Fitzgerald v. Beto

• Decision Date: 11 September 1973
• Docket Number: No. 72-2459.,72-2459.
• Citation: 479 F.2d 420
• Parties: Otis Ray FITZGERALD, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent. Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 420 (1973)

Otis Ray FITZGERALD, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent. Appellee.

No. 72-2459.

United States Court of Appeals, Fifth Circuit.

May 24, 1973.

Rehearing Granted September 11, 1973.

John L. Jeffers, Jr., Houston, Tex., court appointed, for petitioner-appellant.

John L. Hill, Atty. Gen., W. Barton Boling, Austin, Tex., for respondent-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

After exhausting all remedies available in the state courts, Fitzgerald, an inmate of the state prison at Huntsville, Texas, petitioned for habeas corpus in the federal district court. With interruptions by parole, Fitzgerald has served in the state prison since 1947. So far as the record reflects, he served continuously from March 22, 1954 until May 8, 1967, when he was paroled. His parole was revoked February 4, 1971, and he was returned to prison. His habeas petition concerns a life sentence, under the Texas enhancement statutes, imposed by a state court in 1954 following conviction by a jury for the offense of robbery by assault. His primary ground asserted for habeas relief is incompetency of counsel; his secondary ground is that he was denied due process when his parole was revoked without a hearing. We do not reach the secondary ground because we reverse with directions on the primary ground.

The district court denied habeas corpus on the state court record and without a further evidentiary hearing. The relevant facts and events are almost entirely undisputed.

Fitzgerald has been convicted of two separate robberies by assault, the first conviction in McLennan County, Texas, in May, 1947, and the second in Anderson County, Texas, in March, 1954. For the first offense Fitzgerald received a five-year sentence. For the second offense he was sentenced to imprisonment for life, the sentence which he is now serving. His conviction for the second offense was affirmed on June 26, 1954, by the Court of Criminal Appeals of Texas in an opinion which recited the pertinent facts as follows:

"The offense is robbery, with a prior conviction for the same offense alleged to enhance the punishment; the punishment, life imprisonment.

"It was shown that the appellant and his wife presented themselves at the Anderson County jail for the purpose of making an accident report; that, unknown to the appellant, his parole had been revoked, and the `process\' for his arrest was in the hands of the officers; and that the appellant was placed temporarily in a cell on the ground floor. Prior to being so incarcerated, the appellant was not searched. When the officers attempted to move the appellant to an upstairs cell in the jail he drew a pistol on them and caused them to go into the cell which he had been occupying. Thereupon, the appellant forced the jailer, at pistol point, to deliver to him the keys to such cell, which he used to lock up the officers so as to prevent them from further interfering with his escape. Appellant did escape and carried the jail keys with him. It was further proven that the appellant had been convicted of robbery in McLennan County in 1947 and received a five-year sentence.

"The appellant offered no defensive testimony.

"It is upon these facts that this prosecution is based."

Fitzgerald v. State, 1954, 160 Tex.Cr.R. 414, 271 S.W.2d 428.¹

Fitzgerald was paroled on May 8, 1967, but his parole was revoked without a hearing on February 4, 1971. Fitzgerald petitioned for habeas corpus in the Third District Court of Anderson County, Texas, on both of the asserted grounds—(a) incompetency of counsel, and (b) revocation of parole without a hearing. Following an evidentiary hearing the state judge presiding entered findings of fact and conclusions of law and denied habeas relief on both grounds. On September 23, 1971, the Texas Court of Criminal Appeals, without written order but simply on the trial court's findings, denied Fitzgerald's application for appeal.

On March 3, 1972, the federal district court denied Fitzgerald's habeas petition, saying in part:

"The record in this case indicates that Petitioner was represented in his State Trial by two attorneys of his own choosing and therefore Petitioner\'s claim in this regard is without merit because it does not appear that the State denied Petitioner any rights under the laws or Constitution of the United States, and Petitioner has failed to raise any substantial federal question with this allegation. McGriff v. Wainwright, 431 F.2d 897 (5th Cir. 1970). Further, this Court finds from the record in this case that the attorneys for Petitioner in the State Court represented him throughout the trial of the case and throughout the appellate process in the State Court, and finds that Petitioner\'s attorneys did not fail to give effective assistance to Petitioner."²

At the evidentiary hearing in state court on Fitzgerald's petition for habeas corpus, his appointed attorney called as witnesses Fitzgerald himself and John B. McDonald, who had been the District Attorney of Anderson County, Texas, who prosecuted Fitzgerald in 1954. The State called no witnesses on its own. McDonald's testimony was consistent with Fitzgerald's and, indeed, gave detailed information on the subject at issue.

Fitzgerald testified he had no consultation with his attorneys as to conduct of the trial prior to the day of trial and had no knowledge of their making any investigation.

McDonald testified that on the morning of Fitzgerald's trial for robbery by assault, March 22, 1954, he first met Fitzgerald's two lawyers. He had not been acquainted with them previously. The facts of the robbery case which resulted in a life sentence were that Fitzgerald had escaped from the Anderson County jail by taking the sheriff's key and locking the sheriff in a cell. McDonald was concerned that the law of robbery required an intention to convert stolen property permanently and that he would be unable to demonstrate such an intention on these facts. He testified that he offered Fitzgerald's lawyers a ten-year sentence in return for a guilty plea. Defense counsel were "completely indifferent" to this proposal, even though a life sentence was at stake under the enhancement statutes, because they believed the facts would not support a robbery conviction as a matter of law. The evidence is undisputed that the district attorney's offer of a ten-year sentence in return for a guilty plea was not communicated by defense counsel to Fitzgerald.

McDonald further testified that both defense attorneys appeared in court to try the case in very "unkempt" condition and "smelled of strong drink"; and, moreover, that his subsequent investigation indicated that neither had ever received any formal legal training.

McDonald's most crucial testimony concerned his proof for purposes of enhancement of a prior conviction for robbery by assault. He testified that as of the day of trial he did not have a witness to identify the Otis Ray Fitzgerald being tried in Anderson County as the same man who had been convicted of robbery by assault in McLennan County in 1947. He said that without such testimony he would have been unable to establish the prior conviction for purposes of enhancing punishment and that, without testimony identifying Fitzgerald as the same man who had been convicted in McLennan County, he would not have introduced the prior conviction in evidence. However, Fitzgerald's attorneys obligingly solved this problem for the district attorney by agreeing in advance of trial to put their client on the witness stand for the "limited" purpose of acknowledging to the jury that he was the same man who had been previously convicted in McLennan County of robbery by assault. McDonald's exact testimony on this point bears repeating:

"I would say as of the date of trial, I had not found anybody in McLennan County who was willing to come over here and testify that this man was the same and identical man that had been convicted in McLennan County. I did have, I had talked to an assistant district attorney,

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