Tarpley v. Estelle

• Citation: 703 F.2d 157
• Decision Date: 18 April 1983
• Docket Number: No. 81-1596,81-1596
• Parties: Wesley Joe TARPLEY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 157

703 F.2d 157

Wesley Joe TARPLEY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 81-1596.

United States Court of Appeals Fifth Circuit.

April 18, 1983.

Molly Cagle (Court-appointed), Vinson & Elkins, Mary Cecilia Kelly, Barbara Radnofsky, Houston, Tex., for petitioner-appellant.

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

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

Before WISDOM, RUBIN and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The jury instructions in Wesley Joe Tarpley's state criminal trial permitted the jury to convict him of a crime with which he was not charged. Because we conclude that the instructions thereby abridged Tarpley's sixth and fourteenth amendment right to notice of the charges against him, we reverse the district court's denial of his petition for a writ of habeas corpus.

In December 1975, someone burglarized the Imported Auto Center of Fort Worth, Texas. The burglars took the company checkbook and credit cards belonging to company employees. J.M. Gassiot's credit card was among those stolen.

On January 27, 1976, Tarpley and John Wayne Hudson checked into an Abilene, Texas motel. Hudson registered under the name J.M. Gassiot and paid for the room with Gassiot's credit card. There is some evidence from which a tenuous inference might be drawn that Tarpley was with Hudson when he registered. The arresting officers found credit cards, checks, and other documents from the Auto Center in their room. Some of these items were in a locked box owned by Tarpley. The officers found the key to this box on Tarpley's person.

Tarpley was brought before a magistrate shortly after his arrest. Although he now claims he requested counsel at this time, there is no record evidence of such a request. On January 6, 1976, a Taylor County, Texas grand jury indicted Tarpley for credit card abuse under Texas Penal Code Ann. Sec. 32.31(b)(1)(A) (Vernon 1974). ¹ Two weeks later, counsel was appointed to represent Tarpley.

Although the indictment charged Tarpley only with credit card abuse under Sec. 32.31(b)(1)(A), ² ] the trial judge's instructions contained elements of both this offense and of receiving property or services obtained by illegal credit card use, another offense under Sec. 32.31(b)(3). ³ Tarpley did not object to the charge, and the jury returned a guilty verdict.

Tarpley's conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals. Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978). He brought five unsuccessful state habeas proceedings. In addition, this is Tarpley's second application for federal habeas relief. His first was denied for failure to exhaust state remedies. Tarpley v. Estelle, No. CA1-80-26 (N.D.Tex. Aug. 5, 1980).

I.

Tarpley faces an extraordinarily heavy burden. Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of the state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977) (footnote omitted).

"Before a federal court may grant relief under 28 U.S.C. Sec. 2254 based on alleged error in a state trial court's unobjected to charge, the error must be so egregious as to rise to the level of a constitutional violation or so prejudicial as to render the trial itself fundamentally unfair." Baldwin v. Blackburn, 653 F.2d 942, 951 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Bryan v. Wainwright, 588 F.2d 1108, 1110-11 (5th Cir.1979). ⁴ " '[I]t must be established not only that the instruction [was] undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the fourteenth amendment, and that 'the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' " Washington v. Watkins, 655 F.2d 1346, 1369 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) (quoting Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 38 L.Ed.2d at 373); accord Hance v. Zant, 696 F.2d 940, 953 (11th Cir.1983).

In applying these principles to the instructions in Tarpley's case, we pay "careful attention to the words actually spoken to the jury, ... for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39, 44 (1979); Washington v. Watkins, 655 F.2d at 1369. And we are mindful that "a single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the entire charge." Cupp, 414 U.S. at 146-147; 94 S.Ct. at 400, 38 L.Ed.2d at 373; accord Washington v. Watkins, 655 F.2d at 1369; Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir.1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409 (1981).

Our review of the entire charge given in Tarpley's case convinces us that a reasonable juror could have understood the charge to allow conviction of an offense other than the one for which Tarpley was indicted. The indictment charged him only with violating Sec. 32.31(b)(1)(A). The elements of that offense are: "(1) a person; (2) with intent to fraudulently obtain; (3) property or service; (4) presents or uses; (5) credit card; (6) with knowledge that it is not used with effective consent of cardholder." Ex parte Williams, 622 S.W.2d 876, 877 (Tex.Cr.App.1981) (en banc); accord Harris v. State, 629 S.W.2d 805, 806 (Tex.App.1982); Ex parte Dawson, 578 S.W.2d 749, 750 (Tex.Cr.App.1979); Ex parte Walters, 566 S.W.2d 622, 624 (Tex.Cr.App.1978).

The first paragraph of the court's instruction quoted in footnote 3, supra, however, informed the jurors that they could convict Tarpley for "receiv[ing] services that he [knew had] been obtained by a person who, with intent to obtain service fraudulently, used a credit card with knowledge that it had not been issued to said person..." This part of the judge's charge tracked the language of Sec. 32.31(b)(3). A reasonable juror could have concluded from this instruction that Tarpley was subject to conviction for violating Sec. 32.31(b)(3), although he was never indicted or otherwise charged under that provision.

Although the state admits that the portion of the instruction quoted above misstated the crime charged against Tarpley, it argues that the jury did not convict Tarpley by reason of that misstatement. Instead, the state argues, the jury followed the second paragraph of the jury charge quoted in footnote 3, supra. This part of the judge's charge closely adhered to the words of Sec. 32.31(b)(1)(A). The jury might have followed this portion of the charge and properly convicted Tarpley for complicity in Hudson's violation of Sec. 32.31(b)(1)(A).

We cannot confidently conclude, however, that the jury followed this part of the charge as opposed to the erroneous portion. "[A]t best, the State's argument suggests that there is more than one reasonable interpretation of the crucial language in the charge." Washington v. Watkins, 655 F.2d at 1369. This is an insufficient response to Tarpley's claim for "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454, 61 L.Ed.2d at 44 (emphasis added); Washington v. Watkins, 655 F.2d at 1369. The jury could have followed the erroneous portion of the judge's charge. If they did so, Tarpley was convicted for violating Sec. 32.31(b)(3), a crime he was never charged with committing.

"No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge ... are among the constitutional rights of every accused." Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647 (1948) (emphasis added). ⁵ As guarantors of this constitutional right, the federal courts have not hesitated to grant habeas relief to a state criminal defendant convicted of an offense other than that for which he was charged. Thus, in Gray v. Raines, 662 F.2d 569 (9th Cir.1981), the Ninth Circuit considered a case in which the defendant was indicted for first degree rape. The state, however, obtained an instruction on statutory rape. The court granted relief, noting, "A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense ..." Id. at 572 (quoting In re Hess, 45 Cal.2d 171, 173, 288 P.2d 5, 7 (1955) (Traynor, J.)). Accord Watson v. Jago, 558 F.2d 330 (6th Cir.1977) (indictment charged first-degree murder, prosecution proceeded on felony murder theory); Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.1979) (indictment charged operating a motor vehicle to avoid arrest for driving with a suspended license, instruction charged flight to avoid prosecution for willful and reckless driving); Blake v. Morford, 563 F.2d 248, 250 (6th Cir.1977) (dictum; "Appellant raises a constitutional issue by alleging that he was convicted on a charge not stated in the indictment."). ⁶

Because the jurors might reasonably have concluded from their instructions that Tarpley was subject to conviction for violating either Sec. 32.31(b)(1)(A) or Sec. 32.31(b)(3),...