Hoover v. Beto, 29587.

• Decision Date: 09 March 1971
• Docket Number: No. 29587.,29587.
• Parties: Sam HOOVER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 913 (1971)

Sam HOOVER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 29587.

United States Court of Appeals, Fifth Circuit.

March 9, 1971.

Warren Burnett, Odessa, Tex., Raeburn Norris, Houston, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., for appellant.

Lonny Zwiener, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for appellee.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS^*, Judge of the Court of Claims.

RIVES, Circuit Judge:

Hoover, a Texas state prisoner, appeals from the denial of his petition for habeas corpus. A two-count indictment was returned in a criminal district court of Harris County, Texas, charging in the first count that Hoover and three others, Young, Spivey and Sellars, on or about March 11, 1964 committed an armed robbery against Mair Schepps. The second count charges Hoover with the offense of being an accomplice to the commission of the robbery by his three co-indictees. In three separate trials, Hoover was convicted as an accomplice with the punishment, 60 years imprisonment, and Young and Sellars were convicted as principals with the punishment, death. Hoover v. State, Tex.Cr.App., 1965, 390 S.W.2d 758; Young v. State, Tex.Cr.App., 1966, 398 S.W.2d 572; Sellars v. State, Tex.Cr. App., 1966, 400 S.W.2d 559. Spivey was granted full immunity and became the principal witness against Hoover.

After being denied habeas corpus relief by the State convicting court and by the Texas Court of Criminal Appeals, Hoover applied for habeas corpus to the federal district court. That court denied his application and, in a further opinion, denied certificate of probable cause required for appeal. Hoover v. Beto, D.C. 1969, 306 F.Supp. 980. On April 6, 1970, Judge Ingraham of this Circuit granted Hoover's application for certificate of probable cause.

Upon this appeal Hoover urges two claims:

1. That the State convicting court violated his right under the Fourteenth and Fourth Amendments to be free from unreasonable search and seizure by the admission into evidence against him, over his proper and timely objection, of two diamonds, the fruits of a nighttime search of his home made without his voluntary consent by police officers acting under a search warrant based on an affidavit which did not contain sufficient probable cause averments and;

2. That the convicting court violated his right under the Fourteenth and Sixth Amendments to be confronted with the witnesses against him by its admission into evidence, over his proper and timely objection, of hearsay testimony of a police officer as to unsworn out-of-court statements made to the officer by co-indictee Sellars.

We sustain both of Hoover's claims and reverse the judgment of the district court.

The essential elements of the offense of which Hoover was convicted are: (1) that the co-indictees committed the armed robbery as charged; (2) that before the robbery, Hoover advised, commanded or encouraged his co-indictees to commit the offense; and (3) that Hoover was not present at the commission of the robbery.¹

As to element (1), there was evidence to support the conviction from the victims of the robbery and from Spivey, who turned state's evidence. The robbery was accompanied by the most horrible brutality and torture, as described in the opinion of the Texas Court of Criminal Appeals, Hoover v. State, supra, at 390 S.W.2d 759, 760, only a small part of which we quote:

"After numerous unsuccessful inquiries about the $300,000 the robbers\' acts of violence and torture increased, to compel the Schepps to reveal the location of the money. Mrs. Schepps\' jaw was broken, and some of her teeth were knocked out and others loosened; she was burned across the abdomen with a heated butcher knife; she was repeatedly burned on her face and body with cigarettes, and also repeatedly shocked with an electric wire placed to her teeth, breasts and private parts; a fireplace poker and a pistol were inserted into her vagina; and she was shot in the thigh with a .44 magnum pistol as she lay prostrate on the floor. Mr. Schepps was severely and brutally beaten and lay unconscious for short periods of time during the three-hour attack. The injuries of Mrs. Tuck were not so serious, but she required several days of hospitalization. The Schepps\' ten-month old baby was threatened, and a shot was fired into the baby bed where the child lay. Most of the furniture and furnishings in the house, especially those on the second floor, were torn, broken, demolished, and scattered in an intense and violent search for the $300,000 reportedly hidden therein."

Spivey's testimony made a case for submission to the jury as to element (2), that Hoover advised and encouraged Young, Spivey and Sellars to commit the robbery. He testified that Hoover advised them that Schepps had $300,000 in money in his home, told them where to look for the money, encouraged them to commit the robbery, and during the robbery told them by telephone when Young asked him what he wanted to do about Mrs. Schepps' failure or refusal to tell where the money was located: "Use your own judgment she is a hard case, she's been in the business a long time." Ultimately the robbers failed to locate the large sum of money.

There would appear to be no factual dispute about element (3), that is, that Hoover was not present during the commission of the robbery.²

I.

Hoover's Right Under the Fourteenth and Fourth Amendment to be Free From Unreasonable Search and Seizure.

A.

Validity of Search Warrant.

Attached as appendices to this opinion are copies of (1) the affidavit upon the basis of which the search warrant was issued, (2) the warrant itself, and (3) the officer's return on the back of the warrant.

It was conceded in the district court and is conceded here, as it must be, that the affidavit supporting the search warrant does not meet the probable cause standards prescribed in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. As appears from Appendix 1, the affidavit in relevant part recited that: "My belief as aforesaid is based on the following facts: Information from a reliable source that the above described property is now being concealed at the above address." App. 294 There was nothing from which an impartial magistrate could judge whether the information was in fact "reliable" or what was the basis of his information.

To sustain the validity of the search warrant, the appellee argues that Aguilar is not applicable because the search was prior to that decision.

The search of Hoover's home occurred on March 18, 1964, about three months before Aguilar was decided on June 15, 1964. Hoover's criminal trial commenced on July 28, 1964, more than a month after Aguilar was decided. His judgment of conviction was affirmed April 21, 1965, and rehearing was denied June 9, 1965 (390 S.W.2d 758), nearly a year after Aguilar was decided.

Hoover's counsel make a strong argument that Aguilar announced no new doctrine, but, as disclosed in the opinion, 378 U.S. at 110-113, 84 S.Ct. 1509, did no more than apply the principles decided in Nathanson v. United States, 1933, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; and Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. In Riggan v. Virginia, 1966, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431, the Court, upon granting certiorari, summarily reversed saying simply, "The judgment is reversed. Aguilar v. Texas, 378 U.S. 108 84 S.Ct. 1509, 12 L.Ed.2d 723", thus applying Aguilar to a search conducted by Virginia officers on January 22, 1963 (see 206 Va. 499, 144 S.E.2d 298), long prior to the decision in Aguilar. In Doby v. Beto, 5 Cir. 1967, 371 F.2d 111, the defendant had been convicted and his conviction affirmed by the State Appellate Court on June 3, 1964, prior to the decision in Aguilar: "Appellant applied to the State Appellate Court for rehearing on the basis of Aguilar, for the first time asserting that the affidavit did not support the search warrant because of lack of probable cause." 371 F. 2d at 112. This Court held:

"It is not necessary that appellant rely on the Aguilar decision retroactively since his conviction was not final when the decision in Aguilar was rendered."

371 F.2d at 113. A fortiori in the present case, Hoover need not rely on Aguilar retroactively since he had not been tried and convicted when the decision in Aguilar was rendered. We conclude that the search of Hoover's home was not based on a valid search warrant.

The convicting court admitted into evidence, over Hoover's timely and appropriate objections, the two large diamonds listed in the officer's return to the search warrant. It is clear that the federal district court should have granted habeas corpus unless those diamonds were admissible in evidence on some basis other than that of the validity of the search warrant.

B.

Consent to Search.

Can the search of Hoover's home be sustained as based upon his consent? The relevant facts surrounding the search are as follows: The officer's return indicates that he received the warrant at 3:00 A.M. and executed it at 3:30 A.M. There are nine police officers listed as having executed the warrant. The justice of the peace was also present.

Officer Hodges testified on voir dire on the issue of consent:

On Direct Examination:

"Q. (By Mr. Briscoe, the United States Attorney) How did you gain entry into the defendant\'s home?

"A. (By Witness) I went to the front door and knocked on the door. Mr. Hoover answered the door. I told him who I was, told him I had a search warrant and Mr. Hoover told me that the search warrant was unnecessary, for me to come on in his house and look wherever I pleased." App.

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