Williams v. Beto

Decision Date01 February 1966
Docket NumberNo. 21631.,21631.
PartiesThomas Lorenzo WILLIAMS, Appellant, v. Dr. George BETO, Director, Texas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Thomas Lorenzo Williams, Huntsville, Tex., George Dixie, (Court-appointed), Houston, Tex., for appellant.

Sam R. Wilson, Asst. Atty. Gen. of Texas, Houston, Tex., Gilbert J. Pena, Asst. Atty. Gen., Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellee.

Before TUTTLE, Chief Judge, COLEMAN, Circuit Judge, and HUNTER, District Judge.

COLEMAN, Circuit Judge:

This is a case in which the appellant seeks by habeas corpus in the Federal Courts to avoid a state imposed life sentence on the ground that he did not have effective assistance of counsel in the state court trial.

After a full evidentiary hearing, the district court found this collateral attack to be without merit. We affirm.

We are prompted to give this case more than ordinarily extensive discussion because we, too, are aware of those considerations which prompted Judge Burger in his concurring opinion in Williams v. United States, 120 U.S.App.D.C. 244, 345 F.2d 733 (1965) to say:

"With the enormous expansion of indigent representation comes a need for some guidelines to protect the volunteer lawyer who, after full consideration, decides on a course of action which his indigent client opposes. As I see it that lawyer must be free to follow his own professional judgment and conscience no matter what his client thinks or be entirely free to withdraw rather than be compelled to advance absurd and nonsensical contentions on pain of a vicious attack from the jail house. We have no more right to ask volunteer lawyers to stultify themselves or prostitute their professional standards than we would have to demand that paid lawyers do so."

In this case, Attorney Lyle was not a volunteer lawyer, he was appointed by the Court, but the principle is the same.

It is now firmly settled that if they desire it those charged with crime are entitled to counsel when they are put to trial, even if the court has to furnish it by appointment. Once this summit was achieved, however, new hurdles were raised on the argument that such counsel had not been effective. We now see these attacks regularly and frequently. All persons are entitled to their constitutional rights and there is no disposition to say to the contrary. Since, however, attorneys are officers of the court and appointed attorneys act because the courts designate them to do so, there is certainly a duty to them. The time seems ripe to make the law in this area as plain as possible, realizing, of course, that the factual elements may not often be the same.

I

In 1949, when he was twenty-four years of age, Thomas Lorenzo Williams, appellant here, was sentenced to the federal penitentiary at Atlanta. In 1951, he received a conditional release. In 1952, he was committed to the federal penitentiary at Leavenworth to serve the remainder of that term. After about thirty days, he got out on a writ of habeas corpus from the federal court in Kansas City. The significance of this early experience in the criminal career of this federal habeas corpus Applicant becomes all too clear when we later find him expressly declining a state court appeal because, as he put it, he would go into the federal system and get out.

In late 1951, Williams was convicted in Brazoria County, Texas, of the crime of automobile theft. In 1954, he was convicted in Hansford County, Texas, of forgery.

On July 30, 1960, Williams went on a check writing spree in Dumas, Moore County, Texas, which resulted in six separate charges of forgery. In each instance he wrote a check on the Sunray State Bank in Sunray, Texas, and signed the name H. E. Tracy as the drawer of the check.

He was first tried on one of the indictments in November, 1960. At that time, he was represented by James R. Lovell, of the Dumas Bar. He was not charged as a recidivist under Article 63 of Vernon's Annotated Penal Code of Texas. His defense in that trial for forgery was that he received the permission of H. E. Tracy to sign Tracy's name to the check at a time when they both were drunk, or drinking heavily, in the Texas Hotel at Dumas. He told his counsel that the owners of the hotel could and would identify H. E. Tracy as being there with him. But when these people were contacted they said that the man who registered under the name of H. E. Tracy was none other than the Defendant, Thomas Lorenzo Williams. They did not know Tracy and had never seen the Herman Tracy whose picture was shown to them. Lovell, therefore, did not call these witnesses to the stand. Williams agreed at the time that they should not be called. The jury found him guilty and he was sentenced to two years in the state penitentiary. Attorney Lovell explained appellate procedures to Williams, but he said he did not want to appeal. He said that he would go into the federal courts, that "they were turning them loose there". Attorney Lovell explained to him that he could not go into the federal courts unless he appealed the conviction, that is, exhausted his state remedies. Williams insisted that he was not interested in an appeal in the state courts.

II

During this first prosecution, the district attorney had indicated to Counsel Lovell that he was planning to prosecute Williams under Article 63. Thereafter, the grand jury of Moore County did indict the defendant on an additional charge of forgery, alleging that he forged a check for ten dollars payable to Dean's, a mercantile establishment in Dumas, signing the name of H. E. Tracy thereto, further charging that he passed this check as true to one Christine Baer, and further alleging the prior convictions in Brazoria and Hansford Counties as the basis for a life sentence in the event Williams should be convicted on the Moore County charge.

This second case came to trial on April 12, 1961. Some weeks prior thereto, as the district court found on the habeas corpus hearing, Hugh T. Lyle, an attorney of the Dumas Bar, who had been a law partner of James R. Lovell for about ten years, was appointed to represent Williams on this latter indictment. There can be no question that this appointment was made more than ten days prior to the trial, as required by the Texas statute, because there is in evidence the letter written by the district attorney on March 27, 1961, notifying Mr. Lyle that the case would be tried on April 12th instead of April 10th, as originally scheduled. The district court so found.

Williams presented to his new attorney the same defense as raised in the prior trial of November, 1960. This took place about a week prior to trial in a conference of some forty-five minutes duration. Lyle knew, of course, that his law partner had previously represented Williams on a charge of the same identical nature. He discussed it with Mr. Lovell for about an hour, during which he was informed of what the hotel operators said, and Lyle did not go to talk to them. Lyle spent one afternoon researching the law, looking into such questions as the validity of the indictment.

Of course, the law of forgery in such a case as this is not particularly difficult. The main defenses available would be that the defendant did not sign the instrument in question, or that he signed with the authority of the purported drawer. Williams voluntarily took the witness stand in his own behalf in the second trial and stated that he signed the name of H. E. Tracy to the check, but claimed that Tracy directed him to do so as above recited.

As in the prior trial, H. E. Tracy could not be found. In the four years which have since elapsed, he has not yet been found and he made no appearance at the habeas corpus hearings either to admit or deny that he authorized his signature to the check in question. Attorney Lyle did obtain a picture of one Herman Tracy from the Dumas police department, taken on July 5, 1958, when he was in jail on a charge of drunkenness. The picture was admitted in evidence, and Williams testified that this was the H. E. Tracy who authorized him to sign the check.

Eleven witnesses testified for the state, and the record shows that Attorney Lyle cross-examined them with more than ordinary resourcefulness. An officer of the Sunray Bank, on which the alleged forged check had been drawn, testified that there never had been an account in that bank in the name of H. E. Tracy. The postmaster at Sunray, who had served in that capacity since 1944, testified that during her tenure there had never been anyone receiving mail at that office by the name of H. E. Tracy. The deputy sheriff, who had lived around Sunray for about sixteen years, testified he knew most of the people in that area, he had never heard of an H. E. Tracy, there was no such street address in Sunray as that written on the check in question, and the telephone number given on the check was not that of H. E. Tracy but was, in fact, that of a relative of the defendant by the name of F. A. Byrd. A deputy sheriff in Dumas testified he had never heard of an H. E. Tracy in the area. He knew that a Herman Tracy had been in jail in Dumas in July or August of 1958. The Dumas police chief testified there had been a Herman Tracy in the Dumas jail for being drunk on July 5, 1958, that he had no information to indicate Herman Tracy and H. E. Tracy might be one and the same person, but he did identify the picture of Herman Tracy, with the result that it was introduced in evidence. This introduction was accomplished by Counsel Lyle on cross-examination. The sheriff of Moore County, who had served in that capacity for eleven years, had never heard of an H. E. Tracy in that county.

Williams took the stand and testified that he first met H. E. Tracy in...

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