# Brief for Petitioner — Bushnell v. Ellis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0100%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1961 - **Citation:** 366 U.S. 418 ## Text CC jp ; Mice, prem LOU DS %e PETIT ue 8 1, . . ; ; XX ° mo ‘ : t JA Me a | iw ‘ 'N Rte wr Por crporee cocre ar ome IN THE SUPREME COURS UF THE UNITED OCTOBER TERM, 100) No. 561 “EAMES Mo BUSHNELL. I’, ney ’ ‘ \ B. ELLIS, Director, 1 Dapartinent of Corrections,” WT / jel / WRIT OF CRELICGRARDL To Jrbk eo \] Al’) \ 7 kf TENAS s vy BRIEF FOR THE PETITIONER Pp a # . . Perneye DD. Waerran Be ( ‘dai / / / " _ 4 L000 Chal? ray i/ (srr) “ / . ENDEX SUBJECT INDEX eo \ : » Page Brier row THR PeTIrioNnen: , Opinion Below “ ] | Jurisdiction: | pare 7 | Question Presented biel aoe 2 _ Constitutional Provision and Statutes Involved 2 “Stateme ood rage cuaacietvsnateparsuvisv devas sorkengesecotsiatetindeys s Summary of Arewne Sere are sadn ee: tek lee ae ) Argument: *- The State court's Conviction of Petitioner on the — charge of robbery ky assault, after the court's refasal or failure to appoint defense counsel, deprived Petitioner of due process of law because | @ he was unable to protect himself at trial in view of his yguth and ignorance, the conduct of the 1£ court ant the prosecuting attorney, and complex . problems as to the admissibility and purpose of MIE ios ices ccses screeners Nescestouitn ton: . 26 Comelusion ...9.ccccs.cessseesceeseeeee Mpasdetsakienccetenroetadias © Fass 39° | * | CITATIONS | | CASES: + ; $. | |. Abston v. State, 182 Tex. Cr. R. 130, 102 S.W. } * ‘ Te scsasccetnvinahiicnrcabtcaciccexsnnicniguahitamiah sciccisi hones 20 * Allgood v. State, 141 Tex. Cr. R. 327,148 S.W. . | 2d 433 ..... Agienbnisne awenxolsauticoastnanihacthaaancivels vaieaes 30 } e “ Bingham y. Slate, 97° Tex. Cr. R. 594, 262 SW. y . TIE scisnriss ves staaniatesistatonrasavmuactios tetas eceatiis 30 ’Brooken v. State, aigt ex. } PP: in 1, »S.W. (30 27 ' Brown v.Mississtppr, 297 U.S. 278 ..ccceceeeeeseees 29 - Cash v. Culver, 358 U.S. 683 .........ccccccccsccsssseeceees 39, 36 | eo Cavazos v. State, 143 Tex. Cr. R. 564, 160 S.W. f seca tevievincthetscn oie viciastaiedasteestaiecgaoeaicnen 30 | | . . ii. IN DbsX Priapre Chambers vo Florida, SoU UWS, 227 av Childress Vv. State, 92 Tex, Ce. R. 215, 241 De! W, 129 : . oe Davis vo State, 105 Tex. Cr. R. 496, 308 SW. 2d SS) beens Bu Dayyv State, ‘ > Tex’ ( r. R.173, 338 SW. 2a Sil 82 Dean, Stal 2p x. Cig SAT THE SW. 974 30 Dennis vy. State, 141 Tex, (rr, R. 304, 148 S.W. 2a LQ0S i ‘2 ol Dimgrtv Sale, 136 Tex. Cr. Ro 197, 240 S.W.- Sd 293 . Fe iksayi Se ; * gv hen part Bush, 166 Tex, ¢ r. R. 399, 313,8.W. 2d 4 287 TV ESRERMS FAB. ye oe ste Oe sbedy oo Kar parte Davis, a1 Tex. Cr. R. 608, 108 SAW. S894 27 1 Pi aphid Harrelson, Qi Okla. es. R. 399, 264 :. Bibbs Vv. Burke, 837 US. 773 sicadcdpeeadouneinievist ioe Say Gitbert v. State, 162 Tex. Cr. R. 200, 284 SW. 2d A Cre a ear Sa. OS Golemon v. State, I 57 Tex. Cr. R. 534, 247 SW, . I sarap Ree hs Huttoy NT OEC | ad Bee WH 6 SI xccncnccccctwaccovsvecsccxes ee a In re Charles, 344 P.2d 1118 ........ ir ee ee ae 27 Kunz v. State, 166 Tex. Cr. R. 4, 310 S.W. 2d SERN ee henner ee ee ees cc 2 Lisenba s. California, Ai Bap a 28 Mahoney vy. State, 33 Tex. Cr R. 288, 26 S.W. 622 3 Massie Vv. State, 27 Tex? App. 577, 11 S.W. 638 3 Moore v. State, 324-S.W. 2d 879.........:....¢.............. 31, 38 NVuvarvtte v. State, 103 Tex. Cr. R. 449, 281 SW. Pak ae ee ee a ee 31 Parker 'v. State, ‘01 Tex. Cr. R. 68, 238 S.W.,, 943 3 Payne v. Arkansas, 366 U.S. 560 ck. WS, 29 Pettibane v. Nichols, 208 U.S. 192. coccccscoseccs ce. tae Pierson v. State, 145 Tex. Cr. R. 388, 168 S.W, See a ee oe 31 Pollard v. State, 33 Tex. Cr. R. 197, 26 S.W. 70 32 Roberts v. State, 44 Tex, Cr. R. 267, 708. W. 4233 of Sexton v. State, 83 Tex. Cr. R. 416, YOS. Ww. $33 .. 31, 32 INDEX il 0 ; » Pa Stalery. State, 30 7Pex, Cr, Ro 167, ouS.W. 2d py Se «RE 29-30 Stafford, Stete, Wy Tex . R. 174, 67 SW. 2d Je) . ee ‘ pa oe s : ol Thompson Ve State, 124 Tex. Cr. R. 440, 63 S.W. Ld S49 : / Tou UNE nil Vi Drink : oud [us, ib i Vaughn ve State, Wo Tex. Cr R, Tle, loo SAW, ee AO hae ge ER OD eer @ Ward ve Te ras, 316 U.S. 347 27, 28, 29 Williams “ooSTale, 88 ‘Tex. Cr. R. Si, 225 S.W. liz eek po Reagan on a We iloughby Sa State O87 Tex. Cr, Re 40, 219 SOW. ee hil Aa beter athan waapiies ME LS eat ae 31 STATUTES: 2s United States . ica Bh . ; See, 1257 .. FE AE Fare el ae ien Ms ale s See. 2106... ae Eto Ye ae Vernon's Penal Code of Texas: : Art. 1408 (Robbery). 3 Art.56 (Intoxication and 1 Use of narcotic: sas a de MEE Sorscianca ie e 34 V ernon’s Code of Criminal Proce ‘pre of Texas: Art. 2150 (When felony nv has been committed) 4, 27 ‘Xrt. 217 (Must ti ike offer nder be ‘fore magis- trate)... aE EE Set As Tic hoes: alles Rie ch ace ob ioe 4, 24, 28, 30 - Art. 240 (Examining Ee i ee Art. 247 (Warning to acetised) 000. . 4,28 Art. 248 (Voluntary stateme wigs entices’ Sage Art. 491 (No arraignment) 000 ” Art. 494 (Court shall appoint counsi 1 oe i) Art. 494 (Same, as amended effective June 1, 1959) : : #° F Ag. 120 (WwW he: n eontvasion shall not be. OED cto, sriteesteeeegesecsecaeretsteereseee Oy 2D, BY, BI Lotiisiana Aets 1928, Nol 2, Soe J. Art. ob (Arrest without warrant) = = Ae iv *. Louisiana Aet: OTHER > 32° Tes: » INDEX 1h, No. Close purstit, arrest) ., Lonisiant Nets 1955, No. (Close pursnit, bearing ) “ ‘ AU TITORITIES ; r Noteg 96 A.L.R. oi) (1928) IS4, US4, Boe.’ See, 1 Branch’s ed. 1956) Jur, 300- \ | ae o - ° » ° . 4s . ‘ ¥ . cs) 6 ° 6 @ \ ’ “ ° ~ a oo “ ” \ ,’ . Annotated Pe nal Code. of Te ‘Xa (2 d e q ® co Py " Le 1 a ° fe 2 \ (, 26 a ¥ ~ oy P ge ot { ¢. S Lond 4 > | ® H ’ i e « » F t 3 ~- 2 ro) 4 = - a 7 IN THE SUPREME COURT. THE’ UNITED STATES QCTOBER TERM, 1960 | ” — ee ae ' No. 561 & ae \ \ ianebineiantd — a JAMES M. BUSHNELL. Petitioner, . iy * ‘ d US, O. B. ELLIS, Dircetor, Texas Department-of Corrections, Respondent. eo ON OVW RIT OF CERTIORARL TO THE COURT OF CRIMINAL APPEALS . OF TEXAS BRIEF FOR THE PETITIONER Opinion Below The Canrt of Criminal Appeals of Texas denied Peti stoner’s petition for writ of habeas corpus and motion, for rehearings Without writtensorder or opinion (R. 44, 47). Jurisdiction Petitioner's petition. for writ of habe Haas corpus was de pied by the: Court of Criminal Appeals of Texas on dan. - ary 1d, 1960 (CR. 44). Motio& for rehearing was denied) | by. that Court on February 16, 1960 CR. 47), Petition for writ of certiorari was filed on February 25. 1960, and: on > \ > ’ > e ¢, i) 2 o ) ot % o December 5, 1960 was eranted with leave to proceed my forma pauperis, ‘Che jurisdiction ol | Us ( gurt rests. On. 28 U.S. C, 1257 (3). , ‘ Question Presented Whether a young, ignorant, and indicat defendant is deprived of due, process of lay in violation of the Four- teenth Amendment to the United States Constitution when he is ue to trial Om a rege charxe ina State mee with. exclude vaca aie and oréjndicial pe RARE sncluding an’ involuntary written confession, and did not limit) the jury’s consideration of evidence of aeprior. conviction for another offense. ri ‘ : o os : ‘Constitutional Provision and Statutes Involved . se Section 1 of the Fourteenth Amendment to fle United States Constitution. provides in pertinent part: “No State shall make or enforce amy law Which shall abridge the privileges or immufities of citizens of the United States; nor shall dhy State deprive any per. , sgn of life, liberty, or propytty, Without.due process of law; nor deny fi, any person ‘vithin’ dingindicdon the equal protection of the laws,’ : Seetion. 12 252, Title 28, Enfted States Code provides in pertinent part: ; 81257. State courts; appe: il; certiorari ; on “TF inal judgme nts or decrees rendered by the hisshest 6 court of a State in which a deci ‘slo could be hid, Tada s > be reviewed by the Supreme Court is s follows: é 4 . '* * er * *. ' i ° (3) By writ of certiorafi, where the validhiv oi a treaty Or statute of> the Siuestion or where the validity of a State statute is Nuited States is drawn in drawn an question on the ground of its being repugnant to the Constitution, treaties of kaws of Che L nited Stafes, or whe re ans title, right, privaeve or dyna / nity, Ws Fxpevially set up or clatuied nae the Cogisti- tution, treaties or statutes ol, or commission held) or lb» authority exercised under, the United States, . 6 e . Section 2106, Title 28, Uhited States Code provides: —_ “106. Determination sd “The Supreme Court opayy other court of appellate : Jurisdietion may 4 reverse any judgment, fully brought before it for review, and may remand the nodify, vacate, set aside vor ree, or order of a court law- ‘ause and direct ‘the entry of such appropriate judg- ment, decree, or order, .or require such further pro- ceedings to be: had us. May be Het under the cirenn- stances.” + Article 1408, Title XVIT, Vernon's Penal Code of Texas , provides ; ha oe p . = e- . “Art. 1408. Robbery ei ' “Tf any person by assault, or violence, or by putting “f - in fear of life or bodily injury, shall fraudulently take orth Herson_oFe posseMion of another ama prop ee erty Witheintent to appropriate .the same to his own use, he shall be security by confinement in the pent. 4 tentiar’ for life, or for a term of not @. ~ than five , . vears; and when a firearm or other deadly weapon ix used or exhibited in the commission of the offense, the punishment shall de death or be confinement. itt the penitentiary fop any term not less than five years.” . 4 F ; a “ + 4 . a e. er" ® ° . ‘ ‘ : A. \rticte 215, Tithe od Chapter 1, Vernon's Code of Crim inal Procedure of Texas provides. . . “Arto 2ta When felony has been cominitted “Where it is shown by seit is Bre ‘ory proof to Th peace officer, Upon the represeytation of a eredible person, that a felony has heen ‘committed, and that the of fender ix about to PSCagh PIE, sO that there Is no thie “to prociire a wirrant, su peace officer may, without war rant, pursue and arrest the accused.’ Article 217, Title 5,-Chapter 1 (Arrest Without War- rant), Vernon's Code. of Criminal Procedure of Texas 4 ‘provides : @¢ “Art. 21%. Must take offender before magistrate Pid *. “In each case onumerated in this chapter, the person mitking the arrest shall immediately take the person varrested before the magistrate who may have ordered the arrest, or before the nearest magistrate where the arrest was made Without an oder.” . Article 245, Title 5, Chapter 3, Vernon’s Code of Crimi- nal Proce — of Texas provides : 5 , ° oe “Art. 245, Examining trial “When the aceused has been brought before a twagis-" trate, that officer shall proceed to: examine into the ° trutheof! the accusation made, allowing the aecused, however, sufficient tine to precure counsel.” . (ie * we: a 4 Article 247, Title 5, Chapter 3, Vernon's: Texas Code of Criminal Procedure provides : “Art. 2447. Warning te accused “Before the examination of the witnesses, the magis: trate shall inform the accused that it is his right to ona a - oA 4) , . : : | ; 2 ° ® ° . wake a statemenk relative to the eeeusadon drought avainst Hin. butoat the same time shall alse inform him that he ean not be eompelledsto aiftke any state nent whatever, and That ifele does make such state. ment, it may be used jn evidences avainst hin)” ° inal Procedure of “Texas provides : A rficle fs “Art. 248, Voluntary pie cas “Or the accused, desires ; to niake a volunts uy state. @ ment, he may do xo before thee ‘Naufnation of any wit- ness, but not afterward. Itis statement shall be. re- duced to writing by or under the direction of the magis- trate, or by fle accused or his counsel, and shall he signed ‘i the accused by affixing his name or mark, but shall not be sworn’to by him, The magistrate shall attest by his own certificate and Signature to the execu- tion and signing of the statement.”*° 00 j o “Article 491, Title 7, Chapter 4, Vernon's Code of Crim- inal Procedure ‘of Texas provides: a se “Art. 491. No arraignment -— oth, . o F ry \ . “There shall be no arraigmment of a defendant ex- ceptu « 4, Titly ie a 4, Verfon’ s Code of (‘rim- “Art. -494. “When Court shall appoint counsel ¢ Article 248,. Tithe 5, Chapter 3, V?rnon's Code of Crim- a (KB an indictinent for a capital offense.” 6 pose of being arraigned, if it appear that he has nos counsel and is too poof to employ counsel, the corirt hall appoint one or moré practicing Wtorneys to de- , the accused is broiwfght into court for the pur. + fend him: The counsel So appointed _ have attest — one day to- prepare for trial.” ~ ° . Article 494, Vernon's Code af Criminal Procedure of Texas, astamended effective Jane, 1959, provides : a “Art. 494, Court shall appoint counsel a es “Whenever it is made known to the court at am ar riigmment orany other time’ thas ine recused-elmarced ‘ with a felony is tod poor to employ a eouasel, the court shall appoint one (1) or hore practicing attor neyvs to defend him, ae | ; “The coumsel so appointed shail have ten (10) days to prepare for trial, unless sugh time be waived in writing by said attornéss and, the accused.” ‘ ti $ . : Article 727, Title 8, Chapter 7, Vernon's Code of Crint ‘ s “ e “_ ‘ : inal Procedure of Texas, provides ; “Art. (ue When Confession shall mot be ised Fs “The confession shall not be used i at te time it Was made, the defendant was in jail or ethor place, of confinement, hor while he is in the eustody of an offi. cer, Unless made in the voluntary statement of aceused, taken before an examining court in accordance with law, or be made in writing and signed by him: whieh >, ‘written statement shalh show thipAhie has hoon warned | vaby the person to,whom the same is made: First, that healoos not have to make any statement at all, Seéeond, that any statement made may be used in evidence -against® lim oon his trial for the offense concerning Which the confession is therein made: Or, unfess in. connection with said_confession, he makes statements . of facts or circumstances that are found to he true, which conduce to establish his guilt, such as the find: ing of secreted or stolen property, or tle instrument with which he states ‘the offense was commuitted, Tf the defendant is tnable to write his name, and sign® the statement by making his mark, such statement shal A ; 7 . \ » me ; 4 not be admitted in evidenes, ess tt he witnessed by sole person other than a peice coficer, who shall sign \ the same as a witness,” ? ‘ . Seetion 1, Lonisiana Aets 1986, No. 284. now Louisiana Revised Statutes 13:S4.1 (1900), Code of ¢ ‘riiminal Proce dure, pyovides in relevant part: ae : “Seetion 1, Be it enacted by the Legislature of Louisiana, That any meniber of a daly organized State, county or manieipa peace unit of anethor State of the United States who enters this State‘in close pursult, and’ continues witha this State inosuch close pursuit, ' of a& person in order to arrest hin on the grounds:that he has wommitted a felony in such other State, shal! a _ have the same anthoritw Yo arrest and hold in custody such person, as juember of a duly organized State, parish or municipal peace unitlol this State haves te, ©. arrest and hold in eustody a person oy the ground 7 - that he has conmnitted a felony in this State.” ! Sectio® 2, Louisiana Acts 1986, Ne. 284, néw Louisiana Z Revised Statutes 15:84.2 (1950), Code of Criminal Pro- | cedure, pravides : \ ‘ “Section 2. That if an arrest is made in this State Jby an officer of another “State in accordance with the se - provisions of Section J oof this Act, he shath without unnecessary delay, take the person arrested before a magistrate of thy parish in which the arrest was made, » Who shall conduct a hearing nda purpose of deter. ot inining the lawfulness of the arpest. Tf the maistrate determines thiéet the arrest was lawful, die shall commit 2 cunlh ‘ the pergon arrested to await, for it reasonable, tie, Se . ' ee the Jissuance of an extradition warrant by the Gov ) ernor of thig State, Tf the magistrate determines that * the arrest was unlawful, le shall discharge the person ‘4 arrested,” 8 Section TL, Article 60, Louisiana Nets 128, Noo 2, oy Louisiana Revised Statutes Ld:00 (1950), Code of Criminal Procedure, provides : 6 % "60, Arrest without warrant, when permitted "Any peace Officer diay, withent oo warrant, arrest aperson; 9 ) ’ ° . ‘ . ** #(2) When sueh person has committed a felony al: though mot in the presence of the officers: 4 » “(3). W hen a felony in faet has been committed and he has reasonable exuse to helieve that, sueh person has committed itt + - . (4) When he has reasonable cause to believe that a felony has been committed and reasonable cause te believe that such persén has committed ity Statement ” Vv . I. The Proceedings in the Texas District Court. A. Tie Ispterment : ~ On February 22. 144, a grand jiry of the Distriet Court of Orange County, Texas, Mdieted Bushnell for robbery by assault CR. b2). The ind#ttment charged that on or about ebyuuyy 12. 144, Bushneth by assault upon and yielence to HL. Myers: and by putting Myers in fear of life @gnd hoglily injury, took $200.00 from hin (RL 1). I... Tue Tran ees 1. The Plea ai nr Bushnell pleaded not guilty CR. 35). how =o 9 ; Wane. 2 The Lack ot Represeutotion of Deegitiant Atetripl Bushnell was not represented hy, nn attorney 'y open ’ ‘ : 5 . 4 MR. Oo) and aeted as counsel for himself (RO 3). Te eross exiieined four of the SIN Willesses for the Stote (RR. 10 12-133, lv, IS, 20, OO, BL). Te did) net object to ans questions msked I the proseention or to TTT evidence introduced, a? The court reporter recorded: the trial proeeodings only durmy the examination of witnesses, The trial reeord or statement OF fyvets is silent as to whether Bushnell ex- amined the veniremen on coi dire, oy exercised peremptory Challenves, orohjectod to the instructions to the jury, Any eolloguy between the court and the defendant prior to the testimony of Withesses, or in connection with the formula: tien of the charge to the jury. was net reported, The trial ‘record does not rethoet whefier usted] Pec uerstes the appointinent of COUN SOL ak Au i eter etic eourt Whether or not, he had a right oto Counsel, Or Wits offered vourteppointed cotigised: Neither Bushnell nor the court hientioned the matter of defense counsel during the re- ported proceedings CR. oo). Petitioner, in hia petition for writ of habeas ned iy) the Courtiaf Criminal Appeals of Texgs, alleged: {ha por culfing ef the case for trial hetstated to the eourt that he! Lid ne attorney, was toe poor te employ counsel, Was not familiar with law. and was unable to adequately defend hima@t (R. 40,42). Te iso alleged that he asked the court to appoint counsel to defend hin, thitt Stel request wits. denied. and that he did nof waive his right to counsel CR. 40, 42). s me: ' ‘ Mi ' & a The Carcnnistanees of Defendant at the Trial In his petition for writ of habeas corpus in the Court Fe eed ~~ we? Ss of Criminal Appeals of Texas, Petitioner atieved that when ‘ . 6° 7 ov 10 tried h@was 22 vears old and had only a sixth-grade edu cation (R. 4 427 Petitioner was actuaily 20 vears of age at the time of trial, and the age shown in such petition was apparently a typographical error, At trial the proseeuting Witness twice spoke of Bushnell as a “boy (R. 6), ‘and the distriet attorney called’ Bushnell “a young man” (RR. 26). The constable who arrested Bushnell testified for. the State that Bushnell had said that ‘he had been shook mp in the Army and he was taking Amatol tablets for relief” (R. 31). Bushyell testified on cross-examination that he. had been granted a medical discharge from the Army CR, J1), and was taking Amatol “all the time” upen a doctor's prescription, because “L's a nérve medicine, [have moods” (R, 23). oh he constable also testified that he took what- ever money was on the defendant at the time of Arrest (CR. 12), A deputy sheriff testified for the State that he ° paid for some telegrams sent by Bushnell from jail CR. 29), Bushnell testified on cross-examingtion that his mother Was sick and not able to come to the trial and that "EP don't have a father Lean depend on” (R. 25), and that he had no friends at the triak CR, 2s), The district attorney asked Bushnell if ge had been put in jail shortly after his arrest and had been there continuously until trial, and Bushnell affirmed that he had been (it, 24-20). 4. The Bvidence astto the Mleged Offense gw The State’s evidence was a signed statement, including a confession, by Bushnell (RR. 16-17), and the testimony of ‘six persons, Hfeluding four local law enforcement: officers, Bushnell was the only defense witness (Ry 19-28), a, al. L. Myers v, re Myers, the profceuting witness, testified on direct. ex- ainination (R. 4-10) substantially that: On, or ahout Feb. ruary LZ, 1944, when he was going to buy lumber, his o _— 11 ear gave onutoand slipped into a diteh. Te walked into a heer tavern a Vidor, Texas, and vot two bows, one of Whom Way Robert Marshall to pull bite out. Outside the tavern aman, identified by Myers as the defendant, asked Whethyr Myers was alone and other questions, and. said to vet in defendant's car, that defendant would earns tim to vet admechanic. Myers got in the ear, alone with Bush- nell, Instead of going toward Orange, Bushnell turned down another road, Bushnell gave a drink to Myers, who in a minut®-hegan to fool numb and knew he “was doped. Bushnell got a sit-shooter, stirted toa stop butewent fire ther, then stopped and ordered Myers out, Myers got lithe gunoonm him, and hit outs Bushnell cursed tit, tel hin entting hin 4o the bowe and in three places, leaving sears over lig eves find on tis nose, Bushnell threatened to shoot a bullet through Myers’ brain and took 26% r\ thing” from Myers, including about S210 from Mv i it fold, lig gas ration tiekets and ‘his eveulasses, Ms staved in-a diteh about 2 or 2bo hours. walked oly" tiles until he way found by a eonstable, and “might neat bled to death’) Mvers positively plentified Bus neil as the dian who robbed Rid? assaulted dua, Myers was asked and testified on direct examimitron as follows; ’ No" * So they got after hin then, asked ane his description and Podeseribed tina and they caught fam, He taken about 8210000, PT had ome S100 bil and th: other iN SOUS: | mig | have Hisael One sO, Vhes wot byaverh é S128.00, and hie said-he spent the other in-a gambling dump. i a That's Bushnell? 7 U A. Yes, sir CR. 6-7). “ , You rt he took sodie other Possessions? .) ’ : 12 A. Yes? he taken all iny: ration hooks, every ration ‘book Thad. We got the A cards, they Wits Gn hinn, and my evertasses, Pe even taken Iny evewhiss sand hid them, g&ick themoin the cashion of tits ear, They got ny eveltissos find A cards, also, ©" * CR. 7), a re ee 4 . (). | Picve vou stated that the officer later returned your gas ration book? A, Yes, sir, the A, They got them off of him and part oof the money, °(). And soyle of your doney? A, Some of niv money, and mv everlasses (RO), b. Clade (Hop) Williamson Williamson, a prosecution witness, was a constable of Orange (County? Texas, at the time, of the alleged offerse andoatethe the of tral CR. TO-TD), On direet examination he Gas asked the follow? questions to whieh he wave the followimy answers: ) ¥ ¢ A. There wits a couple of haves come Togne and told me that there was a fetlow that pieked up Mr. Myers, () De vou Rnow Whose those hove were? A. Robert: Marshall, and Stephens, bf A ds Robert Marshall here? - ’ A. Yes, ) Do you know where Stephensgs! g \. Heads in the army, c Q). AN right. | A. So they said that they saw timowith a gun aid said he turned off the wrong way to get tum heme, and said. "Hop. you better fook and see about it; it lon look right’, So't got to hunting lim. * " ° FAs Bae ~ | La) Williamson seat ied fiat on the mond he found Myers, whe was artbeat up. Sirty and blood ameb eidn't have his wood sense, hardiy” and that: Movers told Wilhanmson what had happened CR. TD). Williamson testified le started ‘looking for Bustineli, ran hin te Lonistama ame eanueht hina, then brought hina hack and searched him OR. 12). He tes-. tilled that heaiot fragn Budinell momes. and its CON pons and ylasses Which were wiven hack to Myegs OR. 12). On redireet exatiimation Willitunson Was asked and answered is follows: 5 ; o, ° Wii were vou looking for Fin thar ofthe? NA. Boeause TP ohad the infortation on hime tht he © Was the jaan that robbed MrMyers OR, 31 C.e Prisha rt Marslall On direct exgnination Marshall testiiied for the State dbstantially ass follaws: The and @ how taiend, NWenneth ) wry ey fe.* \" Stevens, Were in a partor in) Vidor? where Myers med them tocpull his ear Ant ot thi: ditehdand the pulled itn out. Bushnell tad been inside and Ti L come out and vot in acenr. Myers Was drinking a beer ddd went over to Bustnellts ear and Feftqwith bia, Marti! ds tified. Bush. Hellas the nian that Myers lett with Mf hey Whrahi all ws / also Was asked and testified as follows £0 >> 4 & 7 Q), ATL right, what didi vou do then! ‘ Kenneth sd ob doen't believe he Was taking tain home; lets fo and tell Hop to watch and see where he went# * * * (RR, 14). ' — ° on ° " d. J). L. Stand field os Standtield, shervfh ot Otanmwe County OR 1) and oa Witness for the State, Was asked a®d testified on direct eMunination as follows: ' ’ he. ‘i . (). Do you know anything aboutua pocketbook belong ing to Mr. Myers? | A. Well, there was a deputy trom [believe it was Kountze, rang me and said he had found id, wifi scine and that two boys had broftreht it to dara ane ssid they found it between Terry and Connell. (). Ana tat wis a pocketbook that was identified as. , delunging to Mr. Myers? | A. Phat’s right (R. 19). ve Defendant Bushnell While cross-cxamininf \bvers, Bushnell denied that he robbed or hil ever seen Myers (RR. 1) or that hie had ever owned a gun-(R. 10), and testified that on the might of the robbery he was “delirious”, “passed out’ and was taking medieme™’, and that he remembered nothing about it (RY). Qn dorect examination Bushnell testified that on the night of tUM&alieged robbery he was in the tavern at Vidor, drank rum and beer, took some “femotal’, remembered ‘nothing tyereafter, and woke up in his ear “over there by Louisiane” (R. 19-20), He testified that he then drove te Lake Charles, Louisiana, bad breakfast there, and was ar rested when coming back. home to DeQuines, Lotisiani (R. 20). Qn cross-examination, Bushnell repeatedly said under persistent questioning that he was not xuilty (R. 21, 24. Jv). He again said he “passed out in that place (R. 21). He stated several times that he was framed (R. 21, 22, 24) and that he had never seen Myers CR. 21, 24). He stat d thatshe didarot beat Myers CR. 21, 27), did not take mones from him (KR. 21) or his glasses or ration books (R. 24, 27, 28), did not get Myers inta Bushnell’s ear (R. 21, 24, 277." and did not give him liquor with amatol (R. 21). Bushnell denied that he had told county attorney Sexton that hes a - . a. Oe . ? : . ; ‘ ,* > robheod Mvers OR. 22). and denied that after arrest he had said that he wailted to plead guilty’ (R. 26). g : i Louis York vee » » Qs York, a deputy sher'¥ of Orange Connty’ CR. 28 29) anid a rebuttal avitmess por thie State, was asked and testified for the State, with respect bus ee i]: 3 . Q). Do vou remembey the last term of Court, le of rored himeel as wanting to plead guilty? 4 ‘ » A. He did (R. 29). % 2 Ce Th. Woy he u Sheikha dpe veel, jets '] at “puring the State's case in chiet, W. PL Sexton, County ktterms of Orange Covnty at the time of trial and at the time of the alleged offemses OR, ls), testified that he took a statement from Bushnell OR..15-16), wiheh was intro duced as Sfate’s Exhibit Neue RR. 16). The statemayt ts as follows (R. 16-17): : . . “LT. dames M. Mushnell, being in the eustody of Top Williamson, Comytabl oof Preemet Now Pour, Orang: County, Texas, aid having been warned by WP. Sexton, the person te whom the heremafter set out statement Ix by me made, that bdo mot have te make ” any statem sitat all, and that any statement made by re maa’ ‘be used in evidence against me oon the trial for’ the offense coneerming which this statement made, do here make the following voluntary statomeut in writing to the said W. oP. Sexton, to wat: — “My name is fi ames MM. Hyushnell and Foam twenty live vears of age. On’ the night of February P2. Hd, I was at Vidor, Texas, at a beer joint. While at this beer joimt | drank quite a bit of rum and beer and took some amatol tablets. TP then left the place and a inan Whose name do vet know got in the ear with me [rode down a ssderoad trom: Tighway 40 appre i: 16 ‘ © a imately three miles. -L then robbed this man and took what money he had on his person from him, which wis approximately $200.00 in currency. During the rob bery Lhit him with a beer bottle and struck him with my fists. 1 then put hign out of phe car and then drove to Orange, Texas; L was arrested just across the Sabine River Bridge by Mr. Hop Williamson and Mr. | Thompson. [ returned from Louisiana voluntarily with Mr. Hop Williamson. I was convicted in the State of Louisiana for swindling with worthless. checks ap- . proximately three years ago-and served a term in the Lovisiana State Penitentiary. “I make this confession voluntarily and | was not coerced. or threatened by Mr. Williamson or Mr. Thompson or by Mr. Sexton, the County Attorney, in the making of this statement. The same is true in every respect and | realize that b¢ the making of this voluntary statement that the same can be used against me on my.trial. Witness my hand this 14th day of February, 1944. + : / ° Fa) ri /s/ James M. Bushnell” ‘ ms & ). The Oral Testimony as to Whether Piske Il's Signtd ( ‘onfession Ww as | voluntary hed The alleged ‘robbery’ of Myers oe¢eurred on the- night of Saturday, February 12, 1944 (R. 1, 4, 7, 8, 19), at about 10:30 P.M. or midnight (R. 8, 9). Constable Williamson testified that he found Myers about 4:00 or 4:30 the reatter and then started looking for Bushnell (R. a he. con- stable went to several places where Bushnell had stayed, and near a hotel by®the depet ‘saw Bushnell and “run” him to Louisiana “until we caught him” (R. 12). When asked by the district attorney whether he was jailed some 12 or 15 hours after the robbery, Bushnell testified with- out contradiction that he Whs putein at 5°A.M. on.Sunday = ° ~ _ di rr (R. 24), February 13) 1944. Bushnell’s confi ssion was signed oy the following day, Mebruary 74 (R. 17). Bushnell testified that constable Williamson and an of-, ficer Thompson arrested him in Louisiana CR. 20, 26) after they shot at the back of his car CR. 20), and this was not disputed, Petitioner asserted four times that the cansiabte jerked hamvout of the car on a Louisiana highway snc beat : him over the Bead CR. 15, 2), 26). Although’ the constable’ testified that "TL mever touched vou over there” in Louisiana (R.-12), the State did ngt attempt te show that Buslined! Was not jerked:from his car and beaten in Louisiana, by someone, When the constable was asked by Busha! whether the constable, at the time of the arrest, pat Bush nell in a ear that belonged “to this «ther guy that run cae down first and beat me and stomped me” and later put. - Bushnell in the constable’s own car, the witness admitted that “The man was Lee Anderson and he’ owns a grocery stere” (Re 31-82). The constable had previously testified that “They was helpingeus trying to stop him at the hotel, and we brought litm back” (RR. 31). The constable testified that he had arranged fora Louisi- ana officer to “run” Bushnell across the State line, and that such officer “said he would follow him and back us yp (ROL). The constable testified that when he caught Bushnell, he asked Bushell if he wanted to let the Louisi ana officer “run him across or come on back, and he said, “TH -eome on back’ (R. 31). The constable testified’ that he took Petitioner to the police station at Orange when he came back (R. Ob) \and pat him in jail GR. 12). F : i Petitioner testified twice that at the police station the ~ constable aid officer Thompson tried to get him to confess and beat and stomped him on the floor (R. 20, 27). He testified: “LT was beat-worse than a dog: then when they vot through beating, they taken me in an office and sat mie o 18 in a chair and knocked me down. He said ‘I’m goin to slap you—I ‘d like to kill you, but 1 w ant to do it the right way.’ Ie knocked me qut twice and whe n they got through knocking me around, they threw some water on me, and then they threw me down the stairs” (R. 20). None of such testimony was denied. The constable admitted using force against Petitioner at some time; when asked by Peétitione: Whether “you beat me up across in Louisiana”, the Constable ‘testified “[- never touched -you over there” and “1 ain't touched you but once” (R. 12-13). When asked by Bushnell if he “beat me up without merey”, the constable answered, “It wasn’t over in Louisiana” (R. 12, 13). After the eon- stable so testified on cross-examination, the State excused the witness, (R. T8). When the constable was recalled on rebuttal, the district attorney did not ask him whether he or anyone else beat or stomped Bushnell but asked him only whether he or Thompson “put these sears on his body” or “hit him or beat him in any way to make those sears”, to which the constable answered in the negative (R. 31). It was undisputed that Bushnell was taken to the office of the county attorney, Mr. Sexton, to make the signed state- ment (R. 18, 80). The County attorney, when asked if Bushnell then looked like he had been abused, answered, “Tle was—he had a bandage on his head, yes, sir” (R, 18), Bushnell testified without contradiction that at that time he could not see out of his eye (R. 18, 22), and that his nose ‘and eyes were bleeding (Re 80). When Bushnell, attempt ing to cross-examine county attorney Sexton, stated that he was threatened in Sexton's office about the statement, and askedvif that. was right, the county attorney did not deny Uhat.a threat was made but evaded Bushnell's ques. tion by asking Bushnell, “You didn’t tell me anything abont t, did you?” (R. 17). When Bushnell then stated to the wah attorney that the constable had threatened at that time to tie and ecow-whip him, and asked the witness if that 19 was right, the county attorney did not deny it) bat said only, “Lt didn’t hear that” (GR. 17). The district attornes then asked the county attorney whether Bushnell told the county attorney at the time of the statement about being mistreated or abused or forecd to make the statement AR. 18), but did not ask if Bushnell was threatened or _forced to maké it. On te-cross examination of Mr. Sexton, when Bushnell said that iv Mr. Sexton's office “they said ~ Thad to sign a statement, said that day if it wasn't sign a, ‘they would get it one way or the other", Mr. Sexton an swered that “no such conversation as that took place” (CR. 1s). Jushnell testified on cross-examination that he first told’ the county attorney he did not rob Myers, but that officer Thompson then said “You just as well say > ou did, or we will getit out of you” CR. 22). Bushnell we stified that at the time of such statement by Thompson, the county attorney “was there, but he was called off to talk to two ladies who was outside in the lobby” (R. 22). Bushnell peated that he was told he had to say he did it (R. 24) and that he had to giye the statement CR. 27). The State introduced no evidence, other than a confession itself, eon tradicting such testimony that he had to give the state ment and was told th.t he had to. although the counts attorney testified that, Bushnell said that the statement was true (R. 18). Bushnell’s testimony that he showed the county attorney a “rupture they gave me” and sears on dis hack and that he couldn't read at the time the. statement was given, Was denied by the county aftorney (R. 15.30). . v ~ The district attorney, when ecross-cxamining Bushnell, assamed that he had heen subjected to violence by the of ficers, and condoned it in the following interrogation (R, YO-24 7): , Q. And you don't. know the reason why Williamson and ‘Thompson was looking for you? s - 20 They didn't siy nothing, they run up and as soon ‘fas my car—-1 stoyped, they jerked me out and beat meup, and over the head, out inthe highvay. Q. Do you think it was right for a young man fike you to take an old O9-year-old man and beat) him out, put a buneh of sears on his face, take his money vud hit him! But the offigers has to get a little bit rough with you and you don't think that’s right, ix that the ticket” ‘ “A. No, they don’t have the right to do me like that. Q. They did you like they should have done yon. A. No, they shouldn't have beat me and stomiped me in the police station. mee 4 Q. Why? A. Because they shouldn't. Not while I was till im Louisiana, and get me and stomp me, Q. | guess you think you did what you should have ‘done to Mr. Myers? \. I didn't do its Q). Suppose you had—would you have said ‘it, was right to do it? : ¥ A. Lnever done it. Qs What’ kind of treatment would you be in favor of vivingea man that would beat Old Man Myers up as he said he was beaten up? ere A. All Lean say, | didn’t do it. * (. You are not answering my question, A. That is all t care to saye (), What kind of treatment would yon be in favor of for — a gan? . | wouldn't be in favor af be ating him up like a ake like theysdone mew L begged for merey. (). You think they gave you merey? A. No. . (Q)..Just like you meted out to Mr, Myers,sor would have to anybody else? \. Tdidn't do anybody like that. y v ” ; 9y & ; we? . There is no suggestion in the record that any warrant for Bushuell’s arkest had been issued, and Bushnell testi fied without contradiction that he was arrested “without a permit” (R, 20), “without a license” CR. 83). It is inferable + frome the trial record as a whole that prior to the time Bushnell signed the written statement, the officers did not fine him befere a magistrate For an examining trial, 6. The Conduct of th Trial’ Judge p When Bushnell Was) cross-examine Myers and at tempted to testify bymself, the eourt instructed defendant ? “You may not testify, You ean tell that when you take the stand” (R.9);and agai to “just ask questions” CR.) :, -and again: “You can testify to that when you get on th e stand” (R. 10). While Bushnell was cross-examining con stable Williamson, the court said, “You can testify fo that whep your turn éomes up” (R.12).'So far as is shown in the statement of facts, the court gave no other inetructions hor any warning to Bushnell.- The only assistanee given Bushnell wby ‘the court was during: cross-oxamination of county attorney Sexton, when the caurt direeted the de fondant to ask the yetness Whether he knew Bushnell was threatened in his office (R. 17). The court did not ask un) question of any witiess, * bye ~ on ‘ 9 ° on . : ‘ : 1. The Cross-Kavaminalion oN bushuell as ta Characthes o ° and Reputation rae ‘Bushnell was asked the following questions by the district ‘attorney and gave the following answers, on cross-examine, tion: ; f Q. I thought vou had been in the State Penitentiary for three years, in Louisiana? . A. L know, there are a lot of things that poople thpught. es 1oUg o Q. Well, that isn't true, you haven't been in’ the penitentiary ! : A. Pheen toa house at COPreetion, Q. You weren't in the penitentiary for three years! - A. ‘No, sir. ; ; : (). How long were you there? pes | A. Might months, (). Whiy did you teal Mr. Sexton you were there ap. . proximately three years ? | A. L told hisi—-when [ came in-his offiee my heart Was sWinming, ‘A couldnt see out of my eye. You seu, Tm black under Yny eyes, Ihe asked me had | been in apd | told hint | been in a house of correetion eight months (R, 21-22). ; . . * . g . Q). Cam't you tell the sheriff to serve subpor nag on the witnesses? Can you ask the county? AL T got some letters—L wrote to miy sister and my emother, (). They didn't reéeive them? A. Nobody knows if the mail got out. * = Q. They are not interested enough to come over here and look after you? te, See A. She's not able. ; (). You don’t have anybody interested enough in you to come over? ; Soo AS My mother does (kh. 20). F v “Q. You.don’t have any friends at all? A. Lhave friends. es Q. Where are they?) In Louisiana? Noue of thom ary here, ; ’ A. No, | don't have themuateht here, Leouldn'’t make acall, anyway (R. 28). 8. The Charge tothe Jury The court's charge to the jury included the following instruction: “You are further instructed that unless you believe from the evidence bevonda reasonable doubt that prior 1 the time the defendant maderagd signed the written ~ statement introduced “in ovideet if heealidl, that he the defendant, was properly warne@ by the offieer te wht setiel statetttentt seta tititeles fests tlteet The ebiet thet hi ive to make any statement at all} gnd seconds that any stile mient ‘miacde hy him, the defe indi Ura, Thicas nel could be cused in evidence daninst him ona trial for the offense concerning Whicheit Was made, anel after being so warned, he voluntarily wud without coercion, persia siogi, inducement or promise of immunity of wary kind, made the statement Introduced thoovidence, and unless you so beljeve, or HW Vou hav: a reasonalle doubt there. of, vou will disregard uch state ment for any and all purpyses ant all parts theredf end consider the same for purpose” CR, 30-51 ys ’ No instruction*was given with: respect to. the defendant's oral confessions introduced in the testimony of Myers and deputy sheriff York, o®excluding any other evidence fron considedation, or limiting consideration of the evidence of defendant's prior coavietion to the jssa of lis erodibility, W The Verdict, Judgment and Sentence . : A TheJury found Bushnell guilty and assessed his pani shigs ment as 3d years (R. 34). The courtlentered judgment on the verdict CR. 8-36), and imposed sentence of not less than 5 nor more than 35 years in the penitentyiry CR. 387). No motion for new trial was made (R. 386), and nu apper! Was daken.: wy 24 11. v The Petition for Writ of Habeas Corpus. 4 Petitioner collaterally attacked «the judgment of ‘he District Court by petition for the writ of habeas corpus in the Cour? of Criminal Appeals of Texas CR. oo 44). Peti- tioner there asserted that the judgment is void under the Constitution of Texas and the Sixth and Fourteenth Am nd ments to the United States. Constifution (R. 39), but: the ynly “question presented” to that Court was whether duc process of law as guaranteed by the Fourtecnth Amend ment to the United States Constitution was violated in that Petitioner was foreed to trial without court-appointed coun sel (R. 40). Petitioner stated that “being forced to trial without appointment of counset, and his incapability of representing hitself adequately, resulted ino him beong taken advantage of "¢ R. 43), Attached to the petition were copies of the indietment, jury verdict, Judgment, sentence, and a certifieate of the court clerk to the effect that Peti tioner had no attorney at trial (R. 40). oh] In his “Petition for Rehearing’! in that Court, Petitioner asserted that “wa confession taken during a period of iNegal detention, and... extraeted by coercion and duress at the hands of Orange County officers” was admitted in evidence * at his trial (R. 45). Petitioner stated that he vas arrested without a warrant and was never taken. before a magistrate us required by Artigg 217 of the Code of Criminal Proce. dure of Texas, and "@# injury arising therefrom, said eon fession was extracted by physical abuse of Petitioner ‘administered by the Orange County police officers” (R. 45- 46). Petitioner asserted that had he been afforded. as- sistance of counsel, Objection could have been made to’ the admission of the confession (R. 46), Vv 29 2 ie After Petition (ér Writ of Certiorari was filed in this Court, the reporter s shorthand record of the proceedings ut Petitioner's trial Was transcribed ih. 32), e * , . ba 0 , Summary of Argument. eee c , The record of the proceedings at Petitioners trial on the seri@@s charge of robbery *by assault) show s Without dispute that) Petitioner, an-cemotionally disturbed young man of 25, without funds or friends, was tried without the assistance of counsel, alter having pleaded not gyitty, His handicap of ignorance, in feting as hiscoWwn counsel, Was apparent throughout the trial ‘Phe distriet attorney improperly subyjoc ted Petitioner to humiliating iInterrowy, tion to show that he was a merciless person of bad reputa tion, and the trial Judge did not stop _ th questioning or otherwise materially assist or prote et Petitioner, The Stat introduced in evidence a signed confession whic h Petitioner repudiated at the trial Defense counsel could have sugeess fully objected to such uvidence on the ground that t had hoon coerced, in view of admissions at the trial that Peti tioner had been physically, abused aM injured by peate officors trying to get the contession, Bnd in View ot Peti- Hioner’s mneontradicted testimony that he had been threat ened by one of the same officers immediately before signing the confession: The court nevertheless permitted the jury to find that the confession was voluntary and®to consider itas evidence, The State afso introduced, and the jury was permitted to consider, inadmissible evidence of two oral confessions attributed toyPetitioner and much other ex Fadible hearsay testimony. Damaging evidence of a prior convietion ef Petitioner should have been limited to the ’ ye purpose of impeaching his credibility, but the court did not ~o limit it. Qn this record Petitioner's convietion and sentence, on- tered by tdie Texas court after failure or refusal to ap ‘@ i) | ae | \ 26 P : aint defense counsel, deprived Petitloner of die prec Of law and are void ander the Pourteeuth Amoendient to the United States Constitution, Sinee thie record comely sively establishes the material allegations of Petitioancgs petition for the writ of habeas corpus, and me tarthes development of the faets is necessary oon remumd. this Court should hold that) Petitioner is entitled te the wait as prayed for in the Court of Criminal Appeals of Toxas . ARGUMENT The State Court's Conviction of Petitioner on the Charge of Robbery by Assault, After the Court’s Refusal or Fail. ure to Appoint Defense Counsel, Deprived Petitioner of Due Process of Law Because He Was Unable to Protect Himself at Trial in View of His Youth and Ignorance, the Conduct of the Court and the Prosecuting Attorney, sud Complex Problems as to the Admissibility and Purpo# o! Evidence, Indietéd fora grave offense, Petitioner was tried without the ussista:ce of counsel, convieted, and sentenced to oa severe teri in prison, ot trial, he was seriously prejudiced bythe rolloy woerrors*which an attorney could have pre vented : | a. The coftrt’s charge to the jury permitted the jury to find thal Petitioner's written conse sston wmastrglintaru® and lo COMSIE x: if, ads erudener of quill, " hie +4. such Coufse ston should hav bie Cr Crt lived d On tlie undies pute dl packs, That Petitioner's signed confession (HR. Ted?) was ob- tained I physical violence and threats ts shown hy undis puted cpidence in the trial record, discussed in Paragraph 1B. oO under eStatement™, supra. '. Petitioner's arrest in Loutiana, bya Tpxas county peace officer, Was Without warn (R. 20, 25, 26). Such arrest, ° . \ BP; be \ p= s of ee ee - LL * by the Texas officer geting as sath. comld have been Law fri under Louisiana haw only af Petitioner had) comunitted a q ear | ov. Louisiana Laws 150, No. 284, See.) Assuming. argue aed, Nelonvoand wis aarested: after ahedose pursuit from Texas that Petitioner Was law Pally arrested: after close pursuit, as ghaimed ia the aeresting dficer’s te stimonmy OR D2 aT), Petitioner Was entithed toy he taken Witheut TI OCes sary > delay befqre a loca} Louisiana mactstatte for exanmdniation and commitinent to aiwyaH extradition, Loufsiina Lyuws 10, No. 284, Seve, IY Petitioner an tet agreed te return with the Texas offieer, as the offieer clammed, and therebs wath dis risdhty to an immedfate hearing i Louistama and to extradition, Petitioner did) se after beime beaten ane When wiven the alternative of being “run aerass” to Texas o ’ . HY a Louisiuna offieer GR. Ob-S2o0 After Petitioner was The Louisiana statute evted in the text gives ai ®ontofistate petee officer in close primecit: the osamee authority as a Levistanis offcer\ has to arrest “ae person og the wren That tie has eom itted a Qelomy dn Leuistana ‘s Lotisianda offieer miay arrest Vithout a warrant on stich wrodnd whom Usteh, person dias com Pi Pelomy although diet i Chee presen of the ottieer™ La Acts, a4 Nou oo See ] Art. 40; 2 Crider Th Sas baw i OTS @ peaer officer tas me authority ds stil te make aie arrest outside His VOUS Seu CUNT s etted phy Ward \ li pus, Ot Us oy be de Where the offense Was nel cotumitted: Within tps presenee orowithin his view, a Texas COHHTS preaee coitieer tae take ian arrest Without a warrant ody au satistaetory pool that a. felony Nits bee committed: aod that toe offeauder ts about te escape SO UM there sono time te procure a warrant Art 21, Vernon's Code of Criminal Procedure of Texas Even itt Petitioner: was Widawtally seized im Levistana or un hess Pally returned to Texas without extroditiou, this would not have been a defense to the presechution Bowhen Vo State, 26 Tes App. 120, 9 SW. 785 cIsas! ef. Ba parte Dae aL Tex, Cr R, HOS TOR SAW OSOD TOT SPY home v Miehols, 205 EOS 192 1906) Noroais it prolabl’ that under Texas haw a coerced warner af extra Coton WithOUL assistanee of counsel would ave been Ga defense to The prosecution or a ground for release of Petitioner @y. Bue part Harrelson, OF Okla. Cro Ro Soo) Lod Pola OOH 18) adn res Charles, $44 Pd TDS Okla Cro App Tot Mrdawtul arrest hos never been reeeunized as i defense to a crinitaal prosecution hb Texas. See Note, rOD ALA feo 192s on returneck te Texas. be was jared and: vielentiy. beaten iR. 12-13, 18, 20, 26-279. The offieers fittled to take han betore Texas magistrate on the day following, a Monday, as required by Article 217 of the “Texas Code of Cruninal Precedure, for an examining trial at whieh Jie could have pttder ah VaOduntars etaterment, atger being warned by the Magistrate, as required by Artieles 245 and 24e of the Code Gf Criminal Procedure, and under the safeguards inposed by Article 4s of that Code, Instead, Petitioner was taken before the county attorties ta sim a confession ORO DAT). Although iegal acts of peace officers leading up tea confession “do not furnish the aye wer to the con- stitutional question’, Lisenha vy. Calitorni, 34 US. 21, oe 61941), the faile cof arresting officers to take the) accused before an examining magistrate, as required) by Article 217 of the TPexaa Code of. Crinum P rocedure, his heen considered by this Court in determinihy gehen i Coplessionm Was forced, Ward ve. Teras, 716 1,.8. 641, 802 (1942); cf, Payne VE Arkansas, vet LLNS. 56u, a (1s), ‘Ehe, brutal mistreatment of Petitioner was begun when he Was apprehended, by a person whe helped a ‘constable run him down CR. 31-32), and was continued at the police station either on the saqe day or the following day, by’ the arresting constable and another peace officer who were trving to get a confession CR. 20, OF, 31-32). On the day after his arrest and upon being further threatened by the cotistable, Petitioner signed’ the confession (kh. “it. oe), although he had first told the county attorney who took liix statement that he did not commit the robbery CR. 22). v nder these cirenumestances Petitioner's signed confession ‘was not free and voluntary but was the product of ‘When an arrest is made on Sunday, Article 217 of the Code of Criminal Procedure does not require the arresting officer to tike the accused be hore a magistrate until Monts iy. See Gilbrrgy Ntate, 162 Tex. Cr. R. 200, 284 SW. 2d 906 1055 re) - Pa ‘ COOCTOC TOM GMa duress, fer Petitioner “as ne longer able Treels to adinit: or “deny or refuse to pnswer Word v. Tesas, pra SAB U.S, oti. yd.) (1942). ‘| he confession Wile porenpee rts exedndabile benieds t Aoerstons of this Cork, Prrou oe Misstssipyn, QT et OTe (1936): Chambers ¥. Florida, 309 US, 227 (1940); Ward v. Texas, Stpra, B15 7 Dai (1042), Under the principle ‘ealimned in Payne v. Arkansas, supra, 356 US. S60, S68 1998), Petitioner's signed combesston eotitd have heen excluded on objection of counsel : Sut whereas here, a coerced confession constitutes ao partoof the evidence Lefore the jury and a general Verdiet is peturnmed, no one ean say what eredit: and Weight the jurs gave to the confession. And iInM* hese erretistanees this Court tias uniformly held that ever though there may have been sufficient evidence, apart from the coerced confession, to support a, judyment af conviction, the admission in evidence, over objec. thon, of the coerced confe®sion, vitiates the judgment how “iuyse it violates the’ Due Process Clause of )the Fourteenth Amendment.” ‘ The written confession was also inadinissible under Article 727 of the Codevof Criminal Procedure of Texas, Vieh requires that any @onfession be made “in the volun.’ ‘ary statement of accused’. Under that Article, when an officer at the triakadinits having struek the prisoner sh optly before the confession, the confession hs inadmissible over ob jeetion : the court ts required, On rediest, to exclude from ‘hie jury's consideration any such confession which has been mtroduced: and submission te the jury of the issne of voluntariness ‘is error. Williams v. State. 8 ee a ae ‘; Je SW Tr (1920); Thompson ¢. Sale 126 Tex Ce Ro 440, 63 SWoaed S49 (1923 : seta v. Btate. 139 ‘Tex. Cr R130, LOZ SW, 2d 428 C1937): Sigler v. State, 139 Tex, ~ , @ : 30 a tent (R. 21-22), should have been limited to the purpose of t inipere one his witlaginecti Mahoney v. psete, ood Tex, Cr. KR. 388, 26 S.W, 622 (i894); Seaton x, State, 33, Tex. Cr. R. 116, PO SW. Son (1894): Jbaftou 'v. State, 33 SW. 969 “(Te x. Cr. App. Usd6); Roberts v. State, 44 HA, Cr, 267, TUS W, $53 12) : : Navarette ve State, 18 Tex, : 7h. 4 449, 281 SAW. S63 (1926). Petitioner w as entitled ie a charge that the jury. could considey such. evidence only a ¢ for such limited purpose, amd the failtire of the court to give such charge, whether or not requested, Was reversible error. Sexton v. State, supra; Mutton vo State, supra. It could hardly have occurred to Petitioner not to take the stand, so as to preclude admission of evidence of his prior conviction, after the trial judge had repeatedly indicated to Petitioner that the time for jis testimony would be When it came his turn to take the stand (RL 9, 10). . , . é ad. The court failed to instruct the jury to Misregard th evidence of Petitioner's character or reputation, or to -reprimand the district attorney for opening up thematter, when Petitioner had not raised the issue of his Character. / ‘ sad Petitioner on cross-examination was subjected to humili- ating interrogation which improperly raised the issue of his character and reputation. After Petitioner had testified that hy begged far merey from the peace offfeers, the prose. , cutor asked, “Just like you hheted out to Mr. Myers) or would have to anybody else?” (R. 27), Petitioner was also asked what had kept him “from getting these witnesses you've told us about”, and whether he had “anybody inter- ested enough in you to come over” (R. 25), and “You don’t have any friends at all?" “Where are they? In Louisiana? None of them are here” (R. 28). Such interrogation, when Petitioner had not placed his character or reputation in issue, Was improper. The epurt on its own motion should have promptly reprimanded the district attorney for ask-- ‘ing such questions and instructed the jury to disregard such questions and any -evidence of character or reputa- tion so oBtained, Failure to do so was reversible error. Childress v. State, 92 Tex, Cr. R. 215, 241 S.W. 1029 (1922); = v. State, 117 Tex. Cr. R. 178, 384 S.W. 2d 871°(1981) ; cf. PEllard v. State, 33 Tex. Cr. R. 197, 26 8.W. 70 (1894). - oo. abi oi tie Ree TH ’ | 5 e "9 a‘, Mummy ig dludable hi psd a viele dice Was ede: ty /, Ale testinjony of Myers that his stolen ration book and wvemasses “was on” Petitioner, and that the offeer got them and mofey “off of defendant or from his car CR. 7, 9) was hearsay, since it is inferable from the regord that sw Alvers whs not present at. the time of recovery of such articles and Was testifying to information received Trem another, Although consti thle, Williamson later testifie Piha he recovered the aricles fren defendant, Myers’ fexti- mony on the matter could have been excluded: Massie. v. State, 27 Tex. ‘App. S77, 1) SAW. 688) C1889)" Likewise inadmissible wae Myers’ hearsay testimony tha , boak was sent bac A to the sheriffs departimer view (R. 7) and that an officer could tell of yMftv connection the defendant had With anybody at Longview (R.10). All of Shorité Standtield’s testimony, Which» related only to his conversation with an opt-of-town deputy who said two hovs had found Myers’ pocketbook on a road, was inad- inissibte hearsay (R19). Such testimony tended to bolster the constable’s testimony that defendant said he threw away the billtald (R. 12). bis pocket. om Lony- Other hearsay evidence to which objection could have been made was: the testimony of constable Willianison that the hovs Marshall and Stevensfiad said to him, after Myers allegedly rode off with defendant, “vou hetter look and see about it; it don’t look. right” (R. 11); the testimony of Marshall that Stevens, seeing Myers and 1 defendant leave ‘tovether, said, “Ll don't believe he was taking him home ; let's go and te Hop to wateh and see where he went” (R. 14); and-Williamson’s statement that he was looking .for defendant because “Lhad the information on bin tha® he Was the man that robbed Mr. Myers” (R. 30). ue Petitioner denied that he committed or was present at t] bbhery, and did not raise any issue of tenfporary in- . & % 34° sanity, although he testified that® prior to the tine of the alleged robbery, he fad been-drinking- rum and heer ‘and taking femotal, and had been delirious and passed oul, (R. 9, 19). Tt should be noted, in evaluating cicniattion of Texas law with respect to'defenses which Petitioner con- ceivably might have raised, that unde) Article 36 of the Penal Code of Texas temporary insanity produced by voluntary recent use of liquor or narcotics or a¥ombination thereof is not-an excuse for an offense, Inut evidence of such temporary insanity may be introduce ‘git. in mitigation of the irc See 1 Branch’s annotated "Pifal Code of Texas Jdeed. 1956) pp. 53- 50, However, it seems a defendant is tntitled to aequittal on a finding of temporary insanity re- — from the use.of whisky mixed with a drug. * Parker . State, 91 Tex, Cr. R68, 238 S.W. 945 (1922); 12 We. is pp. 300-301, ° _ At Petitioner's trial, the judge siggested to Petitioner one question to be asked of a witness (R. 17) but otherwise gave him nq assistance, The court. showed ‘shocking un: concern for Petitidwer’s rights, ajlowing the district. at’ torney to pursue improper lines of questioning that con- -doned the beatings inflicted on Petitioner (Rh. 26-27) and presented Petitioner to the jury as a merciless and friend: less.person (RR. 25, 37, 28). The failure of the court to give ‘Petitioner the protection to whrch, he wits “titled in the charge ‘to the jury Was inexe ‘usable, : Petitioner when tried was 25 years old, but was younger than the petitioner in his thirties whose right to counsel in a non-capital felony case was held to dave been denied in Gibbs ¥. Burke, 337 U.S. 773° (1949). Petitioner's in- maturity, his condition as’an emotionally disturbed person, and his ignorance of how. to protect himeelf at trial, are . apparent throughout the record, : In view ef Petitioner's youth and ignorance, the indif- ference of the trial judge, the callous questioning by. the ‘ yu we "2 35 prosecutor, and the qe bidke lal consequences to Petitiones, ot bweine triedSvithout the gissistanece of counsel, this. case ix controlled by the yorineipie reeenth, restated by this Courtin' Cash vy. Calver, o05 U.S. bao, bog (IUD): Where the wei oy ahie erhine and. other factors —eesuch as the age ee education of the defondang, the ecOnduct of the court gr the prosecuting officials, and the complicated mature of the offense. charged sand ‘the possible defenses thereto—render criminal proceedings . Without counsel so apt to result in injustice as to be fundamentally unfair, the Coustitution requires’ that A the aecused must have legal. ussistanee at his trial. ‘Uveges ve Pennsylvania, 385 US. 437," 441,. or par- ti®vdar relevance liere are the dgeisions wt ‘the’ (‘ourt hich have held the appointment of counsel necessary toa fair trial hecituse of the complexity of the pro- ceedings. Rice ve Olsan, S24 US. TSG; Gibby v. Burke, 3o7 "S. 773; and se c NV Wliams Vv. Natser, 323 U.S, 471, 475- 4762 ; The Court of Criminal Appeals of Texas should have ordered a development of the facts alte ved hy apie as itdidin fe parle Drush, 166 Tex. Cr. R. SO, oligo 2d | (1958), That Court did not have’ ‘before At vo state- smentsof faets (R. 3-32) or the. jury charge (R. 49-51) Which , fifve been pliced in the record since the-filing in this Court of Petition fer the Writ of Ceértiorari. ; Upon review of habeas corpus cases involving Pt state court-conviction, without defense counsel, of a non capital vtelony, this Court, in cases where’ it ihid the full trial ree- ord before it and the petitioner's allegations ‘were astab- ished by that record, has concluded that he. convietion conld net stand, Kg... Townsend y. Burke, 384 US. 736 Wate Gibbs v, Burke, supra: In other such cases, where «trial record was net before this Court, or the petitioner's ‘ a = . 7 . ‘ ‘ ae ; ¥ 3 36 allegations required proof from aide the record, this Court has determined only that the petitioner was entitled to a hearing or opportunity to establish his claims. £.%., Cash vy. Culver, supra. Lv the case at bar, the condition of the record before this Court ¢ enables the Court to deter- mine that Petitioner ix entitled to the writ of habeas corpus on remand. The‘record before fhis-Court establishes without dispute Petitioner's youth and ignorance at the trial, his indigenée and inability to defend himself, and that he was taken advantage of, The only issues raised by Petitioner's allega ‘tions ard not. settled by the trial record ‘are. whether he requested and was denied counsel, and whether he waived court appointinent of counsel. ve Under the circamistances a request or demand for counsel, if madeas Petitioner alleges, was unnecessarye In Gibbs vy. Burke, ‘supra, 3387 US. 773 (1949), where petitioner had heen conVicted of a non-capital felony stithout shaving the assistance of Counsel, the record showed neither a request for counsel by the petitioner nor an offer of counsel by the court, and the petitioner conductyd his own defense. , This Court stated that “a failure to re\uest counsel does not constitute a waiver when the deferlant does not know of g itis right to ¢ounsel”, and held that the petitioner’s coi- stitutional right to a fair trial was denied. In this case, as in Gibbs, the conclusion is irresistible that Petitioner was too ignorant to-know that he had a Federal right to counsel. Moreover, Respondent has conceded in this Court, in his? Brief in Opposition to Petition for Writ of Certiorari (I. ‘D), that in view of the Texas law as it existed in 1944, it would have made no difference whether Petitioner -re- quested the Court to appoint counsel: “Additionally, under the Texas Criminal Procedural Law in 1944 it made no difference whether or not Peti- tioner had asked the Trial Court to appoint counsel to vv Oe heed ‘ ord represent him, which is denied, Even had the record indirated sueh request, which 4t does not, Petitioner * Was being twied on a nos-capital felony offense, which required hoe arraignment and no right to representa. .* tion by counsel.” | . ‘ ad - ee z ; > On the record now before this Court, it is clear that the Court of parece Appeals of “Texas would not’ require ‘further proof by Petitioner of his atlegations that he re- adie Pesta: Was indigent and Ba nor waive his Pederal: cright to the appointment of counsel. In “Moore vy. State, S24 SW. 2d STM. S80, S81 (Tex. Crim, App. 1909), that Court said: nf ° ’ “The record in this. ease affinmatively reflects that . this appellant, an eighteen year-old boy, wis not repre- sented by counsel either of his own choosing or by ap pointment by the court. There is an absence of pay © sugyvestion in this case that thé trial court: tendered, or offered te appoint counsel for Appellant, or that appellant was fineneiailyable to employ ‘counsel. There isan absence of any evidence that appellant possessed sufficient education or was mentally alert to the point ‘of being able‘to represent liimself upon the trial of this case, . - . .* « ° & “Giving effect to the decisions of the SuprémeCourt of the United States andl the rule of daw announced thervin, we are,constrained. to agree that under the facts here presented this conviction Yggst be beygersed, heeause of the failure on the parted thi@trial court to appoint counsel for the appellant. 8 “While we have no statute in this state which ore. quires the gine nt af counsel for one on trial for an orddingry felony, the Supreme Court Of the United sta ‘ sin aseries of decisions hats judie ‘ialiy determined 38 .) and held that failure to appoint counsel for one on tri: in‘a state court for an ordinary felony may constitut a denial of due process, under the Fourteenth Amen ment to the Constitution 6f the, United States.” ad *, 4 & The state of the record in the Moore case was emphasize by a dissenting opinion, 524 S.W. 2d at SSI, SS2, as follow: - “* * * There is nothing in this record to show thi appellant used any diligence to secure counses of h own’ selection e urlier ; ; hothing to show that Ife desing that the court appoint counsel forhim* * *. . .“The effect of the majority opinion is-that, contrar to its prior decisions, this Court announces the rule ‘be that in al! felony cases wherein the defendant is nm ____ represented by sel_his conviction will be set asic Sunless the record affirmatively shows that the dees danas financially able to entploy cotinsel, and’ thi he possessed sufficient education and mental alertnes to the point. pf being able to represent himself upe the trial:” . * o - . . Further development of the fa@s by the Court of Crimin Appeals of Texas, before,granting the writ of habeas co pus, thus hee ‘comes unnecessary. ) a - Petitioner has exhausted his remedies in the courts ¢ Texas, and Respondent so concedes ine this’ Court. Bri of Respondent in Opposition to ron for Wyit of Cert : oraki, P. 2, ‘The Court of ‘Criminal Appeals of Texas has held that an ori inal petition to that *Court.for the wrt of habeas’ corpus. is proper remedy to prevent enforcement of an unappealed judgme obtained under circumstances which @bnstituted a denial of process under the Federal Constitution, La parte Bush, AB 8.) 2d 287, 166 Tex. Cr. R. 399 (1958) (non-eapital felony convicti« « after denial ofscourt appointed: counsel to presumptively , insa defendant, held, writ of habpas voFpus granted ten years ‘faft conviction ), C a al il @ ' ‘ |. d & . & ¢ it. @ is 3 a t On 4 o v4 o” @ @ yt ) - | it n @¢ il l- ' 7% t f 8 ‘ f l- & iF \ i g-° H a nit we, = Vo \ rth 2 ie 4 er Le? 39 f Conclusion oo... ' The Cogurteol! Criminal Appeals of @oxas erred in refs. Inv to give Petitioner an opportunity to establisl the mate: rial allegations. of his petition for writ of habeas corpus and in refusing to develop the faets and deterinine the issue raised by Petitioner as to denial of due process under the Fourteenth Amendinent. Had the Court of Criminal Ap- “peats considered the fall record whieh ts now before this » Court, it would heave boon required, wader this Court's deci sions during the past twenty veags, to grant Petitioner the writ Of habeas corpus. .The ecireunistances under whieh Petitioner went to trial and the complexity of the legal problems which then arose, made if impossible for Peti- Loner to have atau tal without the gasistene al counsel, This Court should now deterimin® that Petitioner is entitled on the trial record to the writ of libeas corpus, and reverse and remand for further proceedings net qlcouststent with the opinion of this Court, Respecthuiy submitted, ‘ ack ; vp i ; Perey Dé Wiuntass e Counsel tor Petibioner 2 loo Gul! Biulding ‘ Tlouston 2, Lexite. ‘ ’ ’ a : 1 , &, ° f K 4 -) 4 v a . 4 be ze . ™* --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0100%3A2. Public record. Not legal advice.