Stokes v. Procunier, 83-2481

• Decision Date: 22 October 1984
• Docket Number: No. 83-2481,83-2481
• Citation: 744 F.2d 475
• Parties: Lawrence John STOKES, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 475

744 F.2d 475

Lawrence John STOKES, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent-Appellee.

No. 83-2481.

United States Court of Appeals Fifth Circuit.

Oct. 22, 1984.

Jerry Warren, Rain, Harrell, Emery, Young & Doke, Dallas, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before RUBIN, REAVLEY, and TATE, Circuit Judges.

REAVLEY, Circuit Judge:

Lawrence John Stokes, who is on parole under the custody of the State of Texas, appeals the denial of habeas corpus relief under 28 U.S.C. Sec. 2254. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). He was convicted of attempted burglary in 1973 and, because of two prior convictions, received an enhanced sentence of life imprisonment. After Stokes unsuccessfully challenged his conviction in state court, he filed this action in federal district court. The district court referred two claims--improper comment on Stokes' post-arrest silence and ineffectiveness of counsel--to a magistrate for a hearing. After adopting his findings and conclusions, the court dismissed the cause with prejudice, but issued a certificate of probable cause. We affirm in part and reverse in part.

I. Case History

Sheila Shumaker returned to her home in Beaumont, Texas, on the afternoon of January 6, 1973, and observed a man wearing white gloves, trying to open the patio door from the outside with what she thought was a screwdriver. She asked him what he was doing, and he ran off. Then she called the police, providing a description of the man. A neighbor of the Shumakers saw a man running on a service road behind his house.

After receiving a radio call about the incident, a police officer saw a man matching the description in the area, about seven blocks from the Shumaker residence. When asked what he was doing, the man first said that he was visiting friends, although he could not name them. He then said he was looking for a lost dog, but, when asked, could not say where he lost the dog or identify any street names in the neighborhood. The police officer then arrested Stokes, finding a pair of white gloves and a screwdriver in a pocket of his sport coat. The police officer drove to the Shumaker residence, and Sheila viewed Stokes sitting in the police car. Although she thought the man outside the house had lighter hair than the man in the car, she observed that the man in the car wore a similar jacket, was of the same race and age, and generally resembled the man she had seen earlier. The neighbor identified the man in the police car as the same man he saw running earlier.

The jury found Stokes guilty of attempted burglary with intent to commit theft. Then, in the punishment phase of trial, the prosecution introduced "pen packets" and fingerprint evidence establishing that Stokes had previously been convicted of two felonies. The jury found that the prosecution had proved beyond a reasonable doubt, as charged in the indictment, that Stokes had previously been convicted of two felonies less than capital. Accordingly, the court sentenced Stokes to life imprisonment as a habitual offender under Tex.Penal Code Ann. Article 63 (Vernon 1925) (repealed 1974) (current version at Tex.Penal Code Ann. Sec. 12.42(d) (Vernon 1974 & Supp.1984) ).

II. Receipt of Indictment

Stokes first challenges his 1973 conviction on the basis that he did not receive a copy of the indictment. He argues that the failure to provide an accused with a copy of the indictment violates Texas law, see Tex.Crim.Proc.Code Ann. art. 25.01 (Vernon 1966), and the Sixth Amendment. Our inquiry, however, is limited to ascertaining whether Stokes was deprived of any right guaranteed by the United States Constitution. He would be entitled to relief if he had not been informed of the nature and cause of the accusation against him or if he was unable to plead the judgment as res judicata against any attempted prosecution for the same offense. See, e.g., Calley v. Callaway, 519 F.2d 184, 226 (5th Cir.1975) (en banc), cert.denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); United States v. Strauss, 283 F.2d 155, 158-59 (5th Cir.1960).

The record contains a Precept to Serve Copy of Indictment, which shows that Stokes was served with a certified copy of the indictment on April 19, 1973, well before he was tried in August 1973. Moreover, the hearing before the magistrate revealed that Stokes' trial counsel's file contained a copy of the indictment. Although counsel could not specifically remember whether he obtained a copy of the indictment before trial, his normal procedure was to do so immediately after being appointed. He also testified that he discussed the charges in detail with Stokes. Stokes' Sixth Amendment right to be informed of the charges so that he could prepare a defense was not violated.

III. Evidence of Intent to Commit Theft

Stokes argues that insufficient evidence existed upon which a rational trier of fact could conclude beyond a reasonable doubt that he possessed the intent to commit theft, an essential element of the crime for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Greer v. State, 437 S.W.2d 558 (Tex.Crim.App.1969). We disagree. A rational trier of fact could have found, by inference from the circumstantial evidence introduced, that Stokes had the requisite intent. See, e.g., Williams v. Maggio, 695 F.2d 119, 122 (5th Cir.), cert.denied, 461 U.S. 917, 103 S.Ct. 1901, 77 L.Ed.2d 288 (1983); United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.Cir.1976) (en banc), cert.denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Hall v. United States, 286 F.2d 676, 677, 679 (5th Cir.1960); Williams v. State, 537 S.W.2d 936, 938 (Tex.Crim.App.1976); Warren v. State, 641 S.W.2d 579, 582 (Tex.App.--Dallas 1982, pet. dism'd).

Sheila Shumaker testified that she observed a man wearing white gloves using a screwdriver to "jimmy open" the patio door at the rear of her house. He fled when she inquired what he was doing. A neighbor who saw a man running away testified, "His hands seemed to be white as if he had something on his hands." The police officer arrested a man fitting the description given over the radio and supplied by Sheila. He possessed a screwdriver and lightweight white gloves and gave two explanations for his presence in the neighborhood, which he later admitted were false. The neighbor identified him as the same man he had seen running. Based on this evidence, the jury could have concluded beyond a reasonable doubt that Stokes used the screwdriver with intent to steal something from the Shumaker house and that he wore the white gloves to avoid leaving fingerprints.

IV. Prosecutorial Comments on Stokes' Post-Arrest Silence

On direct examination at the trial the police officer related the circumstances surrounding Stokes' arrest. He stated that he made the arrest after Stokes told him that he in fact had not lost a dog and could not produce identification. The following colloquy between the prosecutor and police officer ensued:

Q. Officer Gratzer, at the time that you took him into custody did you advise him of the reason that you were placing him in custody and also advised him of the rights that are required under the law?

A. Yes, sir, I did.

Q. And after advising him of the reason you were arresting him did he tell you anything else?

A. No, he did not.

Defense counsel made no objection to the latter question. On cross examination, Stokes' attorney asked:

Q. Officer, have you ever talked to anyone when you were investigating an offense or an alleged offense and ordinary people--do they ever appear nervous in your presence?

A. Yes, they do.

Q. So, it isn't unusual for someone to be hesitant in talking or not clear about what they have to say, is it? We are not talking about this individual in this case, but in performing routine investigations it is not unusual, is it, officer, to talk with someone who is hesitant or is confused about details?

A. No, sir.

On redirect, the prosecutor inquired:

Q. Did [Stokes] subsequently tell you, in fact, that there was no dog lost and that wasn't why he was there?

A. Yes, sir.

Q. Now, what is of great importance, I think, in line with what Mr. Boudreaux asked you, his contention that people are nervous, after you told the defendant that you were placing him in your custody for attempted burglary of a house down the street from that point on, or at that very moment, from that point on he never said a word?

A. He wouldn't answer any more questions.

Again, defense counsel failed to object. Boudreaux then examined Gratzer on recross Q. Officer, is it--would it be unusual if you tell someone you are arresting them for some crime for them not to make any further statement?

A. Yes, sir.

Q. That's not unusual, is it?

A. It is unusual.

Q. It is unusual?

A. Yes, sir.

Q. Are you telling me and this jury that in the course of your duties when you arrest someone, at that point they make no further statements?

A. Normally they do make further statements.

Q. You've never known anyone to become afraid and keep their mouth shut, officer, and not say anything further?

A. Yes, it has happened.

Q. But this is not unusual?

A. No.

Q. Officer, would you expect that whenever you walk up to someone on the street in conducting an investigation would you feel that they have a duty to talk to you?

MR. GIST: Your Honor, I object to that. That's improper.

THE COURT: Sustained.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court stated that "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he...