Flores v. Estelle

• Decision Date: 30 May 1975
• Docket Number: Nos. 74-3860,s. 74-3860
• Citation: 513 F.2d 764
• Parties: Jerome FLORES, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. Augustine Mendoza ORTEGA, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. & 74-3868.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 764

513 F.2d 764

Jerome FLORES, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections,

Respondent-Appellee.

Augustine Mendoza ORTEGA, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections,

Respondent-Appellee.

Nos. 74-3860 & 74-3868.

United States Court of Appeals Fifth Circuit.

May 30, 1975.

Thomas E. Roberts, Dallas, Tex. (Court-appointed), for petitioner-appellant in 74-3860.

Joe Dibrell, George R. Bedell, Marc Perlmutter, Asst. Attys. Gen., Austin, Tex., for Estelle.

William R. McGarvey, Dallas, Tex. (Court-appointed), for petitioner-appellant in 74-3868.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, CLARK and GEE, Circuit Judges.

GEE, Circuit Judge:

Appellants pursue habeas relief from state murder convictions. In view of our earlier opinion ¹ wherein the facts are set out in full, we note only that they were driver and gunner in a vehicle from which one Villareal was shotgunned to death and his companion, Garza, was wounded. Garza was the sole witness, and he and the dead man had been drinking together.

At trial, the defense subpoenaed a Dr. Mason, the toxicologist for Dallas and Dallas County, to produce blood-test records on Villareal and Garza. During Mason's examination, he stated that he had brought only the Villareal records but could have Garza's there in minutes with a telephone call. He then testified to a blood-alcohol concentration in the dead man of .207 percent but refused to render an opinion whether this indicated intoxication on grounds he had not been "retained" as an expert. The trial court declined to compel the answer. The state appellate court found this to be error, but without injury to the defendant. The habeas court agreed and found the error harmless without hearing.

On appeal we agreed the refusal was error, but remanded for an evidentiary hearing to permit the state to try to show the error harmless beyond reasonable doubt. ² We noted that Mason's refusal to opine as to Villareal's intoxication, and the court's refusal to make him do so, were sufficient warrants of a like course of events as to Garza's condition, a critical question since the convictions largely rested on his powers of observation. Again the matter comes before us, and again it is unnecessarily complicated. Not without difficulty, we affirm.

( 1) In remanding, we observed that Texas might prevail ". . . by showing that there was sufficient other evidence of the extent of Garza's intoxication, or by showing that Dr. Mason's testimony, based on the toxicology of Garza, would have been that his powers of observation were not significantly impaired . . . ." 492 F.2d at 713. These observations were made on the assumption that, since at the former hearing Mason had offered to procure Garza's blood-toxicology records forthwith, there were some to procure. On remand, however, it was made to appear that there neither were nor ever had been such records, and the trial court so found. Based on this finding, the court concluded that the state judge's erroneous refusal to require Mason's expert opinion on Garza's condition was harmless, since there were no records on which he could have rested it; and that the jury had before it all the evidence there was regarding Garza's condition. On appeal to us the basic complaint is that the evidence showing there were no records on Garza is hearsay and that, therefore, the sole evidence upon which the court below found the state's burden of proof discharged was incompetent. Since it undoubtedly is hearsay, a troubling question is presented for decision.

That question is whether the fact finding below that no toxicology records ever existed on Garza is, because based solely on matter technically hearsay, clearly erroneous. In commencing our brief inquiry, we note that while the Texas courts deny to hearsay evidence any probative force whatever, even though not objected to, ³ our rule is otherwise: unobjected-to hearsay may be considered by the trier of fact for such probative value as it may have. United States v. Pearson, 508 F.2d 595, 596 (5th Cir. 1975). ⁴ Even so, we may still reverse a conviction based on such hearsay evidence if there has been a plain error affecting substantial rights. Smith v. United States, 343 F.2d 539 (5th Cir.), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965). We also bear in mind the Supreme Court's admonitions against ". . . the magnification on appeal of instances which were of little importance in their setting," ⁵ and Justice Frankfurter's reiteration in stronger terms the following year:

In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.

Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704, 713 (1943) (concurring opinion).

Careful reading of the state court record and of the proceedings of our district court on remand is instructive. From the former we learn that, though Mason refused to testify as an expert, Dr. Walter Hofman, a physician-forensic pathologist and Dallas County medical examiner, had already testified in such a manner as to make the testimony of Mason merely cumulative of Hofman's expert opinions. Hofman admitted, for example, that the .207 percent blood-alcohol reading for Villareal was more than twice that required for conviction in Texas of driving while intoxicated.

From the latter, it is apparent that the technically hearsay nature of the demonstration that no records existed about Garza's condition was very much in the minds of defendants' counsel: the evidentiary portion of that hearing runs to about twenty pages of transcript, on the sixth page of which counsel remarks that ". . . we are now relying on what might be presented as hearsay evidence to be garnered from the records. . . ." Yet six pages later, when Mason returned from a telephone call to his secretary to report that no records existed, no objection was made to his testimony. And eight pages further on counsel secured the doctor's admission that it was on his secretary's search at his direction that his testimony of non-existence of a record rested. Yet no motion to strike followed. We are unable to avoid the conclusion that we are in the presence of the sort of conscious and intentional failure to save the point which was treated in Johnson v. United States, 318 U.S. 189, 200-201, 63 S.Ct. 549, 555, 87 L.Ed. 704, 713 (1943):

"It is true that we may of our own motion notice errors to which no exception has been taken . . . . (b)ut we are not dealing here with inadvertence or oversight. . . .

. . . We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him."

So in our case: counsel were well aware at the hearing of the technical incompetence of this evidence, indeed they referred to this deficiency and asked questions designed to highlight it, but they never objected to its receipt doubtless because they knew the deficiency would speedily be made good by the appearance of the secretary or the technical custodian and they were in no real doubt about the want of such a record. In these circumstances an imaginative reliving of the trial persuades us that no abstract question of evidence law should here control. We are fortified in our conclusion by the fact that hearsay evidence regarding various static matters such as business and official records has traditionally been received by the courts, under appropriate safeguards. It is fairly arguable that under modern procedures for proving up regularly kept records (or their absence) the information offered by Mason that no records on Garza existed in the official files was admissible anyhow. ⁶ At all events, any deficiencies in the procedures were technical only: Mason was not, strictly speaking, their custodian at the time of his testimony, though he was at the time the record would have been made; the search was conducted by his secretary at his direction, not by him. But Mason testified unequivocally that two searches had been made for the record, both as a result of directions by him and at least one under his supervision, and that if a test had been made on Garza the record would be there since during his years as director no record had ever been lost.

Affirmed.

GOLDBERG, Circuit Judge (dissenting):

Respectfully, I dissent.

Our previous decision ¹ remanded this case for an evidentiary hearing, and located the burden on the State to establish beyond a reasonable doubt that Dr. Mason's testimony on the toxicology of Garza would not have favored the defense at the state court trial. ² We held that if the state failed to meet its burden, the writ of habeas corpus must be granted to Flores and Ortega.

On remand the State subpoenaed Dr. Mason to appear with "any medical records that you may have on Juan Garza." It quickly appeared at the hearing that Mason had been the Director of the Criminal Investigation Laboratory for the City and County of Dallas, and therefore the official custodian of the relevant toxicology records, at the time of Flores' and Ortega's state court trials but that he was no longer so employed and no longer the official custodian of the toxicology records at the time of the hearing. It next appeared that Mason had brought with him no toxicology records on Garza. ³ Moreover, Dr. Mason was unwilling to testify that his failure to bring the subpoenaed Garza records indicated that no such records existed. ⁴ Counsel for Ortega had evidently assumed that a toxicology report on...