Ex parte Powers

• Decision Date: 29 November 1972
• Docket Number: No. 45450,45450
• Citation: 487 S.W.2d 101
• Parties: Ex parte Ralph Carl POWERS.
• Court: Texas Court of Criminal Appeals

Page 101

487 S.W.2d 101

Ex parte Ralph Carl POWERS.

No. 45450.

Court of Criminal Appeals of Texas.

Nov. 29, 1972.

Clyde W. Woody, Marian S. Rosen, Houston, for appellant.

Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This application for writ of habeas corpus was dismissed on May 3, 1972, for the reason that both the United States Court of Appeals for the Fifth Circuit and the United States District Court for the Western District of Texas had retained jurisdiction of this case, holding it in abeyance in habeas corpus matters pending before them. This court declined to consider the petitioner's application so long as those courts retained jurisdiction.

Appropriate orders have now been entered by both the United States Court of Appeals for the Fifth Circuit and the United States District Court for the Western District of Texas, dismissing all matters pertaining to this case.

We will now consider the application for writ of habeas corpus. The issues have been fully briefed and argued before this court.

The long, procedural history of the case need not be fully recited here and will be referred to only as necessary to the discussion of the petitioner's contentions.

The principal contention to be considered is the petitioner's claim that he, a Caucasian, was denied a fair and impartial trial by jury because black citizens were systematically excluded from the trial jury.

This question was not raised in preceding applications for writ of habeas corpus. During a hearing on remand from the Federal court on a different question, the state trial judge conducting the hearing found in the records of the case a handwritten note on lined paper, not bearing a file mark or date, which read: 'Both sides agree to excuse Negroes, no charge to either side.'

The petitioner's retained counsel of his choice then filed an additional application for writ of habeas corpus and was granted a hearing in the state trial court concerning his allegations that black citizens had been excluded from the jury which rendered the verdict against him.

Prior to and during the trial on the merits, the petitioner was represented by four attorneys of his choice who had been retained to defend him. At the time of this habeas corpus hearing, of the attorneys who had represented him at trial, two testified, one was dead and the other was incapacitated to the extent he was not a witness. The trial judge who tried the case, the district attorney and the special prosecutor who assisted him, the court reporter and the deputy clerk assigned to the trial court at the time of trial, were among the witnesses testifying in the habeas corpus proceeding.

The Honorable Archie Brown, presiding as judge of the 175th District Court of Bexar County, having heard this application, made findings of fact and based upon such findings recommended denial of the relief requested and transmitted the record to this court. See Article 11.07, Vernon's Ann.C.C.P.

The findings of the trial court, pertinent here, are as follows:

'The Court finds as a matter of fact, in regard to the note which read, 'Both sides agree to excuse Negroes, no charge to either side,' that said note was in fact handed to the Honorable John F. Onion, Jr., who was the trial Judge at the time, during the voir dire examination of the jury panel and at a time when some 10 or 15 prospective jurors had already been examined; that, during the early part of the voir dire examination, the trial Judge noticed the attorneys for the defendant and the special prosecutor for the State, Mr. Fred Semaan, conferring at the counsel table and inquired as to the nature of the delay because of this conference. That thereafter, and considerably later, Mr. Semaan, the special prosecutor, brought the aforesaid note to the Bench and exhibited it to the trial judge.

'Upon being apprized of the contents of the note, The Honorable John F. Onion, Jr., inquired of the defendant as to his knowledge and understanding of the agreement; and that the defendant, in person, stated that he understood the agreement and, acting upon advice of counsel, he agreed to the same. That, at the time of this proceeding, the court reporter was not physically present in the courtroom, although all of the other parties were.

'The Court further finds as a matter of fact, after a reading of the entire transcript of the voir dire examination of the jurors, that no juror appears to have been excused because of the aforesaid agreement.

'The Court, therefore, concludes as a matter of law, in connection with the matter raised in the original petition for Writ of Habeas Corpus, that the agreement to excuse Negroes was entered into with the knowledge and consent of the defendant in person and that he knowingly waived any right to complain.

'The Court further concludes, from a review of the record of the voir dire examination, that said agreement apparently was not carried into execution and that there is no merit in the contention of petitioner in the original petition filed in this cause on October 6, 1970.'

The petitioner argues that the trial court failed to 'properly examine the petitioner in connection with his alleged agreement to the exclusion of members of a minority group from jury service,' and that the 'petitioner did not waive any possible objection he...