Martin v. Beto, No. 24672.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES, GEWIN and THORNBERRY, Circuit
Citation397 F.2d 741
PartiesJames Bryson MARTIN, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
Decision Date14 August 1968
Docket NumberNo. 24672.

397 F.2d 741 (1968)

James Bryson MARTIN, Appellant,
v.
Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 24672.

United States Court of Appeals Fifth Circuit.

June 18, 1968.

Rehearing Denied August 14, 1968.


397 F.2d 742

Clyde W. Woody, Marian S. Rosen, Houston, Tex., for appellant.

Lonny F. Zwiener, Howard Fender, Asst. Attys. Gen., Austin, Tex., for appellee.

Before RIVES, GEWIN and THORNBERRY, Circuit Judges.

RIVES, Circuit Judge:

This appeal from the district court's denial of habeas corpus stems from the Probate Court scandal that rocked Houston, Texas, in 1962, and presents some important constitutional questions.

The appellant Martin was convicted of bribery, sentenced to imprisonment for four years and fined $2500.00. His conviction was affirmed by the Court of Criminal Appeals of Texas.1 Certiorari was denied by the Supreme Court of the United States accompanied by the following significant memorandum of the Chief Justice:

"Memorandum of Mr. Chief Justice Warren.
"Each of these three cases stems from the following factual setting:
"The Grand Jury of Harris County, Texas, was impaneled on May 7, 1962, to investigate irregularities in the administration of the Probate Court. While Grand Jury sessions were proceeding, the District Attorney of the County, in cooperation with the Justice of the Peace, took the virtually unprecedented step of obtaining an order to institute a `Court of Inquiry.\'
"This body, formerly sanctioned by Vernon\'s Texas Code of Criminal Procedure, Arts. 886, 887, permits a justice of the peace to summon and examine witnesses and take sworn testimony. Those who fail to comply with his summons or refuse to make statements under oath may be fined and imprisoned.
397 F.2d 743
From the year of its enactment — 1876 — to this date, it appears that the procedure had been seldom invoked.
"The secret Grand Jury deliberations were postponed while the District Attorney pursued the Court of Inquiry publicly, in front of the press, radio recorders and television cameras. In this inflamed atmosphere, the petitioners were questioned for some four days, although they objected to testifying. They were not permitted to consult with their attorneys during the proceedings, to defend themselves, to cross-examine or confront the witnesses against them, to call witnesses on their behalf, to rebut or to contradict the evidence produced by the prosecution. Two days later, the Grand Jury was reconvened and brought in indictments against the petitioners.
"Due to a change of venue and continuances secured by the petitioners, their trials did not take place until more than two years later in a neighboring county. Their pretrial motions to quash the indictments were denied, in two cases without hearings, and they were found guilty of the offenses charged.
"The Texas Legislature has since repealed the `Court of Inquiry\' proceeding through the adoption of a new Code of Criminal Procedure, Laws, 1965, 59th Leg. Reg. Sess., c. 722, to become effective January 1, 1966. Under the new Code, no justice of the peace may convene a Court of Inquiry. Rather, they may be conducted only by district judges, and all witnesses are entitled to the same protections as in felony prosecutions. Arts. 52.01-06.
"It is clear that grave constitutional questions are raised by conducting such a proceeding. See, e. g., Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Moore v. Dempsey, 261 U.S. 86, 90-91, 43 S.Ct. 265, 266, 67 L.Ed. 543. Against the background of the factors mentioned above, the Court has declined review. Our denial of the petitions for certiorari in these cases should not be taken in any way as sanctioning the proceedings or of approving of the judgments below. It means only that for one reason or another these cases did not commend themselves `to at least four members of the Court as falling within those considerations which should lead this Court to exercise its discretion in reviewing a lower court\'s decision.\' Memorandum of Mr. Justice Frankfurter, Sheppard v. State of Ohio, 352 U.S. 910, 911 77 S.Ct. 118, 1 L.Ed.2d 119; see also, Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70 S. Ct. 252, 94 L.Ed. 562."

Martin v. Texas, 1965, 382 U.S. 928, 929, 86 S.Ct. 307, 15 L.Ed.2d 340.

Thereafter, Martin filed in the Court of Criminal Appeals of Texas a motion to vacate the judgment, urging reconsideration in the light of Chief Justice Warren's memorandum and of certain recent decisions of the United States Supreme Court. That motion was overruled on December 1, 1965, and Martin began the service of his sentence on December 9, 1965.

On the same date, Martin filed in the federal district court his petition for habeas corpus. A plenary hearing was had from January 3 to January 12, 1966. On August 22, 1966, the district court entered full findings of fact and conclusions of law2 and denied the writ of habeas corpus.

On appeal the claimed errors are stated by Martin in his "Specifications of Error" as follows:

"SPECIFICATION OF ERROR NUMBER ONE
"The District Court erred in denying Appellant\'s Petition for Writ of Habeas Corpus in that:
"A. Appellant\'s State court conviction was based upon evidence utilized by Appellee State of Texas which was obtained as a result of subpoenaes issued
397 F.2d 744
either by the District Attorney\'s office of Harris County, Texas, which were void on their face, or through subpoenas issued as a result of the Court of Inquiry process system, both of which were violative of Appellant\'s rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States.
"B. Appellant was denied in his State trial, the protection guaranteed to all individuals by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, when the Criminal District Court Number Five of Harris County, Texas, wherein the crime charged was alleged to have occurred and wherein the indictment was returned, took the opinion itself, without considering any evidence, and over Appellant\'s objection, to change the venue of the case to another County in Texas under color of authority, Article 560, Vernon\'s Annotated Code of Criminal Procedure of Texas, 1925, and where the resulting change of venue was to the extreme prejudice of the Appellant, there being a vast and close coverage of the Court of Inquiry proceedings and previous trials by courts involved in the Court of Inquiry, permeating Brazos County, Texas, located less than one hundred miles from Harris County, Texas, with substantially all necessary facilities in Harris County, Texas, substantially covering Brazos County, Texas, and with Appellant\'s good reputation in Harris County, Texas, being unavailable to him in Brazos County, Texas.
"C. The Court of Inquiry procedures utilized by Appellee State of Texas, acted to effectively replace the Grand Jury indictment system guaranteed to Appellant by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States.
"SPECIFICATION OF ERROR NUMBER TWO
"The District Court erred in admitting into evidence, over proper objections, a transcript which accompanies Appellees\' Motion to Reopen Evidence."

For convenience we restate the questions presented on appeal:

1. Did the district court err in overruling Martin's objections to the transcript which accompanied appellee's motion to reopen evidence?

2. Was evidence against Martin unconstitutionally obtained as a result of grand jury subpoenas issued by an assistant district attorney who signed the name of the grand jury foreman?

3. Was evidence against Martin unconstitutionally obtained through subpoenas issued by the Court of Inquiry?

4. Were the Court of Inquiry procedures in fact utilized by the State of Texas to replace or violate the grand jury indictment system?

5. Did the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States guarantee to Martin a right to be tried on indictment of a grand jury?

6. Did the Sixth and Fourteenth Amendments to the Constitution of the United States secure to Martin a right to be tried in the county in which the crime was alleged to have been committed?

7. Did the action of the State court in sua sponte ordering a change of venue from Harris County to Brazos County violate any federal constitutional rights of Martin?

8. Did the publicity attending the Court of Inquiry proceedings unconstitutionally deprive Martin of a fair trial in Brazos County?

We shall briefly discuss the eight questions in that order.

1. The evidence originally was closed on the plenary hearing in the district court on January 12, 1966. Subsequently on March 4, 1966, the respondent filed a motion to reopen the evidence for the purpose of introducing additional evidence as to the knowledge possessed by the district attorney, prior to the Court of Inquiry, of the evidence upon which Martin was convicted. That additional evidence

397 F.2d 745
consisted of a 61-page transcription of 10 dictaphone belts recording conversations on Friday, June 7, 1962, a week before the opening of the Court of Inquiry, between three attorneys, Dick Putney, Jim Clark and Pete Moore and the District Attorney and three Assistant District Attorneys. Martin objected because there was no showing as to why, by the exercise of due diligence, this evidence could not have been offered before the evidence at the habeas hearing was closed. The district court overruled that objection and admitted the transcription in evidence

At that time no order had been entered nor had the briefs of the parties been filed. There appeared no possibility of wrongful prejudice to Martin by allowing the reopening of the evidence for this limited purpose. Whether the case should be reopened for receipt of this evidence was peculiarly within the discretion of the district court and we find no abuse of discretion.3

2. Copies of the grand jury...

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35 practice notes
  • Price v. Superior Court, No. S085852.
    • United States
    • United States State Supreme Court (California)
    • 25 June 2001
    ...the vicinage provision of the Sixth Amendment does not apply to the states. In the first of those cases, Martin v. Beto (5th Cir. 1968) 397 F.2d 741, 748, the court recognized that the vicinage provision of the Sixth Amendment "has not thus far been held applicable to the States" by the Sup......
  • King v. State, No. 44796
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 November 1971
    ...969 (1915); People v. Bradley, 7 Ill.2d 619, 131 N.E.2d 538 (1956); Heath v. State, 198 Md. 455, 85 A.2d 43 (1951). In Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968), it was 'In the present state of the law, the grand jury requirements of the Fifth Amendment are held not binding on the s......
  • United States v. Kohne, Crim. No. 71-254.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 August 1972
    ...For other cases dealing with the use of a subpoena duces tecum by the United States Attorney's office, see: Martin v. Beto, 397 F.2d 741 (5th Cir. 1968); United States v. Aronson, 319 F.2d 48 (2d Cir. 1963); United States v. Re, 313 F.Supp. 442 (S.D.N.Y.1970); In Re Dymo Industries, Inc., 3......
  • United States v. Anzelmo, Crim. A. No. 31585.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 29 October 1970
    ...v. United States, 335 F.2d 609 (5th Cir. 1964), cert. and reh. den., supra. Judge Thornberry, in a concurring opinion in Martin v. Beto, 397 F.2d 741 (5th Cir. 1968), after wrestling with this question of preindictment prejudicial publicity concluded, reluctantly, that "the rule today is th......
  • Request a trial to view additional results
35 cases
  • Price v. Superior Court, No. S085852.
    • United States
    • United States State Supreme Court (California)
    • 25 June 2001
    ...the vicinage provision of the Sixth Amendment does not apply to the states. In the first of those cases, Martin v. Beto (5th Cir. 1968) 397 F.2d 741, 748, the court recognized that the vicinage provision of the Sixth Amendment "has not thus far been held applicable to the States" by the Sup......
  • King v. State, No. 44796
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 November 1971
    ...969 (1915); People v. Bradley, 7 Ill.2d 619, 131 N.E.2d 538 (1956); Heath v. State, 198 Md. 455, 85 A.2d 43 (1951). In Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968), it was 'In the present state of the law, the grand jury requirements of the Fifth Amendment are held not binding on the s......
  • United States v. Kohne, Crim. No. 71-254.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 August 1972
    ...For other cases dealing with the use of a subpoena duces tecum by the United States Attorney's office, see: Martin v. Beto, 397 F.2d 741 (5th Cir. 1968); United States v. Aronson, 319 F.2d 48 (2d Cir. 1963); United States v. Re, 313 F.Supp. 442 (S.D.N.Y.1970); In Re Dymo Industries, Inc., 3......
  • United States v. Anzelmo, Crim. A. No. 31585.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 29 October 1970
    ...v. United States, 335 F.2d 609 (5th Cir. 1964), cert. and reh. den., supra. Judge Thornberry, in a concurring opinion in Martin v. Beto, 397 F.2d 741 (5th Cir. 1968), after wrestling with this question of preindictment prejudicial publicity concluded, reluctantly, that "the rule today is th......
  • Request a trial to view additional results

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