Thorbus v. Beto

• Decision Date: 17 September 1971
• Docket Number: No. SA-70-CA-323.,SA-70-CA-323.
• Citation: 339 F. Supp. 501
• Parties: Richard Dean THORBUS v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: U.S. District Court — Western District of Texas

339 F. Supp. 501

Richard Dean THORBUS v. Dr. George J. BETO, Director, Texas Department of Corrections.

No. SA-70-CA-323.

United States District Court, W. D. Texas, San Antonio Division.

September 17, 1971.

Stewart J. Alexander, San Antonio, Tex., for petitioner.

Crawford C. Martin, Atty. Gen. of Texas, Larry J. Craddock, Asst. Atty. Gen., Austin, Tex., for respondent.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

SUTTLE, District Judge.

On the 27th day of August, 1971, came on for consideration and hearing the above styled and numbered Petition for Writ of Habeas Corpus, and the Court, having considered the Petition, Respondent's Answer thereto, Petitioner's Reply and Briefs in support thereof, comments of counsel, and evidence adduced at the hearing, finds and rules as follows:

In presenting his claim to the convicting Court and the highest appellate Court in the State, petitioner has exhausted his state remedies.¹ The constitutional questions here raised are properly before this Court,² and the Motion to Dismiss is, in all things, denied, and it is so ordered.

Petitioner is in custody serving a life sentence upon a verdict of guilty to Murder With Malice, no motion for new trial having been filed.³ Notice of appeal was given and the appellant was granted 90 days from the date of sentence to prepare and have filed a statement of facts and bills of exception. On August 1, 1951, 89 days later, petitioner filed a pauper's oath and requested a statement of facts without cost because he was without funds to perfect an appeal. The record does not reflect that such pauper's oath was ever called to the trial judge's attention or that any order concerning the same was ever entered. However, the record contains a filed statement of the Court Reporter regarding the short time within which he had to prepare the statement of facts, certifying that failure to prepare a statement of facts had not been due to his negligence or default, but that he would prepare the same for approval and transmission to the Court of Criminal Appeals as soon as possible. No such statement of facts was ever transcribed or delivered to the Court of Criminal Appeals. On October 31, 1951, the Court of Criminal Appeals affirmed the conviction with but one bill of exception and no statement of facts before it.⁴

At trial petitioner was represented by two retained attorneys, Marcus Kirkland and Grant W. Smith. Kirkland expressly removed himself from appeal of the case by letter of October 4, 1951. The record is silent as to what actions Attorney Smith took in representing petitioner on appeal. The last act of record performed by Smith was an affidavit filed August 2, 1951 that Smith had been unable to contact the trial judge for approval of his first bill of exception in the case. On November 25, 1951, petitioner stated in a letter to Judge Beauchamp of the Texas Court of Criminal Appeals that Smith sent the records in the case to be reviewed by the Court, but made no oral argument in the case on appeal. Attorney Smith was disbarred June 4, 1952.

In a series of letters sent to Judge Beauchamp between November 7th and December 3rd, 1951, petitioner filed a pro se motion for rehearing in the case. Petitioner advised the Court of Criminal Appeals that (1) he had no lawyer; (2) he had no money with which to hire a lawyer; (3) he desired a rehearing in his case to show that the denial of a motion for continuance at his trial was prejudicial in that he was unable to obtain his army medical records in time for use as proof of his mental condition at the time of the crime; and (4) he was deprived of a fair trial because of the publicity and adverse public sentiment in his case. The Court of Criminal Appeals denied rehearing December 12, 1951.

On August 20, 1969, petitioner filed a writ of habeas corpus in the Court of Criminal Appeals alleging, inter alia, the ineffective assistance of counsel at trial and on appeal, and the deprivation of a statement of facts on appeal. The Court of Criminal Appeals reviewed the Petition and ordered an evidentiary hearing in the convicting court. At the hearing the trial judge found that no statement of facts was ever transcribed in the case; that the court reporter and the presiding judge were deceased and no means existed whereby such statement of facts could be reproduced, thus rendering an out of time appeal impossible. He concluded that the application for writ of habeas coupus should be granted.⁵ On review of the trial court's findings of fact and conclusions of law pursuant to Texas Code Crim.Proc.Ann. art. 11.07 (Supp.1970), the Texas Court of Criminal Appeals disagreed and denied the Writ on the ground that petitioner was not entitled to post conviction relief because he was denied a statement of facts on appeal.⁶

On August 26, 1970, petitioner filed the present Petition for Writ of Habeas Corpus in this Court seeking discharge from confinement upon the following peal; and (2) denial of a statement of facts for the purpose of appeal.⁷

I.

The question is now well established that an indigent is entitled to be represented by court appointed counsel on his first appellate review through the courts under the Sixth and Fourteenth Amendments,⁸ and that this right has been applied retroactively.⁹ The rule is established in the Fifth Circuit that where the petitioner was represented by retained counsel at the trial, there are two prerequisites in showing denial of counsel for purposes of appeal: "First, it must be known to the court that the criminal defendant is indigent. Second, it must be known to the court that the defendant wishes to appeal."¹⁰

First, the documents and letters filed in connection with this cause establish petitioner's indigence at the time of his first appeal. Petitioner's pauper's oath was filed with the trial court on August 1, 1951, within the 90 days he had to secure his appeal. In addition, petitioner's indigency was acknowledged by the official shorthand reporter in his verified statement filed with the Court in reference to his preparation of the statement of facts. Finally, petitioner's letter of November 22, 1951, to Judge Beauchamp of the Texas Court of Criminal Appeals aptly explains that he had no further assets after he paid his trial attorney "my auto valued at $600 and $65 in cash also which left me without a penny in this world." Second, petitioner manifested his desire to appeal when he filed his pauper's oath and requested a statement of facts.

The question remains whether the trial Court had notice of petitioner's indigency and desire to appeal so that the Court's failure to appoint counsel amounted to unconstitutional state action in violation of the 14th Amendment to the United States Constitution. The conclusions seem inescapable that the trial Court had knowledge of these matters. Filing of the pauper's oath and requesting a statement of facts "at no cost to me" clearly conveyed the idea that petitioner was indigent and desired to appeal. In Texas, the trial Court may take judicial notice of its own records.¹¹ In a similar case where retained counsel attempted to withdraw from a federal criminal case, leaving the indigent defendant to proceed in forma pauperis, the Supreme Court of the United States through Justice Marshall stated:

Counsel's attempt to obtain leave for petitioner to proceed in forma pauperis should have put the trial judge on notice that petitioner would be unrepresented in the future. Moreover, unless an appeal was contemplated, there would be no reason to make such a motion.¹²

Finally, the rationale for the rule that the Court must have knowledge of petitioner's indigency and desire to appeal rests upon the requirement that some state action should have deprived petitioner of his right to counsel on appeal. The Fifth Circuit has now broadened the rule so that the requisite state action is shown if any responsible state official has knowledge of petitioner's indigency and desire to appeal.¹³ The letters mailed to Judge Beauchamp which are on file in the records of the case are enough to satisfy this requirement.

II.

Petitioner's contention that he was unconstitutionally denied a statement of facts for the purpose of appeal also has merit. Although the Federal Constitution does not require that a defendant be given an appellate review as a matter of right, where an appellate review is provided it must be administered in such a way as not to discriminate against some defendants because of their poverty. Therefore, an indigent is entitled to an appeal with a transcript of the proceedings.¹⁴ The applicable law is stated as follows:

If during the appeal from his conviction petitioner was indigent and his indigency prevented him from obtaining a transcript of his trial proceedings and the lack of such transcript prevented him from receiving an adequate appellate review, then he is imprisoned in violation of the Fourteenth Amendment.¹⁵

In this case petitioner established his indigency and desire to appeal to the knowledge of a responsible state official. There is evidence that the statement of facts was needed to show the circumstances surrounding the denial of the motion for continuance. Other overt errors might also have been shown by the statement of facts. Upon the motion for rehearing the Texas Court of Criminal Appeals was aware of the possibility of errors which might merit reversal of the conviction. The Court's ruling under these circumstances, without benefit of a statement of facts before it, as was later established by the United States Supreme Court, unconstitutionally denied this petitioner, who was unable to afford counsel to insure the transmission of the record, of an instrument needed to vindicate his legal rights.¹⁶ The burden of proof rests with the State to prove beyond a reasonable doubt that the accused was in no way prejudiced by the absence of the transcript.¹⁷ The State has not met this burden. Recent language...