Ex parte Smith
| Decision Date | 25 June 1969 |
| Docket Number | No. 42063,42063 |
| Citation | 442 S.W.2d 709 |
| Parties | Ex parte David A. SMITH. |
| Court | Texas Court of Criminal Appeals |
Randell C. Riley, Fort Worth, for petitioner.
Frank Coffey, Dist. Atty., Truman Power and John Howze, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
The controlling question presented is whether Washington v. Texas, 388 U.S. 14 87 S.Ct. 1920, 18 L.Ed.2d 1019, decided June 12, 1967, has retroactive application.
The findings of fact and conclusions of law made by the district judge of the convicting court, holding that Washington does not have retroactive application to petitioner's 1962 conviction, are supported by the decision of this Court in Ex parte Thomas, 429 S.W.2d 151; Ex parte Zerschausky, 417 S.W.2d 279; and by opinion of Chief Judge Spears in Zerschausky v. Beto, D.C., 274 F.Supp. 231; Zerschausky v. Beto, 396 F.2d 356 (5th Cir.) cert. denied, 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468; and Bouchillon v. Beto, U.S.D.C., Tex.1969, 300 F.Supp. 681.
Upon a review and consideration of the record, the relief sought by the petitioner is denied on the findings and conclusions of the district judge.
It is so ordered.
Academically my brother ONION is sound, in my opinion, but since we today decided Ex parte Selby, 442 S.W.2d 706, (this day decided), and refused to grant the relief because there was no showing as to what the witness Maggie Morgan would have testified, if at all, had she been permitted to testify, I cannot agree with his conclusion that a remand is called for. Both this case and Ex parte Selby, supra, were collateral attacks upon cases which had not been brought to this Court on appeal.
From this record, I conclude that petitioner has not exercised sufficient diligence in securing affidavits from the witnesses named showing what their testimony would be if they had been present at the trial court's hearing.
If, as the majority states, the controlling question presented is whether Washington v. Texas, 385 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54, has retroactive application, then I must dissent on the grounds set forth in my opinion, concurring in part and dissenting in part, in Ex parte Thomas, Tex.Cr.App., 429 S.W.2d 151, where I concluded that Washington must be given retroactive application. My conclusion has since been fortified by the decisions of the United States Supreme Court, among others, in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, footnote 22; McConnell v. Rhay and Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, retroactive; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, retroactive; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, retroactive; Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 retroactive.
In each instance where the United States Supreme Court has concluded that the retroactive application was justified, it was because the rule involved 'the very integrity of the fact-finding process' and averted 'the clear danger of convicting the innocent.' Linkletter v. Walker, 381 U.S. 618 at 639, 85 S.Ct. 1731 at 1743, 14 L.Ed.2d 601 at 614. See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459 at 465, 15 L.Ed.2d 453 at 460; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
While not every rule aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process is entitled to retroactive application, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, it should be borne in mind that '(t)he basic purpose of a trial is the determination of the truth * * *' Tehan v. United States ex rel. Shott, supra, 382 U.S. at 416, 86 S.Ct. at 465, 15 L.Ed.2d at 460.
Observe then that in Washington the Supreme Court specifically said:
(Emphasis supplied.)
Let us briefly examine the cases cited by the majority as supporting the trial judge's conclusion that Washington Does not have retroactive application to petitioner's 1962 conviction.
In Ex parte Thomas, supra, the majority, while ignoring the criteria established by the United States Supreme Court in numerous decisions for determining whether a decision should be given retroactive application, 1 held that Washington was not to be given 'complete retroactivity,' observing, however, that this Court had retroactively applied Washington to a case pending on appeal at the time of the Washington decision. See Overton v. State, Tex.Cr.App., 419 S.W.2d 371.
At the time of the opinions on original submission in Ex parte Zerschausky, Tex.Cr.App., 417 S.W.2d 279, Washington had not been decided. On rehearing the only mention of retroactivity is found in the dissenting opinion concluding that Washington should be given retroactive application.
In Zerschausky v. Beto, D.C., 274 F.Supp. 231, and Zerschausky v. Beto, 396 F.2d 356 (5th Cir.), cert. den. 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468, the Courts concluded that the facts in the case 'sufficiently withdrew it from the reaches of Washington' because the petitioner-appellant had failed to call the accessories to the stand. The question of the retroactivity of the Washington decision was therefore not even discussed by the 5th Circuit Court of Appeals. 2
It remains a mystery to this writer then as to how the cases cited by the majority can possibly support...
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Ex parte Pennington
...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 calle......