Gray v. Estelle, No. 74-3977

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore AINSWORTH, CLARK and RONEY; PER CURIAM
Citation538 F.2d 1190
PartiesBobby Dean GRAY, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar. *
Decision Date20 September 1976
Docket NumberNo. 74-3977

Page 1190

538 F.2d 1190
Bobby Dean GRAY, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee.
No. 74-3977
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
Sept. 20, 1976.

Donald A. Smyth, Staff Counsel for Inmates, Brazoria, Tex., for petitioner-appellant.

Ed Idar, Jr., Paul R. Gavia, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

PER CURIAM:

Bobby Dean Gray appeals from a denial of habeas corpus relief. Gray was convicted in 1963 in Harris County, Texas, after a trial before the jury for the offense of robbery by assault; his sentence was 45 years. In his habeas corpus application Gray contends that he was denied due process of law by being required to wear prison garb during his trial. The federal district court denied relief, holding that the decision to be tried in jail clothes was a conscious one reached by the appellant's attorney as part of trial tactics. We affirm.

The recent United States Supreme Court decision in Estelle v. Williams, --- U.S. ----, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), controls the disposition of this case. There, the plurality opinion of the Court held:

the failure to make an objection to the court as to being tried in such clothes, for whatever reasons, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.

Id. at ----, 96 S.Ct. at 1697 (footnote omitted). Two concurring justices emphasized that the defendant's attorney in the case realized the factual and legal basis for an objection to an accused's trial in jail clothes, but chose not to raise that objection as a result of conscious trial tactics. As the plurality had stated,

Page 1191

(u)nder our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney.

Id. at ----, 96 S.Ct. at 1697.

In the present case, it is undisputed that no objection as to Gray's trial attire, which indicated his jail status, was brought to the court's attention. Gray testified during the evidentiary hearing in the district court that he had asked the court bailiff, when the bailiff removed him to the courtroom for trial, what had happened to the clothes he had been...

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5 practice notes
  • Callen v. State, CR–13–0099
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 2017
    ...any event, the failure to object negates the presence of compulsion and, thus, there was no plain error. See also Gray v. Estelle, 538 F.2d 1190, 1190–91 (5th Cir. 1976)." United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985).As was the case in Birdsell, Callen's failure to object "n......
  • State v. Carrion-Collazo, CARRION-COLLAZ
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 29, 1987
    ...is implied from defendant's failure to object. See, e.g., United States v. Dawson, 563 F.2d 149, 151 (5th Cir.1977); Gray v. Estelle, 538 F.2d 1190, 1190 (5th Cir.1976); Boswell v. Alabama, 537 F.2d 100, 102-04 (5th Cir.1976). This rule is an exception to the principle that a constitutional......
  • U.S. v. Birdsell, No. 85-1133
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 1, 1985
    ...In any event, the failure to object negates the presence of compulsion and, thus, there was no plain error. See also Gray v. Estelle, 538 F.2d 1190, 1190-91 (5th Birdsell next asserts that the trial court's voir dire was inadequate to discover any underlying prejudice the venire may have ha......
  • Bledsoe v. State, No. 1178S252
    • United States
    • Indiana Supreme Court of Indiana
    • October 9, 1980
    ...compelled to appear before the jury in jail [274 Ind. 289] garb. See, e. g., Carter v. Estelle, supra; Gray v. Estelle, (5th Cir. 1976) 538 F.2d 1190. Further, the right to be tried in civilian clothing may be waived. The defendant must invoke this right by objecting to his appearance in ja......
  • Request a trial to view additional results
5 cases
  • Callen v. State, CR–13–0099
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 2017
    ...any event, the failure to object negates the presence of compulsion and, thus, there was no plain error. See also Gray v. Estelle, 538 F.2d 1190, 1190–91 (5th Cir. 1976)." United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985).As was the case in Birdsell, Callen's failure to object "n......
  • State v. Carrion-Collazo, CARRION-COLLAZ
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 29, 1987
    ...is implied from defendant's failure to object. See, e.g., United States v. Dawson, 563 F.2d 149, 151 (5th Cir.1977); Gray v. Estelle, 538 F.2d 1190, 1190 (5th Cir.1976); Boswell v. Alabama, 537 F.2d 100, 102-04 (5th Cir.1976). This rule is an exception to the principle that a constitutional......
  • U.S. v. Birdsell, No. 85-1133
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 1, 1985
    ...In any event, the failure to object negates the presence of compulsion and, thus, there was no plain error. See also Gray v. Estelle, 538 F.2d 1190, 1190-91 (5th Birdsell next asserts that the trial court's voir dire was inadequate to discover any underlying prejudice the venire may have ha......
  • Bledsoe v. State, No. 1178S252
    • United States
    • Indiana Supreme Court of Indiana
    • October 9, 1980
    ...compelled to appear before the jury in jail [274 Ind. 289] garb. See, e. g., Carter v. Estelle, supra; Gray v. Estelle, (5th Cir. 1976) 538 F.2d 1190. Further, the right to be tried in civilian clothing may be waived. The defendant must invoke this right by objecting to his appearance in ja......
  • Request a trial to view additional results

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