Hackworth v. Beto, 29964 Summary Calendar.

• Decision Date: 11 November 1970
• Docket Number: No. 29964 Summary Calendar.,29964 Summary Calendar.
• Citation: 434 F.2d 852
• Parties: James Stanley HACKWORTH, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 852 (1970)

James Stanley HACKWORTH, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 29964 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 11, 1970.

James S. Hackworth, pro se.

Crawford C. Martin, Atty. Gen. of Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Glenn R. Brown, Asst. Attys. Gen., Austin, Tex., for appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

PER CURIAM:

This is an appeal from an order of the district court denying the petition of a Texas state convict for a writ of habeas corpus. We affirm the judgment for the reasons set out in the memorandum opinion of the district court, a copy of which is appended to this opinion.

Affirmed.

APPENDIX

United States District Court, Western District of Texas, Waco Division

James Stanley Hackworth versus Civil Action No. W-69-CA-62 Dr. George Beto

MEMORANDUM AND ORDER

Filed: Apr. 23, 1970

On January 24, 1969, Petitioner was found guilty of felony theft by a jury in the 54th Judicial District Court of McLennan County, Texas. Subsequently on the same day, Petitioner was also found by the jury to have been once before convicted of a felony of like character less than capital. In accordance with the jury's verdict, Petitioner was sentenced on March 21, 1969, to ten (10) years in prison. Petitioner waived his right to appeal.

Scarcely two months later, however, on May 26, 1969, Petitioner filed a motion for habeas corpus relief with the State court in which he was convicted, in accordance with Article 11.07 Vernon's Ann.Texas Code Crim.Proc.; see Texas v. Payton, 390 F.2d 261 (5th Cir., 1968). Petitioner specified eleven grounds for relief, which he also presents to this Court:

A. He was interrogated without counsel while being extradited to Waco, Texas from Georgia;

B. The Prosecutor commented on his failure to testify at his trial;

C. The State improperly introduced character testimony against him;

D. His counsel was ineffective;

E. He was denied a preliminary hearing;

F. The State introduced hearsay evidence to bolster its main witnesses\' identification of Petitioner;

G. He was fingerprinted against his will, and identified in court on the basis of those fingerprints;

H. The jury went home during deliberations;

I. The evidence did not support the jury\'s finding of guilt beyond a reasonable doubt;

J. The basis of his conviction was circumstantial evidence;

K. The victim did not actually see Petitioner take the money.

On July 25, 1969, Petitioner, who was represented by appointed counsel, was given a hearing on some of his allegations. At the conclusion of the hearing, the trial judge found that "at the trial of said case Petitioner was afforded every legal right entitled him under the Constitution and laws of the State of Texas, and the United States, except those which he knowingly, intelligently and voluntarily waived."

While the State judge justifiably found against Petitioner on points A. and H. and we adopt his holdings thereon. We are somewhat mystified by his implication that Petitioner knowingly waived his right to relief based on any errors that might have occurred in the trial of the case, since Petitioner offered no testimony thereon in the habeas hearing. Petitioner did, however, request that a trial transcript be prepared, clearly with an eye to supporting his factual allegations with respect to errors in the trial. Petitioner's request for a transcript was denied, however, on the novel grounds that Hackworth had been represented at the trial by a lawyer of his choice (albeit court appointed). Thus no trial transcript was prepared. This hiatus in the record apparently did not concern the Court of Criminal Appeals, however, which summarily affirmed the State Judge's findings and conclusions without written opinion.

In the interest of giving full consideration to all of Petitioner's claims, some of which — points B, C, D, F, I, J & K in particular — of necessity required an examination of the trial proceedings, this Court asked that a record be made, which was done with the co-operation of the State Attorney General's Office.

After an examination of the record, it is quite clear that the State habeas proceedings in this case were not entirely satisfactory, inasmuch as the record reveals that at least one and possibly two of Petitioner's factual allegations are well taken. Evidence of Petitioner's reputation in the community was in fact introduced in the enhancement proceedings, Tr. 101-105, over Petitioner's objection, and despite the fact that he had not taken the stand or otherwise put his character in...