Gomez v. Beto
| Decision Date | 24 March 1969 |
| Docket Number | No. 25736.,25736. |
| Citation | 402 F.2d 766 |
| Parties | Arturo GOMEZ, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Maury Maverick, Jr., San Antonio, Tex., for appellant.
Lonny F. Zwiener, Asst. Atty. Gen. of Texas, Austin, Tex., Preston H. Dial, Jr., Asst. Dist. Atty., San Antonio, Tex., Crawford Martin, Atty. Gen. of Texas, James E. Barlow, Criminal Dist. Atty., Bexar County, Tex., for appellee.
Before RIVES and DYER, Circuit Judges, and MEHRTENS, District Judge.
Certiorari Denied March 24, 1969. See 89 S.Ct. 1217.
This appeal is from a judgment denying habeas corpus to a Texas state prisoner. Gomez was convicted of the crime of unlawful possession of narcotics paraphernalia aggravated by a prior conviction for the sale of heroin and his punishment was fixed by the jury at confinement in the state penitentiary for thirty years. The judgment was affirmed by the Court of Criminal Appeals of Texas. Gomez v. State of Texas, 1963, 365 S.W.2d 165. Thereafter the same court, in a carefully considered opinion, denied the prisoner's petition for habeas corpus. Ex parte Gomez, 1965, 389 S.W.2d 308, cert. denied, Gomez v. Texas, 1967, 386 U.S. 937, 87 S. Ct. 958, 17 L.Ed.2d 810, though Mr. Justice Douglas noted his opinion that certiorari should be granted. Thereafter petition for habeas corpus was filed in the federal district court. The writ was denied without a full evidentiary hearing.
In its order denying the writ, the district court stated that it had considered the record of petitioner's trial, the opinion of the Texas Court of Criminal Appeals affirming the judgment of conviction, the record of petitioner's state habeas corpus application and the opinion of the Texas Court of Criminal Appeals based on that record.1 After such consideration, the district court stated its own opinion as follows:
The district court expressed its further opinion that "the petition is without merit in fact and in law."
In our opinion the district court properly complied with the teachings of Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.
After hearing full oral argument and considering the able briefs of counsel in the light of the voluminous record, this court independently finds itself in full agreement with the principles of law as stated in the opinion of the Texas Court of Criminal Appeals subject to the following comment as to the claimed defect in the charge:
The state trial court's charge to the jury...
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...McDonald v. Sheriff of Palm Beach, Florida, 422 F.2d 839 (5th Cir. 1970); Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969); Gomez v. Beto, 402 F.2d 766 (5th Cir. 1968). The principle that the State has the burden of proof in all criminal cases and that the accused is clothed with the presumption......
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...91 S.Ct. 463, 27 L.Ed.2d 455 (1971) See also United States ex rel. Mintzer v. Dros, 403 F.2d 42 (C.A. 2nd Cir. 1968); Gomez v. Beto, 402 F.2d 766 (C.A. 5th Cir. 1968), cert. denied 394 U.S. 936, 89 S.Ct. 1217, 22 L.Ed.2d 469 (1969); Greyson v. Commonwealth of Kentucky, 333 F.2d 583 (C.A. 6t......
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