Hintz v. Beto, 24396.

• Decision Date: 03 August 1967
• Docket Number: No. 24396.,24396.
• Citation: 379 F.2d 937
• Parties: Harold C. HINTZ, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 937 (1967)

Harold C. HINTZ, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 24396.

United States Court of Appeals Fifth Circuit.

June 29, 1967.

Rehearing Denied August 3, 1967.

Arthur Mitchell, Austin, Tex., Glenn Hausenfluck, Fort Worth, Tex., for appellant.

Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., Frank Coffey, Dist. Atty., Roland H. Hill, Jr., Asst. Dist. Atty., Fort Worth, Tex., Crawford C. Martin, Atty. Gen., of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst., R. L. Lattimore, Howard M. Fender, Larry J. Craddock, Asst. Attys. Gen., Austin, Tex., for appellee.

Before BELL, GODBOLD, and DYER, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellant, a federal habeas corpus petitioner, stands convicted of murder with malice in the Criminal District Court of Tarrant County, Texas, and is awaiting the imposition of the death sentence. He was convicted on November 20, 1964 for the murder of his wife on February 17, 1964. His motion for new trial in the state court was denied and the conviction was affirmed on appeal. Hintz v. State, Tex.Crim.App., 1964, 396 S.W. 2d 411.

The District Court held a full and complete hearing on the petition for the writ. Appellant was represented by his court assigned counsel who has represented him at all times since his appointment by the state trial court in April 1964. The petition was denied by the District Court but the stay of execution theretofore entered was continued pending this appeal. The petition for the writ was based on three grounds: First, that a confession introduced against appellant was illegally obtained; second, the state trial court denied appellant due process of law in refusing a motion for continuance so as to afford appellant's counsel a fair opportunity to develop a defense based on appellant's mental condition; and lastly, that he was denied due process of law by the failure of the trial court to make a determination of his competence to undergo trial. We agree with the District Court that the confession was not illegally obtained and thus it was admissible. We treat the second and third grounds together as a denial by the state trial court to appellant of the effective assistance of counsel as that right is due under the Sixth Amendment and reverse for a new trial in the state court.

I.

At the outset it is well to note that there was a good deal more evidence before the District Court on the question of appellant's mental condition than was the case in the state trial court. In fact, this question was not developed at all in the trial. This was either a result of trial strategy on the part of defense counsel, as the state contends, or because of inadequate preparation time as appellant contends. The facts will be stated as they existed in the District Court. The difference, in the main, comes from county court and Veterans Administration records on appellant, a note which he wrote prior to his arrest in which he admitted the crime, and the report of a court appointed psychiatrist submitted to the trial court on the day the trial began.

Appellant grew up in Iowa as the only child of parents who are still living there. His early life was apparently normal and he has at least average intelligence. He is a high school graduate and studied courses in business thereafter. He entered the United States Army in 1942 at the age of twenty-two and thereafter became a paratrooper. He served as a sergeant in the 505th Parachute Infantry Regiment during the invasion of Sicily and injured his back in a jump. He was in and out of government hospitals for some years thereafter including a confinement of thirteen months for a back operation. He became an alcoholic and blamed this on the fact that he was in constant pain. As his life went from bad to worse, he was arrested on several occasions for passing bad checks, and for drunken driving. In 1958 he was convicted of burglary and served three years for this. He apparently burglarized a home to obtain food.

He married in 1952. His wife was unable to control his drinking as were his parents. He was diagnosed in a Veterans Administration hospital in 1955 as having an antisocial personality with alcohol addiction. In September 1962 he was committed, at the instance of his wife, by the County Court of Tarrant County, Texas to a Veterans Administration hospital as a mentally ill person. This was done on the certification of two medical doctors that appellant was mentally ill and was likely to cause injury to himself or others if not restrained. Their diagnosis was "psychotic reaction". The Veterans Administration hospital admission diagnosis on September 28, 1962 was "Schizophrenic reaction, chronic, undifferentiated type". He was discharged some three months later.

Shortly thereafter appellant, as he was wont to do, slept in his automobile for several days during a binge. He suffered frost bite and as a result lost his left leg just below the knee and the greater portion of his right foot.

On February 27, 1964 at about 6:30 p. m., his wife was found dead in their apartment. She had been dead about ten days. Neighbors informed the police that appellant had not been sleeping in the apartment for the past week or so but had been sleeping in his parked car around the neighborhood. They told of loud arguments between the couple on various occasions. The report of the case in Hintz v. State, supra, describes how the murder was discovered as follows:

"Appellant and his wife * * * lived in a room which they rented from Mr. and Mrs. W. D. Yates at 905 Southland in the city of Fort Worth. On Sunday afternoon, February 16, 1964, Mr. and Mrs. Yates saw the deceased leave the premises, which was the last time they saw her alive. At such time, appellant was inside the house and the next time he was seen by either of them was on February 27, when Mr. Yates saw him, early in the morning, asleep in his automobile, parked a block away from the house. When Mr. Yates asked him about his wife appellant stated that she had been staying with a friend who was sick. Yates then returned to the house and called the deceased\'s mother. Two hours later the mother and a daughter came to the Yates\'s home. Mr. Yates then unlocked the door to appellant\'s room and the three went inside. Nothing unusual was found in the room, and they all left. Later in the afternoon, Mrs. Yates came home from work and went into appellant\'s room, where she raised up the bedspread and could see blood. She realized that something was under the bed, and ran out. Mr. Yates then entered the room and found the deceased\'s body, wrapped in a blanket, lying on the floor under the bed."

The police department issued a pickup order for appellant for murder. At about 3:00 a. m. the next morning a police officer noticed an automobile parked in a no parking area with the motor running and with no visible occupant. The exhaust was noticeable because of freezing weather. As he set out to investigate the matter he noticed that the model of the automobile and the license number fit the description of appellant's automobile as it had been described in the pickup order. He was immediately joined by another officer and they found appellant sleeping on the front seat of the car and were able to arouse him. He was in something of a drunken stupor. The automobile was filled with clothes, cooking utensils, empty and full cans of beer. The officers did not have any details as to the murder, knowing only that appellant was to be picked up for murder. One officer said to him, "Who did you kill." He replied, "I guess my wife." The officer inquired as to what he killed her with and he said, "With a water bottle or a water pitcher." Appellant was then placed in jail.

Some twelve hours later he was removed from his cell to an interrogation room where he was interviewed by the two detectives who had investigated the murder at the home and who had issued the pickup order. He immediately advised them that he had killed his wife. The total conversation lasted for about ten minutes. He signed a written statement of confession after a stenographer was called in to prepare it. Prior to giving the statement to the stenographer, appellant was advised that he did not have to make a statement, but that if he did it might be used in evidence against him.

There is no evidence of any coercion whatsoever. The detectives who took the statement testified that they did not know of his earlier oral statement to the officers at the time of the arrest. The statement was admitted on the trial after a preliminary inquiry by the court, outside the presence of the jury, as to its voluntariness, Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

We begin with the proposition that Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not apply in this case with respect to the right to counsel and to the warning, the trial having taken place before June 13, 1966. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. See Marion v. Harrist, 5 Cir., 1966, 363 F.2d 139, another Texas death case involving the same issue. However, the teachings of Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 are applicable inasmuch as the trial took place after June 22, 1964, the date of the Escobedo decision. Johnson v. State of New Jersey, supra; Marion v. Harrist, supra. Our conclusion is that, although appellant falls into the Escobedo category as being one particularly suspected, he was "* * * effectively warned of his absolute Constitutional right to remain silent" prior to giving the written confession (the only confession or admission in issue). Escobedo, 378 U.S. at p. 491, 84 S.Ct. 1758. He was not offered counsel as Miranda would now require, but unlike Escobedo, appellant did not request nor was he denied c...