Petition — Estelle v. Cole

IN THE

SUPREME COURT OF THE UNITE

OCTOBER TERM, 1975

no..%6-190

W. J. ESTELLE, JR. DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

v.

JOHN LERL COLE,

Respondent

* * *

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

* * *

JOHN ©. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B. DIBRELL

DUNKLIN SULLIVAN

PATRICK P. ROGERS

Assistant Attorneys General

Attorneys for Petitioner

P.O. Box 12548, Capitol Station

Austin, Texas 78711

INDEX

Page

SE Bos cs chandenddbcdcddndcccscccencsccsneeees 1

PE nd btnbedecdecclckbeShddancncesovstcccrscecns 2

QUESTION PRESENTED FORREVIEW ................... 2

CONSTITUTIONAL PROVISIONS INVOLVED ............. 3

Pe a EEE Soncndencecccecszsnescinccesesds 3

STATEMENT OF THE FACTS WITH ARGUMENT ......... 4

GENE, eeuncusevecanstdideetudticescsvesssccdescdsace 8

Cy PS io vi cccsccccccccccsestveccecess 8

TABLE OF AUTHORITIES

Cases Page

Cole v. State, 484 S.W.2d 779 (Tex.Crim.App. 1972);

i IE EE sc cccuckdecccocecescescoecess 2,3

Harrington v. California, 295 U.S. 250, 89 S.Ct. 1726,

ED Sdddeideudascvcvccocsescsvescocedesses 6

Jackson v. Deno, 378 U.S. 368 (1964) ........... cece eee eeeeees 4,5

Rogers v. State, 468 S.W.2d 438 (Tex.Crim.App. 1971) ........... 6

Stone v. Powell, ___U.S. ——, 19 Cr.L. 3333,

No. 74-1055 (July 6, 1976) ..... -ienteniennkieeenerenaesens 2,7

Wolf v. Rice, ___U.S.___, 19 Cr.L. 3333, No. 74-1222

PET cc. ba xcddeeusesdeasandederesdbdhaadbandennns 2,7

Appendix A —

Appendix B —

Appendix C —

Appendix D —

Appendix E —

Appendix F —

APPENDIX

Summary Opinion of United States

Court of Appeal for Fifth Circuit,

Estelle v. Cole, 75-3283 ..............-

Order of United States Court of

Appeals for the Fifth Circuit

Denying Motion for Rehearing,

Estelle v. Cole, 75-3283 .........+++- ‘

Unreported Opinion and Judgment

of United States District Court for

Northern District of Texas, Cole v.

Estelle, CA-3-74-706-D...........-..

Opinion of Texas Court of Criminal

Appeals — Cole v. State .............

Stay of Mandate of United States

Court of Appeals for the Fifth

SE ideale cnet aed dah Sees bute

Denial of Extension of Stay of

Mandate of United States Court of

Appeals for the Fifth Circuit ........

on

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

*- * *

NO.

*> * *

W. J. ESTELLE, JR. DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

Vv.

JOHN LERL COLE,

Respondent

*+* * *

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

*> * *

The petitioner, W. J. Estelle, Jr., Director of the

Texas Department of Corrections, respectfully prays

that this court issue a writ of certiorari to the United

States Court of Appeals for the Fifth Circuit, for review

of its judgment entered April 1, 1976, in the above

entitled cause, and in which rehearing was denied on

May 10, 1976.

OPINION BELOW

The United States Court of Appeals for the Fifth

Circuit did not deliver a written opinion when this cause

was presented for original review or for review on

rehearing. (See Appendix A and B).

The opinion and judgment of the United States

-2-

District Court for the Northern District of Texas, Dallas

Division, is unreported; but a copy of said opinion and

judgment is attached hereto as Appendix C.

’ The opinion and judgment of the Texas Court of

Criminal Appeals, which reviewed the conviction on

direct appeal from the State trial court, is reported as

Cole v. State, 484 S.W. 2d 779 (Tex.Crim.App. 1972);

reh. den. Sept. 25, 1976. A copy of said opinion is

atiached hereto as Appendix D.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on April 1,

1976. (Appendix A). The petitioner timely filed a

motion for rehearing with the suggestion for a

rehearing in banc, which was denied on May 10, 1976.

(Appendix B).

This court has jurisdiction to grant a writ of

certiorari pursuant to the provisions of 28 U.S.C.,

§1254(1).

QUESTION PRESENTED FOR REVIEW

The question presented for review to this court is

whether, in light of Stone v. Powell, __. U.S. —__, 19

Cr.L. 3333, No. 74-1055 (July 6, 1976), and Wolf v. Rice,

___U.S. ___, 19 Cr.L. 3333, No. 74-1222 (July 6, 1976)

the respondent, John Lerl Cole, is entitled to habeas

corpus relief in the federal courts on the ground that

certain evidence obtained in an unconstitutional search

and seizure was introduced at his state trial where the

state courts, at trial and upon direct review, provided

opportunity for a full and fair litigation of the Fourth

Amendment claim?

-3-

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides, in pertinent part:

“The right of the people to be secure...

against unreasonable searches and seizures

The. Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

“No state shall . . . deprive any person of life,

liberty, or property, without due process of law

STATEMENT OF THE CASE

The respondent, John Ler! Cole, was convicted

before a jury in the 194th State District Court of Dallas

County, Texas, for a felony offense of robbery with

firearms, State Cause No. 70-2404-LM. The jury

assessed Cole’s punishment at One Hundred, Twenty-

Five (125) years confinement in the state penitentiary.

The judgment and sentence were appealed to the Texas

Court of Criminal Appeals; and, on June 21, 1972, the

conviction was affirmed. Cole v. State, 484 S.W.2d 779

(Tex.Crim.App. 1972); reh. den., September 25,

1972. (Appendix D). At both the trial court and upon

direct appeal to the Court of Criminal Appeals, the State

courts reviewed the unconstitutional search and seizure

contention involved herein.

Cole, thereafter, made an application for habeas

corpus to the convicting state district court and said

application was subsequently transferred to theTexas

Court of Criminal Appeals pursuant to Article 11.07,

Tex. Code Crim. Proc. Cole’s state application was

-4-

denied without a written order on the findings of the

trial court. (Cole did not raise the search and seizure

points in his state application for habeas corpus).

Cole made an application for a writ of habeas corpus

to the United States District Court for the Northern

District of Texas, Dallas Division, on July 25, 1974. That

court had jurisdiction to entertain his application

pursuant to 28 U.S.C., §§2241 and 2254. An evidentiary

hearing was not conducted; but, the Federal District

Court granted Cole’s application on August 8, 1975.

(Appendix C). Your petitioner appealed this decision to

the United States Court of Appeals for the Fifth Circuit,

which summarily affirmed the decision on April 1,

1976; and summarily denied a rehearing on May 10,

1976. (Appendix A & B). Upon motion of your

petitioner Estelle, the Court of Appeals stayed the

issuance of its order and the mandate until June 24,

1976. (Appendix E). Thereafter, your petitioner

applied to the Court of Appeals to extend the stay of the

mandate but was denied. (Appendix F). Your peti-

tioner now files his petition for certiorari within the

time prescribed by 28 U.S.C. §2101(c).

STATEMENT OF THE FACTS

WITH ARGUMENT

Prior to the trial of the case in chief, a Jackson v.

Deno, 378 U.S. 368 (1964), hearing was held on Cole’s

motion to suppress a shotgun and shotgun shell which

was seized by Officer H. O. Wilkinson upon the arrest of

petitioner. At this hearing, Officer Wilkinson testified

that on March 16, 1970, at or about 7:00 A.M., a

confidential informer came to the Dallas Police

Department and told Wilkinson that Cole had been

involved in a robbery which occurred on March 11, 1970

(the instant case Cole attacked in his federal application

EE eI

5-

for habeas corpus) and that Cole was at his home in

Dallas, Texas, preparing to leave immediately to

participate in a second robbery. The informant told the

officer that Cole had committed the March 11, 1970,

robbery with a shotgun and the petitioner had a buick

automobile.

As a result of receiving this information, Officer

Wilkinson, accompanied by two other Dallas police

officers and three sheriff's deputies, went to Cole’s home

in Dallas, Texas arriving between 7:30 and 8:00 A.M.

The officers went to the front door of a house and

announced that they were police officers. A woman

answered “Just a minute” then opened the door saying,

“Come on in”. One of the officers stated “We're after

Johnny Ler! Cole, is he here?” The woman responded

that he was, and told the officers that they could “look

around” the house. The officers then entered the house

and proceeded through the livingroom, through the

hall, and in the bathroom they found Cole. Officer

Wilkinson testified that they saw Cole reaching into an

overnight case and that Wilkinson pointed his gun at

Cole. Officer Wilkinson testified that inside the

overnight case he found a sawed-off shotgun and some

shotgun shells. Following the Jackson v. Deno hearing,

the trial court allowed the objects seized by Officer

Wilkinson to be admitted into evidence.

During the trial before the jury, the State produced

three eye-witnesses who positively identified Cole as

being one of the culprits who participated in the robbery

in question. One of the eye-witnesses, Gene Cravatt,

testified that he was working in the canned goods isle

when he first noticed the robbery in progress. As

Cravatt turned around, he was three feet from Cole who

was holding a single-barrel sawed-off shotgun on

Cravatt.

&

Upon direct appeal to the Texas Court of Criminal

Appeals, the Court found that the officers did not have

an arrest warrant or a search warrant; and that the

informant’s tip was inadequate to constitute probable

cause for the arrest. Accordingly, the Court found the

search incident to the arrest was illegal; and that the

items seized were not admissible on that basis.

(Appendix D, pp. D-5). Next, the Court addressed itself

to the question of whether the admission of illegally

seized evidence was harmless error beyond a reasonable

doubt under the particular facts before them. In

affirming the conviction, the Court of Criminal Appeals

‘ concluded as follows, to-wit:

In light of the unequivocal testimony of the

three witnesses that the appellant was one of

the robbers, and the rebuttal evidence that

weakened the alibi of the defense, we feel that

the error in admitting the shotgun was

harmless. Harrington v. California, 295 U.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969);

Rogers v. State, 468 S.W.2d 438 (Tex.Crim.App.

1971). [Appendix D, pp. D-6]

Cole, thereafter, in his federal habeas corpus

proceeding, contended that the State conviction should

be overturned as the admission of illegally seized

evidence was not harmless error beyond a reasonable

doubt. In the federal Judge’s order granting Cole’s

application for habeas corpus, he stated that he was

relying upon the findings and conclusions of the United

States Magistrate. In his Findings and Conclusions the

Magistrate stated, in pertinent part; towit:

This case is a fair example of the difficulty

encountered in the application of the rules for

suppressing illegally obtained evidence. A

clear identification supports a verdict and will

-7-

again. . . . (Appendix C, pp. C-5)

The United States Court of Appeals for the Fifth

Circuit affirmed and your petitioner is now before this

Court seeking reversal. In support of the issuance of a

writ of certiorari and ultimate reversal of this cause,

your petitioner relies upon this Court’s recent decision of

Stone v. Powell, U.S... 19 Cr.L. 3333, No. 74-

1055 (July 6, 1976) and a companion case of Wolf v. Rice,

___U.S.___, 19 Cr.L. 3333, No. 74-1222 (July 6, 1976).

In a combined opinion, in the Stone and Wolf cases, this

Court stated as follows:

In sum, we conclude that where the State has

provided an opportunity for a full and fair

litigation of a fourth amendment claim, a state

prisoner may not be granted federal habeas

corpus relief on the ground that the evidence

obtained and unconstitutional search or seizure

was introduced at his trial. 19 Cr.L. 3333, 3341.

(emphasis ours)

The facts of the instant case are squarely aligned

with those of Stone v. Powell and Wolf v. Rice, supra. The

State trial court, although allowing the evidence to be

admitted, conducted prior to its admission a Jackson v.

Deno hearing outside the presence of the jury on Cole’s

Fourth Amendment claim. Cole’s contention was

thereafter presented for direct review by the Texas

Court of Criminal Appeals which thoroughly

considered the same. (Appendix D). Thus, insummary,

the decision of the Court of Appeals of the Fifth Circuit

is in direct conflict with this Court’s decisions of Stone v.

Powell and Wolf v. Rice, supra. Accordingly, this Court

should apply the holdings of Stone v. Powell and Wolf v.

Rice, supra to the instant case and grant a writ of

certiorari, reverse the United Sates Court of Appeals for

the Fifth Circuit and thereby enter an order denying

Cole’s application for habeas corpus.

-8-

CONCLUSION

For the reasons and authority set forth above, your

petitioner prays that this Court-grant his petition for

writ of certiorari and either summarily reverse and

render judgment in favor of petitioner Estelle or reverse

after briefs have been submitted and arguments heard

in this cause.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B. DIBRELL

DUNKLIN SULLIVAN

PATRICK P. ROGERS

Assistant Attorneys General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I, Dunklin Sullivan, a member of the Bar of the

Supreme Court of the United States, do hereby certify

that three (3) copies of the foregoing Petition for Writ of

Certiorari have been served on the attorney of record for

the respondent Cole by placing the same in the United

States Mail, certified, return receipt requested, postage

prepaid, addressed as follows: Mr. Robert T. Baskett,

2440 One Main Place, Dallas, Texas, 75250, this ___day

of —_, 1976.

DUNKLIN SULLIVAN

Assistant Attorney General

APPENDIX

A

IN THE UNITED STATES COURT OF APPEALS Lig NOT

FOR THE FIFTH CIRCUIT PUBLISH

: NO. 75-3283

Summary Calendar*

JOUN LERL COLE,

Petitioner-Appellee,

versus

W. J. ESTELLE, JR., Director,

Texas Department of Corrections,

Respondeat-Appe llant.

+

Appeal from the United States District Court for the

Northern District of Texas

( April 1, 1976 )

BEFORE BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.

PER CURIAM: AFFIRMED, See Local Rule 21,2/

*Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty

Co, of New York, et al., 5 Cir, 1970, 43! F.2d 409, Part I.

1/See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.,

~ 1970, 430 F.2d 966.

Issued as Mandate: JUN 3( 1976 A-1

APPENDIX B

—* wedluited Sintes Court of Appenles

FIFTH CIRCUIT

TEL 804-800.6614

EOWARD W WADSWORTH OFFICE OF THE CLERK 600 Camp street

c.cen NEW ORLEANS. LA 70130

May 10, 1976

TO ALL COUNSEL OF RECORD

No, 75-3283 - John Lerl Cole v. W. J. Estelle,

Jr., Director, Texas Department

of Corrections

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure; APPENDIX C

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

/smg

cc: Mr. Patrick P, Rogers

Mr. Donald A, Smyth

Messrs. Robert T. Baskett

Phil Burleson

US MrSPert cower

OR THLE estat of te as

IN THE UNITED STATES DISTRICT cour | L ED

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION AUG 8 1875

JOHNNY LERL COLE ) aie ee )

vs. CA3-74-706-B”

W. J. ESTELLE, DIRECTOR, TDC

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE

Pursuant to the provisions of 28 U.S.C. 636(b), and an Order

of the Court in implementation thereof, the subject cause has

previously been referred to the United States Magistrate. The

findings, conclusions and recommendation of the Magistrate, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

The Petitioner is in the custody of the Respondent on the

judgment and sentence of the 194th Judicial District Court,

Dallas County, Texas, in State Cause No. 70-2404-LM. Petitioner

was convicted by a jury of robbery with firearms and the jury

assessed confinement in the penitentiary for 125 years. Petitioner's

conviction was affirmed June 21, 1972. Cole v. State, 484 S.W.2d

779, reh. den. Sept. 25, 1972. On direct appeal the Petitioner

raised the first issue presented in this writ.

The Petitioner in this application seeks habeas corpus

relief on five issues previously raised and determined against

him in the state court on direct appeal and in subsequent writ

applications. Only the first issue is taken up here in light

of the recommendation made.

The issue is can the admission in evidence of an illegally

seized shotgun be determined “harmless error" under the facts.

The Texas Court of Criminal Appeals found the Petitioner's

arrest and the subsequent search illegal and held that the admission

into evidence of the shotgun and shell was error. The Court

then reviewed che record and under all the facts applied the

C-1

“harmless error" rule citing Chapman v. Calif., 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. Calif., 395 U.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chambers v. Maroney,

399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Rodgers v.

State, Tex.Crim.App. (1971) 468 S.W.2d 438. Presiding Judge

Onion dissented finding that he covld not agree that the consti-

tutional error was "... harmless beyond a reasonable doubt ...

Chapman v. Calif., supra.

The majority concluded:

“In light of the unequivocal testimony of the

three witnesses that appellant was one of the

robbers, and the rebuttal evidence which

weakened the alibi defense, we feel that the

error in admitting the shotgun was harmless."

Cole v. State, supra.

In the particular setting of this case the Petitioner argues

that there is a reasonable possibility that the evidence complained

of adversely influenced the jury and contributed to his conviction

in denial of his constitutionally protected rights defined in

Fahey v. Conn., 375 U.S. 85 (1963) and Chapman, supra. The

effect, it is argued, is established in this case not only by the

evidence itself but also "... by the extensive circumstances

surrounding it in the manner in which it is offered in evidence”

as defined in Reeves v. Warden, 4th Cir. (1965) 346 F.2d 915.

The Petitioner sets out in his brief pertinent protions of the

Statement of Facts to support his position. He argues this record

shows that the admission of the illegally seized shotgun (State's

Exhibit 1) permitted the testimony of the investigating police

officer witness. The officer witness testified to aggravated

facts involved in the arrest of the Petitioner and the securing

of this shotgun. He argues that this evidence introduced a

real possibility that the jury's verdict may have been influenced

C-2

as to identification by its admission and thus may have been

an important contribution to his conviction. He argues further

that the effect of the admission of such evidence and testimony

was intensified by multiple references in the prosecutor's

argument to the jury in their attempt to bolster the allegedly

vigorously disputed issue of identification.

The Respondent argues the record reflects positive identi-

fication by three eye-witnesses, one of whom testified to seeing

the Petitioner holding the sawed-off shotgun, an issue the

Petitioner has not seen fit to raise as such in this application.

Further, that there is no real indication the prosecutor's words

pointed to from the jury arguments were, in fact, unduly stressed

or emphasized when such argument is taken as a whole.

The record discloses that three employees of the store

robbed identified the Petitioner at trial. The first to testify

(Phillips, the store manager) was cross-examined on his identifi-

cation testimony concerning his prior examining trial testimony.

The defense made serious effort to impeach the identification by

attempting to show that at the examining trial Phillips had

given testimony that he could identify only the most active robber

with whom he was dealing but not the other two, including the

Petitioner here. (S.F. 157). Referring to the examining trial

testimony the witness testified "I believe I said I didn't know

whether I could or not." (S.F. 158). The witness stuck by his

answers on re-cross. (S.F. 160, 161). The second identification

witness (Stover, the meat manager) who identified the Pet itioner

shows the Petitioner stationed himself at one point near the

witness in the back of the store by the meat counter giving hia

@ good opportunity for observation. The identification testimony

was not shaken on cross. The third witness Cravatt (the stocker-

Cc-3

checker), gave particularly strong identification testimony in

which he was personally confronted by the Petitioner holding a

shotgun on him as Cravatt attempted to escape to the rear of

the store. He was halted by the Petitioner who directed him

back up to the front of the store where the robbery was taking

place. Cravatt testified to being within “about three feet" of

the Petitioner in a well-lighted area and that he had an

opportunity to observe the Petitioner's face in a period

involving “about a minute or two." (S.F. 190). Cravatt identified

the shotgun in question from "... its sawed off" condition “and

the way the wood comes up to the end of the barrel here." (S.F.

204). Extensive cross-examination failed to shake Cravatt's

identification of the Petitioner. This identification of the shotgun

by Cravatt enabled the state to put on their final witness,

Police Officer Wilkerson, who testified to entering the Petitioner's

residence five days after the robbery where on finding the

Petitioner in the bethroom "... threw down on him" (S.F. 210)

when the Petitioner made an effort to reach inside an overnight

case later learned to contain the unloaded shotgun and a loaded

shotgun shell.

The defense's alibi was through the wife and mother-in-law.

Thus, the case turned wholly on identification and the potentiel

influence of the admission of the shotgun and the circumstances

surrounding its taking arereadily apparent. When taken together

with the repetitious and emphasized se of such illegal evidence

in argument, the Petitioner is put in a strong position to argue

the inappropriateness of the application of the “harmless error"

rule to these facts. Against this is the clear conclusion to be

drawn from the record of the overwhelming identification evidence

pointing out the Petitioner as one of the perpetrators of the

Cc-4

robbery and permitting the application of the rule. Neither

the cross-examination or the alibi witnesses, in combination,

genuinely challenged the credibility of the witnesses identification

of the Petitioner.

This case is a fair example of the difficulties encountered

in the application of the rule suppressing illegally obtained

evidence. The clear identification supports the verdict and will

again, but the required balance in criminal trials must be

maintained and in order to do so the relevant inquiry in these

instances must be, in the language of the Supreme Court, “whether

there is a reasonable possibility that the evidence complained

of might have contributed to the conviction." Chapman, supra,

386 U.S. at 23. Only if the court can declare with confidence

"beyond a reasonable doubt," Chapman, supra, 386 U.S. at 24, that

such a possibility is excluded by the record can it pronounce

a constitutional error to be harmless. In this instance the

identification of the shotgun buttresses the identification of

the Petitioner as perpetrator of the robbery. The aggravation

inherent in the officer's testimony with respect to the seizure

of the weapon and the repetitive use of the combination in

argument requires a finding of error of constitutional dimension

which cannot be held to be harmless beyond a reasonable doubt

if the rule is to have the meaningful application that the

language of the Supreme Court indicates.

RECOMMENDATION:

Accordingly, it is recommended that the Petitioner's writ

be granted and that the Respondent be directed to retry the

Petitioner with the complained of evidence being excluded or

UNITED STATES MAGISTRATE _

release him.

IN THE UNITED STATES DISTRICT COURT

ek eS eet Comms

st Oh wElOH Ee Teens

FOR THE NORTHERN DISTRICT OF TEXAS [= J | EP

DALLAS DIVISION AUG 1975

JUQRPH Mek rss ike

ah ands ~ aes

JOHN LERL COLE §

Vv. § CIVIL ACTION NO. CA-3-74-706-D

W. J. ESTELLE, DIRECTOR, TDC §

LICAT FOR WRIT OF HABEAS CORPUS

After making an independent review of the pleadings, files

and records in this case, and the findings, conclusions and

recommendation of the United States Magistrate, I am of the

opinion that the findings and conclusions of the Magistrate

are correct and they are adopted as the findings and conclusions

of the Court.

The Court is of the opinion that the admission into evidence

of the illegally seized evidence was not harmless beyond a reason-

able doubt and that there is a reasonable possibility that the

illegal evidence might have contributed to the Petitioner's

conviction. Chapman v. Calif., 386 U.S. 18, 87 S.Ce. 824, 17 L.Ed.

2d 705 (1967).

IT IS, THEREFORE, ORDERED that :

1. One Hundred and Twenty (120) days after date of entry of

this order all charges against Petitioner arising out of Indictment

No. 70-2404-LM shall be dismissed and Petitioner shall be released

from the criminal charges in said indictment unless within such one

hundred and twenty (120) day period, or within such additional time

as may be fixed pursuant to paragraph 2 herein, the State of Texas

shall proceed to retry Petitioner in said cause.

C-6

2. On written motion filed herein within the one hundred and

twenty (120) day period and upon a showing of good cause for doing

so, the one hundred and twenty (120) day period fixed in paragraph

1 hereinabove may be extended by order of this Court.

3. In the event this Order is appealed from, the effect

of the Order shall be stayed pending the determination of such

appeal.

IT IS FURTHER ORDERED that the Clerk of this Court shall

transmit a true copy of this Order, together with a true copy of

the Findings, Conclusions and Recommendation of the United States

Magistrate, to Petitioner, his counsel of record, to Respondent

and to the Hon. John C. Vance, Judge, 194th Judicial District

Court, Dallas County, Texas.

rk

SIGNED AND ENTERED this * day of August, 1935.

x4. Abie

United \States District Judge

‘

APPENDIX

D

COLE v. STATE Tex. 779

(He an 446 A.W 28 TH

[6] lurther, we note that the State did

not attempt to holater Crenshaw's in-court

inlentification hy use of any pretrial identi-

fication. And, still further, Sing, who was

not shown hy this record to have viewed

any lineup, or show-up, etc. made a poni-

tive in-court identification of the appellant

based on his observations at the scence of

the crime. Clearly, if there was any error

at all in admitting Crenshaw's courtroom

ilentification, it was harmicss error.

Smith v. State, 480 S.W.2d G18, 621 (Tex.

Cr.App.1970); Garcia v. State, 472 S.W.2d

784 (Tex.Cr.App.t971).

We have cxamined appellant's remaining

grounds of error; all advanced by the pro

se brief, and find them without merit or

without support in this record.

The judgment is affirmed.

dohany Lert COLE, Appeiiaat,

Vv.

The STATE of Texas, Appeoiies.

Ne. 46013.

Court of Criminal Appeaia of Texas.

June 21, 1972.

Rehearing Denied Sept. 26, 1972.

Defendant was convicted before the

194th District Court, Dallas County, John

C. Vance, J., of robbery by assault and he

appealed. The Court of Criminal Appeals,

Roberts, J., held that where officer had not

previously reecived information from in-

formant who informed him that defend-

ant had been involved in robbery, was at

certain address, was preparing to leave

immediately and was going to participate

in another robbery and informant did not

state how he had obtained his information,

information provided hy informant was m-

sufficient to provide probable cause for

warrantless arrest or scarch, and shotgun

and shotgun shell acized incilent to arrest

were inadmissible; however, error in ad-

mitting such cvidence, was harmicss in

light of unequivocal testimony of three wit-

nesses that defendant was one of the rob-

bers and rebuttal evidence which weaken-

ed defendant's alibi.

Affirmed.

Morrison, J., concurred in result.

Onion, T. J., dissented and filed opin-

ton.

1. Arrest @=63(4)

Searches and Selzeres €>3.%(2)

Standards applicable to determining

whether facts of a particular case support

arresting officer’s probable cause assess-

ment’ at time of challenged arrest and

search are at least as stringent as stand-

ards applied when reviewing decision of

2. Arrest €=63(4)

Criminal Law @=906.4(11), 11681)

7180 Tex. 44 SOUTH WESTERN REPORTER, 24 SERIES

3. Arrest €=6%(4)

Searches and Seizures C—3.%(2)

Mere assertion or conclusion that an

informant is credible, without more, is an

insufficient basis for establishing prohabic

cause for warranticss arrest or search bas-

ed on informant's tip alone.

4. Arrest €-63(4)

Searches and Seizures €=3.6(3)

Hearsay information which is insuffi-

cient to constitute prohable cause for arrest

or search may become sufficient if ade-

quately corroborated by independent obser-

vation of arresting officer or, in the case

of a warrant by affiant; however, infor-

mation gaincd by observation must in some

sense be corroborative of informer's tip

that arrestees committed felony or were in

process of committing felony.

5S. Arrest €=—63(4)

Facts that arresting officers found de-

fendant where informant said he would

he found and saw automobile of make

which informant told officers defendant

had were not corroborative of tip that de-

fendant had committed robbery and that he

was planning to commit another robbery

and did not cause informant's tip to become

sufficient to give officers probable cause

for warrantless arrest and search.

6. Searches and Seizures €—>3.%!)

Exigent circumstances, no matter how

compelling, will not justify search where

prohable cause is lacking.

7. Searches and Seizures €=3.3(4)

Seizure of shotgun pursuant to illegal

arrest was not legal as being seizure of

contrahand in open view where shotgun

was found inside overnight case subsequent

to defendant’s arrest.

6. Searches and Seizures €°7(27)

Where woman who answered door of

house where officers believed defendant

to be was not told that officers were plan-

ning on conducting search but was merely

told that officers were after defendant,

there was no testimony that woman was

aware of her right to refuse to consent to

search and officers were armed with shot-

guns, woman's consent to “look around”

did not constitute consent to search prem-

1ses.

9. Searches and Seizures <—7(28)

It is not necessary to show that person

consenting to a search was warned of his

right to refuse or that he knew of his right

to do so to support finding that consent

was frecly and knowingly given; however,

such showing is of evidentiary value in de-

termining whether valid consent was given.

10. Criminal Law €>1:56%(!)

Admission of illegally seized evidence

may be harmless error.

it. Criminal Law €=1162

Before error of constitutional dimen-

sion can be held to be harmicss, reviewing

court must be able to declare that it was

harmless beyond reasonable doubt.

12. Criminal Law @=1202(3)

Set of fingerprints which was con-

tained in “prison packet” holding records

of five prior convictions of defendant and

which matched set of fingerprints taken

from defendant referred to packet as a

whole and not just to one prior conviction;

thus, all five convictions rather than just

one were admissible.

13. Criminal Law @=>1119(4)

Record failed to support defendant's

contention that prosccutors had suppressed

evidence seized at time of his arrest and al-

legediy consisting of note which was used

in charged robbery and which was alleged-

ly vital to defendant’s defense. U.S.C.A.

Const. Amends. 4, 9, 14.

14. Criminal Law €1037(1)

Any error with respect to argument by

prosecutor was not preserved for review

absent objection to the argument.

D-2

COLE v. STATE Tex. 781

Cite an 44 BW 2d 779

Emmett Colvin, Jr.. Norman Kinne, Dal-

las, for appellant.

Ilenry Wade, Dist. Atty., and Harry J.

Schulz, Jr., Asst. Dist. Atty., Dallas, and

Jim D. Vollers, State’s Atty., Austin, for

the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for

robbery by assault. Trial was held before

a jury, which assessed punishment at con-

finement for one hundred and twenty-five

years.

In his brief, appellant sets forth two

grounds of error. In his first ground of

error, he contends that the trial court erred

in overruling his motion to suppress evi-

dence and in admitting a shotgun and shot-

gun shell into evidence for the reason that

the shotgun and shell were the fruits of

an illegal search and seizure.

Prior to trial, a hearing was held on

appellant's motion to suppress evidence. At

the hearing, Wilkerson, a Dallas police

officer, testified that about 7:00 a. m. on

the morning of March 16, 1970, an in-

former came to the Dallas Police Depart-

ment and told him that appellant had been

involved in a robbery which occurred on

March 11, 1970 (the instant case) and that

he (appellant) was at a house on Fourth

Street in Dallas and was preparing to

leave immediately, ar¢ that appellant was

going to participate in another robbery

(apparently on the same day). The in-

formant told the officer that appellant had

committed the robbery in question with a

shotgun and that appellant had a Buick

automobile.

The officer testified that he had not re-

ceived information from the informant in

the past, and that the informant did ro

state how he had obtained his informa-

tion that appellant had committed the rob-

hery and was planning to commit another

robbery.

As a result of receiving this informa-

tion, the officers, accompanied hy two

other Dallas police officers and three

sheriff's deputies, went to the location on

Fourth Street, arriving between 7:30 and

8:00 a.m. The officers went to the front

door of the house, and announce: that they

were police officers. A woman inside an-

swered, “Just a minute” and then opened

the door saying, “Come on in.” Onc of

the officers stated: “We're after Johnny

Lerl Cole, is he here?” And the woman

answered that he was, and told the of-

ficers that they could “look around” the

house. The officers then entered the

house with shotguns in hand, and proceed-

ed through the living room of the house,

through a hall, and into the hathroom,'

where they found appellant. Wilkerson

testified that he saw appellant reaching in-

to an overnight case and that he “threw

down on him with . . . my weapon,

and told him to hold it right there.” The

shotgun and shell were found in the case.

Appellant contends that the seizure of

the shotgun and shell was illegal because

(1) the officers lacked probable cause

either to arrest appellant or to conduct a

search of the house where he was found

and (2) there was no valid consent given

to search the house.

If the arrest was legal, then the seizure

of the shotgun, which was found in the

case into which appellant was reaching,

was legal as a search incident to a lawful

arrest. Chimel v. California, 395 U.S. 752,

89 S.Ct. 206, 23 L.Ed2d 685 (1969).

Therefore, the question which should first

be determined is the legality of the arrest

for if it was legal, the remaining issucs

regarding the search need not he decided.

{1] The officers had neither an arrest

warrant nor a search warrant; however,

the standards applicable to determining

whether the facts of a particular case sup-

1. The officers heard a noise in the bathroom.

D-3

782 Tex. 484 SOUTH WESTERN REPORTER, 24 SERIES

port the arresting officers’ probable cause

assessment at the time of the challenged

arrest and search arc at least as stringent

as the standards applied when reviewing

the decision of a magistrate. Whiteley v.

Warden, Wyoming Penitentiary, 401 U.S.

S@, 91 S.Ct. 1031, 28 1.Fd.2d 6; Beck

v. Ohio, 379 U.S. 89, 8S S.Ct. 223, 13 L.

Ed2d 142; Brown v. State, 481 S.W.2d

106 (Tex.Crim.App., 1972); Fry v. State,

No. 44,537 (Tex.Crim.App., March 8, 1972).

(2] Im the present case, the inform-

ant's tip fails to satisfy either of the two

“prongs” of Aguilar v. Texas, 378 U.S. 108,

8 S.Ct. 1809, 12 L.Ed.2d 723 (1964) and

Spinelli v. United States, 393 U.S. 410, a9

S.Ct. S84, 21 L.Ed.2d 637 (1969).*

[3] Officer Wilkerson’s testimony was

merely that the undisclosed informant was

a credible person. The only reason he

gave for believing that the informant was

credible was that the informant appeared

to be credible in the manner in which he

imparted the information. On the other

hand, Wilkerson testified that, to the best

of his knowledge, he had not received in-

formation from this informant in the past,

that he had not seen the informant prior to

receiving the information, and that he had

not known the informant prior to the day

on which he reccived the information. In

summary, Wilkerson's assertion that the

informant was a credible person was just

that—a mere assertion, unsupported hy any

underlying circumstances which would in-

dicate that he was worthy of belief. A

mere assertion or conclusion that an in-

formant is credible, without more, is an

insufficient basis for cstablishing probable

cause, based on the informant's tip alonc.

Aguilar v. Texas, 178 U.S. 10R, 84 S.Ct.

1509, 12 L.Fd.2d 723 (1964); Stoddard vy.

State, 475 S.W2d 744 (Tex.Crim.App.

:

7

|

Likewise, Wilkerson testified that the 2

informant did not relate the circumstances

by which he came to know that appellant

had committed the robbery on March tith,

aml was preparing to commit another reob-

bery on the date of arrest. Again, unless

some of the underlying circumstances npon

which the informant lased his conclusions

are before the reviewing court, the in-

formant's tip, standing alone, is insuffi.

cient to constitute probable cause. Aguilar

v. Texas, supra; Stoddard v. State, supra.

{4.5} Hearsay information, insufficient

to constitute probable cause under Aguilar

v. Texas, supra, may nevertheless become

sufficient if adequately corroborated hy

independent observation of the arresting

officer (or affiant, in the case of a war-

rant). Spinelli v. United States, 393 US.

410, 89 S.Ct. SRI, 21 L.Ed.2d 637 (196%);

Polanco v. State, 475 S.W.2d 763 (Tex.

Crim.App.1971). llowever, we lxheve

that the imdependent observation im the

present case was not such as to corrol)-

orate sufficiently the hearsay information

sO as to constitute probable cause for the

arrest. The information gained hy ob-

servation must in some cense le cor-

roborative of the informer's tip that the

arrestces committed the felony or were

in the process of committing the felony.

Whiteley v. Warden, Wyoming State

Penitentiary, 401 U.S. 560, 567, 91 S.Ct.

1031 (1971). In the instant case the of-

ficers found appellant where the informant

said he would be found and saw a Buick

automobile at that location. These two

facts are not corrohorat ve of the tip that

appellant had committed the robbery for

which he was arrested or that he was

planning to commit a crime. The record

does not reflect that the officers had been

informed that an automobile was used in

the commission of the robbery, of that

they were searching for a particular auto-

:

35T U.K. 480, 466, TA A.Cr. 1248, 2 L.Ed.

2d 1603 (1968).

COLE v. STATE Tex. 783

Cite ax 484 BW 2d 778

mobile im connection with the robbery.

Therefore, the corroboration was insuffi-

cient to mdicate that appellant had com-

mitted an offense, or that he was plan-

ning to do so.

Since the informant's tip was madequate

to constitute probable cause for the arrest,

it follows that the scarch incident to the

arrest was illegal, and that the items sciz-

1 were not admissible.

(6) The defects in the informant's tip

as a basis for probable cause to arrest are

also present when the tip is viewed as a

basis for probable cause to search. There-

fore, ever assuming that exigent circum-

stances justified the search without a war-

rant, the search would fail for lack of prob-

able cause?

{7] The State contends that the seizure

of the “sawed-off” shotgun was legal as

being a seizure of contraband in open view.

According to the State, the officers were

lawfully on the premises by virtue of the

woman's consent to “look around” and that

because the shotgun was in open view, its

seizure was legal. The State's contention

is based upon a misreading of the record.

There is no testimony in the record that

the weapon was in open view. To the con-

trary, the arresting officer's testimony was

that appellant was reaching into the over-

night case in which the shotgun was found

at the time he was arrested. The shotgun

was found inside the case subsequent to the

arrest.

[8,9] The State concedes, and rightly

so, that the consent to “look around” was

not consent to search the premises. While

3. Exigent circumstances, no matter how

compelling, will not justify a search

where probable cause is lacking. ¢. g.,

Brown vy. State, 481 S.W.2d 108 (Tex.

Crim. App.1072).

4. It in not necessary to show thet a per-

non consenting to a search was warned

of Lin right to refuse, or that he knew of

hia right to de ao, in order to support a

finding that the consent was freely and

keowingly given. DeVoyle v. State, 471

consent to look in a house may constitute

consent, sce Ilannon vy. State, 475 S.W.2d

800 (Tex.Crim.App.1972), under the cir-

cumstances here presented, we do not feel

that the statements constituted voluntary

consent to search. There was no testimony

that the woman was aware of her right to

refuse,* and she was not told that the offi-

cers were planning on conducting a scarch,?

but rather, the implication was that they

were merely looking for appellant. The

lack of clarity by the officers in informing

the woman of their purpose (based upon

the officer’s testimony), coupled with the

fact that they were armed with shotguns,

leads us to believe that voluntary consent

was not given. Cf. Rumper v. North Caro-

lina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d

797 (1968); Paprskar v. State, 484 S.W.2d

731 (Tex.Crim.App., 1972).

Therefore, the admission of the shotgun

and shell was crror. The questies which

then arises, however, is whether the error

was prejudicial, and of such nature as to

compel reversal of this case.

{10,11} The admission of illegally

seized evidence may be harmless error.

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed2d 419 (1970). Before an

error of constitutional dimension can be

held to be harmless error, however, the

reviewing court must be able to declare that

it was harmless beyond a rcasonable doubt.

Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967).

In the instant case, three witnesses test:-

fied that the robbery was committed by

three Negro males, all of whom wore long

coats. All three witnesses testified that |

-—-?

S.W.2d 77 (Tex.Crim.App.1971). lHow-

ever, such a showing in of evidentiary

value in determining whether valid con-

nent was given.

5S. The woman denied that she consented to

the entry and denied that she was aware

that the men were police officers. lHew-

ever, in reviewing the action of the trial

court, we must conai:ler the evidence ment

favorable to the court's action.

784 = ‘Tex.

appellant wore a pencil-thin moustache

' at the robbery. All three witnesses identi-

fied appellant, without equivocation, as

; being one of the robbers. One of the three

testified that appellant pointed a shotgun

at him during the course of the robbery,

and the witness identified the shotgun

which was seized as being the one which

was used by appellant. There was some

_ deviation hetween the testimony of the wit-

nesses as to the appellant's dress at the

_ time of the robbery but all were positive

\ that he was one of the robbers.

The defense was alibi. Appellant's wife

testified that on the evening immediately

preceding the robbery, she took her daugh-

ter to a hospital for treatment of asthma

and that she returned home on the morning

of the day of the robbery, leaving her hus-

band at home to care for the child. She

testified that she then left home and went

to her place of employment, and from

there, called home at approximately the

time of the robbery and talked with appel-

lant. Appellant's mother-in-law testified

that appellant was at the home at the timc

. the robbery occurred. In rebuttal, the

State offered testimony from a records

=. custodian of the hospital that she had no

_ record of the child receiving treatm nt on

( the date the mother testified she did.

The defense also offered a photograph of

appellant which was taken on the day after

his arrest. In argument, defense counsel

stated that the photograph indicated that

appellant had a larger moustache than the

one described hy the witnesses. However,

nonce of the witnesses were asked to exam-

ine the photograph and to compare the

moustache shown with the one which the

robber wore.

484 SOUTH WESTERN REPORTER, 2d SERIES

that the error mw admitting the shotgun was

harmless. IHlarrington v. Califorma, 305

U.S. 250, 89 S.Ct. 1726, 23 L.Fd.2d Qt

(1969); Rodgers v. State, 468 S.W.2d 4%

(Tex.Crim.App.1971). Appellant's — first

ground of error is overruled.

At the punishment stage of the trial, the

State offered a set of fingerprints of the

appellant, taken that day and a “prison

packet” whch contained a set of finger-

prints and records of five prior convictions

of appellant. There was cxpert testimony

that the fingerprints contained m_ the

packet were the same as those taken from

appellant earlier that day.

{12} In his second ground of error, ap-

pellant contends that four of the five con-

victions contained in the packet were nut

admissible because they were accompamed

by only one set of fingerprints. Ile mam-

tains that the one set referred only to one

conviction, and that the remaimmg convic

tions were therefore not properly proved.

This contention is without merit.

An examination of the packet mdicates

that it consists of certified copies of recorls

of the Texas Department of Corrections

pertaining to one Johnny Lerl Cole, m-

cluding the judgment and sentence im five

separate convictions and one set of finger-

prints. An expert witness testified that the

fingerprints contained im the = packet

matched a set which he had taken from

appellant on the same day. The finger.

prints are used as a means of msuring that

the person on trial is the same one to whom

the packet refers. The fingerprints refer

to the packet as a whole. This method of

proof has been consistently upheld by this

‘Court. ¢. g., Emerson v. State, 476 S.W.2d

f Im light of the unequivocal testimony of

| the three witnesses that appcilant was one

; of the robbers, and the rebuttal evidence

| which weakened the alibi defense, we fect

6. The defense did clicit testimony that

of the State's witnesses hed identi-

appellant on March

the photograph in

ii

oa

ul

iH

D-6

686 (Tex.Crim.App.1972) ; Jones v. State,

470 S.W 2d 874 (Tex.Crim.App.1971). Ap-

pellant’s second ground of crror 1s over-

ruled.

DAIRYLAND COUNTY MUT. INS. CO. OF TEX. v. MARTINEZ Tex. JR5

Cite as 48 Wold 7M

[13] Appellant has also filed a pro se

bref im which he raises two additional

grounds of crror. Iles first additional

ground of error is as follows:

“The court committed reversible error

in purposefully suppressing evidence per-

taining to and vital to the defense estab-

lishing the facts of the illegal arrest of

appellant, done m violation of appellant's

rights under the Fourteenth, Fourth and

Ninth Amendments to the U. S. Consti-

tution.”

In the argument supporting this ground of

error, appellant contends that the prosc-

cutors suppressed evidence scized at the

time of his arrest, which was a note used

in the robbery an! which was vital to his

defense. The record is devoid of any evi-

dence im support of this contention. The

ground of crror is overruicd.

[14] In his second additional ground of

error, appellant complains of an argument

by the prosecutor. The record reflects that

no objection was made to the argument.

Therefore, the error, if any, is not pre-

served for review. c¢. g., Verret v. State,

470 S.W.2d 883 (Tex.Crim.App.1971).

There being no reversible error, the

judgment is affirmed.

MORRISON, J., concurs in the result.

ONION, Presiding Judge (dissenting).

| agree that the shotgun and shell, being

the fruit of an illegal search and seizure,

were inadmissible. 1 cannot agree that the

constitutional error was harmless beyond a

reasonable dowht under the test established

by Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed2d 705 (1967). See, also,

Harrington v. California, 395 U.S. 250, 89

S.Ct. 1726, 23 L.F.d.2d 284 (1969).

Therefore, | respectfully dissent.

004 Sw 2630

DAIRYLAND COUNTY MUTUAL INSUR-

ANCE COMPANY OF TEXAS and

Guadalupe Vargas, Appellants,

v.

Leenere D. MARTINEZ and Husband, Fran-

cisce Martinez, Individually and on Behalf

ef Ricarde Martinez, a miner, Appellees.

Court of Civil Appeals of Texas,

Fl Taso.

Aug. 2, 1972.

Rehearing Denied Sept. 20, 1972.

Suit by mother and father meividually

and on behalf of their son against parents’

msurer and uninsured motorist secking to

recover for mjuries sustained im motor

vehicle collision involving the mother and

son. The District Court, Fl Paso County,

Charles R. Schulte, J.. entered judgment

for plaintiffs against both defendants

jointly, and defendant insurer appealed.

The Court of Civil Appeals, Presiar, J.,

held that evidence was not sufficient in

absence of policy sued on, to establish

that a policy was im force providing unin-

sured motorist coverage on date of the

collision, but that it was not necessary to

reverse judgment as to defendant unin-

sured motorist in order to give full and

effective relief to defendant insurer.

Judgment affirmed as to one defend-

ant and reversed and remanded as to other

defendant.

1. Insurance €—665.3(!)

Evidence, in suit by mother and father

individually and on hbchalf of their son

against parents’ insurer and uninsured mo-

torist seeking to recover for injuries sus-

tained in motor vehicle collision imvolving

the mother and son, was not sufficient, in

absence of policy sued on, to establish that

APPENDIX E

_ a

Ps Aluited States Gourt of Appeals

FICE THE ct i 4 600 CamMr erecer

c.6ea or or RK NEW OFPLTANS LA FOTSO

TELEPHONE 604.5089 6514

May 26, 1976

Messrs. Johan L. Hill

Attorney General

Patrick P. Rogers

Assistant Attorney General

P. O. Box 12548

Capitol Statioca

Austin, TX 78711

NO. 75-3263 - John Lerl Cole v. ¥. J. Estelle, Jr.,

Director, Texas Dept. of Corrections

MANDATE STAYED TO AND INCLUDING June 24, 1976

Dear Counsel:

The court has this day granted a stay of the issuance of the

mandate to the date as shown above. If during the period of the

stay there is filed with the clerk of this court a notice from APPENDIX F

the clerk of the Supreme Court that the party who has obtained

the stay has filed a petition for the writ in that court, the

stay shall continue until final disposition hy the Supreme Court.

Upon the filing of a copy of an order of the Supreme Court deny-

ing the petition for writ of certiorari, the mandate shall issue

immediately under Rule 41, FRAP.

Under revised Rule 21(1) of the Supreme Court effective July 1,

1970, a record is no longer required in connection with an

application for writ of certiorari, and therefore will not be

routinely prepared by this office (38LW 3602).

A copy of the opinion, if any, judgment, or Rule 21 decision,

and the denial of rehearing are still required by the Supreme

Court to be incorporated as an appendix to your petition.

Enclosed are copies of the said documents which have been entered

in this cause.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

Eaclosures

cc: Mr. Johnny L. Cole

Mr. Donald A. Smyth

Mr. Robert T. Baskett

Mr. Phil Burlesosa

E-1l

=,

2 eWE

IN THE UNITED STATES COURT OF APPEALS “> he >

) REC oii &

Ps FOR THE FIFTH CIRCUIT \ besides 1

2. © epee nis Wr.

S

i‘V

No. 75-3283 c.

oS “ss,

om ot ‘as

Ss S, «a

o* Sf ++"

JONUN LERL COLE, .’° « a

7,07 ¢€

4% e

ec"

Petitioner-Appellee, By

-“

versus

W. J, ESTELLE, JR., Director,

Texas Department of Corrections,

Respondent-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

ORODE R:

( ) The motion of

for stay of the issuance of the mandate pending petition for writ

of certiorari is DENIED. See Fifth Circuit Local Rule 15, as

amended January 11, 1972.

( ) The motion of

for stay of the issuance of the mandate pending petition for writ

of certiorari is GRANTED to and including

the stay to continue in force until the final disposition of the

case by the Supreme Court, provided that within the period above

mentioned there shall be filed with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the certiorari

petition has been filed. The Clerk shall issue the mandate upon

the filing of a copy of an order of the Supreme Court denying the

writ, or upon the expiration of the stay granted herein, unless

the above mentioned certificate shall be filed with the Clerk of

this Court within that time.

’

( ) The motion for a further stay of the issuance of the mandate is

‘ GRANTED to and including , under the same

conditions as set forth in the preceding paragraph.

P<] IT IS ORDERED that the motion for « further stay of the issuance

of the mandate is DENIED.

UNITED STATES CIRCUIT JUDGE