Smith v. State of Texas, Civ. A. No. 63-H-581.

• Decision Date: 21 November 1963
• Docket Number: Civ. A. No. 63-H-581.
• Citation: 225 F. Supp. 150
• Parties: Joe Edward SMITH, Petitioner, v. The STATE OF TEXAS, Respondent.
• Court: U.S. District Court — Southern District of Texas

225 F. Supp. 150

Joe Edward SMITH, Petitioner, v. The STATE OF TEXAS, Respondent.

Civ. A. No. 63-H-581.

United States District Court S. D. Texas, Houston Division.

November 21, 1963.

Thompson, Hippard & Gibson, James J. Hippard, Houston, Tex., for petitioner.

Sam Robertson, Jr., Ass't Dist. Atty., for Harris County, Tex., for respondent.

NOEL, District Judge.

Petitioner is again before this Court upon application for writ of habeas corpus. His first application was dismissed by this Court on May 7, 1962.¹ This dismissal was affirmed by the United States Court of Appeals for the Fifth Circuit on April 4, 1963.² Petitioner then applied to the Supreme Court of the United States for writ of certiorari. This application was likewise dismissed.

Finality was not achieved by the action of three federal courts upon petitioner's first application for writ of habeas corpus. The constitutional grounds asserted in his second application were not urged in his first. This Court must therefore consider those issues asserted for the first time in petitioner's second application. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

The new grounds asserted by petitioner are:

(1) That the State failed to introduce evidence establishing all the basic elements of the crime charged, which under the teaching of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) would make his conviction violative of the due process clause of the Fourteenth Amendment; and

(2) That the proof offered by the State did not fulfill the requirements of Texas law and, therefore, petitioner's conviction constituted a denial of equal protection of the law under the United States and Texas Constitutions.

Petitioner's state remedies were exhausted by the denial on November 7, 1963 of petitioner's petition for writ of habeas corpus to the Texas Court of Criminal Appeals.

Petitioner was to be executed in the early morning of November 8, 1963. But, since the contents of the petition suggested a careful examination of the trial record which had not been returned by the United States Court of Appeals for the Fifth Circuit, this Court on November 7, 1963 stayed petitioner's execution for thirty days.

The grounds asserted in petitioner's application were not such as required an evidentiary hearing within the purview of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Petitioner did not request an evidentiary hearing. Petitioner's counsel did request oral legal argument, to which he was not entitled as a matter of right but which this Court in the exercise of its discretion granted.

The Brief in Support of Petitioner's Application for Writ of Habeas Corpus and the Supplemental Brief in Support of Petitioner's Application for Writ of Habeas Corpus show that despite petitioner's reliance upon the holding of the United States Supreme Court in Thompson v. Louisville, supra, his actual contention is that the proof offered by the State did not meet the standards of proof required to sustain a conviction under Texas law. 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. These contentions are nothing more than a request for an inquiry into or a weighing of the sufficiency of the evidence supporting a conviction, which is not within the province of a federal court in a habeas corpus matter.³

Petitioner in relying on Thompson v. Louisville, supra, as authority for these contentions, misinterprets the case.⁴ There the Court said,

"The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all." (Emphasis added.)

In following and applying the Thompson rule, the court in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed. 2d 207 (1961) said,

"As in Thompson v. City of Louisville * * * our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners' acts caused a disturbance of the peace." (Emphasis added.)

There is a difference between a conviction based upon evidence deemed insufficient as a matter of state criminal law, as is petitioner's basic contention, and one so totally devoid of evidentiary support as to raise a due process issue. It is only in the latter situation that there has been a violation of the Fourteenth Amendment which would then afford a state prisoner a remedy in a federal court on writ of habeas corpus.⁵

Petitioner's contentions involving an inquiry into the sufficiency of evidence to support his conviction are not grounds for the issuance of a writ of habeas corpus. However, his contention, if true, that there is no evidence supporting an essential element of the crime of murder with malice aforethought for which he was charged and convicted,⁶ would be a denial of due process under the teaching of Thompson v. Louisville, supra, for which a writ of habeas corpus would lie.

This contention is in essence that the State introduced no evidence that either petitioner or his co-indictee, Adrian Johnson, while preparing for or executing felonious acts of sodomy on the deceased, killed him by mistake or accident. The determination of this question required an extensive examination by this Court of the record made in the trial court. 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.

A summation of the evidence adduced against petitioner was prepared by First Assistant District Attorney Sam Robertson and stipulated as accurate and complete in open court by petitioner's counsel James J. Hippard. From my examination of the trial court record, I find independently of such stipulation that such summation is accurate and complete. The summation is attached to this opinion for convenience, as an Appendix.

It is necessary to examine the Texas law to determine the essential elements required to be proved in order to convict the petitioner. Article 42 of the Vernon's Ann.Texas Penal Code provides:

"One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed."

In his first brief filed in support of this petition, petitioner seems to contend that the only evidence which could be considered as supporting his conviction is evidence identifying either petitioner or his co-indictee, Adrian Johnson, as the person or persons who while preparing for or executing felonious acts of sodomy on the deceased through mistake or accident killed him.⁷ This contention is apparently based on the belief that only persons jointly indicted may be considered principals in Texas. However, Article 65 of the Vernon's Ann.Texas Penal Code provides that "All persons are principals who are guilty of acting together in the commission of an offense." Article 65 does not declare that all persons who are guilty of so acting together must be indicted in order for any one or more of them to be a principal.

The state trial judge charged the jury in part as follows:

"All persons are principals who are guilty of acting together in the commission of an offense, and principals, whether jointly indicted or not, may be legally prosecuted and convicted as such, provided the evidence adduced against each clearly and satisfactorily establishes the guilt of each. Where an offense has been committed, the true criterion for determining who are principals is, `Did the parties act together in the commission of the offense? Was the act committed in pursuance of a common intent, and in pursuance of a previously formed design in which the minds of all united and concurred?' If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in execution of the common design and intent of all."

It is not necessary that the charge of the trial court specifically identify persons as possible principals for the petitioner to be a principal with them under Texas law. See Johnson v. State, 169 Tex.Cr.R. 612, 336 S.W.2d 175 (1960). Therefore, petitioner would be a principal with any one with whom the evidence showed he was acting in the commission of the offense of sodomy. By his own confession, petitioner was acting together with Ira Lee Sadler, Adrian Johnson, David Clemons and Charles Archer.

It is not necessary that any evidence be presented proving that petitioner was the one who directly and independently, or acting only with Johnson, caused the death of the child. It would be and is sufficient if any evidence were presented that petitioner was acting with others as a principal in the commission of the offense of sodomy and that while preparing for or executing such felonious offense he or one or more of his principals caused the death by mistake or accident.

I find that not only is there any or some evidence to support this element, there is ample evidence from which a jury could rationally convict. Petitioner's...