# Petition — McCall v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 965

## Text

.. 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

= a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2401%3A1. Public record. Not legal advice.