Petition — McCall v. Texas

.. supreme Coust, U. S,

FILED

AUG 16 977

SUPREME COURT 1

OF THE MICHAEL RODAK, JR., CLERK

UNITED STATES

October Term 1977

+ ae

7-269

SIMMIE LYNN McCALL and

BILLY DON MILLS,

Petitioners,

vs.

THE STATE OF TEXAS,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

ROGER S. HANSON, Esq.

518 South Broadway

Santa Ana, California 92701

(714) 558-0921

Member of Bar, U.S. Supreme Court

RAY GENE SMITH, Esq.

301 Wichita Falls Savings Bidg.

Wichita Falls, Texas

(817) 322-5223

SCOTT W. HUDSON, Esq.

1318 Mercantile Bank Bidg.

Dallas, Texas 75201

(214) 651-8555

Attorneys for Petitioners

J. GALLAGHER — Printed Briefs (714) 835-6522

TOPICAL INDEX

I i i a i ie De ie 6 1

ee ee ee Pe ee ees 2

Questions Presented for Review................... 4

United States Constitutional Amendments Involved .. 7

Statement of Facts in Support of Grant of Certiorari.. 8

Argument

1. Erroneous Instruction to Jury ............... 10

ll. Prosecutor had evidence and said information

was suppressed from Defense Counsel ...... 11

lil. Prosecutor committed prejudicial error

in telling jury that “probation was a

SU, HERO 5 bec BU che Wect ccccs 14

IV. Prosecutor vioiated Appellants’ rights in

commenting to jury that Appellants did not

speak in their own defense ................ 15

V. Trial Judge erroneously charged the jury that

He, the Trial Judge, had discretionary power

to make, as a condition of probation, that the

Defendants commit nocrimes.............. 16

RI Sea ee Ee ee ee ee 18

Opinion, Exhibit A, Court of Criminal Appeals

SED on bec nedewd eb ab awecebeee eh s8 ec eceees 21

Denial of Rehearing, Exhibit B, Court of Criminal

PED DEI Cu bain cos ccevéeee Posetvnvedd 25

as SECs dy iGNs be 6c bo ck b 0b ce dees 26

TABLE OF AUTHORITIES

Cases Page

, Wes MP IS Is oo ccc ccccccccncses 3,13

Brady v. Maryland, 373 U.S. 83, 87........ 4,6,9,11,13

Chapman v. State, 478S.W. 2d 91 ................ 6,9

Coble v. State, 501 S.W. 2d 344... eee eee 5

DeMarco v. United States, 415 U.S. 449........... 3,13

Duran v. State, 305S.W. 2d 863 ................45.. 5

Ex Parte Prior, 540 S.W. 2d 723.............. eee eee 5

Ex Parte Raley, 528 S.W. 2d 257 ..............20005- 6

Fahy v. Connecticut, 375 U.S. 85 ................... g

. sh 8 8 PPPOE TT TTT TTT eee 5

Giglio v. United States, 405U.S.105...... 3, 5,6, 12,13

Giles v. Maryland, 386 U.S. 66..................4.. 13

Griffin v. California, 380 U.S. 6709, 14 L. Ed 2d 106,

Ss AS Fic evnekeaceae 5, 6, 8, 9, 15, 16

imbier v. Craven, 296 F. Supp. 795 (C.D. Calif. 1969).. 13

In re Branch, 70 Cal 2d 200, 210..............000eeee g

In re Ferguson, § Cal 3d 525 ...............0005. 3,13

in re Winship, 397 U.S. 358, 364............ 4,5, 10,11

Malloy v. Hogan, 378 U.S. p.11,12L. Ed 2d p. 661... 16

Mesarosh v. United States, 352U.S.1............ 3,13

Miliverv. Pate, 366U.S.1 ................00055- 3,13

Mooney v. Holohan, 294 U.S.103................ 3.13

Morrissey v. Brewer, 408 U.S. 471 (1972).......... 9,14

Napue v. Illinois, 360 U.S. 264, 269 ............ 3, 5, 13

People v. Rutherford, 14 Cal 3d 399, 405-409 .... 3,5, 13

People v. Westmoreland, 58 Cal App 3d 32........ 3,13

Pyle v. Kansas, 317 U.S. 213 ............. 2. ce eee 3,13

United States v. Agurs, 427 U.S.97..... 3, 4,6, 9, 12, 13

United States v. Keogh, 391 F. 2d 138 (2d Cir. 1968) .. 13

Williams v. State, 513 S.W. 2d 54 ................... 5

W

cos

Amendments Page

United States Constitution, Sixth Amendment........ 7

United States Constitution, Fourteenth Amendment .. 7

Codes Page

United States 28 U.S.C. 1257(3) .................08- 2

Texas Penal Code 8.04A,B,C,D,E................. 7

TEXT

Text Page

Supplement to the Criminal Defense Sourcebook,

a Texas Lawyer's Guide, by Ray Edward Moses .... 15

1

Pa

SUPREME COURT OF THE UNITED STATES

October Term 1977

ee ee fp

SIMMIE LYNN MC CALL and

BILLY DON MILLS,

Petitioners

TEXAS,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

To the Honorable WARREN E. BURGER, Chief

Justice of the United States of America, and to the

Honorable Associate Justices of the United States

Supreme Court:

Comes now SIMMIE LYNN McCALL and BILLY DON

MILLS, Petitioners, by their attorneys, Roger S. Hanson,

Esq., of Santa Ana, California, a member of the Bar of the

United States Supreme Court, and Ray Gene Smith, Esq.,

of Wichita Falis, Texas, and Scott Hudson, Esq., of Dallas,

Texas, petitioning this Honorable Court for a Writ of

Certiorari directed to the Court of Criminal Appeals of the

State of Texas at Austin, Texas, to review constitutional

errors occurring in their trial of burglary conducted in the

District Court of the State of Texas in Wichita Falls,

Texas.

Pursuant to Rule 23, Rules uf the Supreme Court of

the United States. petitioners submit the following:

(A)

OPINION BELOW

The Texas Court of Crimina! Appeais rendered

opinion on May 18. 1977, a copy of which is attached to

this petition as Exhibit “A”. A Petition for Rehearing was

made and was denied on or about June 8, 1977. A copy of

the Postal Card denying same is herewith attached as

Exhibit “B”.

(b)

The grounds upon which the jurisdiction of this

Honorabie Court is invoked are:

(i) the date that the judgment which is sought to be

reviewed was entered is May 18, 1977;

(ii) a petition for rehearing was made and denied on

June 8, 1977, by the Texas Court of Criminal Appeals.

(iii) the statutory provision conferring jurisdiction on

this Honorable Court is 28 U.S.C. 1257(3) which

provides:

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows:

. . .By writ of certiorari, where the validity of a treaty

or statute of the United States is drawn in question or

where the validity of a State statute is drawn in question

on the ground of its being repugnant to the Constitution,

treaties or laws of the United States, or where any title,

right, privilege or immunity is specially set up or claimed

under the Constitution, treaties or statutes of, or

commission held or authority exercised under, the United

States. June 25, 1948, c. 646, 62 Stat. 929.

(1) Jurisdiction of this Honorable Court is further

invoked because. although presented to them, the Texas

Court of Criminal Appeals has refused to rule on the

constitutionality of a Texas State Judge instructing the

jury during the penalty phase of petitioners’ trial that:

“. . .It will be proper for you in determining the

penalty to be assessed to fix the same by lot, chance, or

any other method than by a full, fair, and free exercise of

the opinion of the individual jurors, under the evidence

admitted before you. . .” (Page 3, lines 1-5, of the

Argument to the Jury}.

(2) Jurisdiction of this Honorable Court is further

invoked because the Texas Court of criminal Appeals,

although the issue was placed before them, has refused

to rule on the denial of due process caused to petitioner

Billy Don Mills by the State Prosecutor wilfully

suppressing exculpatory statements exonerating him of

the crime of burglary of a car radio made by an observer

of that crime, one FUGETT, within the meaning of

Mooney v. Holohan, 294 U.S. 103; Pyle v. Kansas, 317

U.S. 213; Mesarosh v. United States, 352 U.S. 1; Alcorta

v. Texas, 355 U.S. 28; Napue v. Illinois, 360 U.S. 264,

269; Brady v. Maryland, 373 U.S. 83, 87; Miller v. Pate,

386 U.S. 1; Giglio v. United States, 405 U.S. 105;

DeMarco v. United States, 415 U.S. 449; and United

States v. Agurs, 427 U.S. 97. See also In Re Ferguson, 5

Cal 3d 525; People v. Ruthford, 14 Cal 3d 399, 405-409.

People v. Westmoreland, 58 Cal App 3d 32.

(3) Jurisdiction of the Honorable Court is further

invoked because the Texas Court of Criminal Appeals

uses a non-constitutional standard to evaluate the

effectiveness of criminal defense counsel at trial where

the instant record is clear that defense counsel failed to

provide adequate defense including, but not limited to,

3

(a) failure to undertake pre-triai discovery to

dredge to the surface exculpatory evidence exoner-

ating petitioner Billy Don Mills in the crime of theft

of a car radio, and as a result, advised the said Miils

to plead guilty:

(b) failure to object to clear error of the state

prosecutor commenting on petitioner's failure to

testify within the meaning of Griffin v. California,

380 U.S. 609, and failure to request a jury instruction

that the failure of the petitioners to take the stand

shall not be construed against them.

(c) failure to develop a defense of intoxication

to mitigate a penalty of 10 years imprisonment for

simple burglary.

(c)

QUESTIONS PRESENTED FOR REVIEW

1. Whether a criminal sanction can be constitutionally

imposed in Texas within the meaning of In Re Winship,

397 U.S. 358, 364, when the criminal jury is instructed

that:

“ . . It will be proper for you in determining the

penalty to be assessed, to fix the same by lot, chance, or

any other method than by a full, fair and free exercise of

the opinion of the individual jurors, under the evidence

admitted by you. . .” (Page 3, lines 1-5, Arguments to the

Jury].

2. Whether reversal is required because the prosecutor

failed to turn over and did suppress a statement totally

exculpating appellant Billy Don Millis of burglary of a

motor vehicle made to the prosecutor by one Larry

Fugett, within the meaning of Brady v. Maryiand, 37°

U.S. 83, 87; United States v. Agurs, 427 U.S. 97, and

4

Giglio v. United States, 405 U.S. 150: see also such

persuasive authority as In Re Ferguson, 5 Cal 3d 525,

529-533; People v. Ruthford, 14 Cai 3d 399. 405-409;

Napue v. Illinois, 360 U.S. 264, 269.

3. Whether reversal is required because the trial attorney

failed to protect certain well-recognized constitutional

rights of the defendants such as prosecutoral mis-

behavior condemned under Griffin v. California, 380 U.S.

6709, 14 L. Ed 2d 106, 85 S. Ct. 1229, and such as the

seeking of discovery, and such as the calling of key

defense witnesses to establish diminished capacity to

form the specific intent to commit the crimes of burglary

of a building and of a motor vehicle?

4. Whether jury misbehavior occurred in this case by the

jorors:

{a} discussing that the defendants-appeliants did

not testify in their own behalf.

(b) talking to persons in the halis contrary to the

Court’s instructions set forth at line 11-20, page 3, of

Arguments To The Jury.

(c) determining or potentially determining the

penalty by lot, or chance, or “any other method,” as they

were instructed by the Court at Page 3, lines 1-5 of

Argument To the Jury.

4. Whether the Honorable Texas Court of Criminal

Appeals properly conceived the issue of effective

assistance of counsel as “wilful misconduct”, “bad faith,

insincerity, or disloyalty toward appellants by their

attorney”, citing State of Texas cases on effective

assistance of counsel, e.g. Ex Parte Prior, 540 S.W. 2d

723; Duran v. State, 305 S.W. 2d 863: Williams v.State,

513 S.W. 2d 54; Coble v. State, 501 S.W. 2d 344; Faz v.

State, 510 S.W. 2d 922: Ex Parte Raley, 528 S.W. 2d 257,

Chapman v. State, 478 S.W. 2d 91, etc. (pages 1-2, May

18, 1977. Opinion], when in fact the real errors

complained of go to well-defined Federal Constitutional

errors such as

a) failure to seek clearly discoverable and useful

exculpatory statements (Brady v. Maryland, 373 U.S. 83,

87 ; United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342,

96 S. Ct. 2392, 19 Cr. L. 3195 (6-24)76), and Giglio v.

United States, 405 U.S. 150),

(b) failure to object to error promulgated under

Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85S.

Ct. 1229,

(c) failure to object to use of the hearsay indictment

as an instrument of the November 13, 1975, burglary by

use of the proximate date of the second burglary. i.e.,

December 18, 1975.

(d) failure to request a jury instruction that

appellants’ failure to take the stand and testify could be

used for any purpose in fixing penalty,

(e) failure to request a jury instruction that the Grand

Jury Indictment could not be used for any purpose in

fixing penalty,

(f) failure to properly investigate the facts of the

case such as interview of Larry Fugett, who gave an

exculpating statement of Billy Don Mills, and to interview

other witnesses who could testify to the intoxication level

of the defendants to support a diminished capacity

defense in mitigation of punishment,

(g) failure to disqualify himself as to joint

representation of Mills and McCall in spite of a clear and

manifest conflict of interest such as Mills being a

non-participant in the motor vehicle burglary while

McCall was seen to overtly commit it.

- 6

6. Whether the jury should have been instructed on any

plausible defense theory of the case such as mitigation of

punishment because of intoxication, under Texas Penal

Code 8.04 A. B. C, D, E, where evidence was introduced

by the defense on this issue, and whether if any credible

evidence is introduced on the issue, an instruction is

mandatorily required, and whether the objection and

exception to failure to instruct was properly made and

should have been granted? (See “Exceptions and

Objections to the Charge of the Court”].

(d)

UNITED STATES

CONSTITUTIONAL AMENDMENTS INVOLVED

Sixth Amendment: '

“in all criminal prosecutions, the accused shalli enjoy

the right to a speedy and public trial, by an impartial jury

of the state and district wherein the crime shall have been

committed, which district shali have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”

Fourteenth Amendment:

“All persons born or naturalized in the United States,

and subject to the jurisdiciton thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law: nor deny

to any person within its jurisdiction the equal protection

of the laws.”

(e)

STATEMENT OF FACTS IN SUPPORT OF

GRANT OF CERTIORARI

Petitioners McCali and Mills were convicted of

separate counts of burglary on their plea of guilty in the

District Court of Wichita Falls, Texas.

Under Texas law, a jury may be impaneled to assess

the penalty. Petitioners chose this method of determin-

ing the sanction to be imposed.

The state District Judge then instructed the jury

that:

“ . . It will be proper for you in determining the

penalty to be assessed to fix the same by lot, chance, or

any other method than by a full, fair, and free exercise of

the opinion of the individual jurors, under the evidence

admitted before you. . .” (Page 3, lines 1-5, of the

Argument to the Jury).

The record, of course, does not reveal just how the

jurors arrived at a penalty of 10 years in the Texas State

Prison. (petitioners were charged with breaking into a

liquor store and stealing a “C.B.” radio out of a parked

vehicle.)

In the penalty phase of the case, petitioners could

have testified but exercised their constitional right to not

do so. The prosecutor then commented to the jury:

“|. They probably think they’re going to walk on

probation, and nothing they’ve said. . .” (Page 13, lines

19-20, of the Argument to the Jury).

Such appears to be in patent violation of the

mandate of Giffin v. Callfomla, 380 U.S. 609.

The prosecutor argued longly and loudly against

awarding probation to the petitioners, erroneously telling

the jury:

“... It's (i.e., probation) a privilege, not a right. . .”

in violation of Morrissey v. Brewer, 408 U.S. 471 (1972),

which rejected the concept that due process may be

denied in parole proceedings on the gound that paroie

was a privilege rather than a right.

Defense counsel took no steps to correct either the

foregoing Griffin v. California, 380 U.S. 609, or Morrissey

v. Brewer, 408 U.S. 471, errors, nor did the trial judge.

The same is a denial of effective assistance of counsel

and due process of law within the meanings of the Sixth

and Fourteenth Amendments to the U. S. Constitution.

In a like vein, the prosecutor was in possession of

information totally exculpating petitioner Mills from the

burglary of the vehicle in the form of statements made by

one Larry Fugett to Chief District Attorney Tim Eyssen of

Wichita Falls. The prosecutor and his staff wilfully

suppressed said statements in violation of Brady v.

Maryland, 373 U.S. 83, 87, and United States v. Agurs,

427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (6-24-76).

Said error, being material, cannot be saved by the

Federal Harmless Error Rule of Chapman v. Califormia,

386 U.S. 18, 24, and Fahy v. Connecticut, 375 U.S. 85.

Defense counsel likewise failed to turn up said

statement in pre-trial discovery and as a consequence

urged both petitioners to plead guilty. No defense was

planned. This is a denial of the effective assistance of

counsel. In re Branch, 70 Cal 2d 200, 210.

Jury misbehavior occurred in the case inciuding but

not limited to:

(a) jurors admitted discussing that the petitioners

did not testify in their own behalf;

(b) jurors discussed the case in the halis with

non-jurors ;

(c) jurors potentially decided the penalty “by lot or

by chance,” pursuant to the Court's instruction.

(f)

ARGUMENT

|

THE TRIAL COURT ERRONEOUSLY INSTRUCTED

THE JURY THAT THEY COULD DECIDE THE PENALTY

BY “LOT, CHANCE, OR ANY OTHER METHOD” OTHER

THAN THE UNANIMOUS DECISION OF THE JURY ON

THE PENALTY.

At page 3, lines 1-5, of the Argument To The Jury,

the trial judge, Honorable Stanley C. Kirk, instructed the

jury that:

“|. It will be proper for you in determining the

penalty to be assessed to fix the same by lot, chance, or

any other method than by a full, fair and free exercise of

the opinion of the individual jurors, under the evidence

admitted before you.”

This is clearly error, for In Re Winship, 397 U.S. 358,

364, extends the Due Process Clause protection to each

fact necessary to be proven by the State of Texas against

a criminal defendant that it is proceeding against. This

means that all twelve (12) jurors must unanimously agree

on the specific penalty; it cannot be determined or fixed

by “lot, chance, or any other method.”

While Winship ordinarily alludes to guilt determina-

tion, it is equally applicable to penalty determination,

and Due Process is equally applicable to a twelve (12)

10

man unanimous penalty determination. in Re Winship.

397 U.S. 358, 364, 25 L. Ed 2d 368, 375, 90 S. Ct. 1068,

provides:

“Lest there remain any doubt about the constitu-

tional stature of the reasonable doubt standard, we

explicitly hold that the Due Process Clause protects the

accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime with which he is charged.”

Thus it is clear that Federal Constitutional error

occurred here where jury unanimity was not required by

the Court's instruction. Certiorari must be accorded.

ll

THE PROSECUTOR HAD IN HIS FILES, OR IN THE

MINDS OF HIMSELF OR HIS FELLOW PROSECUTORS,

EVIDENCE THAT ONE LARRY FUGETT HAD OBSERVED

THE SO-CALLED MOTOR VEHICLE BURGLARY, AND

HAD PERSONAL KNOWLEDGE THAT APPELLANT

BILLY DON MILLS HAD NOT PARTICIPATED; FUGETT

TOLD THE OFFICE OF THE DISTRICT ATTORNEY THAT

MILLS WAS NOT A PARTICIPANT IN THE BURGLARY

OF THE MOTOR VEHICLE ON DECEMBER 18, 1975,

AND SAID INFORMATION WAS SUPPRESSED FROM

TRIAL DEFENSE COUNSEL IN VIOLATION OF UNITED

STATES v. AGURS, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S.

Ct. 2392, 19 Cr. L. 3195 (6-24)76) AND BRADY v.

MARYLAND, 373 U.S. 83, 87.

It is too well established to now be questioned that a

state prosecutor must turn over to defense counsel

“evidence highly probative of innocence” which is within

his personal knowledge.

11

The recent case United States v. Agurs, 427 U.S. 97,

96 S. Ct. 2392, 19 Cr. L. 3195, 49 L Ed 2d 342, provides:

“Nor do we believe the constitutional obligation is

measured by the moral culpability, or the wilfulness, of

the prosecutor. If evidence highly probative of innocence

is in his file, he should be presumed to recognize its

significance even if he has actually overlooked it. Giglio

v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92S.

Ct. 763. Conversely, if evidence actually has no probative

significance at all, no purpose would be served by

requiring a new trial simply because an inept prosecutor

incorrectly believed he was suppressing a fact that would

be vital to the defense. If the suppression of evidence

results in constitutional error, it is because of the

character of the evidence, not the character of the

prosecutor.”

At page 12, line 13, of Continuation of Hearing on

Request For A New Trial, Larry Fugett testified under

oath about his statement to Tim Eyssen, the District

Attorney.

Fugett was never contacted by trial attorney Sam

Moreau for a pre-trial interview of the facts. (Page 13,

lines 1-8).

At this hearing the trial Court threatened Larry

Fugett with a prosecution for perjury should Fugett

persist in stating that another affidavit that he had

furnished to defense counsel Ray Gene Smith was true,

and Fugett under these threats withdrew his contention

as to the affidavit given defense counsel (pages 13-28,

Continuation of Hearing on Request for a New Trial).

Nonetheless, it must be noted that the District

Attorney, Timothy Eyssen, or someone in his office, had

been given a statement other than the ones reduced to

writing which tended to exonerate appellant Billy Don

12

Mills, and the same was unconstitutionally suppressed

from the defense, within the broad Federal Constitutional

Due Process Mandates of Mooney v. Holohan, 294 U.S.

103; Pyle v. Kansas, 317 U.S. 213; Mesarosh v. United

States, 352 U.S. 1; Alcorta v. Texas, 355 U.S. 28; Napue

v. Ilinois, 360 U.S. 264; Brady v. Maryland, 373 U.S. 83,

87; Miller v. Pate, 386 U.S. 1; Giles v. Maryland, 386 U.S.

66; Giglio v. United States, 405 U.S. 150; DeMarco v.

United States, 415 U.S. 449; United States v. Linda

Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, 19

Cr. L. 3195 (6-24)76). See also such persuasive authority

as Imbier v. Craven, 298 F. Supp. 795 (C.D. Calif. 1969);

In Re Ferguson, 5 Cai 3d 525; People v. Ruthford, 14 Cal

3d 399, 405-409; People v. Westmoreland, 58 Cai App 3d

32. See also U.S. v. Keogh, 391 F. 2d 138 (2d Cir. 1968).

Indeed, Giglio, supra, holds the entire office of a

given prosecutoral office responsible for the knowledge

imparted to one member of that office. As Giglio v.

United States, 405 U.S. 150, 154, 31 L. Ed 2d 104, 109, 92

S. Ct. 763, provides:

“in the circumstances shown by this record, neither

Di Paola’s authority nor his failure to inform his superiors

or his associates is controlling. Moreover, whether the

nondisclosure was a result of negligence or design, it is

the responsibility of the prosecutor. The prosecutor's

office is an entity and as such it is the spokesman for the

Government. A promise made by one attorney must be

attributed, for these purposes, to the Government. See

Restatement (Second) of Agency #272. See also

American Bar Association Project on Standards for

Criminal Justice, Discovery and Procedure Before Trial

#2.1(d). To the extent this places a burden on the large

prosecution offices, procedures and regulations can be

established to carry that burden and to insure communi-

13

cation of all relevant information on each case to every

lawyer who deals with it.”

Thus, it is clear that the instant conviction must and

should be reversed and remanded to the District Court of

Wichita County, Texas.

It is therefore irrelevant to the issue of whether a new

trial should be accorded to attempt to discern whether

the head District Attorney, Timothy Eyssen, or another

member of his statf, was given the information by Larry

Fugett. Under any such shown possession of information

on the part of the prosecutor's office of Wichita County,

the case must be reversed.

in

THE PROSECUTOR COMMITTED PREJUDICIAL

ERROR OF FEDERAL CONSTITUTIONAL MAGNITUDE

WITHIN THE MEANING OF MORRISSEY v. BREWER,

408 U.S. 471 (1972), IN TELLING THE JURY THAT

“PROBATION WAS A PRIVILEGE, NOT A RIGHT”, AND

IT WAS A DENIAL OF EFFECTIVE ASSISTANCE OF

COUNSEL FOR TRIAL DEFENSE COUNSEL TO HAVE

FAILED TO OBJECT OR EXCEPT TO THIS IMPROPER

ARGUMENT.

At page 15, line 16, Argument to the Jury, the

prosecutor quoted erroneous law to the twelve (12) man

lay jury which the Trial Judge took no steps to correct:

“ _. It’s (i.e., probation) a privilege, not a right. . .”

Under Texas law, of course, probation is a right, not

a privilege.

it must be remembered that the case of Morrissey v.

Brewer, 408 U.S. 471 (1972), rejected the concept that due

process may be denied in parole proceedings on the

ground that perole was a privilege rather than a right.

14

Simiiarly, it can be well stated that probation is a right,

not a privilege. under Texas law, and it is error for a

prosecutor to mislead a jury; it is error for a triai judge to

not correct this error; and it is a denial of effective

counsel for trial defense counse! to nave failed to object

or except to this prosecutoral misconduct. See page 346,

Sec. 2002.1, “Supplement to the Criminal Defense

Sourcebook, a Texas Lawyer's Guide,” by Ray Edward

Moses.

Because of this clear erroneous impacting of

erroneous law on the jury with failure of the trial court to

alter it, certiorari must and should be granted.

This error goes to the duality of ineffective counsel

and Fourteenth (14th) Amendment denial of Due Process

of Law.

This Honorable Court should grant certiorari with

Oral Argument.

IV

THE PROSECUTOR VIOLATED APPELLANTS’

RIGHTS UNDER GRIFFIN v. CALIFORNIA, 380 U.S. 609,

14 L. Ed. 2d 106, 85 S. Ct. 1229, IN COMMENTING TO

THE JURY THAT APPELLANTS DID NOT SPEAK IN

THEIR OWN DEFENSE; LIKEWISE, TRIAL DEFENSE

COUNSEL PROVIDED INEFFECTIVE DEFENSE UNDER

THE SIXTH (6th) AND FOURTEENTH (14th) amendment

in failing to object or except to this serious deprivation of

due process of law.

At the trial of the penalty before the jury, the

prosecutor commented to the jury that the appellants had

not taken the witness stand in their own defense. At page

13, lines 19-20, of Argument to the Jury, the prosecutor

said:

15

“. . . They probably think they’re going to walk on

probation, and nothing they've said. . .”

Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106,

85 S. Ct. 1229, provides at 615 of 380 U.S. 609, and at 110

of 14L. Ed. 2d 106:

“We said in Malloy v. Hogan, supra, 378 U.S. p. 11,

12 L. Ed 2d p. 661, that ‘the same standards must

determine whether an accused's silence in either a federal

or state proceeding is justified.’ We take that in its literal

sense and hold that the Fifth Amendment, in its direct

application to the Federal Government, and in its bearing

on the states by reason of the Fourteenth Amendment,

forbids either comment by the prosecution on the

accused’s silence or instructions by the court that such

silence is evidence of guilt.”

Because of this deprivation of rights under Griffin v.

California, this conviction must be reversed.

V

THE TRIAL JUDGE ERRONEOUSLY CHARGED THE

JURY THAT HE, THE TRIAL JUDGE, HAD DIS-

CRETIONARY POWER TO MAKE, AS A CONDITION OF

PROBATION, THAT THE DEFENDANTS COMMIT NO

CRIMES (page 4, line 10-14, Argument to the Jury). IN

FACT, THE COURT IS REQUIRED TO MAKE AS A

CONDITION OF PROBATION THAT THE DEFENDANTS

COMMIT NO OFFENSES AGAINST THE STATE OF

TEXAS, ANY OTHER STATE, OR THE UNITED STATES.

At page 4, lines 10-14, Argument to the Jury, the

Court stated to the jury that:

“ . . The conditions of probation which this court

may impose shall be limited to but not necessarily

include all of the following:

16

(1) that he commit no offense against the laws of

this State or of any other State or of the United

States; ...”

The impression that this erroneous instruction left

with the jury was that it allowed tne jury to believe that if

the court ultimately chose not to include condition of

Probation Number One (1) in the conditions impressed on

the defendants, then the defendants could commit other

crimes and not face revocation of their probation no

matter how serious might be a crime that they

subsequently committed.

The prosecutor aided, hand-in-giove, this error by

his argument directed toward the “crime control” pitch

that he made to the jury, e.g.:

“... But you’ve got to be strong as a juror. . ." (page

10, line 19, Argument to the Jury).

“| . . And there is no law enforcement or no law

protection until twelve (12) jurors have the guts to send

some of these people away. . .” (page 10, lines 24-26,

Argument to the Jury).

“.. . and my police officers and your police officers

can be out there risking their lives making these cases. .

(page 10, lines 27-28, Argument to the Jury).

“. . . Probation is nothing more than being a good

citizen. There are some people that are deserving of

probation. There are some that are not. . .” (page 13, lines

8-10, Argument to the Jury).

“... And then just slap them on the wrist; that’s not

going to be any deterrent to anybody outside this

building. They don’t deserve any sympathy. They’re

grown and they’re responsible for their acts. . ." (page 14,

lines 16-19, Argument to the Jury).

“. . . You're going to have to gully it up and have

some guts and deter others from committing the same or

similar offenses by putting them in the Texas Department

17

of Corrections long enough so other people on the

outside won't want to do the same things... . because

the jury might convict them and put them in the

penitentiary for a long time. . .” (page 15, lines 6-12,

Argument to the Jury).

“.. . And it’s not going to be that way until juries like

you are strong enough to put the biggies away where they

cannot commit other crimes. . .” (page 16, lines 23-25,

Argument to the Jury).

And we have just set forth a sample of the

permeating “law and order” diatribe of the prosecutor.

For a jury to be erroneously told that the Court might not

include, as a condition of probation, that the defendants

not commit any new crimes, when all know that the

commission of new crimes constitutes a violation of

probation per se, when coupled with the prosecutor's

argument set forth above, readily makes it apparent that

great prejudice occurred.

Petition for certiorari should be granted and oral

argument accorded.

CONCLUSIONS

For the resolution of the apparently unique issue of

whether due process of law is accorded by a State of

Texas judge ordering that a criminal sanction may be

decided “by lot or by chance,” and for other reasons set

forth in this Petition, the Petition for Writ of Certiorari to

the Court of Criminal Appeals of the State of Texas

should be granted.

18

DATED this 25th day of July, 1977. at Santa Ana,

California, and Wichita Fails and Dallas. Texas

Respectfuliy submitted.

ROGER S. HANSON, ESQ.

RAY GENE SMITH, ESQ.

SCOTT HUDSON, ESQ.

by ROGER S. HANSON,

Member of the Bar,

United States Supreme

Court

Attorneys for Petitioners

19

EXHIBIT A

20

SIMMIE LYNN McCALL and

BILLY DON MILLS, Appellants

NOS. 54.266 and 54,267, v. Appea!s from Wichita County

THE STATE OF TEXAS, Appellee

OPINION

These are appeals from convictions for the offense of

burglary of a building in Cause No. 16792-C and burglary

of a motor vehicle in Cause No. 16874-C. Pursuant to

appellants’ written request the two causes were tried

together before a jury upon a plea of guilty. Punishment

was assessed in each case at ten years.

Initially appellants contend that they failed to receive

a fair trial because of ineffective assistance of their

retained counsel in the trial court.

The constitutional right to counsel, whether counsel

be appointed or retained, does not mean erroriess

counsel whose competency or adequacy of his represen-

tation is not to be judged ineffective by hindsight. Ex

parte Prior, 540 S.W.2d 723 (Tex.Cr.App. 1976); see also,

Duran v. State, 305 S.W.2d 863 (Tex.Cr.App. 1974).

The adequacy of an attorney’s services must be

gauged by the totality of the representation. Ex parte

Prior, supra; Williams v. State, 513 S.W.2d 54

(Tex.Cr.App. 1974); Coble v. State, 501 S.W.2d 344

(Tex.Cr.App. 1973). The allegations of ineffective

representation will be sustained only if they are firmly

founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.

1974). Effectiveness of retained counsel must be gauged

21

by whether or not there is a breach of lega! duty. Ex parte

‘Raley, 528 S.W.2d 257 (Tex.Cr.App. 1975), and cases

cited therein.

As this Court wroie in Chapman v. State, 478 S.W.2d

91 (Tex.Cr.App. 1972(;

“ . , complaints of ineffective counsel must be

examined in light of what the Court said in Williams v.

Beto, 354 F.2d 698 (5th Cir): ‘as no two men can be

exactly alike in the practice of the profession, it is

basically unreasonable to judge an attorney by what

another would have done, or says he would have done, in

the better light of hindsight.’ ”

An attorney must appraise a case and do the best he

can with the facts and the fact that other counsel might

have tried the case differently does not show inadequate

representation. Ex parte Prior, supra. See Rockwood v.

State, 524 S.W.2d 292 (Tex.Cr.App. 1975), and Witt v.

State, 475 S.W.2d 259 (Tex.Cr.App. 1971). See also,

United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

We have carefuliy examined the record and

appellants’ numerous allegations and cannot conclude

there was ineffective assistance of counsel. This record

does not support or reflect any wilful misconduct by an

employed counsel without appellants’ knowledge which

amounts to a breach of the legal duty of an attorney.

Trotter v. State, 471 S.W.2d0 822 (Tex.Cr.App. 1971). Even

if we used the “reasonabiy effective assistance” standard

of Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App. 1974),

we would reach the same result.

Nothing appears in the record to show any bad faith,

insincerity or disloyalty toward appellants by their

attorney. A good faith error or mistake, if any, made by

retained counsel with honest and earnest purpose to

22

Ria le ls I I A 8 te BM ence ota

serve his client cannot be the basis of a clain of

reversible error. Miils v. State. 483 S.W.2d 264

(Tex.Cr App. 1972): see also, Popeko v. United States.

294 F.2d 168 (5th Cir. 1961).

We find that appellants had adequate representation

in the trial court. Nor do we conclude that appellants have

been deprived of a fair trial or due process of law.

Next, appellants contend that the trial court erred in

failing to grant their motion for new trial because of

alleged jury misconduct.

Appellants do not cite any authority or present any

argument but merely set out part of the testimony of one

of eight jurors who testified at the hearing on their

motion for new trial. While this ground of error is not in

compliance with Article 40.09, Section 9, V.A.C.C.P., we

have reviewed the voluminous testimony heard at the

hearing and hold that this contention is without merit.

The decision of the trial court on passing upon a motion

for new trial will not be disturbed by this Court in the

absence of an abuse of discretion. Powell v. State, 502

S.W.2d 705 (Tex.Cr.App. 1973). The testimony solicited

appears to be an attempt by appellants to develop the

mental processes of the jury in arriving at the punishment

assessed. This is not allowed. Peak v. State, 522 S.W.2d

907 (Tex.Cr.App. 1975). In fact, most of the testimony is

contradictory to appellants’ allegations and even

conflicting in the juror’s testimony set out in their brief as

well as the others. Where the evidence is conflicting as to

alleged jury misconduct, the ruling of the trial court on

the motion for new trial is ordinarily conclusive on

appeal. Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.

1972).

23

Appellants’ third ground of error complains of the

admission into evidence during the punishment stage of

the trial.

No authority is cited nor is any argument made in

support of this ground of error. Since this ground of error

is not in compliance with Article 40.09, Section 9, supra,

nothing is presented for review. Williams v. State, 504

S.W.2d 477 (Tex.Cr.App. 1974).

Their next complaint is directed toward the trial

court’s failure to give an instruction to the jury on

mitigation of punishment by reason of intoxication in

accordance with V.T.C.A., Penal Code, Section 8.04,

subsections A, B, C, Dand E.

We find no evidence raising the issue of temporary

insanity by reason of intoxication. The mere fact that

there is testimony that appellants were or may have been

intoxicated is insufficient. For an instruction pursuant to

Section 8.04, supra, it must be shown that an appellant

as a result of intoxication (1) “not know his conduct is

wrong”, or (2) “was incapable of conforming his conduct

to the requirements of the law he violated.” Hart v. State,

537 S.W.2d 21 (Tex.Cr.App. 1976). His contention is

overruled.

Lastly they complain of improper jury argument by

the prosecutor. The record reflects that no objection was

made to the complained of comments. Absent an

objection, nothing is presented for review.

No reversible error having been shown, the

judgments are affirmed.

Per Curiam

(Delivered May 18, 1977)

24

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

Austin, Texas, June 8, 1977

Dear Sir:

| have been instructed to advise that the Court has

this day denied “Leave To File” the Appellants’ Motion for

Rehearing in Cause No. 54,266, 54,267, SIMMIE LYNN

MCCALL & BILLY DON MILLS vs. THE STATE OF TEXAS

Appellee.

Request to hold mandate is denied

Sincerely yours,

THOMAS LOWE, Clerk

EXHIBIT 868

25

PROOF OF SERVICE

STATE OF CALIFORNIA _ )

ss

County of Riverside )

lam a citizen of the United States and a resident of

the County aforesaid; | am over the age of eighteen years

and not a party to the within entitled action; my business

address is 1509 N. Main, Santa Ana, California.

On August 16, 1977, | served the within PETITION

FOR WRIT OF CERTIORARI on the interested parties in

said action, by piacing three copies in each of two sealed

envelopes, with postage thereon fully prepaid, in the

United States mail at Santa Ana, California, addressed as

follows:

Hon. John L. Hill, Jr.

Aitorney General, State of Texas

P. O. Box 12548

Austin, Texas 78711

Court of Criminal Appeals of Texas

Supreme Court Building

Capitol Station

Austin, Texas 78711

| CERTIFY under penalty of perjury that the foregoing is

true and correct.

EXECUTED ON August 16, 1977 at Santa Ana, California.

JACK GALLAGHER

26

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