Chapman v. State of Texas, Civ. A. No. 63-H-576.

• Decision Date: 06 May 1965
• Docket Number: Civ. A. No. 63-H-576.
• Citation: 242 F. Supp. 378
• Parties: Charles Robert CHAPMAN, Petitioner, v. The STATE OF TEXAS et al., Respondents.
• Court: U.S. District Court — Southern District of Texas

242 F. Supp. 378

Charles Robert CHAPMAN, Petitioner, v. The STATE OF TEXAS et al., Respondents.

Civ. A. No. 63-H-576.

United States District Court S. D. Texas, Houston Division.

May 6, 1965.

John A. Barrett, Houston, Tex., for petitioner.

Waggoner Carr, Atty. Gen. of Texas, Austin, Tex., and Sam R. Wilson, Asst. Atty. Gen. of Texas, Houston, Tex., for respondents.

INGRAHAM, District Judge.

Petitioner, Charles Robert Chapman, is a prisoner in state custody pursuant to a judgment and sentence of the Criminal District Court of Jefferson County, Texas, in Cause No. 23311. He was indicted and pled guilty in three causes — 23309, 23310, and 23311. He was represented by counsel of his own choosing, and waived a jury, confrontation of witnesses, and agreed to the offer of statements and other physical evidence by the state. Sentence was entered on March 24, 1961, and petitioner was to serve not less than two nor more than five years in prison.

On July 10, 1961, petitioner filed with the Criminal District Court of Jefferson County some papers styled a petition for writ of habeas corpus. These were forwarded on to the Court of Criminal Appeals. The papers were there treated as an application for writ of mandamus, seeking an order requiring the clerk to enter petitioner's notice of appeal. On December 5, 1961, Judge Woodley, of the Texas Court of Criminal Appeals, entered an order granting the writ of mandamus and directing the trial court to enter notice of appeal as of March 24, 1961. Petitioner then filed a number of papers with the court, including a motion for appointment of counsel. Although the records do not indicate that an attorney was appointed, the Texas Court of Criminal Appeals heard the appeal and reversed the convictions in causes numbered 23309 and 23310. The conviction was upheld in cause number 23311, and an opinion affirming the judgment was delivered on February 14, 1962. The parties have stipulated that petitioner then exhausted all remedies available to him in the courts of the State of Texas so far as the issues raised in this hearing, relating to the conviction in cause No. 23311, are concerned.

Chapman then petitioned this court for a writ of habeas corpus. The petition was filed on November 4, 1963, and petitioner was allowed to proceed in forma pauperis. Upon application of petitioner, a member of this bar, Mr. John Barrett,^* was appointed to represent him in this court only. Petitioner's motion for continuance was granted on December 20, 1963, and an extension of time was given in which petitioner might reply to respondents' answer. A plenary hearing was set for May 18, 1964, and petitioner appeared with his attorney, moving for a further continuance so as to exhaust his state remedies on a number of issues he desired to present to this court. The motion for continuance was granted, the next plenary hearing being set for February 23, 1965. The hearing was held, oral evidence taken and arguments made on March 4 and 5, 1965. Petitioner's attorney filed a trial brief at that time, to which respondents have not replied. Petitioner presented to the court an extensive list of alleged violations of his constitutional right. Each issue presented by petitioner was considered by the court at the time of the hearing and the court's holding will be found in the record. The court ruled against petitioner on each point except one, and it is that single issue with which this memorandum is concerned.

Petitioner alleges that he was not afforded his constitutional rights on appeal of his case, when the appeal was heard without the assistance of counsel. Some elaboration of the facts concerning petitioner's appeal seems appropriate. Chapman was represented by an attorney of his own choosing, Mr. A. L. Bevil, at the time of his trial. The attorney was paid by petitioner's grandfather. Mr. Bevil testified at the plenary hearing held in this court, and a prior affidavit signed by him is also part of one of respondents' exhibits. It is the attorney's testimony that nothing was ever said about appeal, and that he never considered appeal in view of Chapman's expressed desire to plead guilty. The court finds this testimony wholly credible, but not of dispositive consequence. Regardless of the efforts or intent of the trial counsel, the case was appealed without the assistance of an attorney, and therein lies the problem.

This case touches directly in a rapidly developing area of the administration of criminal justice. The decision of the Supreme Court in Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811 (1963), is the keystone to any analysis of the right to counsel on appeal. In that case, involving two men, the petitioners requested, and were denied, assistance of counsel on appeal, even though it plainly appeared they were indigent. The court held that this was a violation of the Fourteenth Amendment, the decision resting on both the Equal Protection and Due Process Clauses. The court reasoned that a state may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty.

A number of questions left unsettled by the Douglas case were disposed of so far as the Fifth Circuit is concerned in the more recent case of Pate v. Holman, 341 F.2d 764 (5th Cir. 1965). Without developing the procedural background of the case, suffice it to say that the essential issue determined by the court involved petitioner's complaint that he was unable to employ appellate counsel because of his indigency. The court disposed of the perennially recurrent problem of retroactivity in this field by holding that while the Douglas case is silent on the question of its retrospective effect, this Circuit will apply the case retrospectively. After collecting and collating all the relevant cases, the court distilled the following principles:

"At this point in the development of the law, an indigent's right to appellate counsel, which Douglas recognizes as an "absolute" right guaranteed under both the Equal Protection Clause and the Due Process Clause, is not absolute in the sense that the right to trial counsel is absolute. It is not necessary that the trial judge initiate action toward the appointment of appellate counsel by advising a convicted person of his rights or by making any inquiry as to his indigency, although such minimal action at the time of sentencing seems highly desirable. * * * For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned the petitioner's inability to employ counsel or to appeal; the petitioner must show that the State deprived him of his Fourteenth Amendment rights. State action is shown when a

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