Ex parte Pennington

• Decision Date: 13 October 1971
• Docket Number: No. 44652,44652
• Citation: 471 S.W.2d 578
• Parties: Ex parte Odis Odell PENNINGTON.
• Court: Texas Court of Criminal Appeals

Page 578

471 S.W.2d 578

Ex parte Odis Odell PENNINGTON.

No. 44652.

Court of Criminal Appeals of Texas.

Oct. 13, 1971.

Odis Odell Pennington, Pro Se, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon's Ann.C.C.P., 1967. See Ex parte Young, Tex.Cr.App., 418 S.W.2d 824 (1967).

The petitioner is currently serving a 30 year conviction for robbery out of the 36th District Court of San Patricio County which was affirmed by this court in Pennington v. State, 364 S.W.2d 376 (1962). ¹

By his habeas corpus petition the petitioner squarely presents the question of the retroactivity of Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (June 12, 1967) as applied to the circumstances of his case. In Washington the Supreme Court of the United States held that the Sixth Amendment right to have compulsory process for obtaining witnesses was applicable to the states through the Fourteenth Amendment and that the Texas statutes then in effect (Article 82, Vernon's Ann.P.C. and Article 711, V.A.C.C.P.) providing that principals, accomplices or accessories in the same crime cannot be introduced as witnesses for each other were unconstitutional and denied Washington the right to place on the witness stand the co-defendant Fuller who was physically and mentally capable of testifying to events that he had personally observed and whose testimony would have been relevant and material to the defense.

At the time of petitioner's 1962 trial in San Patricio County he sought to have his co-principal George Huffman testify in his behalf. When the court refused to permit Huffman to testify on the basis of Articles 82 and 711, supra, the petitioner perfected his informal bill of exception by showing Huffman would testify that at the time of the alleged robbery the petitioner Pennington, who had been drinking, was asleep or 'passed out drunk' in the car and did not know anything about the alleged offense. The petitioner also preserved the error by a formal bill of exception approved by the trial court.

On appeal, 364 S.W.2d 376, 379, this court wrote:

'Bill No. Two presents appellant's complaint to the court's refusal to permit his co-principal, George Huffman, to testify upon being called as a witness by him. The bill certifies that the co-principal had been tried, convicted, and was then serving a twenty-five year term for the same offense for which appellant was on trial. The co-principal, having been tried and convicted for the same offense, was incompetent to testify as a witness in appellant's behalf. Article 711, V.A.C.C.P.; Sommers v. State, 165 Tex.Cr.R. 575, 310 S.W.2d 106. No error is presented by the bill.'

Petitioner first presented his habeas corpus petition to the convicting court. That court, without an evidentiary hearing, found that petitioner had called Huffman as a witness in his behalf at the trial but concluded 'that petitioner upon his trial on June 11, 1962, was by this court accorded every right to which he was entitled under State and Federal laws then in effect' and denied relief.

In Ex parte Pennington, 433 S.W.2d 701 (1968), this court decided that since the trial court had conducted no evidentiary hearing which required that court to transmit the record to this court and since there was no petition, brief or request from petitioner before this court seeking relief, the petition denied by the District Judge was not before the court. See Ex parte Thomas, Tex.Cr.App., 429 S.W.2d 151 (1968).

Apparently thereafter some confusion existed on the part of the uncounseled inmate petitioner as to what procedure to follow. We have concluded that his pro se pleadings now before the court are sufficient to require a review of the trial court's action and that an evidentiary hearing is not required in light of the appellate record before this court. We shall proceed to determine the question presented. It does not appear that the question of the retroactivity of Washington has been presented to this court as presently constituted.

In the past the judges of this court have not always ageed on the retroactivity of Washington, nor do the opinions appear to be entirely consistent. See Ex parte Zerschausky, Tex.Cr.App., 417 S.W.2d 279 (1967); Overton v. State, Tex.Cr.App., 419 S.W.2d 371 (1967); Ex parte Thomas, Tex.Cr.App., 429 S.W.2d 151 (1968); Cruz v. State, Tex.Cr.App., 441 S.W.2d 542 (1969); Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706 (1969); Ex parte Smith, Tex.Cr.App., 442 S.W.2d 709 (1969).

In Ex parte Zerschausky, supra, it was developed at the evidentiary hearing that at petitioner's trial his counsel had called the district attorney to the stand in an attempt to get a waiver of the prosecutor's objection to the indicted accessories testifying for the defense despite the provisions of Articles 82 and 711, supra. When the district attorney refused, no attempt was made to place the accessories on the witness stand. It was claimed that had the accessories, who were eye witnesses, been permitted to testify, they would have supported the petitioner's claim of self-defense.

At the time of the opinions on original submission in such case, Washington had not yet been decided by the Supreme Court. On rehearing the majority decided that Washington was not inconsistent with its holding on original submission that the trial judge did nothing to deny Zerschausky the right 'to put his witnesses on the stand' or 'the 'right to compel their attendance in court." 417 S.W.2d at 284. The only mention of retroactivity is found in the dissenting opinion on rehearing which concluded Washington should be given retroactive application. 417 S.W.2d at 285.

In Zerschausky v. Beto, 396 F.2d 356 (5th Cir.), cert. denied, 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468 (1968), the Fifth Circuit Court of Appeals in reviewing the decision of the federal district court, 274 F.Supp. 231 (W.D.Tex., 1967), concluded that 'The facts in this case sufficiently withdraw it from the reaches of Washington. The district court correctly found that the appellant's failure to call the accessories to the stand was the result of a voluntary and conscious decision in trial strategy, not a mere docile obedience to a Texas statute.' 396 F.2d at 359.

The question of retroactivity was not reached, the Court stating in footnote #4:

'We find unnecessary a determination as to whether the Washington decision is retroactive. We note that the Texas statutes which were struck down in Washington have been repealed by the Texas Legislature.' 396 F.2d at 358. ²

Bouchillon v. Beto, 300 F.Supp. 681 (N.D.Texas, 1969), was to the same effect concluding that the retroactive question need not be reached since 'the failure of the co-defendants to testify in this case was due, not to the Texas statutes held unconstitutional in Washington, but to a voluntary decision of the defense' who made no request for their testimony or raised any issue on appeal. Zerschausky v. Beto, supra, was cited in support of such conclusion.

It is clear then that the Zerschausky line of cases did not determine the retroactivity of Washington.

In Overton v. State, Tex.Cr.App., 419 S.W.2d 371 (1967), this court did apply Washington retroactively to a case pending on appeal at the time of that decision although the question of retroactivity is not even mentioned in the opinion.

The importance of Overton is that this court recognized that Washington was to be applied retroactively although the extent thereof was not determined.

In Ex parte Thomas, Tex.Cr.App., 429 S.W.2d 151 (1968), the trial judge determined without an evidentiary hearing, that Thomas' post-conviction habeas corpus petition failed to present any issue of fact on the question of whether he was illegally restrained in light of Washington which was neither applicable nor controlling.

The majority concluded that in absence of petition, brief or request to this court seeking relief from finding of the trial court, nothing was presented for review. The majority further noted the allegations of the habeas petition were only conclusions, there being no fact allegations as to what the witness would have testified or how Thomas was prejudiced by the trial court's ruling at the time of trial. Observing that Washington had been applied retroactively in Overton to a case on appeal at the time of the Washington decision, the majority stated it was unaware of any decision holding that Washington was to be given 'complete retroactivity.' 429 S.W.2d at 152.

The opinion in Ex parte Thomas by this writer, 429 S.W.2d at 153 (concurring in part and dissenting in part) concluded that if the retroactivity question was to be decided in that case, it would have to be given full retroactive application if the criteria established by the United States Supreme Court were to be used.

The discussion of retroactivity was entirely unnecessary to the proper disposition of Ex parte Thomas, supra. The opinion, however, demonstrated a division of the court not on the question of retroactivity of Washington but the extent thereof, with the majority indicating it would prefer to await a case granting Washington 'complete retroactivity.' In light of footnote #4 of the Washington opinion, 388 U.S. at 16, 86 S.Ct. at 1922, 18 L.Ed.2d 1019, it would appear that the case would have to be a Texas case since Texas appeared to be the last jurisdiction to retain such statutes.

Then along came Cruz v. State, Tex.Cr.App., 441 S.W.2d 542 (1969), which dealt with an out of time appeal. His 1961 conviction was affirmed in 172 Tex.Cr.R. 1, 351 S.W.2d 226 (1961), cert. denied, 370 U.S. 953, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962). His 1969 out of time appeal resulted from lack of counsel on the original appeal. Cruz v. Beto, 391 F.2d 235 (5th Cir., 1968). On this second appeal Cruz raised the question of the...