Smith v. State of Texas, 21083.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: HUTCHESON and BELL, Circuit , and BREWSTER
• Citation: Smith v. State of Texas, 329 F.2d 498 (5th Cir. 1964)
• Decision Date: 11 May 1964
• Docket Number: No. 21083.,21083.
• Parties: Joe Edward SMITH, Appellant, v. The STATE OF TEXAS, Appellee.

329 F.2d 498 (1964)

Joe Edward SMITH, Appellant, v. The STATE OF TEXAS, Appellee.

No. 21083.

United States Court of Appeals Fifth Circuit.

March 30, 1964.

Rehearing Denied May 11, 1964.

James J. Hippard, Houston, Tex., for appellant.

Samuel H. Robertson, Jr., Houston, Tex., for appellee.

Before HUTCHESON and BELL, Circuit Judges, and BREWSTER, District Judge.

BREWSTER, District Judge.

This case is now in the throes of the piecemeal, post-conviction, collateral litigation of issues which has become the established practice where there is a conviction carrying a substantial penalty. Four and a half years after the date of the offense, the case is before us on appeal from a judgment of a federal district court denying a second petition for writ of habeas corpus after it had already run the gamut of litigation on the merits in the state trial and appellate courts, Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344 (1961), cert. den. 368 U.S. 883, 82 S.Ct. 126, 7 L.Ed.2d 83, and on a federal court petition for writ of habeas corpus attacking the validity of the defendant's extrajudicial statement. Smith v. Heard, S.D.Tex., 214 F.Supp. 909 (1962), affirmed 315 F.2d 692 (5 Cir. 1963), cert. den. 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed. 2d 113.

The appellant was assessed the death penalty in the Criminal District Court of Harris County, Texas, for murder with malice aforethought. This second petition for writ of habeas corpus challenges the conviction on the ground that the prosecution failed to offer evidence proving all of the elements of the offense and fulfilling the requirements of Texas law, and that his sentence was therefore in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States under the rule announced in Thompson v. City of Louisville, 362 U. S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 80 A.L.R.2d 1355 (1960), and Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L. Ed.2d 207 (1961).

Appellant says that this question has never been considered prior to this proceeding. That statement is incorrect. The question of the sufficiency of the evidence, which necessarily includes that of whether there was any evidence, was passed on by the trial court in the hearing on the motion for new trial in the murder case. While the matter was not discussed in the opinion of the Court of Criminal Appeals of Texas, the question of whether a conviction is supported by the evidence is one which is always weighed by that Court, regardless of whether it is briefed and argued and of whether the opinion mentions it. Kelly v. State, 95 Tex.Cr.R. 138, 252 S.W. 1065 (1923); Singleton v. State, 158 Tex.Cr. R. 71, 253 S.W.2d 441 (1952); Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394 (1953); 5 Tex.Jur.2d, p. 212. In the Kelly case, supra, the Court of Criminal Appeals said: "* * * We are required by our statutes to read the statement of facts in every case, and if we do not believe the facts to support the verdict, it is our duty to reverse the case. * *" Vol. 1, Sec. 262, p. 491, Wharton's Criminal Evidence, 10th Ed., says that "* * the Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing and thoroughly digesting all the evidence before applying the law to the case in hand."

The record of the trial in the state court indicates that the accused was there represented by experienced counsel, who diligently prepared the case for trial, and that his defense was ably and vigorously advocated in the trial court and on appeal. One of those two counsel appeared as attorney of record on the first habeas corpus petition in the federal court. No reason is shown in any portion of the record why the question here argued was not presented in that first habeas corpus proceeding.

Both the petitions for writ of habeas corpus in the federal court were heard by the same district judge. His written opinion in the present case shows that he denied the writ after hearing oral arguments and giving thorough, deliberate consideration to the entire evidence admitted in the trial of the murder case. Smith v. State, S.D.Tex., 225 F.Supp. 150. That opinion states that, "This Court carefully reviewed the entire trial court record before making its determination of petitioner's first petition for writ of habeas corpus and has now done so a second time in connection with this his second petition." We have studied closely the full record before us, including the lengthy statement of facts in the trial of the murder case and the trial and appellate transcripts from the state courts, and have concluded that the able trial judge correctly decided this case. We are in agreement with his carefully considered opinion; and, under ordinary circumstances, we would be content to stop with approving and adopting it. The nature of the penalty involved, however, has led us to consider a ground earnestly presented in oral argument here as additional support for the appellant's contention that there was no evidence to establish his guilt, even though it appears not to have been urged in the court below.

The basis of appellant's theory in the court below that the evidence in the murder case did not meet the standards of proof required to sustain a conviction under the law of Texas is accurately described in the following statement taken from Judge Noel's opinion: "* * * This ground encompasses such contentions by petitioner as the failure in the absence of direct evidence to introduce circumstantial evidence excluding every other reasonable hypothesis except petitioner's guilt, failure to prove each of the essential elements of the offense beyond a reasonable doubt, the obtaining of the conviction by basing one inference upon another inference, and conviction without the introduction of sufficient quantitative evidence to justify rationally a finding as to every element of the crime charged. * * *" 225 F.Supp. at p. 152. While appellant has not abandoned those contentions, the main thrust of his argument here is the added ground that the prosecution failed to meet its burden of establishing the corpus delicti.

The fundamental rules regarding the standard and quantum of evidence required to prove the corpus delicti in cases where there is an extrajudicial statement or confession by the accused have been long established and consistently followed in Texas since Kugadt v. State, 38 Tex. Cr.R. 681, 44 S.W. 989 (1899), opinion by Presiding Judge Hurt. The Kugadt case has been frequently cited and quoted with approval by the Court of Criminal Appeals down through the years and as late as Kimble v. State, 172 Tex.Cr.R. 31, 353 S.W.2d 442 (1962). Comparatively recent decisions have referred to it as "the leading case on this proposition." Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406, 413 (1939); Kincaid v. State, 131 Tex.Cr.R. 101, 97 S.W.2d 175, 177 (1936); Whitaker v. State, 160 Tex. Cr.R. 271, 268 S.W.2d 172 (1954).

The following principles applicable to this case are the firmly established law in Texas:

"The general doctrine is that extrajudicial confessions, standing alone, are not sufficient proof of the corpus delicti." Kugadt v. State, supra, 44 S.W. at p. 996; Black v. State, supra; Alexander v. State, 151 Tex.Cr.R. 235, 207 S.W. 2d 881 (1948); Annotations in 127 A.L. R. 1130 and 45 A.L.R.2d 1316.

"The corpus delicti may be proved by circumstances as well as by direct evidence." Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, 562 (1950); Kugadt v. State, supra; Whitaker v. State, supra; Saulter v. State, 151 Tex.Cr.R. 550, 209 S.W.2d 184 (1948).

"The confession may be used in connection with other facts and circumstances in establishing the corpus delicti." Rodgers v. State, 164 Tex.Cr.R. 375, 298 S.W.2d 827, 828 (1957); Kugadt v. State, supra; Black v. State, supra; Alexander v. State, supra; Whitaker v. State, supra; Harkey v. State, 90 Tex. Cr.R. 212, 234 S.W. 221, 17 A.L.R. 1276 (1921); Bussell v. State, 141 Tex.Cr.R. 268, 148 S.W.2d 413 (1948); Benjamin v. State, 160 Tex.Cr.R. 624, 274 S.W.2d 402 (1954).

"And the confession may render sufficient circumstantial evidence that would be insufficient without it." Pollan v. State, 157 Tex.Cr.R. 178, 247 S.W.2d 889, 891 (1952); Watson v. State, supra; Kugadt v. State, supra; Kincaid v. State, supra; Black v. State, supra; Davis v. State, 101 Tex.Cr.R. 243, 275 S.W. 1060 (1925).

"`A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant's guilt in the minds of a jury beyond a reasonable doubt.' `Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. "Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient."'" Kugadt v. State, supra, 44 S. W. at p. 996; Kincaid v. State, supra; Alexander v. State, supra; Whitaker v. State, supra; Black v. State, supra; Lott v. State, 60 Tex.Cr.R. 162, 131 S.W. 553 (1910).

The corpus delicti of a murder case in Texas comprises three elements: "(1) That the body of the deceased was found and identified, (2) that the death of the deceased was caused by the criminal act or agency of another and (3) that the accused is connected with that criminal act or agency." Black v. State, supra, 128 S.W.2d at p. 409; Kugadt v. State, supra.

Application of those principles to the evidence admitted in the trial of the murder case convinces us that the prosecution fully met the standards necessary to establish the corpus delicti in this case. Our opinion would be the same regardless of whether the...