Hollins v. Beto

• Decision Date: 02 April 1974
• Docket Number: 72-H-1056.,Civ. A. No. 71-H-295
• Citation: 373 F. Supp. 1246
• Parties: Johnny HOLLINS v. Dr. George J. BETO, Director, Texas Department of Corrections. Jerry Lewis WILLIAMS v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: U.S. District Court — Southern District of Texas

373 F. Supp. 1246

Johnny HOLLINS v. Dr. George J. BETO, Director, Texas Department of Corrections.

Jerry Lewis WILLIAMS v. Dr. George J. BETO, Director, Texas Department of Corrections.

Civ. A. Nos. 71-H-295, 72-H-1056.

United States District Court, S. D. Texas, Houston Division.

April 2, 1974.

Donald B. McFall, Butler, Binion, Rice, Cook & Knapp, Houston, Tex., for plaintiff Hollins.

J. Richard Gilpin, Asst. Atty. Gen., Austin, Tex., for defendant Beto in No. 71-H-295.

Jerry Lewis Williams pro se.

Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendant Beto in No. 72-H-1056.

SINGLETON, District Judge.

Memorandum Opinion:

These two opinions will treat petitions for habeas corpus heard by this court in a period of two weeks. The petitioners have in common the allegations that their convictions were constitutionally infirm because they were tried in jail clothes.

In attempting to carve out a rule with which it can work in the jail clothes area, this court has taken many turns. A study of the jail clothes issue as it is addressed by the Fifth Circuit¹ reveals a faint but discernable pattern with regard to the proper procedural inquiry. Although there is at least one exception,² the general rule is that it is inherently unfair to try a prisoner in jail clothing because to do so infringes upon the fundamental right of the presumption of innocence. E. g. Brooks v. Texas; Hernandez v. Beto.

The threshold question in a jail clothes case is whether the petitioner was in fact presented to the jury in jail clothing.

If it be determined that he was, then the next question becomes (assuming it is raised by the respondent) whether the petitioner waived his right not to be tried in jail clothing. With regard to this inquiry, a mere absence in the record of an objection by either petitioner or his attorney does not of itself constitute waiver, although it may suggest it. The question of waiver must be determined under the traditional standard of "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), read in connection with the Fifth Circuit's treatment of waiver in the jail clothes context. Cf. Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971). There is one aspect peculiar to the jail clothes situation: a waiver may be deemed where the attorney for petitioner is shown to have used the fact of jail clothing as an intentional trial tactic to invoke sympathy. Garcia v. Beto, 452 F.2d 655 (5th Cir. 1972); Hollins v. Beto, 467 F.2d 951 (5th Cir. 1972).

Once it is determined that the petitioner had been presented to the jury in jail clothing and that there was no waiver, it is axiomatic that a fundamental right of due process, the presumption of innocence, has been denied the petitioner. Nevertheless, there remains still one further inquiry. Under the dictates of the Fifth Circuit, the final question must be whether the denial of the fundamental right to a presumption of innocence harmed the petitioner. It is in this last inquiry that the black and white rules fade to grey. The test here is the harmless error test of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Cf. Hernandez v. Beto, supra. As Judge Bue expressed the test in a recent opinion:

To paraphrase Thomas v. Beto, 474 F.2d 981 (5th Cir. 1973) if the jury "could have believed" by even a "bare possibility" facts favorable to the defendant that are inconsistent with their verdict, or if the verdict carries a "seed of reasonable doubt as to harm", then it is the duty of the reviewing court to reverse the conviction.

Williams v. Beto, 364 F.Supp. 335 (S.D. Tex.1973).

C. A. 71-H-295—JOHNNY HOLLINS

On March 31, 1972, Johnny Hollins' petition for habeas corpus was granted. The state appealed and the Fifth Circuit held that we were in error in granting the petition without first ascertaining at a hearing whether Hollins' failure to object at trial was a voluntary waiver of his rights. Hollins v. Beto, 467 F.2d 951 (5th Cir. 1972). Petitioner Hollins was convicted by a jury of theft over the value of $50 (he allegedly stole an automobile) and his punishment was enhanced to life imprisonment by virtue of the fact that he had twice before been convicted of a felony. See Article 63, Vernon's Ann.P.C. (1952).

On July 30, 1973, a hearing was set to determine the issue of failure to object to the wearing of jail clothes at trial. At docket call the state appeared and agreed to stipulate to the fact that there was no voluntary waiver of the objection. However, the state did object at that time to the retroactive application of Brooks v. Texas decided July 10, 1967 and Hernandez v. Beto decided April 15, 1971, reh. denied May 12, 1971. Hollins was tried May 16, 1966, before either case was decided. The Fifth Circuit has expressly reserved this question for a later determination in Goodspeed v. Beto, 460 F.2d 398 (5th Cir. 1972). See also Thomas v. Beto, 474 F.2d 981, note 1 (5th Cir. 1973).

While it might be contended that the state has waived this argument since it presents it for the first time here, it is not necessary to decide this question because we hold that the jail clothes decisions should be applied retroactively. As Judge Seals so ably put it in a recent opinion:

This Court is convinced that trial of a Defendant in jail clothes penetrates to the very core of due process. The Court of Appeals has characterized it as "inherent unfairness." Hernandez v. Beto, supra, at 637. That "probable impact on the jury" which initially motivated the Court to announce the Hernandez rule presents the same kind of threat to the principle of fundamental fairness that prompted the Supreme Court to retroactively apply the rulings of Jackson, Bruton and Witherspoon.³ As a result, Hernandez must also be accorded retroactive application.

Smith v. Beto (S.D.Tex.1972) Civil Action No. 71-H-830, May 24, 1972.

Judge Bue has since filed an exhaustive opinion which also holds the jail clothes issue one which should have retroactive application. Williams v. Beto, supra.

The sole remaining question is one which has already been decided but which was not explained in detail in the original opinion entered March 31, 1972. That question is whether or not the wearing of jail clothes at trial was harmless error beyond a reasonable doubt.

In this case, there is a very real question of identity. Hollins allegedly stole a car. The stolen car was found after its driver smashed it up a short distance from the place its owner left it. There were several persons around the accident site; they all saw a man fitting the defendant's description get out of the car and walk away. As he was walking away, the police arrived on the scene. No one had him in continuous view as he rounded a corner. The police pursued him but had him out of sight for several minutes. They returned to the scene of the accident with the defendant who claimed through the whole incident that he was not the man. His only distinguishing characteristics were: (1) he was black; (2) he had a moustache; and (3) he did not have on a business suit.

The jury seemed to be concerned with this matter because during the deliberation they asked, in a note to the judge, "Did the arresting officer identify the defendant as the man he saw leaving the scene of the accident?" The judge interpreted this as a request to have the officer's testimony read and that was done.

Given this state of affairs, we found then and now find again that the wearing of jail clothes was not harmless error beyond a reasonable doubt.

As before, we find it unnecessary to consider the myriad other points which Hollins raises in his petition for writ of habeas corpus.

It is, therefore, ordered, adjudged, and decreed that petitioner's writ of habeas corpus be, and the same is hereby, granted.

Further, the state is ordered to retry petitioner in the case in question which was in Criminal District Court No. 2 of Harris County, Texas, styled State of Texas v. Johnny Hollins, Cause No. 118092, within ninety (90) days or to dismiss the case and release the petitioner. The state will inform the court of the decision made.

C.A. 72-H-1056—JERRY LEWIS WILLIAMS

Petitioner was indicted for robbery by assault as a second offender on July 9, 1969. He pleaded not guilty and was tried by a jury and convicted on November 18, 1969. He was given life imprisonment.

The question presented to the court was previously presented to the convicting court and to the Court of Criminal Appeals. Both were denied without written order May 30, 1972, and June 30, 1972, respectively.

Williams asserts that the presumption of his innocence was infringed upon when he was forced to be tried in jail clothes. His own testimony and that of his aunt and uncle reveal that he objected to the bailiff about not being able to wear the street clothes his aunt had left at the jail. He testified that he did not protest before trial because he had been informed that he was not going to trial and when he was taken into the courtroom it was too late.

His attorney testified that at the time many prisoners were tried in jail clothing; he did not feel it necessary to object, since he did not think it would make any difference; and that while he had not consciously let Williams go...