevant Florida law, and later Florida cases construing Tibbs I, the Supreme Court concluded that the opinion was a reversal based upon the weight rather than the sufficiency of the evidence. The proper method of analysis having been explained by the Supreme Court, we now apply it to our own case.

We must first consider whether the language of the Court of Criminal Appeals suggests that it did in fact engage in a weighing of the evidence in Carter v. State, as the State claims it did. For ease of analysis, we here reprint the relevant portions of the court's brief opinion:

The State's proof was that Andrew Dolce was the president of Consolidated Productions, Incorporated, a seller of plastic toys and animals, and that appellant was employed as a sales representative for that corporation, by virtue of which, so Dolce testified, appellant became his agent. Appellant's duties consisted of calling on and securing orders for the plastic items from schools and related organizations interested in selling the items in fund raising projects. Generally the orders secured were entered on an order form on which there was a prominently printed notice that all checks were to be made payable to Consolidated Productions, Inc.

Some of the checks issued in payment for orders secured by appellant were made payable to and received by Consolidated Productions, Inc.; however, other checks were made payable to either the corporation and appellant or to appellant and were received by appellant. These latter checks were deposited in a bank account and withdrawn by appellant; the proceeds from these checks were not received by the corporation. The office manager of the corporation testified that all payments should have been remitted to the corporation, and that as a result of appellant's activities, the corporation sustained a loss of approximately $40,000. Andrew Dolce testified that, although appellant had authority to receive the checks in his capacity as agent and remit the money to the corporation, he did not give appellant authority or permission to convert the checks to his own use and benefit. Dolce was not asked if, and he did not testify that, he was the owner of the money alleged to have been embezzled by appellant, or that, as president of the corporation, he had the care, control and management of such funds.

In brief, the trial court charged the jury to find the appellant...