Clark v. Procunier, No. 84-1575

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, RANDALL, and TATE; ALVIN B. RUBIN
Citation755 F.2d 394
PartiesEssie B. CLARK, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
Docket NumberNo. 84-1575
Decision Date18 March 1985

Page 394

755 F.2d 394
Essie B. CLARK, Petitioner-Appellant,
v.
Raymond K. PROCUNIER, Director, Texas Department of
Corrections, Respondent-Appellee.
No. 84-1575
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
March 18, 1985.

Lucius D. Bunton Jr. (court-appointed), Austin, Tex., for petitioner-appellant.

Page 395

Jim Mattox, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, RANDALL, and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Because the evidence on which the Texas state prisoner was convicted of burglary in 1972 was insufficient, despite its being viewed most favorably to the state, to prove his guilt of that offense as defined by state law, we reverse the district court and grant the application for a writ of habeas corpus.

In June 1972, a jury in the 147th Judicial District Court of Travis County, Texas, found Essie B. Clark guilty of burglary. Because Clark had pleaded guilty to two prior felony charges, he was sentenced to life imprisonment under the Texas habitual offender statute. 1 He now attacks the June 1972 conviction.

The burglary occurred sometime between noon and midnight, December 18, 1971, at the Burkhalter Spring Company, an auto repair business located in Austin, Texas. The assistant manager who discovered the burglary testified that the office's windows were broken and that an inside lock on one of the doors had been forced open. The vending machines had been broken into, and tires, tool boxes, a tape player-radio, and similar items were missing.

The office safe, which was usually kept unlocked, as the three office workers and seven or eight other employees knew, had been moved from its usual place. The assistant manager testified that the safe was found in the "back part" of the building, outside a door in the west wall that opened onto Burkhalter's parking lot. An investigating officer, however, testified that the safe had not been taken completely outside the building, but was found only halfway outside the west door. At the time of the burglary, Burkhalter had 108 motor vehicle inspection stickers in the safe, which were missing after the burglary. Burkhalter was authorized by the state to issue these stickers.

The assistant manager testified that he had never seen Clark around Burkhalter's premises. Police officers dusted the entire office area for fingerprints immediately after the burglary was reported. Only one fingerprint was recovered, however, and this print could not be identified. A latent palm print was lifted from the left side of the safe. Two experts in fingerprint identification identified this print as Clark's. An expert in fingerprint identification called by the defense, however, testified that it was impossible to identify the palm print taken from the safe.

More than a month later, on January 24, 1972, Clark's wallet, containing his driver's license and two of the missing inspection stickers, was found on a street in Killeen, Texas, a town located about seventy-five miles north of Austin. Clark's wife, his employer, and a friend all testified at the trial that Clark had lost his wallet...

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22 practice notes
  • Geesa v. State, No. 290-90
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 6, 1991
    ...for the Fifth Circuit in ordering relief from a burglary conviction in a habeas corpus action from Texas, see, e.g., Clark v. Procunier, 755 F.2d 394 (5th Cir.1985), "If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to ......
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 23, 1997
    ...918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992); United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir.1990) (same); Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (same). The Fifth Circuit Court of Appeals succinctly explained its rationale for supporting its variation of the Davis-Hep......
  • U.S. v. Lopez-Urbina, No. 04-50135.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 2005
    ...a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.'" Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. The specific charge that Badillo-Rangel attacks is aiding and abet......
  • U.S. v. Brechtel, No. 92-3342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 2, 1993
    ...v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991); United States v. Arroyo, 805 F.2d 589, 599 (5th Cir.1986). 1 Clark v. Procunier, 755 F.2d 394 (5th 2 I note that Gattuso expressed reservation about that statement. The record reflects the following exchange: Q. The board of directors......
  • Request a trial to view additional results
22 cases
  • Geesa v. State, No. 290-90
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 6, 1991
    ...for the Fifth Circuit in ordering relief from a burglary conviction in a habeas corpus action from Texas, see, e.g., Clark v. Procunier, 755 F.2d 394 (5th Cir.1985), "If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to ......
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 23, 1997
    ...918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992); United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir.1990) (same); Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (same). The Fifth Circuit Court of Appeals succinctly explained its rationale for supporting its variation of the Davis-Hep......
  • U.S. v. Lopez-Urbina, No. 04-50135.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 2005
    ...a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.'" Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. The specific charge that Badillo-Rangel attacks is aiding and abet......
  • U.S. v. Brechtel, No. 92-3342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 2, 1993
    ...v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991); United States v. Arroyo, 805 F.2d 589, 599 (5th Cir.1986). 1 Clark v. Procunier, 755 F.2d 394 (5th 2 I note that Gattuso expressed reservation about that statement. The record reflects the following exchange: Q. The board of directors......
  • Request a trial to view additional results

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