Randel v. Beto, 22002.

• Citation: 354 F.2d 496
• Decision Date: 10 December 1965
• Docket Number: No. 22002.,22002.
• Parties: Dennis RANDEL, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

354 F.2d 496 (1965)

Dennis RANDEL, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 22002.

United States Court of Appeals Fifth Circuit.

December 10, 1965.

Tom Martin Davis, Jr. (Court-Appointed), Houston, Tex., for appellant.

Sam R. Wilson, Asst. Atty Gen. of Texas, Houston, Tex., Waggoner Carr, Atty. Gen. of Texas, Charles B. Swanner, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for appellee.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

RIVES, Circuit Judge:

On July 15, 1964, the district court granted Dennis Randel's application to proceed in forma pauperis, and directed the Clerk to file his petition for habeas corpus. That petition disclosed that Randel is a prisoner serving a life sentence in the custody of the Texas Department of Corrections. The sentence was imposed on June 9, 1948 upon Randel's conviction for the offense of murder with malice. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas and rehearing was denied in opinions reported as Randel v. State, 1949, 153 Tex.Cr.R. 282, 219 S.W.2d 689-698. According to the petition, an earlier petition for habeas corpus based on the same ground as presently urged had been denied by the Court of Criminal Appeals of Texas on May 26, 1964.

As ground for relief Randel alleged that he was denied due process of law because of a substitution of judges during the taking of testimony upon his trial for murder. His petition averred:

"The Jury was impaneled and sworn in by the regular District Judge and a plea of not guilty was entered. After Petitioner Dennis Randel\'s trial was approximately half finished, the regular District Judge vacated his bench for some reason unknown to your Petition sic, and turned the remainder of said trial over to another Judge who heard the rest of the witnesses\' testimony, received the verdict of the Jury and sentenced Petition sic Dennis Randel to life in the penitentiary."

The district court took the position that it appeared from the petition that Randel was not entitled to issuance of the writ of habeas corpus or to a show cause order.¹ On July 15, 1964, the same day on which the petition was filed, it was denied for reasons stated in a memorandum, as follows:

"Petitioner complains of his conviction in the 70th Judicial District Court of Ector County, Texas, on June 9, 1948. Petitioner alleges as ground for relief in this Court that during the course of the proceeding the trial judge left the bench and another judge was substituted and presided over the rest of the trial.

"This matter was considered on appeal by the Texas Court of Criminal Appeals in Randel v. State, 219 S.W.2d 689, and the Court of Criminal Appeals\' Opinion states that the substitution of judges was expressly agreed to by petitioner and his attorneys before the substitution was made, and no objection was made thereafter during the trial of the case on that ground.

"I find no merit in the contention that petitioner\'s constitutional rights were violated by the substitution of trial judges. Petitioner had ample opportunity to object to the substitution before and after it was made. He did not object, and expressly agreed to the substitution. His application for the writ is therefore denied."

It would appear that the district court accepted as findings of fact by the Court of Criminal Appeals of Texas the following statements in its opinion:

"This cause went to trial before Judge Cecil C. Collings, District Judge of that district, on June 7, 1948, in the city of Odessa. The trial continued through that day. A jury was selected and 26 witnesses had testified therein. On June 8, 1948, at approximately 5:00 o\'clock in the afternoon, Judge Alton B. Chapman, the regular District Judge of the 110th Judicial District, came into the courtroom, and after a conference between these two district judges, Judge Collings informed appellant and his attorneys that he desired to retire from the case in order to meet an important political engagement in another county, and that if agreeable to appellant and his attorneys, he would turn the trial of the case over to Judge Chapman and proceed to fill this political engagement; but that if there was any objection thereto, he would forego this engagement, whereupon, after a consultation of the attorneys with their client (appellant), such exchange of judges was agreed to, and such was stated to the court; but one of appellant\'s attorneys stated that he would take an exception to such an exchange. Judge Collings then stated that unless they all agreed to such proceedings, he would continue to preside at this trial. A further consultation was had by the attorneys and appellant, and they then in open court announced that such exchange was agreeable to them and to the appellant, whereupon Judge Collings asked appellant the following question: `Is this exchange of benches and my relinquishing the trial of this case to Judge Chapman entirely satisfactory to you, Mr. Randel?\' To which inquiry had in open court appellant advised the court that it was entirely satisfactory with him, whereupon the jury being in retirement at such time, they were returned into court and Judge Collings made the following statement:

"`Judge Alton B. Chapman of the 110th Judicial District from Floydada is here and has consented to come down and take my place the balance of the week, and at this time I am turning the case over to him and you will enjoy working for him.\'

"No objections to such action nor exceptions thereto were ever made and none made to Judge Chapman proceeding with the trial. He heard the testimony of three more witnesses, prepared the charges to which no exceptions or objections appear to have been urged, and received the verdict of the jury." Randel v. State, 1949, 152 Tex.Cr.R. 282, 219 S.W.2d 689, 691-692.

Able and diligent counsel for Randel, appointed by this Court, has filed with his brief an appendix containing excerpts from the state court record consisting of "Bills of Exception" presented by Randel's counsel and "Qualified Bills of Exception" approved by Judges Collings and Chapman.² Counsel inform us that the proceedings pertaining to the substitution of Judges were not recorded by the official court reporter although he was present, and that these bills of exceptions are the only writings, purporting to show what occurred in the trial court in connection with the substitution of Judges.

The bills of exceptions presented by Randel's counsel reflect that he did not agree to the substitution of Judges. The qualified bills of exceptions state that when Judge Collings informed counsel of his desire to retire from the trial to meet an important political engagement, Frank Sparks, one of Randel's attorneys, "said that he would be glad for Judge Collings to be relieved and for Judge Chapman to conduct the trial of the case from that point until its conclusion but that at such time he wanted to reserve a Bill of Exception, whereupon Judge Collings stated to counsel for State and to the Defendant that if there was any objections whatsoever or if there was to be any bill he, the said Judge Collings, would continue in the trial of said cause."

The statement heretofore quoted from the opinion of the Texas Court of Criminal Appeals is a paraphrase of Qualified Bill of Exceptions Number One as approved and ordered filed by Judges Collings and Chapman. Under Texas law, the Texas Court of Criminal Appeals "is not a trier of fact." It does not pass on the conflict between the bills of exceptions as presented by appellant's counsel and as qualified and approved by the trial judge, but accepts the latter as true in the absence of a bystander's bill.³

The only Judges who have passed on Randel's contention that he did not agree to the substitution of Judges are the original and the substitute trial Judges Collings and Chapman. The qualified bills of exceptions approved by them were accepted by the Court of Criminal Appeals without further question.

The opinion on motion for rehearing reflects Randel's continued insistence that he did not agree to the substitution.

"Appellant challenges the correctness of our conclusions that the record affirmatively reflects he agreed to the exchange or substitution of the judge.

"The record has been again examined upon this question, and we remain convinced of the correctness of our original finding.

"Whether appellant did or did not agree to the exchange by the judges is immaterial, for if the substitution of one judge for another during the trial operated to deny to him the right of trial by jury he could not waive that right. If the substitution was not an essential element of the right of trial by jury, appellant cannot be heard to complain because of the absence of any objection thereto during the trial of the case.

"The question before us is whether `trial by jury\' requires that the judge presiding at the beginning of a trial preside throughout the trial." Randel v. State, supra, 219 S.W.2d at 696.

After discussion, the opinion concludes on this subject as follows:

"From what has been said, it is apparent that the common-law rule requiring that the same judge preside throughout the trial of a felony case has been expressly abrogated by the Constitution and statutes of this State.

"As applicable to the trial of felony cases in this State, then, the elements essential to constitute a `trial by jury\' are (a) a jury of twelve men, (b) a judge qualified as and having the powers of a district judge presiding over the trial, and (c) a unanimous verdict.

"Appellant\'s trial was in accordance with these essential elements. He was not, therefore, denied his constitutional right of trial by jury." 219 S.W.2d at 698.

The conclusion of the Texas Court that Randel was not denied his constitutional right of trial by jury has reference to the Texas State Constitution. That conclusion is, of course, not binding on the federal...