Houston v. Estelle, 76-4242

• Decision Date: 13 March 1978
• Docket Number: No. 76-4242,76-4242
• Citation: 569 F.2d 372
• Parties: Arthur HOUSTON, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 372

569 F.2d 372

Arthur HOUSTON, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 76-4242.

United States Court of Appeals, Fifth Circuit.

March 13, 1978.

Rehearing and Rehearing En Banc Denied April 12, 1978.

Stanley G. Schneider, Staff Counsel for Inmates, Phyllis Coci, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Anita Ashton, Asst. Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

On November 8, 1972, appellant Arthur Houston Jr. was convicted of possession of heroin, a crime under the laws of the state of Texas. The jury which convicted Houston sentenced him to 99 years imprisonment, the maximum sentence allowed for this crime. Houston had never before been convicted of any felony. Houston's conviction was affirmed by the Texas Court of Criminal Appeals, Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974). He subsequently filed a state habeas corpus petition; his application for the writ was denied. Finally, in June 1976, he applied for federal habeas corpus relief in the District Court for the Western District of Texas. After an evidentiary hearing, Judge Roberts denied the writ. This appeal followed.

The question presented for decision is whether the state prosecutor's argument, in both the guilt/innocence and the punishment phases of the trial, was so inflammatory and prejudicial as to render Houston's trial fundamentally unfair within the meaning of the due process clause of the fourteenth amendment. Alvarez v. Estelle, 531 F.2d 1319 (5th Cir. 1976). Upon a thorough review of the record, including the transcript of the state trial and the evidence adduced at the evidentiary hearing below, we have concluded that the prosecutor in this case overstepped the bounds not only of propriety, but of constitutionality. We therefore reverse the district court and direct that the writ be granted.

I. Exhaustion of State Remedies

Our consideration of the merits must be deferred briefly in order to determine whether the appellant had exhausted his state remedies prior to bringing his federal habeas petition as required by 28 U.S.C. § 2254(c). Houston was represented on appeal by retained counsel. Houston's original brief on appeal to the Texas Court of Criminal Appeals contained an assignment of fourteen grounds of error of which grounds one through five were directed to the prosecutor's allegedly improper argument and questioning of witnesses. While the listing of the grounds of error lacked any reference to specific pages of the record at which the assigned errors occurred, the "statement" of errors relevant to grounds one through five, found four pages later in the brief, did contain such page references as did the discussion headed "Argument and Authorities" which immediately followed it. The state's brief asserted that the statement of errors in Houston's brief failed to comply with the formal requirements of Tex.Code of Crim.Pro. art. 40.09, Section 9 (Vernon's Pocket Part 1976) and thus presented no question requiring consideration by the appellate court. Notwithstanding the alleged failure, the state apparently was able to identify each of the challenged statements, as the state's brief went on to argue the propriety of each challenged statement under Texas law. Houston's attorneys filed a reply brief in which the original five grounds of error relevant to this issue were expanded into fifteen to permit greater specificity in their initial statement. Once again, the listing omitted page references, but the "Statement" and "Argument and Authorities" portions of the brief contained specific page references to the record. The Texas Court of Criminal Appeals refused to pass upon renumbered errors one through fifteen in the reply brief:

Appellant's brief, filed with the record in this appeal, advances some twenty-four grounds of error. Of these, grounds of error one through fifteen are multifarious and, therefore not properly before us for review. See Art. 40.09, Section 9, Vernon's Ann.C.C.P. Each of the grounds of error complains of certain testimony or argument without citing the specific page of the record wherein it allegedly occurred. The grounds of error are argued together without reference to individual grounds of error and the net result is incomprehensible. . . .

(Citations omitted.)

506 S.W.2d at 908.

The Texas Court of Criminal Appeals, thus, found that Houston's claims had not been presented in an acceptable form. We do no disrespect to that court's power over practice before it when we find that Houston had exhausted his state remedies notwithstanding presentation of his claims in a form unacceptable under Texas law. While a state court undeniably has the power, within constitutional limits, to prescribe the form of briefs presented to it, it does not necessarily follow, however, that perfect compliance with such rules of briefing is always a prerequisite to the exercise of federal habeas corpus jurisdiction.

In deciding whether the merits of Houston's claim are properly before us, we must be mindful that the question is not one of federal power, but of equitable discretion. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 826-27, 9 L.Ed.2d 837 (1963); see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 2511 n. 4, 53 L.Ed.2d 594 (Stevens, J., concurring); id. at 2513 n. 2 (Brennan, J., dissenting). ¹ The exercise of that equitable discretion is informed by a number of principles bearing on this case. First, federal habeas corpus relief will not be withheld for failure to exhaust state remedies where state courts have had a full opportunity to determine the federal constitutional issues before resort is made to the federal forum, even if the state court does not reach the merits of the petitioner's claim. Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 258-59, 42 L.Ed.2d 226 (1974) (highest court of state had declined to review petitioner's conviction). In determining whether a claim has been fairly presented to the state courts, a federal court is not to assume that any claim not mentioned in the opinion of the state court was not presented. Smith v. Digmon, --- U.S. ----, 98 S.Ct. 597, 54 L.Ed.2d --- (1978) (per curiam). Indeed, "it is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in the petitioner's brief in the state court, and, indeed, in this case, vigorously opposed in the State's brief." Id. In order to determine whether the issue has been fairly presented, it is necessary to examine the petitioner's brief in the state court. Id.; Blankenship v. Estelle, 545 F.2d 510, 514 (5th Cir. 1977) (issue raised in petitioner's pro se brief was exhausted even though not raised in subsequent brief filed by appointed counsel). Finally, since the exhaustion requirement is non-jurisdictional, it may be waived by the state, Collins v. Estelle, 474 F.2d 988, 989 (5th Cir. 1973), and we may give consideration to the expenditure of federal judicial resources below. Thomas v Arizona, 356 U.S. 390, 78 S.Ct. 885, 886-87 n. 1, 2 L.Ed.2d 863 (1958).

Applying these principles to the case at bar, we are convinced that the district court properly proceeded to the merits of Houston's claim and that we ought to do the same. We have examined Houston's brief to the Texas Court of Criminal Appeals. The assignment of errors in that brief set out in unmistakeable terms Houston's complaint that particular portions of the prosecutor's argument were unfair. Houston's argument cited the crucial cases in support of his contentions. Page references to the record were provided, albeit some four pages later in the brief than apparently required. Just as in Smith v. Digmon, supra, --- U.S. at ----, 98 S.Ct. 597, the state was able to identify the errors complained of and the state's brief contested Houston's claim on the merits. The state has never raised any procedural objection to federal consideration of Houston's claim. The state's answer to Houston's petition in the district court stated explicitly:

At this time, Respondent does not contend that Petitioner has failed to exhaust his state remedies. Although neither allegation now presented was brought up in his state writ, both were presented on direct appeal.

The state fully participated in the evidentiary hearing held below on Houston's claim of impermissible argument. Even on appeal, the state has not contended that any procedural barrier stands in the way of our consideration of Houston's claim on the merits. ² Thus, the state has never even made the argument which prevails, if at all, only as a matter of comity and has instead acquiesced in the expenditure of substantial resources in litigating the merits. In these circumstances, we hold that Houston's claim is properly before us. To hold otherwise, we think, would be to elevate a rule of equitable discretion into one of jurisdiction.

II. Facts

The testimony at Houston's trial showed that he had been stopped by members of the Waco, Texas police force who had information that Houston was "involved in dope traffic." The officers who stopped and subsequently arrested Houston testified that Houston was a passenger in his own automobile, a 1963 Thunderbird; a black woman identified as Emma Gray was driving the car. ³ The officers ordered Houston to get out of the car and to put his hands on top of the car. After one officer had frisked Houston, another officer seized Houston by the arm and pulled him...