Opposition — McCall v. Texas

NN

Supreme Court, U.S, \ |

FILED

' NOV @ i977

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

* * *

NO. 77-269

*_ * *

SIMMIE LYNN McCALL and

BILLY DON MILLS,

Petitioners

V.

THE STATE OF TEXAS,

Respondent

* * *

BRIEF FOR RESPONDENT IN OPPOSITION

*- * *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE b. DIBRELL, JR.

Assistant Attorney General

Chief, Enforcement Division

CATHERINE E. GREENE

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Attorneys for Respondent

SUBJECT INDEX

Page

Te I eee i, ii

ee ee I sis petetiicc tients necsiitndcesenainns iii, iv

a cisuinameeonensenibiendiats l

I albeit iliicihainatntceatacaipeininctniciredsarenneene l

I FN ovenevcescciscccncccscccscssciscccocsee 1

CONSTITUTIONAL PROVISIONS INVOLVED ............... 2

STATEMENT OP THE CAME .n........005.00..c0cccccccccesseees. 2

ARGUMENTS AND AUTHORITIES ..................0...000000s 3

I. The Trial Court's Error in Instructing the Jury That

They Could Determine The Punishment To Be

Assessed By “Lot, Chance, Or Any Other Method”

Other Than the Unanimous Decision of the Jury Was

ie STE Rane ee a ORO PO aa 3

Il. The Prosecutor Did Not Withhold Exrculpatory

Statements From Defense Counsel ............2.000000005 5

III. The Court Below Correctly Held That Petitioners’

Retained Counsel Was Efffective .............000ccceceee: 6

IV. The Court Below Used The Correct Standard in

Reviewing The Effectiveness of Petitioners’ Counsel .. 8

V. The Court Below Correctly Held That There Was No

Merit In Petitioners’ Claim of Jury Misconduct ...... i)

VI. The Court Below Correctly Held That The Trial

Court Did Not Err In Faili~g To Instruct The Jury

On A Defensive Theory of etorication ................ 10

VII. The Prosecutor Committed No Error In Arguing To

The Jury That “Probation Was A Privilege, and Not

SERIE. ddehdinsbaidndeiiaatstntiinbiismkapadanbinemsentaelic 12

-ii-

Page

VIII. The Prosecutor's Statement Concerning Petitioners

Failing to Testify Should Not Constitute Reversible

TED ucidiqcapmubibasbedeedsenasiwbegoesesstsoesvesseseannes 13

IX. The Trial Judge Correctly Charged The Jury on the

Conditions of Probation Which May Have Been

BND .ccitinscnndsccsubssdvvensinevscussedscobessesseseseode 15

GED Se nccceccececessecccvnessesessecsscusssssescseosesoqes 16

sg gk 8 rte 17

GET UE cividpinicasnccbscntecceveceseceessrsseesedesdsaneues A-1

BN ET sbcicctesniccccescoddtcossencescospsencessosesoueen B-1

RD bcc ckcitncegticccccssccscnvevccncccsscsesensoovaense C-1

ep a ce EE ee mee

-iii-

INDEX OF AUTHORITIES

CASES PAGE

Alvarez V. Estelle, 531 F.2d 1319 (5th Cir. 1976) ............... 14

Bergenthal v. Cady, 466 F.2d 635 (7th Cir.), cert.

is My I ands cc ccersndennsaneces 14

Brady v. Maryland, 373 U.S. 83 (1963) .................eeeeeeeeeees 6

Bryan v. Wainwright, 511 F.2d 644 (5th Cir.),

COTE, GE, Ge es Ge TEED whcccescccccccccccseccccccesccece ll

Cupp v. Naughten, 414 U.S. 141 (1973) ..................c cee eeee: 11

DeBerry v. Wolff, 513 F.2d 1336 (8th Cir.1975) ...............5. 1l

Finley v. United States, 271 F.2d 777 (5th Cir.)

CUTE, GES Ge HS ED Sednccccdheccccccccccccscccccesess: 4

Fitzgerald v. Esteile, 505 F.2d 1334 (5th Cir.) cert.

re I ns cansnooenss 7,8

Griffin v. California, 380 U.S. 609 (1965) ...............ccceeeeeees 6

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974) ................ 7,8

Hinajas v. Black, 462 F.2d 621 (9th Cir.), cert.

TTT ee ae 10

Loud v. Estelle, No. 76-3042 ___F.2d_____ (5th

hs MR TEE iciicidinddatieandadibiatsadendicecsncces 5,13,16

Michael v. Eyman, 462 F.2d 626 (9th Cir. 1972) ................ 15

Morrissey v. Brewer, 408 U.S. 47 (1972) ........0.ccccccceceeceeees 12

Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969) ..................... ii

Poole v. Fitzharris, 396 F.2d 544 (9th Cir. 1968) ............... 14

Scamardo v. State, 517 S.W.2d 293 (Tex.Crim.

cal Raita ss RES Sn Lea aaee 13

-iv-

CASES PAGE

United States v. Agurs, 427 U.S. 97 (1976) ............ccceeeeeeeees 5

United States v. Rodriquez, 498 F.2d 302 (5th Cir.

TT in 4<tdicdecntnieaaidisininddbadndaiiibebiiimeeseidéncenddemiuntan 7

United States ex rel Standridge v. Zelker, 514 F.2d

45 (2nd Cir.) cert. denied 423 U.S. 872 (1975) ..............055 11

Vacarro v. United States, 461 F.2d 626 (5th Cir.

I caitlin ened cia a at niall al 14

Wainwright v. Sykes, U.S.___(1977), 97 S.Ct.

SN caiduediihin duiahiiidiiiibbnéssiscdiananedndiiinintmeoetins 5,13,16

ae a GE WR, SIE oi adc cc nnnndirameiadionesenememnes 4

Young v. Alabama, 443 F.2d 854 (5th Cir.), cert.

ee ee I I ooo cscs ncasscadstaeetenbeseuanenibe 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

* * *

NO. 77-269

* * *

SIMMIE LYNN McCALL and

BILLY DON MILLS,

Petitioners

V.

THE STATE OF TEXAS,

Respondent

* * *

BRIEF FOR RESPONDENT IN OPPOSITION

* * *

OPINION BELOW

The Texas Court of Criminal Appeals affirmed

Petitioners’ conviction in a per curiam opinion rendered

May 18, 1977, a copy of which is attached to this Brief in

Opposition as Appendix “A”.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. 1257

(3).

QUESTIONS PRESENTED

The questions presented for review before this Court,

including those issues raised in Petitioners’ Arguments

and Authorities but not set out in his original list of

-2.

issues presented, should be stated as follows:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Did the trial court correctly instruct the jury in

the proper method by which a determination of

the punishment to be assessed could be made?

Did the prosecutor impermissibly withold

exculpatory statements from defense councel?

Did the Court below correctly hold that

petitioners were not denied the effective

assistance of retained counsel in their 1976

conviction?

Did the jury engage in impermissible conduct in

assessing petitioners’ punishment in their 1976

conviction?

Did the trial court err in failing to instruct the

jury on intoxication as a defensive theory in

mitigation of punishment?

Did the prosecutor commit reversible error when

he argued to the jury that probation was privilege

rather than a right?

Did the prosecutor impermissibly refer to the

defendant’s failure to testify in his closing

arguments?

Did the trial court incorrectly advise the jury that

it had discretion to make as a condition of

probation that the defendant commit no crimes

against the laws of Texas or the United States?

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioners rely on the Sixth and Fourteenth

Amendments to the Constitution of the United States.

-3-

STATEMENT OF THE CASE

Petitioners Simmie Lynn McCall and Bill Don Mills

were convicted of burglary of a building and burglary of

a motor vehicle upon a plea of guilty before a jury on

February 11, 1976 in the 89th Judicial District Court of

Wichita County, Texas. The Texas Court of Criminal

Appeals affirmed the conviction in a per curiam opinion

delivered May 18, 1977. Petitioners then filed this

Petition for Writ of Certiorari.

ARGUMENTS AND AUTHORITIES

I

THE TRIAL COURT’S ERROR IN

INSTRUCTING THE JURY THAT THEY

COULD DETERMINE THE PUNISHMENT

TO BE ASSESSED BY “LOT, CHANCE, OR

ANY OTHER METHOD” OTHER THAN

THE UNANIMOUS DECISION OF THE

JURY WAS HARMLESS ERROR.

(a) Petitioners contend that Federal Constitutional

error occurred when the trial judge orally instructed

the jury that:

“ ..1t will be proper for you in determining the

punishment 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.”

(Record on Appeal: Arguments to the Jury, p.

3, lines 1-5)

It is Petitioners’ contention that such an instruction

failed to require Jury unanimity and thus violated the

-

mandate of In Re Winship, 397 U.S. 358 (1970).

However, Petitioners overlook the fact that the trial

judge correctly instructed the jury that their verdict

had to be unanimous. (Record on Appeal: Arguments to

the Jury, p.5, Lines 13-15). Additionally, written copies

of the trial Judge’s instructions were taken into the jury

room. These instructions correctly charged:

“...1t will not be proper for you in determining

the punishment to be assessed to fix the same by

lot, chance or any other matter than by full,

fair, and free exercise of the opinion of the

individual jurors...”

(Record on Appeal: Transcript, p. 25).

During the hearing on Petitioners’ Motion for New

Trial, a juror testified that during their deliverations,

the jurors took “every one of the charges down the line.”

(Record on Appeal: Volume 2, p. 124, line 27).

Petitioners have failed to demonstrate how they were

harmed by what appears to be either the trial judge’s

apparent slip of the tongue or an error in transcription.

There were no statements from any of the jurors called

to testify on Petitioners’ Motion for New Trial that the

punishment they assessed was determined by lot or

chance or any other method than by their unanimous

decision.

Petitioners have completely failed to establish that

the technical error complained of in any way affected

the fundamental fairness of their plea of guilty before

the jury. Petitioners have failed to show prejudice. See

Generally, Finley v. United States 271 F.2d 777 (5th

Cir.), cert. denied 361 U.S. 870 (1959).

(b) Petitioners claim fundamental error in the trial

-5-

judge’s instruction to the jury regarding their use of lot

or chance. Petitioners did not raise this ground on direct

appeal from conviction. See, Appendix “A”. The failure

to do so constitutes an inexcusable procedural default

barring relief herein. Wainwright v. Sykes,

___U.S.____ (1977), 97 S.Ct. 2497; Loud v. Estelle, No.

76-3042, F.2d (5th Cir., August 5, 1977).

II.

THE PROSECUTOR DID NOT WITHHOLD

EXCULPATORY STATEMENTS FROM

DEFENSE COUNSEL.

Petitioners contend the prosecutor suppressed an

exculpatory statement by Larry Fugett in violation of

United States v. Agurs, 427 U.S. 97 (1976). The record

before this Court does not support that contention.!

At the hearing on Petitioners’ Motion for New Trial,

trial counsel testified that he was unaware of the

complained of second statement by Fugett. (Record on

Appeal, Vol. II, p. 86, line 24). He further testified that

the district attorney allowed him to persue his entire file

without the necessity of filing a pretrial motion. It was

trial counsel’s opinion that the statement by Fuget

contained in the file was not excuplatory when read in

its entirety.

The district attorney also testified in petitioners’

Motion for New Trial hearing. He stated that he had

turned his entire file over to the Petitioners’ defense

\There are apparently two statements at issue here. The first

statement is typewritten, dated December 18, 1975, and was made

while Fugett was under arrest. That statement implicates Billy

Don Mills as a lookout and Simmie Lynn McCall as the person

actually in the automobile. The second statement is handwritten by

Fuget and dated February 20, 1976. The second statement

witnessed by an investigator employed by defense counsel on

motion for new hearing, recites that Fuget informed the District

Attorney that Mills had “nothing to do with what happened”.

-6-

counsel before trial and that he had never seen the

handwritten statement in question, nor was he familiar

with its contents until the motions had been filed.

After a lengthy cross-examination and

admonishments by the trial court, Larry Fuget testified

at the Motion for New Trial hearing that the statement

given by him on December 18, 1975 was the corect

statement and that the second statement, given to an

investigator for appellants’ counsel, was untrue.

Thus here is a situation where both the district

attorney and trial counsel state that the district

attorney’s files were made available to the defense. The

district attorney denies being aware of the nature of the

second statement. These facts certainly do not amount to

a withholding by the district attorney of exculpatory

evidence as condemned by Brady v. Maryland, 373 U.S.

83 (1963) and its progeny.

ITI.

THE COURT BELOW CORRECTLY HELD

THAT PETITIONERS’ RETAINED

COUNSEL WAS EFFECTIVE

Petitioners would have this court reverse their

convictions for their trial attorney’s alleged failure to

protect certain well recognized constitutional rights. As

examples of this failure, Petitioners cite to defense

counsel’s failure to object to jury argument by the state’s

attorney which petitioners claim violated the standards

of Griffin v. Californi>, 380 U.S. 609 (1965). Petitioners

also assign error to defense counsels failure to call key

witnesses to establish diminished capacity to form the

specific intent necessary to commit burglary.

This case involved a guilty plea by both petitioners

with a jury chosen to assess punishment. The Texas

Court of Criminal Appeals correctly stated in its

affirmance that:

ra

“We have carefully examined the record and

Appellants numerous allegations and cannot

conclude that there was ineffective assistance

of counsel. This record does not support or

reflect any willful misconduct by an employed

counsel without Appellants’ knowledge which

amounts to a breach of a legal duty of an

attorney...even if we used the “reasonably

effective assistance” standard...we would reach

the same results.” (Appendix “A”)

As noted by the court below, the fact that other

counsel might have tried the case differently does not

show inadequate representation. United States v.

Rodriquez, 498 F.2d 302 (5th Cir. 1974).

Respondent contends Petitioners’ retained counsel

rendered reasonably effective assistance as required by

Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.), cert denied

422 U.S. 1011 (1975). Failure to make a particular

objection may have been a result of trial strategy as well

as any other reasonable explanation. Certainly it does

not suffice to illustrate incompetence or ineffective

assistance. Similarly, trial counsel’s failure to call

expert witnesses on intoxication, in light of much trial

testimony that although the defendants had been

drinking they appeared coherent and mobile, fails to

rise to the level of ineffective assistance. Trial counsel’s

decision not to call expert witnesses could have been a

tactical move based on the expected benefit to be gained

from such testimony balanced against its cost to the two

young petitioners.

Reasonably effective assistance is an easier standard

to meet in the context of a guilty plea than in a trial.

Herring v. Estelle 491 F.2d 125, 128 (5th Cir. 1974). Here

Petitioners have made no claim that trial counsel failed

to ascertain if their plea was entered voluntarily and

knowingly. Neither do they claim that trial counsel

-8-

failed to actually and substantially assist them in

deciding whether to plead guilty. Herring, supra.

Petitioners’ disagreement with their retained counsel

on a guilty plea because of differences of opinions on

trial tactics, falls far short of a lack of fundamental

fairness or a failure to render reasonably effective

assistance.

IV.

THE COURT BELOW USED THE

CORRECT STANDARD IN REVIEWING

THE EFFECTIVENESS OF PETITION-

ERS’ COUNSEL.

Petitioners assert that the Texas Court of Criminal

Appeals used the wrong standard in reviewing the

effectiveness of their retained trial counsel. Petitioners

are troubled by language in the state court’s opinion

dealing with “willful misconduct” and “bad faith,

insincerity, or disloyaity toward Appellants by their

attorney.” See Appendix “A”.

Respondent answers that the Texas Court of Criminal

Appeals found trial counsel’s representation of

Petitioners to be adequate under two standards. The

Court below looked at the record under both a breach of

legal duty and a reasonably effective assistance

standard. In Fitzgerald v. Estelle, supra, the United

States Court of Appeals for the Fifth Circuit noted ina

footnote at 1337:

“Putting to one side the fact that the District

Judge had the right to and did determine in

denying the Motion for New Trial, that the

Defendants had not shown that they had had

any material witnesses who would have been

assistance to them and whose names they gave

to their trial counsel and that they had refused

to call them, we think it basic to the claim of

-9-

relief, since Defendants were represented by

their own employed trial counsel, they may not

assign as error that the mistakes or errors of

their counsel constituted unfair trial, and that,

without a showing of a deliberate purpose on the

part of counsel to prevent Defendants from

obtaining a fair trial, or actions so grossly

negligent as to amount to substantially the

same thing, Defendants cannot relieve

themselves of the errors, mistakes or

misjudgments of their counsel by having the

trial set aside.” (Emphasis added).

Based on the underscored language cited above, the

Texas Court of Criminal Appeals correctly reviewed the

record on appeal to determine if there were any

instances of willful misconduct by Petitioners’ attorney.

The Court below then examined the record to determine

if it would support a finding of reasonably effective

assistance in light of Petitioners’ numerous allegations

of ineffective representation. Under either test, the

Texas Court of Criminal Appeals correctly held that

Petitioners had adequate representation in the trial

court and were not deprived of either a fair trial or due

process of law.

V.

THE COURT BELOW CORRECTLY HELD

THAT THERE WAS NO MERIT IN

PETITIONERS’ CLAIM OF JURY

MISCONDUCT.

Petitioners give examples of three alleged acts of

misconduct by the jurors in their case which they claim

warrants reversal of their conviction: (1) discussing that

the defendants did not testify in their own behalf; (2)

-10-

talking to persons in the halls contrary to the court’s

instruction; (3) determining or potentially determining

the penalties assessed by lot or chance.

Respondent notes that there was no testimony at the

Motion for New Trial hearing from any of the jurors

that petitioners’ punishments were assessed by lot or

chance. Furthermore, although there was some

conflicting testimony as to whether or not the fact that

the defendants did not testify in their own behalf was

mentioned in the jury room, no juror testified that this

was ever discussed by the group as a whole or that the

defendants’ failure to testify had any substantial impact

on their decision.

——

The Texas Court of Criminal Appeals noted in its

affirming per curiam opinion on direct appeal from

conviction that most of the testimony of alleged jury

misconduct developed at petitioners’ hearing on their

Motion for New Trial was either contradictory to their

allegations or conflicting. The lower court also noted

that under Texas law when the evidence is conflicting as

to alleged jury misconduct, the ruling of the trial court

on the Motion for New Trial is ordinarilly conclusive for

appeal purposes. See Williams v. State 481 S.W.2d 119

(Tex. Crim. Ap. 1972).

Petitioners’ have failed to present this court with an

alleged error which raises a federal] question. An

allegation of jury misconduct does not rise to

constitutional dimensions. Hinajas v. Black, 462 F.2d

621 (9th Cir.), cert denied 409 U.S. 1126 (1973).

VI.

THE COURT BELOW CORRECTLY HELD

THAT THE TRIAL COURT DID NOT ERR

IN FAILING TO INSTRUCT THE JURY ON

eT

A DEFENSIVE THEORY OF INTOXICA-

TION.N.

Petitioners contend that the trial court should have

given an instruction to the jury of a defensive theory of

intoxication as mitigation of punishment under

V.T.C.A., Penal Code, Section 8.04 A, B, C and D.

(See Appendix “B”). This contention was rejected by the

Texas Court of Criminal Appeals which found that

there was no evidence raising the issue of temporary

insanity by reason of intoxication.

Respondent asserts that the Court below properly

applied the applicable Texas law when it held that in

order for an instruction to be given pursuant to Section

8.04 supra, it must be shown that as a result of

intoxication a Defendant (1) “does not know his conduct

is wrong,” or (2) “was incapable of confirming his

conduct to the requirements of the law he violated.”

Under Texas law, testimony in the record that a

Defendant was or may have been intoxicated is

insufficient to raise the issue of temporary insanity. See

Appendix “A”.

Moreover, allegations of improper jury instruction

raise no question of constitutional significance unless

the error resulted in a miscarriage of justice, as, for

example, in impermissibly shifting the burden of proof.

United States ex rel. Standridge v. Zelker, 514 F.2d 45,

50 (2nd Cir. 1975), cert. denied 423 U.S. 872 (1975),

citing Cupp v. Naughten, 414 U.S. 141 (1973);

DeBerry v. Wolf, 513 F.2d 1336 (8th Cir. 1975),

Bryan v. Wainwright, 511 F.2d 644 (5th Cir.), cert.

denied, 423 U.S. 837 (1975); Young v. Alabama, 443 F.2d

854 (5th Cir.), cert denied, 405 U.S. 976 (1972); and

Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969). The failure

to charge the jury on the ground presented in this

petition is a matter of state law and raises no federal

-12-

constitutional question.

VII.

THE PROSECUTOR COMMITTED NO

ERROR IN ARGUING TO THE JURY THAT

“PROBATION WAS A PRIVILEGE, AND

NOT A RIGHT”.

Petitioners complained that during this final

argument, the prosecutor told the jury:

“You don’t have to give probation. They asked

for it. It’s a right they have under the statutes.

But because they asked for it, don’t be mislead

and believe you have to give it to them. It isa

privilege; not a right.”

Petitioners incorrectly argue that Morrissey v.

Brewer, 408 U.S. 47(1972) held that due process must be

afforded in parole proceedings on the grounds that

parole was a privilege rather than a right. Analogzing

to Morrissey v. Brewer, Petitioners then incorrectly

assert that probation is a right, not a privilege under

Texas law. However, Petitioners have misinterpreted

the holdings of Morrisesey v. Brewer. Morrissey v.

Brewer did not hold that parole (or by analogy,

probation) was a matter of right and not a privilege.

Rather, Morrissey v. Brewer explained that it is no

longer useful to consider questions of possible due

process deprivations in terms of whether something is a

“right” or “privilege”.

However, even acorrect interpretation of Morrissey v.

Brewer is irrelevant to Petitioner’s complaint.

Furthermore, in the context of the prosecutors

argument, his statement was correct. According to

Texas statutory law, the recommendation of probation

-13-

by a jury, or the granting of a probation of sentence by

the trial judge, is a matter of discretion. Article 42.12,

Sections 3, 3a, 3b, 3c V.A.C.C.P. Similarly, Texas case

law also holds that probation is not granted as a matter

of right. See, Seamardo v. State, 517 S.W.2d 293 (Tex.

Crim. Ap. 1974).

Petitioners assign error to the prosecutor’s argument

that “probation was a privilege, not a right.” However,

Petitioner did not raise this ground on direct appeal

from conviction. See, Appendix “A”. Their failure to do

so constitutes an inexecusable procedural default

barring relief in the instat Petition for Writ of

Certiorrair. Wainwright v. Sykes, supra; Loud v. Estelle,

supra.

VIII.

THE PROSECUTOR’S STATEMENT

CONCERNING PETITIONERS’ FAILING

TO TESTIFY SHOULD NOT CONSTITUTE

REVERSIBLE ERROR.

During his final argument to the jury, the state’s

attorney said:

“They’re not little kids as Mr. Moreau has

referred to them, and I hope you have been

observing their appearances while they have

been tried for very serious cases. They could go

to the Texas Department of Corrections. Have

they appeared to be too worried to you as they

sat here at the table and listened to all of this?

They probably think they are going to walk on

probation, and nothing they’ve said.”

“You might have wondered why I!

introduced...”

-14-

Respondent agrees that it is error for a prosecutor to

comment on a defendant’s failure to testify. However,

Respondent disagrees with petitioners’ contention that

the argument before this court warrants reversal of

their conviction for two reasons.

First, the prosecutor’s argument is ambiguous and

unclear at best. The record does not reflect any objection

or interruption that would explain the district

attorney’s failure to complete the complained of

sentence. On the face of the record, the thrust and

meaning of the prosecutor’s argument is uncertain.

It is Respondent’s position that error, if any, in the

prosecutor’s statement was clearly harmless error. The

harmless error rule may be applied even in a case such

as the one before us where the error is possibly one of

constitutional dimension. Vaccaro v. United States 461

F.2d 626 (5th Cir. 1972). The instant case involves a

guilty plea; the sole function the jury was to perform was

an assessment of punishment. In determining whether a

complained of jury argument violated federal due

process of law, the argument must be “so prejudicial

that the appellant’s state court trial was rendered

fundamentally unfair within the meaning of the due

procees clause of the Fourteenth Amendment.” Alvarez

vy. Estelle, 531 F.2d 1319, 1323 (5th Cir. 1976). See

Bergenthal v. Cady, 466 F.2d 635 (7th Cir.), cert denied,

409 U.S. 1109 (1973). Certainly under any

interpretation of the argument it is impossible to

conclude that the complained of argument, made in the

context of a punishment hearing, caused Petitioners to

suffer harm of that magnitude.

Additionally, defense counsel’s failure to object to the

prosecutor’s statement as a matter of trial tactic, was

sufficient to waive the error. Poole v. Fitzharris, 396

F.2d 544 (9th Cir. 1968).

-15-

IX.

THE TRIAL JUDGE CORRECTLY

CHARGED THE JURY ON THE

CONDITIONS OF PROBATION WHICH

MAY HAVE BEEN IMPOSED.

Petitioners complain that the trial court charged the

jury:

“The conditions of probation which this court

may impose should be limited to but shall not

necessarily include all the following:

(1) that he commit no offense against the

laws of this state or of any other state or

of the United States. (Record on Appeal:

Arguments to the Jury, page 4, lines 10-

14.)”

It is Petitioners’ unique argument that this charge

when coupled with the “law and order” arguments of the

prosecutor, would leave the jury the impression that if

the trial court chose not to include this condition of

probation, then the Defendants could commit other

crimes and not face probation revocation despite the

seriousness of the crime subsequently committed.

Respondent answers that the trial court’s charged

directly tracted the six statutory provisions of Article

42.12, Section 6, V.A.C.C.P. (attached hereto as

Appendix “C”) which may be included as terms and

conditions of probation.

Respondent further notes that even had the

instruction been error under state law, the giving of a

bad instruction presents no federal question. Michael v.

Eyman, 462 F.2d 626 (9th Cir. 1972).

-16-

Petitioners claim fundamental error in the trial

judge’s instruction to the jury on the terms and

conditions or probation which could have been imposed.

Petitioners did not raise this ground on their direct

appeal from conviction. See Appendix “A”. Their failure

to do so bars them from asserting this claim for the first

time on this Petition for Writ of Certiorari. Wainwright

v. Sykes, supra.

CONCLUSION

For the reasons stated above, Respondent-Anpellee

avers that there has been no denial of Petitioners’

constitutional rights. The Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B. DIBRELL

Assistant Attorney General

Chief, Enforcement Division

CATHERINE E. GREENE

Assistant Attorney Genera!

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Attorneys for Respondent

-}7-

PROOF OF SERVICE

I, JOE B. DIBRELL, Assistant Attorney General of

Texas and a Member of the Bar of this Court, hereby

certify that a copy of Respondent’s Brief in Opposition

has been served by placing same in the United States

Mail, postage prepaid, certified, return receipt

requested, this ___. day of November, 1977, addressed

to Attorneys for Petitioners, Mr. Roger S. Hanson, 518

South Broadway, Santa Ana, California 92701; Mr. Ray

Gene Smith, 301 Wichita Falls Savings Building,

Wichita Falls, Texas and Mr. Scott W. Hudson, 1318

Mercantile Bank Bldg., Dallas, Texas 75201.

Joe B. Dibrell

Assistant Attorney General

APPENDIX A

SIMMIE LYNN McCALL and

BILLY DON MILLS, Appellants

NOS 54,266 and 54,267, v.

THE STATE OF TEXAS, Appellee

Appeals from Wichita County

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’ vritten 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 errorless

counsel whose competency or adequacy of his

representation 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

by whether or not there is a breach of legal duty. Ex

A-2

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

cases cited therein.

As this Court wrote 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 carefully 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.2d 822 (Tex.Cr.App. 1971).

Even if we used the “reasonably 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

A-3

serve his client cannot be the basis of a claim of

reversible error. Mills 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).

Appellants’ third ground of error complains of the

A-4

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, D and 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 then 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)

APPENDIX B

V.T.C.A., Penal Code

§ 8.04. Intoxication

(a) Voluntary intoxication does not constitute a

defense to the commission of crime.

(b) Evidence of temporary insanity caused by

intoxication may be introduced by the actor in

mitigation of the peiialty attached to the offense for

which he is being tried.

(c) When temporary insanity is relied upon as a

defense and the evidence tends to show that such

insanity was caused by intoxication, the court shall

charge the jury in accordance with the provisions of this

section.

(d) For pusposes of this section “intoxication” means

disturbance of mental or physical capacity resulting

from the introduction of any su¥stance in the body.

APPENDIX -C

V.A.C.C.P., Art. 42.12

Sec. 6. The court having jurisdiction of the case shal]

determine the terms and conditions of probation and

may, at any time, during the period of probation alter or

modify the conditions: provided, however, that the clerk

of the court shall furnish a copy of such terms and

conditions to the probationer, and shall note the date of

delivery of such copy on the docket. Terms and

conditions of probation may include, but shall not be

limited to, the conditions that the probationer shall:

a. Commit no offense against the laws of this State or

of any other State or of the United States;

b. Avoid injurious or vicious habits;

c. Avoid persons or places of disreputable or harmful

character;

d. Report to the probation officer as directed;

e. Permit the probation officer to visit him at his

home or elsewhere:

f. Work faithfully at suitable employment as far as

possible;

g. Remain with a specified place;

h. Pay his fine, if one be assessed, and all court costs

whether a fine be assessed or not, in one or several sums,

and make restitution or reparation in any sum that the

court shall determine; and

i. Support his dependents.