Martin v. Beto, Civ. A. No. 65-H-849.

Decision Date22 August 1966
Docket NumberCiv. A. No. 65-H-849.
Citation260 F. Supp. 589
PartiesJames Bryson MARTIN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
CourtU.S. District Court — Southern District of Texas

COPYRIGHT MATERIAL OMITTED

Clyde W. Woody, Marian S. Rosen, and John P. Farra, Houston, Tex., for petitioner.

Waggoner Carr, Atty. Gen., of Texas, (Sam R. Wilson, Asst. Atty. Gen., of Texas), Austin, Tex., for respondent.

HANNAY, District Judge.

Memorandum and Order:

Petition for Writ of Habeas Corpus. Title 28, U.S.C.A. Section 2241 et seq.

Petitioner is serving a four year sentence for a conviction for bribery. The conviction was in the state district court of Brazos County, Texas, to which it was removed through a change of venue from Harris County, Texas, the scene of the principal transaction. The conviction occurred in January of 1964. It was affirmed in Martin v. State of Texas, Tex.Cr.App., 395 S.W.2d 631 (January 6, 1965), and motion for rehearing was denied by the same Court of Criminal Appeals of Texas in Martin v. State of Texas, 395 S.W.2d, at 635 (February 17, 1965). Petition for writ of certiorari was denied by the Supreme Court of the United States on November 22, 1965, 382 U.S. 928, 86 S.Ct. 307, 15 L.Ed.2d 340. This ruling was accompanied by a memorandum indicating the existence of grave constitutional questions due to the prosecution's use of a Court of Inquiry while the subject matter was under secret grand jury investigation and about which more later. Petition for writ of habeas corpus was filed in this Court on December 9, 1965. A full evidentiary hearing was thereafter granted to fully determine the federal questions that are raised herein. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. In addition to the full evidentiary hearing and an examination of the documentary evidence presented at the trial and on habeas corpus, the Court has carefully reviewed the transcribed Statement of Facts of the state proceedings involved herein, to-wit, the Court of Inquiry investigation, the hearing on the Motion to Quash the Indictment in the criminal district court of Harris County, Texas, and the eventual trial in the district court of Brazos County, Texas.

I. THE ISSUES PRESENTED

Subject prosecution arose out of suspected irregularities in the conduct of the Probate Court of a then Probate Judge, Clem McClelland, of Harris County, Texas (hereafter Probate Court and Probate Judge). See McClelland v. State of Texas, Tex.Cr.App., 373 S.W.2d 674. The Harris County grand jury investigating the matter was convened in May of 1962. On June 5, 1962, the District Attorney for Harris County, acting in conjunction with Justice of the Peace W. C. Ragan of Harris County (hereafter Justice of the Peace), took the step of convening a Court of Inquiry pursuant to two then operative but since repealed state statutes. These statutes, Articles 886 and 887, Texas Code of Criminal Procedure, provided respectively:

"When a justice of the peace has good cause to believe that an offense has been, or is about to be, committed against the laws of this State, he may summon and examine any witness in relation thereto. If it appears from the statement of any witness that an offense has been committed, the justice shall reduce said statements to writing and cause the same to be sworn to by each witness making the same; and, issue a warrant for the arrest of the offender, the same as if complaint had been made and filed."
"Witnesses summoned under the preceding article who shall refuse to appear and make a statement of facts, under oath, shall be guilty of a contempt of court, and may be fined not exceeding one hundred dollars, and may be attached and imprisoned until they make such statement."

Petitioner's contention is that the Court of Inquiry proceeding itself violated his constitutional rights under the IVth, Vth, VIth and XIVth Amendments to the Constitution of the United States; that this had the eventual effect of denying him a fair trial on the merits and thereby voids his conviction. More particularly, he contends that:

1. Evidence used by the prosecution before the grand jury1 was improperly obtained either through subpoenas issued as a result of the Court of Inquiry proceeding or subpoenas issued by the District Attorney's office which were void on their face in that they were issued by an assistant district attorney of Harris County who signed the name of the grand jury foreman to each of them.

2. That the effect of the Court of Inquiry proceedings was to usurp and violate the grand jury indictment system as guaranteed by the federal Constitution and as that proceeding was conducted it violated Petitioner's rights under the Vth, VIth and XIVth Amendments.

3. The action of the trial judge of the criminal district court in Harris County in changing venue on his own motion, Article 560, Texas Code of Criminal Procedure, to Brazos County, violated his constitutional rights under the Vth, VIth and XIVth Amendments in that no evidence was introduced to support the change of venue and that the trial court's action denied him a speedy trial in the district wherein the crime was allegedly committed.

4. That extreme and constitutionally impermissible prejudice was caused Petitioner during the eventual trial in Brazos County due to the close and extensive news, radio and television coverage of the Court of Inquiry proceeding.

II. FINDINGS OF FACT

The suspect conduct in the Probate Court centered around its apparent practice of granting a patently disproportionate number of appointments to a limited few individuals to appraise and administer the estates of decedents, to act as guardians, and to treat with matters before the Probate Court. Investigation was to reveal that for a particular eighteen month period some 3,511 such appointments were made to Petitioner and four other individuals by the Probate Court. (These five men were jointly indicted for bribery; Petitioner was granted a severance.) The remaining 2,225 appointments were distributed to some 257 persons. (Page 28, Trial Statement of Facts, hereafter S/F). In this connection, the Probate Court had come under investigation by the District Attorney's office sometime prior to June of 1962. The matter likewise came under investigation by newspaper reporters. It is not disputed that in April or May of 1962 the reporters and certain members of the district attorney's staff entered into an agreement whereby the reporters would not release the story until the district attorney's office had completed its investigation. Nonetheless, on June 5, 1962, the story was released through the now defunct Houston Press.

The Court of Inquiry hearing did not begin until the 14th day of June, 1962. It is evident that the District Attorney's office had knowledge of a certain Tierra Grande, Inc. no later than June 7, 1962. This is shown by a transcription (hereafter Trn.) of an extended conversation on that date between attorneys Dick Putney, Jim Clark, Pete Moore, the District Attorney, and two of his assistants which is of record. This conversation establishes further that a specific check from Richard Putney for $5,000.00 was delivered to Petitioner to be placed in Tierra Grande, Inc. under instructions from the Probate Judge. Putney further agreed that the investigators could check his bank records at the Citizens State Bank in Houston. (p. 18, Trn.) Thus the location of the Tierra Grande, Inc. bank account was made apparent once the investigators saw a copy of Putney's check at the Citizens State Bank. This interview further made known the existence of Southwest Equities and Bayou Production Company, in which Petitioner was also materially concerned.

Prior to the hearing, at least six grand jury subpoenas had been issued under the name of the foreman of the grand jury which related to the transactions under investigation. These included a subpoena to a female person in the office of the Probate Judge dated June 6, 1962 (Petitioner's Exhibit No. 69); a subpoena to the bookkeeper and custodian of the records of the Bank of the Southwest of Houston relating to checks and deposit slips of the Probate Judge and his wife as of 1948 and dated June 4, 1962 (Petitioner's Exhibit No. 75); a subpoena to the vice-president and cashier and to the bookkeeper and custodian of the records of the National Bank of Commerce to produce the banking records of the Petitioner as of 1957 and dated June 1, 1962 (Petitioner's Exhibit No. 83); a subpoena to the bookkeeper and custodian of the records of the Bank of the Southwest of Houston to bring the banking records of the Probate Judge and his wife as of January 1, 1958 and dated June 7, 1962 (Petitioner's Exhibit No. 85); a subpoena to the bookkeeper and custodian of the records of Highland Village State Bank of Houston to bring the banking records of Tierra Grande, Inc. (Petitioner's Exhibit No. 87); a subpoena to the bookkeeper and custodian of the records of the Bank of the Southwest of Houston to bring forth the banking records of the Probate Judge and his wife as of 1945 and dated June 11, 1962 (Petitioner's Exhibit No. 92).

That proof that checks, deposit slips, and other documents complained of were obtained before commencement of the Court of Inquiry hearing is shown by the following instances:

Jerry O'Brien's attorney mentioned at the opening of the Inquiry that O'Brien's bank records had been subpoenaed. (p. 17, C/I).

The District Attorney revealed his knowledge that certain specific checks had been written on the Tierra Grande, Inc. bank account to pay the expenses of the Probate Judge. (pp. 77-79, C/I).

The District Attorney showed Petitioner a copy of a $3,000.00 check from the latter's bank account at the National Bank of Commerce. (pp. 242-243, C/I).

The District Attorney exhibited to Petitioner a copy of his bank records. (p. 243, C/I).

The District Attorney showed Petitioner a...

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2 cases
  • Martin v. Beto
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1968
    ...Criminal district judge on this point to eliminate any suggestion of an infraction of constitutional dimension." Martin v. Beto, S.D.Tex.1966, 260 F. Supp. 589, 597. This Court accepts the findings of the district court and of the State courts that Martin could not have had a fair and impar......
  • In re McClelland, Civ. A. No. 65-H-291
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 6, 1966
    ...v. State, 395 S.W.2d 631 (Tex.Cr.App.1965); Martin v. Texas, 382 U.S. 928, 86 S.Ct. 307, 15 L.Ed.2d 340 (1965); Martin v. Beto, 260 F.Supp. 589 (S.D.Tex. Aug. 22, 1966). 4 Many estates were involved. In fact, petitioner was tried and convicted of a third offense, which conviction was revers......

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