Tomlin v. Beto
| Decision Date | 12 May 1967 |
| Docket Number | No. 23394.,23394. |
| Citation | 377 F.2d 276 |
| Parties | Earl Gene TOMLIN, Appellant, v. Dr. George BETO, Director, Texas Department of Corrections and the State of Texas, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clyde W. Woody, Houston, Tex., for appellant.
Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., for appellees.
Before WISDOM, COLEMAN, and GODBOLD, Circuit Judges.
The petitioner's primary contention is that the procedure for establishing recidivism under the Texas Punishment Enhancement Statutes (Habitual Offender Acts) is unconstitutional. Tomlin argues that the procedure violates the due process clause of the Fourteenth Amendment in that, through the indictment and evidence of prior convictions, the state informs jurors of such convictions before they determine his guilt of the primary offense. The Supreme Court has now settled this issue adversely to petitioner. Spencer v. State of Texas, 1967, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606.
Tomlin also contends that in several respects the state's method of proving the identity of the defendant as a recidivist violates due process. (1) The records introduced to prove his prior convictions were certified by the Texas Department of Corrections rather than by the clerk of the convicting court. According to Texas procedure, the Clerk of Court sends a certified copy of the sentence and judgment of conviction to the prison, where photographs and fingerprints are added to the file. Through these photographs and fingerprints the recidivist can be identified as the same person previously convicted. While it is true that the prison authorities do not have custody of the originals of the sentence and judgment of conviction, they are in possession of certified copies. We think that the prison authorities' certification, based on these copies, is not so unreliable as to infect a conviction with constitutional invalidity. This practice has been upheld in Robinson v. State of Texas, 1956, 163 Tex.Cr.R. 499, 293 S.W.2d 781, Spencer v. State of Texas, 1957, 164 Tex.Cr.R. 464, 300 S.W.2d 950, and Mullican v. State of Texas, 1959, 167 Tex.Cr.R. 563, 322 S.W.2d 284. (2) Tomlin asserts that this method of proof amounts to hearsay and denies his right of confrontation. Official records are...
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People v. Brawley
...recognized that certain other exceptions to the hearsay rule do not violate the Sixth Amendment right of confrontation. (Tomlin v. Beto, 5 Cir., 377 F.2d 276, 277 (official records); McDaniel v. United States, 5 Cir., 343 F.2d 785, 789, cert. den. 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (o......
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Nichols v. State
...evidence showing the appellant to be one and the same person as the one convicted in the prior cases is sufficient. See Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967); Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971); Lopez v. State, 464 S.W.2d 882 (Tex.Cr.App.1971) and Vessels v. State,432 S......
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People v. Tenorio
...44); Raullerson v. People, 157 Colo. 462, 404 P.2d 149 (1965); Warren v. United States, 447 F.2d 259 (9th Cir. 1971); Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967); Reed v. Beto, 343 F.2d 723 (5th Cir. The statements found in these copies have all the hallmarks of trustworthiness and reliabi......
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Montgomery v. State
...from the Department of Correction, exactly as here, and this procedure has been upheld in both federal and state courts. Tomlin v. Beto, 377 F.2d 276 (1967); Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80 (1958). Here, we hold there was no infringement upon appellant's state and federal c......