absence of limiting instruction at trial rendered case "sufficiently different to preclude the application of Spencer”
How later courts described this case
- absence of limiting instruction at trial rendered case "sufficiently different to preclude the application of Spencer”
- when state record is silent, federal district court must make its own findings
Written by the judges who cited it.
The opinion
RONEY, Circuit Judge,
specially concurring:
I would reverse but on a different ground. Without an evidentiary hearing and on the same record, the state court and the district court reached opposite conclusions. The state court found that the enhancement charge had not been read to the jury at the outset of the guilt-innocence stage of the bifurcated trial, whereas the district court held that it was read.
I would reverse the district court’s finding for two reasons: first, the state court fact-finding was on the same record as that before the district court, and is entitled to some presumption of correctness; and second, there is no substantial evidence to support the district court’s finding.
The reading of the enhancement charge to the jury sitting at the guilt-innocence stage would have been procedural error in Texas at the time. Presumably the state trial judge, the prosecutor, and the defense attorneys all knew this. No objection was made, no question raised. The failure of anyone at the time to note that an improper procedure was being followed, if indeed it was, is sufficient to make erroneous a finding based on an unclear state record, without a further evidentiary hearing.
The petitioner had the burden to prove that the correct procedure was not followed. He failed to do so.