Pickens v. State of Texas

• Decision Date: 15 October 1974
• Docket Number: No. 73-3121.,73-3121.
• Citation: 497 F.2d 981
• Parties: Lester Morris PICKENS, Petitioner-Appellant, v. The STATE OF TEXAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 981 (1974)

Lester Morris PICKENS, Petitioner-Appellant, v. The STATE OF TEXAS, Respondent-Appellee.

No. 73-3121.

United States Court of Appeals, Fifth Circuit.

July 19, 1974.

Certiorari Denied October 15, 1974.

John T. Montford, Lubbock, Tex. (Court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., of Tex., E. Bruce Curry, Thomas W. Choate, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before RIVES, GEWIN and RONEY, Circuit Judges.

Certiorari Denied October 15, 1974. See 95 S.Ct. 145.

PER CURIAM:

Lester Pickens filed a petition for writ of habeas corpus in the United States District Court seeking to remove a detainer warrant placed on him by the State of Texas. Pickens was serving a Texas 10 year probated sentence for robbery by assault when he participated in activity alleged to be in violation of the terms and conditions of the State probation in that he interfered with a nurse in the exercise of her duties and engaged in disorderly conduct both of which were offenses against Texas law. Texas Penal Code, Art. 472a, Vernon's Ann.P.C., and Art. 474, V.A.P.C. A hearing was held in the state court, Pickens was found in violation of the terms of his probation, and the probation was revoked. Subsequently convicted and incarcerated in the Federal Correctional Institution at Fort Leavenworth, Kansas, on federal charges stemming from another occurrence, a detainer warrant was filed by the State of Texas pertaining to the probation revocation.

After exhausting his state remedies, Pickens seeks to remove the detainer asserting that the probation revocation proceeding was constitutionally infirm because the acts which were found to be violations of the terms and conditions of his probation were in fact protected by the First and Fourteenth Amendments of the United States Constitution. The District Court, in a well reasoned opinion which is appended hereto as an appendix, found that the state trial judge had not abused his discretion in revoking Pickens' probation and thus denied the relief sought.

The sole issue on this appeal is whether the state trial judge abused his discretion in revoking Pickens' probation. To grant habeas corpus relief, we must find an abuse of discretion which reaches constitutional magnitude. This we do not find and, consequently, we affirm.

The revocation of a probated sentence is within a trial court's discretionary powers and will not be disturbed without a clear showing of an abuse of that discretion. United States v. Garza, 484 F.2d 88 (5th Cir. 1973) ; United States v. Langley, 438 F.2d 91 (5th Cir. 1970) ; Burns v. United States, 287 U.S. 216, 221, 53 S.Ct. 154, 77 L.Ed. 266 (1932). It is not an abuse of discretion to revoke probation based on a finding that the conduct of the probationer has not been as good as required by the conditions of the probation. United States v. Bryant, 431 F.2d 425 (5th Cir. 1970) ; United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969) ; Manning v. United States, 161 F.2d 827, 829 (5th Cir.), cert. denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

Pickens argues that his conduct was not an offense against the State of Texas but was protected by the First Amendment. Before the constitutional question is reached, however, it must be recognized that a "revocation of probation does not require proof sufficient to sustain a criminal conviction." United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973) ; Amaya v. Beto, 424 F.2d 363 (5th Cir. 1970) ; Manning v. United States, 161 F.2d 827, 829 (5th Cir.), cert. denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

In Manning, the conditions of probation required that the probationer not violate any law. The probated sentence was revoked based on the charge that Manning was using the mails to defraud and was practicing medicine without a license. In answer to Manning's contention that the evidence was insufficient to support a conviction on either charge, the Court stated that

proof sufficient to support a criminal conviction is not required to support a judge\'s discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.

161 F.2d at 829. See United States v. Langley, 438 F.2d 91 (5th Cir. 1970) (Revocation based on allegedly improper state conviction upheld) ; United States v. Bryant, 431 F.2d 425 (5th Cir. 1970) (Revocation based on alleged insufficient evidence to charge crime upheld) ; United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969) (Revocation based on dismissed state charge upheld).

The state trial judge found that Pickens' conduct was disorderly. The record supports that finding. His decision to revoke probation did not amount to an abuse of discretion.

In affirming the District Court's denial of habeas corpus relief to Pickens, we do not determine in any manner the scope of First Amendment rights possessed by a probationer. We merely hold that the state trial judge did not abuse his discretion in determining that Pickens' conduct, other than that which arguably might be protected by the First Amendment, was contrary to the terms of his probation and supported its revocation.

Affirmed.

APPENDIX

MEMORANDUM AND ORDER

Petitioner, Lester Morris Pickens, is presently a federal prisoner by virtue of sentence on June 18, 1971, by the Judge of the United States District Court for the Northern District of Kansas. He had originally been convicted on July 22, 1965 in the 47th Judicial District Court of Potter County, Texas and placed on probation for a period of ten years. On April 16, 1970, the probation in the Texas case was revoked and Petitioner was sentenced to serve ten years in the Texas Department of Corrections. Revocation of probation was affirmed, with two vigorous dissenting opinions, by the Court of Criminal Appeals of Texas. Pickens v. State, 466 S.W.2d 563 (Tex. Cr.App.1971).

While Petitioner's case was on appeal to the Texas Court of Criminal Appeals he was delivered into the custody of the United States Marshal to answer federal charges pending against him in the Northern District of Kansas. The conviction on those charges resulted in the sentence which he is now serving. State of Texas has placed a detainer with the federal authorities.

Petitioner has filed application for writ of habeas corpus pursuant to Title 28 United States Code, Section 2241 et seq., and is proceeding in forma pauperis. He is not challenging the federal conviction. He contends that (1) the detainer placed by the State of Texas is invalid because the State of Texas lost jurisdiction over him when it surrendered him to federal authorities and (2) the revocation of probation by the state judge is constitutionally infirm, because the acts urged by the State of Texas as being violations of terms and conditions of probation are in fact protected by the First Amendment and Fourteenth Amendment to the United States Constitution. All available state remedies have been exhausted and the challenges are properly before this Court.

The records of the case conclusively show that Petitioner is entitled to no relief in his contention that the State of Texas has lost jurisdiction to file its detainer. It is well settled that when state authorities surrender a prisoner to federal authorities for prosecution and service of sentence the state has not waived its right to have the prisoner returned to its custody for trial or service of sentence. Dorrough v. Texas, 5th Cir. 1971, 440 F.2d 1063 ; Montos v. Smith, 5th Cir. 1969, 406 F.2d 1243 ; Bilton v. Beto, 5th Cir. 1968, 403 F.2d 664.

Petitioner's contention that his First and Fourteenth Amendment rights were violated presents a more difficult issue. This Court has before it the transcription of the proceedings of the hearing conducted by the trial judge on the state's application to revoke probation. The fact summary in the opinion of Presiding Judge Onion of the Texas Court of Criminal Appeals is supported by the record and is adopted by this Court:

"The record reflects that on January 11, 1970, one Ronald McDonald, a close friend of the appellant, was shot by one Preston Cheeks near the Club De Lisa in Amarillo and fell face down in the street. When appellant arrived on the scene he obtained permission from the officer in charge to determine if his friend was still alive, and he turned McDonald\'s face out of a puddle of mud. Soon a crowd of 100 to 200 people gathered, apparently angry about the shooting, and the delay in getting aid to McDonald, and began yelling `honkies\' and `pigs\'. The witnesses described the disturbance and named the ring leaders, but they did not include the appellant. Only one witness said he observed the appellant yelling `honkies\' and `pigs\' along with most of the others in the crowd.

The ambulance driver testified that McDonald did not appear to be alive at the scene and upon arrival at the hospital the nurses related he showed no vital signs of life. No doctor was on duty at the time.

The appellant and several others arrived anxious to determine the condition of their friend. When the appellant and three or four others were asked to leave the emergency room he displayed a civil defense card, but was told by the nurse in charge there was no emergency and he would have to retire to the waiting room which he did. Later he re-entered the emergency room attempting to get McDonald\'s mother and sister, etc., permission to enter, which was granted. He was again asked to leave and did. He later re-entered asking permission to comfort the mother of the deceased, which was refused and he was again asked to leave. The group outside was estimated to be from 15 to 20 persons during this period of time.

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