Petition — Ratcliff v. Estelle

Supreme Court brief1979

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| MICHAEL RODAK, JR., CLERE

in the Supreme Court of the

Unjted States

October Term, 1978

™ 39-122

ELIJAH W. RATCLIFF,

Petitioner

vs.

WILLIAM J. ESTELLE, JR., Director of the

Texas Department of Corrections,

Respondent

PETITION FOR WRIT OF CERTIORARI TO _

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ELIJAH W. RATCLIFF,

Petitioner, Pro Se

P. O. Box 862,

Livingston, Texas 77351

Ph. 713—327-4948

AE CS LEER RTE ER BT ELEC TET ie ANNI

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 882-0401

et hh nie ie

TABLE OF CONTENTS

Opinions Below ....-----++sssrerrersrttt

SED ENS STE Ct aaah aha

| Questions Presented ....------+srerrrststtts

Constitutional and Statutory Provisions Involved

Statement of Case ...----sssesrrrss

Grounds Sustaining Granting of the Writ:

Summary of Argument ...------ss5ss00'"

Argument—Discussion of Facts and Authori-

Ee CR Oce gen actaaseesasosete**

ent—Discussion of Facts and Authori-

aM Pose as 25 is ee ASCS Listttihind dd ewh

Argument—Discussion of Facts and Authori-

Mee TE. soe « sea ESTE AE? PRES

Argument—Discussion of Facts and Authori-

Pc gaceeecessnees s**t fete eh

Argument—Discussion of Facts and Authori-

ME tiene soem” ae 881s

Es FT ae ee ae

Appendix «A ” Opinions, Judgments and Orders

in Courts Below ...-----sseerrrcrrn ;

Appendix “B,” Constitutional and Statatory Au-

shorities farvolvedS. «85-5 see ecengstr

Appendix “C,” Notice of Review and Request for

Transmittal of Certified Record; and Schedule

of Abbreviations for Record ...----++s+°°°

TABLE OF CITATIONS

CASES: |

Akins v. Texas, 325 U.S. 398 (1945) .......... 14, 19

Alexander v. Louisiana, 405 U.S. 625 (1972) .. 3,14,

15, 16

Anderson v. O’Bryant, 3 S.W.2d 842 (1928) ....20, 23,

Baggett v. Bullitt, 377 U.S. 360 (1964) ...... 20, 25, 29

Beard v. State, 287 S.W.2d 667 (1956) ........ 20, 24

Blankenship v. Estelle; 545 F.2d 510 (1977) .... 3

Bledsoe v. Yarborough, 412 S.W.2d 222 (1967) ..24, 25

COM ace co osreb e le dbuie tw son tHe 3, 19, 20,

: 22, 25

Brown v. Board of Education of Topeka, Kansas,

OT ETM OOS LIED ns. otc tw eda nee e 20

Bruce v. Beto, 96 F.2d 212 (1968) .........-.-. 13

Burris v. State, 40 S.W. 284 (1898) .........-.- 26

Capitol Hotel Company v. Rittenberry, 41 S.W.2d

GOT CISTI) oie ec ewe sins bene vee bes 27

Castaneda v. Partida, 524 F.2d 481 (1975), aff’d,

430 US. 482 (1977) ....-.ee eee eeees 14, 17,

19, 26

City of Longview v. Boucher, 274 S.W.2d 274

GREY sa vee 6 od eg tien ee 28

Cox v. Louisiana, 379 U.S. 536 CIN. ics cea 30

Dearman v. Woodson, 429 F.2d 1288 (1970) .... 22

Douglas v. Buder, 412 US. 496: 41973). 20:55 56 19, 22

Rason v. State, 320 S.W.2d 11 (1959) ......... 12, 24

Eubanks v. Louisiana, 356 U.S. 584 (1958) ..... 17

Fay v. Noia, 372 US. 391 (FSGS) S'S WAR Sindh, os 30

Fultz v. First National Bank, 380 S.W.2d 894

(19GE) «cv cvcecccsevccccsese ci bh2id Gs 29

Haines v. Kerner, 405 U.S. 948 (1972) ......--- 19

Hall v. State, 219 S.W.2d 475 (1949) ......-+-- 26

Hamilton v. Newburg, 412 S.W.2d 801 (1967) . 24, 25

Hanover Insurance Co. v. Johnson, 397 S.W.2d 904

(1965). os bsaer sw pice om op eosensenpeces 28

Hesbrook v. State, 194 S.W.2d 260 (1946) .....- 12, 20

Hill v. Texas, 316 U.S. 400 (1944) ....----+--> 14, 19

Johnson v. Mississippi, 403 U.S. 259 41071) .66<. ae

Jordan v. Massachusetts, 225 USS. 167 (1912) ... 29

Kemp v. Pate, 359 F.2d 749 (1966)... ssscses 13

Lockett v. Blackburn, 571 F.2d 309 (1978) ....--. 3

Lowe v. McDonald, 221 F.2d 228 (1955) ...--- 16

Malphrus Home Savings Bank of City of Albany,

254 N.YS. 2d 980 (1965) ...----+-eeee: 21

May v. State, 34 S.W.2d 594 EADSODs tes ns jie ine 26

Miller v. Winn, 28 S.W.2d 578 (1930) ....---- 30

Modine Manufacturing Co. v. Northeast Indepen-

dent School District, 503 S.W.2d 833 (1974) 24

Muncy v. Johnston, 402 S.W.2d 525 (1966) .... 27

Norris v. Alabama, 294 U.S. 587 (1935) ....-- 7, 14,15

O’Beirne v. State, 365 S.W.2d 787 (1963) ....-- 8, 28

Parker v. Keyser, 540 S.W.2d 827 (1976) ...---. 29

Paxton v. Spencer, 503 S.W.2d 637 fo.) ee 27

iii

Price v. Johnson, 334 U.S. 266 (1948) ......... 13

Pryor v. Beto, 460 F.2d 307 (1972) ........ 13, 19, 30

Ralph v. Warden, Maryland Penitentiary, 438 F.2d

We MEDOED: = a slcua.cs 6ircds chew esate 22

Ratcliff v. Estelle, 99 S.Ct. 90 (1978) .......... 2, 10

Ratcliff v. Texas, 504 S.W.2d 883 (1974) ..... 2, 9, 22

Ratcliff v. Texas, 419 U.S. 1103 (1975) ........ 2,9

Ratcliff v. Texas, 420 U.S. 939 (1975) ......... 2,9

Ratcliff v. Texas, 423 U.S. 910 (1975) ......... 2,9

Shivers v. State, 374 S.W.2d 672 (1964) ........ 28

Tarkington v. Brunett, 51 S.W. 274 (1899) ...... 12, 24

Thompson v. Louisville, 362 U.S. 199 (1960) .... 3

United States v. Shackney, 333 F.2d 475 (1964) .. 21

Webb v. State, 7 S.W.2d 562 (1928) .......... 8,27

Younger v. Harris, 401 U.S. 37 (1971) ......... 21

STATUTORY AUTHORITIES:

Title 28, United States Code, Section 1254(1) .... 3

Title 28, United States Code, Section 1343 ...... 5,21

Title 28, United States Code, Section 1443 ...... 5,21

Title 28, United States Code, Section 1446 ...... 5

Title 28, United States Code, Section 1447(d) ... 5,21

Title 28, United States Code, Section 1449 ...... 5

Title 28, United States Code, Section 1651 ...... 5, 30

Title 28, United States Code, Section 1652 ...... 5,30

Title 28, United States Code, Section 2241 ...... 5,13

Title 28, United States Code, Section 2242 ...... 5,13

22, 30

Title 28, United States Code, Section 2243 ...... 5,13,

22, 30

Title 28, United States Code, Section 2244-2254

I ee i i ale arn Re ne mE SS 5

Title 42, United States Code, Section

BD on ks ok ea bee ithe ak 3, 5, 11, 42, 14, 20,

21, 22, 23, 25, 27, 30

Title 42, United States Code, Section

pel cigs Py eer eine * 3,5, 11, 12, 14, 20,

21, 22, 23, 25, 30

Title 42, United States Code, Section

ee el bi ae yaad 3, 5, 11, 12, 14, 20,

21, 22, 23, 25, 30

Title 42, United States Code, Section 1984-

SE pe et eee rae eee 3,5, 12, 21, 22

Vernon’s Ann. P.C., Art. 1410 ..........--.-- 5, 19, 21

Vernon’s Ann. P.C., Art. 1413 ........-+---. 5, 19, 21

Vernon’s Ann. P.C., Art. 37.09 ........-++--- 9, 22, 23

27, 29.

Vernon’s Ann. P.C., Art. 37.10 ......----+-- 9, 22, 23

27, 29

V.T.C.A., Bus. & C., §2.601 ........------ 5, sake ae

V.T.C.A., Bus. & C., §2.606 ......-------ee- 5,271: 2

V.T.C.A.., Bus. & C., §2.608 .........-.---- 5, 21, 23

V.T.C.A., Bus. & C., §2.728 «0.2... e ee ee eee 5, 21, 23

V.T.C.A., Bus. & C., §3.409 .......----s 5, 12, 20, 21,

24, 25, 29

V.T.C.A., Bus. & C., §3.417 .....------- 5. 12,20, 21,

24, 25, 29

VIC A, Bas: QS O6.308 isd osiva2. ss 5, 12, 20, 21,

25, 29

Vibes, Ba. AC, G440S 68062 0S. ae 5,7, 12, 20,

21, 23, 24, 25, 29

Vernon’s Ann. Civ. St., Art. 275 ........0..... 21

Vernon’s Ann. Civ. St., Art. 342-712 .......... 21

Vernon’s Ann. Civ. St., Art. 3713:

IGS. B20 a Veet As obi ae kane toewed 5, 24, 25

ag ee eave os Cee cating’... aR 5, 24, 25

Vernon’s Ann. Civ. St., Art. 4076 .............. 21

Vernon’s Ann. Civ. St., Art. 6840 .............. 21

Vernon’s Aon. C.C.P., Art. 5.01 ......26..... Ss T2, 22

Vernon’s Ann. C.C.P., Art. 11.01-11.58 inclu-

EE ei ee te ee ee a an oS 5, 15, 30

Vernon's Ann. C.C-P., Art. 11,59 ... oc cc cou 5, 15,30

Vernon’s Ann. C.C.P., Art. 11.60-11.64, inclu-

A id a ia hk ie a a 5, 15,30

Wares am. CAP... Ast. 19.27 .. 66 dic iceccas 6, 14

Vernon’s Ann. C.C.P., Art. 35.23 ............ 7, 26, 28

Werpon = Amo. CEP, Art: 36.44 . 0.6. ook voces 29

Were eee. © CP., Art. S685 oo. cc ccc 29

en, GAar., AIK, SOE chs; wis ico cn ccs 8, 28

Were Ame. CAP... Art. SBGR. 2. co cukcce 28

Vernon s:Ann. C.C.P., Art. 38.03 24. ccd cwtecd 28

Vernon’s Ann. Rules Civ. Proc., Rule 168 ....... 12

Vernon’s Ann. Rules Civ. Proc., Rule 185 ....... 24, 25

RULES:

Federal Rules Civ. Proc., Rule 33, 28 U.S.C. ....11, 12,

14, 15

Federal Rules Cr. Proc., Rule 15(d), 28 U.S.C. ..14, 15

Fed. Rules Evid., Rule 201, 28 U.S.C. .......... 16, 31

CONSTITUTIONAL AUTHORITIES:

United States Code, Const. Amend. V ....3, 5, 12, 13, 23,

24, 25, 29, 30

United States Code, Const. Amend. VIII ... .3, 5, 22, 23,

24, 25, 29, 30

United States Code, Const. Amend. XIII ....3,5, 22, 24,

25, 29, 30

United States Code, Const. Amend. XIV ..3,5, 12, 13,

23, 24, 25, 29, 30

United States Code, Const. Amend. XV ....3,5, 24, 25,

29, 30

OTHER AUTHORITIES:

29 Am. Jur. 2d, §57 ..........- meena hee 16

29 Am. Jur. 2d, §59 ........ cee ee cece eeeeces 16

Bierman, Fouraker and Jaedieke, Quantitative

Analysis for Business Decisions (1961) ..... 20

Executive Order No. 10925, March 6, 1961 ..... 20, 21

Lon L. Fuller, Basic Contract Law (1947) ...... 28

Texas Business and Commerce Code .......... 6, 22, 25

56 Tex. Jur. 2d Trial, §240 ..........----++--: 8, 29

Uniform Commercial Code ..............++: 6, 22, 25

vii

Opinions Below

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

Noa.

ELIJAH W. RATCLIFF,

Petitioner

vs.

WILLIAM J. ESTELLE, JR., Director of the Texas

Department of Corrections,

Respondent

PETITION FOR WRIT OF CERTIORARI TQ THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

OPINIONS BELOW

This Petition is from a decision of the United States

Court of Appeals, Fifth Circuit, dated June 20, 1979,

wherein Petitioner was the Appellant and Respondent was

the Appellee, docketed as No. 78-1870 before such Court,

and not yet reported. A certificate of probable cause was

granted pursuant to the application of Petitioner on April

3, 1978 in consolidated proceedings from the United States

District Court for the Southern District of Texas at Hous-

Opinions Below

ton, Texas. The initial application was docketed as Civ.

No. 75-H-1945 in the United States District Court and as

No. 77-8424 in the United States Court of Appeals, and

the second application was docketed as CA No. H-77-1542

in the United States District Court and as No. 78-8093 in

the United States Court of Appeals. The habeas corpus ac-

tion in the United States District Court in both instances

sought relief from a judgment of the District Court of

Montgomery County, Texas, No. 11,064, returning a con-

viction on a theft indictment which was affirmed by the

Court of Criminal Appeals of Texas, No. 47,600, reported

as Ratcliff v. Texas, 504 S.W. 2d 883 (1974), and which

the Supreme Court of the United States declined to review

under No. 74-5595 and No. 75-208, on direct appeal, and

No. 77-1594, seeking a review of the decision of the United

States Court of Appeals dismissing the initial habeas cor-

pus review application, No. 77-8424. The proceedings in

the Supreme Court of the United States were reported as

Ratcliff v. Texas, 419 USS. 1103 (1975), 42 L.Ed. 2d

815, 95 S.Ct. 796, reh. den. 420 U.S. 939, 43 L.Ed. 2d

418, 95 S.Ct. 1153, and 423 U.S. 910 (1975), 46 L.Ed.

2d 147, 96 S.Ct. 227, respectively, and Ratcliff v. Estelle,

US. (1978), 58 L.Ed. 2d 115, 99 S.Ct. 90. No

formal opinion accompanied either of the orders by the

United States District Court for the Southern District of

Texas, Houston Division.

Jurisdiction

JURISDICTION

This Petition for Writ of Certiorari seeks review of

a judgment and opinion rendered and entered on June 20,

1979 by the United States Court of Appeals for the Fifth

Circuit and is pursuant to Title 28, United States Code,

Section 1254(1). The United States Court of Appeals,

Fifth Circuit, affirmed an order by the United State Dis-

trict Court for the Southern District of Texas, Houston

Division, Civ. No. H-77-1542, dismissing a meritorious

habeas corpus action based upon timely contested grand

jury systematic exclusion, Alexander v. Louisiana, 405

U.S. 625 (1972), 31 L.Ed. 2d 536, 92 S.Ct. 1221, uncon-

stitutionally vague statutory authority as applied to Peti-

tioner, Bouie v. City of Columbia, 378 U.S. 347--(1964),.-

12 L.Ed. 2d 894, 84 S.Ct. 1697, and the abuse of State

evidentiary ru.es where the State’s evidence was funda-

mentally insufficient, Blankenship v. Estelle, 545 F.2d 510

(1977); Thompson v. Louisville, 362 U.S. 199 (1960), 4

L.Ed. 2d 654, 80 S.Ct. 624; Lockett v. Blackburn, 571

F.2d 309 (1978); Title 42, United States Code, Sections

1981-1995, inclusive with repealed sections; United States

Code, Const. Amend. V, VIII, XIII, XIV and XV.

Questions Presented

QUESTIONS PRESENTED

I. The systematic exclusion of Petitionez’s peers

from the material Polk County, Texas Grand Jury im a

factually defective indictment against Petitioner.

II. The statutory authority upon which the State of

Texas relied as applied to Petitioner in the subject convic-

tion was unconstitutionally vague under Federal standards

of due process.

Hl. The trial Court abused its discretion surpassing

constitutional dimensions in refusing to routinely permit

Petitioner’s tax records to raise a jury issue of failure of

consideration, contravening fundamental fairness.

IV. The trial Court fundamentally abused its dis-

cretion contrary to the process requirements by permitting

the jury to consider an unrelated and distinguished trans-

action wherein Petitioner exercised rights of a payor on a

negotiable instrument.

V. The trial Court proceedings were calculated

through official neglect and disregard or design and in-

tent to deprive Petitioner of due process globally. .

Constitutional and Statutory Provisions Involved

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The actions by the official of the State of Texas giv-

ing rise to this petition deny Petitioner the constitutional

protection of United States Code, Const. Amend. V, VIII,

XIII, XIV and XV as further enabled by Title 42, United

States Code, Sections 1981-1995, inclusive with the sub-

stantive objectives of the repealed sections which have

been supplemented by general procedures and case law.

Petitioner’s State remedies were exhausted pursuant to

Vernon’s Ann. C.C.P., Art. 11.01-11.64, inclusive, and an

original and subsequent Federal habeas corpus actions were

initiated and adjudicated under Title 28, United States

Code, Sections 2241-2254, inclusive. Certain related

causes of action have been asserted below by Petitioner

under Title 28, United States Code, Sections 1343, 1443,

1446, 1447(d), 144©, 1651 and 1652. However, each

of those provisions are now emphasized to be secondary

and supportive of Petitioner’s habeas corpus action. State

authorities of precedential value upon which Petitioner re-

lies are Vernon’s Ann. C.C.P., Art. 501; V.T.C.A., Bus.

& C. §§2.601, 2.606, 2.608, 2.721, 3.409, 3.417, 4.303

and 4.403; and Vernon’s Amn. Civ. St., Art. 3713, Rules

5 and ‘6. The statutes which the State of Texas applied

unconstitutionally are Vernon’s Ann. P.:C., Art. 1410 and

1413. Each of the foregoing substantive provisions is set

forth in Appendix B attached hereto, except for the pro-

visions of Vernon’s C.C.P. as no question regarding such

has arisen.

Statement of Case

STATEMENT OF CASE

Petitioner is illegally restrained in his liberty by Re-

spondent, William J. Estelle, Jr., Director of the Texas

Department of Corrections as an official of the State of

Texas, by virtue of a judgment of the District Court of

Montgomery County, Texas, No. 11,064, Ninth Judicial

District, directing Petitioner to serve six (6) years in the

Texas Department of Corrections on a charge of theft.

Sentence under the judgment was pronounced under date

of July 26, 1972 (No. 47,600, Tr. Item 61, pp. 150-151),

in response to a verdict of guilty upon a plea of not guilty

before a jury under the Honorable J. S. Holleman, Presid-

ing Judge, where the evidence properly adduced at the

trial showed that Petitioner in stopping payment on a

check tendered in consideration of a motor vehicle which

proved substantially defective without the opportunity for

prior inspection legally exercised the_rights of a purchaser

under the Texas Business and Commerce Code and the

Uniform Commercial Code (No. 47,600, SF pp. 70-78;

p. 80; p. 87; p. 110; and pp. 174-186).

Negro Citizens are denied privity with Grand Jury

activities in Polk County, Texas so no opportunity to com-

ply strictly with Vernon’s Ann. C.C.P.; Art. 19.27, was

ever presented. However, a pre-trial motion seeking dis-

missal of the indictment for reasons of systematic exclu-

sion of Plaintiff’s peers from Grand Jury participation

among other points including the unconstitutionality of

contemplated authority for the indictment, raised in a re-

moval action was specifically and formally denied by

Statement of Case

Judge Ernest Coker, Sr., the original Presiding Judge, in

a gesture filled summary fashion (No. 47,600, Tr. Item

19, pp. 52-63, Item 31, p. 89, and Item 35, p. 97, SF pp.

1-2 of motion Docket 5/11/1972). Norris v. Alabama,

294 U.S. 587 (1935), 79 L.Ed. 1074, 55 S.Ct. 579.

Similarly, motions for a change of venue were improperly

denied even though hearings were set and held on the

motions (No. 47,600, Tr, Item 27, pp. 79-82, and Item 28,

pp. 83-84). Vernon’s Ann. C.C.P., Art. 31.01-31.07.

The trial itself was, also, characterized by multiple

errors. One such error was the refusal of the trial Court

to sequester the petit jury. Vernon’s Ann. C.C.P., Art.

35.23.

The initial error which Petitioner has characterized

as fundamental was the abuse of State evidentiary rules

regarding the refusal of Petitioner’s tax records and the

admission of an unrelated and distinguishable transaction

wherein Petitioner exercised rights of a payor (No. 47,600,

SF pp. 90-91 and 176-186). V.T.C.A., Bus. & C.,

§§2.601 (a) and 4.403.

The Presiding Judge refused motions for judgment

upon the evidence (No. 47,600, SF pp. 66-69, and 133-

135), for a new trial (No. 47,600, Tr. Item 63, pp. 156-

161) and in arrest of judgment (No. 47,600, Tr. Item 62,

152-155), all timely presented. Such rulings were gross-

ly erroneous for the reasons mentioned above in addition

to the irregularities set forth hereafter in this statement of

case

One such additional irregularity impeaching the in-

tegrity of the trial Court was the inability of the complain-

ing witness, Leonard Hodges, to identify the vehicle al-

legedly taken through theft in light of the ruling on the

‘

;

‘

Statement of Case

motion for judgment after the prosecution had initially

rested (No. 47,600, SF p. 38 and pp. 66-69). Similarly,

the complaining witness’ acknowledgement that he made

multiple independent examinations of the subject draft

without reliance on Petitioner supported the motion for

judgment by Petitioner (No. 47,600, SF p. 42 and pp. 51-

52).

Other trial errors were the denial of Petitioner’s mo-

tion to question an employee of the complaining witness,

Gilbert Woods of Goodrich, Polk County, Texas, as an

adverse witness (No. 47,600, SF p. 73), Vernon’s Ann.

C.C.P., Art. 38.01 and Webb v. State, 7 S.W.2d 562

(1928), and allowing hearsay evidence to dominate the

minds of the jury (No. 47,600, SF p. 123), O’Beirne v.

State, 365 S.W. 2d 787 (1963). Also, it was prejudicial

for the trial Court to refuse a compulsory answer by wit-

ness B. A. Hunter to the questions of Petitioner (No.

47 600, SF p. 129).

Jury argument irregularities included repetitious in-

terruptions by the prosecutors, apparently to curry favor

with the jury (No. 47,600, SF p. 151); the extension of

the prosecutors’ argument to contexts unrelated to and in-

consistent with trial evidence (No. 47,600, SF pp. 154-

457); and the comparable extension of the argument to

speculation on law by the prosecutors (No. 47,600, SF

pp. 160-161), even though similar more appropriate argu-

ment was declined Petitioner (No. 47,600, SF p. 152).

56 Tex. Jur. 2d Trial §240.

Finally, a category of clerical omissions and altera-

tions occurring after the trial and which Petitioner has

had only a post-conviction opportunity to contest, accom-

panies this petition for review.

Statement of Case

The perpetrator of the omissions and alterations com-

plained of is the official Court Reporter for the Ninth

Judicial District, Montgomery County Texas, Mary Fran-

ces Dameron, who omitted Petitioner’s exception to lead-

ing questions of law directed to the complaining witness

(No. 47,600, SF p. 55). Vernon’s Amn. P.C., Art. 37.09

and 37.10. This type of irregularity was repeated with

respect to the submission of the jury charge to the trial

Court as the full discussions surrounding the requested

charge to the jury, both in open court and in chambers

which she was in fact recording. Also, she struck the

prefix “in” from “inconsistent” to avoid Petitioner's ob-

jection to arguments by the prosecutors which were in-

consistent with the evidence received during presentation

of cases (No. 47,600, SF pp. 154-157).

The trial Court judgment was appealed to the Court

of Criminal Appeals of Texas and affirmed. Ratcliff v.

Texas, 504 S.W.2d 883 (1974). A timely appeal was

then perfected to the Supreme Court of the United States,

but officials and employees of Respondent precluded

preparation of a timely jurisdictional statement so a Peti-

tion for Writ of Certiorari was finally submitted to this

Court, on direct appeal. Ratcliff v. Texas, 419 U.S. 1103

(1975), 42 L.Ed 2d 815, 95 S.Ct. 796, reh. den. 420

U.S. 939 (1975), 43 L.Ed. 2d 418, 95 S.Ct. 1153; Rat-

cliff v. Texas, 423 U.S. 910 (1975), 46 L.Ed. 2d 147, 96

S.Ct. 227. Each of the points presented to the trial Court

was presented to the appellate courts on direct appeal in

addition to the point regarding delay occasioned by offi-

cials of Respondent being presented to the Supreme Court

of the United States.

Statement of Case

Following refusal of the Supreme Court of the United

States to review the proceeding on direct appeal, a writ of

habeas corpus was sought from the United States District

Court for the Southern District of Texas, Houston, Divi-

sion, which improperly refused to entertain an initial ap-

plication on grounds of exhaustion of State remedies with-

out allowing a hearing for Petitioner to subpoena evidence

establishing the exhaustion of State remedies and a second

application was dismissed, but exhaustion of State reme-

dies was conceded in the second proceeding. An appeal

was taken from both proceedings to the United States

Court of Appeals, Fifth Circuit, where they were consoli-

dated, and a certificate of probable cause granted in the

latter.

The entire State and Federal court record was be-

fore the United States Court of Appeals, but it elected to

affirm the United States District Court while addressing

only one of the five specific issues raised by Petitioner

and deciding even that one point contrary to precedent in

the Fifth Circuit as well as the Supreme Court of the

United States. Ratcliff v. Estelle, US. (1978),

58 L.Ed. 2d 115, 99 S.Ct. 90.

Summary of Argument

GROUNDS SUSTAINING GRANTING THE WRIT

SUMMARY OF ARGUMENT

Petitioner was subjected to criminal sanctions pur-

portedly under the Texas theft statutes which were un-

constitutionally applied to his lawful conduct in stopping

payment on a check against a solvent account tendered for

a motor vehicle which proved unacceptable without the

opportunity for prior inspection. Each stage of the pro-

ceeding before the State judiciary was characterized by

fraud, neglect and a conspiracy to deprive Petitioner of

due process. Title 42, United States Code, Sections 1981,

1982 and 1983.

The initial deprivation consisted of the systematic

exclusion of Petitioner’s peers, Negro citizens, from the

Polk County, Texas Grand Jury relevant to the subject

indictment, and the State courts, with the abstention of

the United States District Courts, have avoided all pro-

cedures, including discovery, to effectively establish such

illegalities through competent evidence.

After the indictment was returned, discovery efforts

were ignored both in the District Court of Polk County,

Texas, No. 9432, and the United States District Court for

the Southern District of Texas, Houston Division, Cr. No.

71-H-228, which latter court remanded the proceeding to

the State court after discovery efforts were in motion but

before the time to respond deadline transpired. Federal

Summary of Argument

Rules Civ. Proc., Rule 33, 28 U.S.C.; Vernon’s Ann. Rules

Civ. Proc., Rule 168.

Other pre-trial procedures in the State courts, includ-

ing a motion seeking dismissal or quashing of the indict-

ment and motions for change of venue, were similarly re-

duced to jest. United States Code, Const. Amend. V and

XIV.

During the trial, the mockery of justice was continued

with perjured, inconsistent testimony by the State’s wit-

nesses and the trial Court’s refusal to allow Petitioner to

raise the issue of failure of consideration with respect to

the check which was the alleged medium of theft.

V.T.C.A., Bus. & C., §§3.409, 3.417, 4.303 and 4.403;

Vernon’s Ann. P.C., Art. 5.01.

Honoring well established precedents among Texas

legal authorities would have effected a reversal of the

trial Court’s judgment in spite of the attending instances

of fraud and deception by State trial officials, but such

precedents were not addressed by the Court of Criminal

Appeals of Texas on direct appeal or in the habeas corpus

action. Tarkington v. Brunett, 51 S.W. 274 (1899);

Hesbrook v. State, 194 S.W.2d 260 (1946); Eason v.

State, 320 S.W.2d 11 (1959); Title 42, United States

Code, Sections 1981-1995, inclusive.

Argument

ARGUMENT

Argument—Discussion of Facts and Authorities I

The issues raised by Petitioner’s application for writ

of habeas corpus (CA No. 75-H-1945, US DC SD TX,

Tr. 9/4/75, unnumbered docket item) were clearly ex-

hausted in efforts transpiring before the filing of the ap-

plication in the United States District Court. The con-

trolling authorities establish that a habeas corpus petitioner

need only exhaust his State remedies on one occasion.

Kemp v. Pate, 359 F.2d 749 (1966); Pryor v. Beto, 460

F.2d 307 (5th Cir. 1972). Following exhaustion of State

remedies, general precedents on the habeas corpus remedy

prevail. Title 28, United States Code, Sections 2241,

2242 and 2243; United States Code, Const. Amend. V and

XIV; Bruce v. Beto, 96 F.2d 212 (1968); Price v. John-

son, 334 U.S. 266 (1948), 92 L.Ed. 2d 1356, 68 S.Ct.

1049.

In the second application for writ of habeas corpus

(CA No. H-77-1542, US DC SD TX, Tr. Items 5 and 6,

12/19/77), the United States District Court did not de-

termine that State remedies had not been exhausted as it

ruled in the earlier proceeding so the briefs in the United

States Court of Appeals, Fifth Circuit, No. 78-1870, only

addressed this point in certain ancillary discussions.

The indictment in question was returned by a racially

discriminatory Grand Jury in the District Court of Polk

County, ‘Fexas, No. 9432 (No. 47,600, Tr. Item 4, pp. 5-6).

Argument

The issue of systematic exclusion of Negroes from the Polk

County, Texas, Grand Jury was presented initially under a

pre-trial petition for removal in the United States District

Court for the Southern District of Texas, Cr. No. 71-H-228,

but Petitioner’s efforts to establish Grand Jury discrimina-

tion by specific interrogatories were stifled (No. 47,600,

Tr. Item 6, pp. 14-16 and Item 19, pp. 52-63). Federal

Rules Civ. Proc., Rule 33, 28 U.S.C.; Federal Rules Cr.

Proc. Rule 15(d), 28 U.S.C. After remand to the District

Court of Polk County, Texas and a transfer of the file to

Montgomery County, Texas, an additional motion seeking

dismissal and quashing of the cause of action and indict-

ment was filed under docket No. 9432 (No. 47,600, Tr.

Item 35, p. 97 and Item 31, p. 89), which was summarily

denied without entertaining evidence from Petitioner or

taking judicial notice of readily available statistics within

the trial Court’s custody relevant to Grand Jury discrimi-

nation and systematic exclusion. Norris v. Alabama, 294

U.S. 587 (1935), 79 L.Ed. 1074, 55 S.Ct. 579; Alexander

vy. Louisiana, 405 U.S. 625 (1972), 31 L.Ed. 2d 536, 92

S.Ct. 1221; Castaneda v. Partida, 524 F.2d 481 (1975),

aff'd, 430 U.S. 482 (1977), 51 L.Ed. 2d 498, 97 S.Ct.

1272.

The described systematic exclusion of Petitioner’s

peers as practiced and sanctioned by the courts below de-

nied him the essential elements of a fair trial. Title 42

United States Code, Sections 1981, 1982 and 1983; Hill v.

Texas, 316 U.S. 400 (1944), 86 L.Ed. 1559, 62 S.Ct.

1159; Akins v. Texas, 325 US. 398 (1945), 89 L.Ed.

1692, 16 S.Ct. 1276. .

The issue of Grand Jury discrimination could not be

raised as prescribed by Vernon’s Ann. C.C.P., Art. 19.27,

Argument

because the District Court of Polk County, Texas did not at

the relevant point in time permit Negroes to engage mean-

ingfully and reliably in any stage of the Grand Jury process.

However, in addition to Petitioner’s pre-trial petitions and

motions raising the issue, it was raised through an appli-

cation for writ of habeas corpus purporting to be in behalf

of Petitioner filed by one Attorney Raymond Jordan of

2521 Riverside Drive in Houston, Texas 77004, without

advance consultation or discussion with Petitioner regard-

ing the petition (No. 4624, Application for Writ of Habeas

Corpus of 1974, Tr. Item 2, pp. 2-8). Vernon’s Ann.

C.C.P., Art. 11.01-11.64. Much of the described applica-

tion is inconsistent with fact and Petitioner’s contentions.

However, each of its paragraphs referring to Grand Jury

systematic exclusion of blacks is substantively correct and

adopted by Petitioner. Norris v. Alabama, 294 U.S. 587

(1935) , 79 L.Ed. 1074, 55 S.Ct. 579; Alexander v. Louisi-

ana, 405 U.S. 625 (1972) , 31 L.Ed. 2d 536, 92 S.Ct. 1221.

Respondent contended in the United States Court of

Appeals that Petitioner’s allegations of Grand Jury syste-

matic exclusion are conclusory in nature which argument

disregards the fact that the original records and best evi-

dence pertinent to Grand Jury activities and preliminaries

were in the custody of the State of Texas, and Petitioner’s

efforts to secure such records were dishonored (No. 47,-

600, Tr. Item 19, pp. 52-63, Item 35, p. 97, Item 31, p. 90,

SF pp. 1-2 of Motion Docket, 5/11/1972.) Norris v. Ala-

bama, 294 U.S. 587 (1935), 79 L.Ed. 2d 1074, 55 S.Ct.

579; Federal Rules Civ. Proc., Rule 33, 28 U.S.C.; Federal

Rules Cr. Proc., Rule 15 (d) , 28 U.S.C.

In the Application for Writ of Habeas Corpus, No.

4624, in the Court of Criminal Appeals of Texas filed in

Argument

behalf of Petitioner by Attorney Raymond Jordan of Hous-

ton, Texas, without advance consultation with Petitioner,

statistics were set forth establishing presumptive Grand

Jury discrimination, even though such allegations were sub-

servient to the evidence held by the State of Texas, but a

plenary hearing on the application was never granted (No.

4624, Application for Writ of Habeas Corpus, Tr. Item 2,

pp. 2-8). Alexander v. Louisiana, 405 U.S. 625 (1972),

31 L.Ed. 2d 536, 92 S.Ct. 1221.

The United States District Court had, as a part of its

record, the complete State court records on direct appeal as

well as the State habeas corpus proceedings reflecting how

each issue was raised and developed in the State courts in

conjunction with the Federal habeas corpus action (CA No.

H-77-1542, US DC SD TX, Tr. Item 1, 9/19/77, pp. 1-5).

29 Am. Jur. 2d, 57 and 59; Lowe v. McDonald, 221 F.2d

228 (1955); Fed. Rules Evid., Rule 201 (d) and (f), 28

US.C.

The refusal of the trial courts to entertain evidence on

the issue of Grand Jury systematic exclusion or to provide

statistics within its custody on the issue presented a rational

basis for presuming Grand Jury discrimination in the lo-

cality. This presumption was furthered by the post-con-

viction application for writ of habeas corpus filed by At-

torney Raymond Jordan presenting statistical allegations

showing that Negroes comprise 28.2 % of the population in

Polk County, Texas, but only token participation has been

permitted Negroes in Grand Jury activities (No. 4624, Ap-

plication for Writ of Habeas Corpus of 1974, Tr. Item 2,

p. 3, Paragraph VI; see also No. 72-3127, U.S.C.A. 5th

Cir., Brief for Appellant, Exhibit “B” Affidavit of Facts,

pp. 30-32, and No. 74-5595, U.S. Supreme Court, Petition-

Argument

er’s Exhibits of Affidavits of Facts). Eubanks v. Louisiana,

356 U.S. 584 (1958), 2 L.Ed. 2d 991, 78 S.Ct. 970; Cas-

taneda v. Partida, 524 F.2d 481 (1975), aff’d, 430 U.S.

482 (1977), L.Ed. 2d ‘ S.Ct.

The described application for writ of habeas corpus

finally succeeded in priming a response from the State of

Texas in the form of Grand Jury statistics relevant to the

subject indictment. Such data reflected that the only Negro

slated for duty on the Grand Jury which returned the indict-

ment in question was deprived of his appearance by the

conduct of judicial officials in forwarding his notice to an

erroneous address (No. 4624, State’s Motion Controvert-

ing Defendant’s Second Application for Writ of* Habeas

Corpus, Tr. Item 4, p. 42).

The Grand Jury statistics referred to above further

reflected the following in summary, with respect to Polk

County, Texas:

The Grand Jury list for the July Term, 1970, which

returned the subject indictment, listed twenty (20) jurors

including one (1) Negro, Langston C. Johnson, and he was

not notified of the proceeding.

The Grand Jury list for the January Term, 1970,

which immediately preceded the term which returned Peti-

tioner’s indictment, reflected twenty (20) jurors including

one (1) Negro, Art Cluff of Corrigan, Texas, whose practi-

cal participation appears to have been circumvented

through coercion.

The Grand Jury list for the July Term, 1969, included

twenty (20) jurors and reflected the name of one (1)

Negro, Glover Banks of Leggett, Texas, among its com-

position without any indication of his service.

Argument

The Grand Jury list for the January Term, 1969, re-

flects twenty (20) jurors, but no Negroes are even included

on the list.

The Grand Jury list for the January Term, 1968, is

composed of twenty (20) jurors including one (1) Negro,

Marcus Parker of Leggett, Texas, who was properly noti-

fied, apparently, and a second Negro, Jack White of Blanch-

ard community, Livingston, Texas, who was not properly

listed for notification.

The Grand Jury list for the July Term, 1967, lists one

(1) Negro as a repeat in retrospect, Glover Banks of Leg-

gett, Texas, among its constituency of twenty (20) pro-

spective jurors.

The Grand Jury list for the November Term, 1966, re-

flects the names of two (2) Negroes, Cornell Turner of

Corrigan, Texas and Howard Daniels of Livingston, Texas,

among its composition of twenty (20), neither of whom

was properly notified to enable their services.

The Grand Jury list for the May Term, 1966, includes

the name of one (1) Negro who is a repeat in retrospect,

Jack White of Livingston, Texas, among its constituency

of twenty (20). It is noteworthy that on this prior instance,

his name appears with a proper address suggesting an ul-

terior motive in failing to provide his proper address on the

subsequent listing for. the November Term, 1966.

Under standards of long-standing precedent a prima

facie case of Grand Jury discrimination was established by

the described statistics, reflecting ratio of Negroes called

for Grand Jury service in comparison with whites of three

(3) to seventy-two (72), or one (1) to twenty-four (24),

out of a population ratio of Negroes to whites in the County

Argument

of three (3) to ten (10) over a contiguous period of five

(5) years and seven (7) Grand Jury terms immediately

preceding and including the Grand Jury which returned the

indictment contested by this litigation (No. 4624, State’s

Motion Controverting Defendant’s Second Application for

Writ of Habeas Corpus, Tr. Item 4, pp. 46-53). Hill v.

Texas, 316 U.S. 400 (1944), 86 L.Ed. 1559, 62 S.Ct.

1159; Akins v. Texas, 325 U.S. 398 (1945), 89 L.Ed.

1692, 16 S.Ct. 1276; Castaneda v. Partida, 524 F.2d 481

(1975), aff’d, 430 U.S. 482 (1977), L.Ed. 2d :

S.Ct.

Under the original circumstances, Petitioner’s alle-

gations could not be exhaustively detailed, but they merited

a plenary hearing which would have effected habeas corpus

relief, juris et de jure. Pryor v. Beto, 460 F.2d 307 (5th

Cir. 1972); Haines v. Kerner, 405 U.S. 948 (1972), 30

L.Ed. 2d 819, 92 S.Ct. 963.

Argument—Discussion of Facts and Authorities Il

The vagueness of the legislation applied to Petitioner

is the basic error of the case. Vernon’s Ann. P.C., Art.

1410 and 1413; Bouie v. City of Columbia, 378 U.S. 347

(1964) , 12 L.Ed. 2d 894, 84 S.Ct. 1697; Douglas v. Buder,

412 U.S. 430 (1973) , 37 L.Ed. 2d 52, 93 S.Ct. 2199. The

evidence, as well as the opinion of the Court of Criminal

Appeals of Texas on its face, discloses that Petitioner made

no false pretext or fraudulent representation to Seller, the

complaining witness, or anyone communicating with such

Seller. Nor did Seller rely to its detriment on any repre-

sentation made by Petitioner as the tender of a draft did not

purport to be an assignment of any funds or distinct obli-

Argument

gations outside the contents and effects of the instrument.

V.T.C.A., Bus. & C., §§3.409 and 3.417. This point was

reflected by the complaining witness’ own testimony under

oath before the trial Court and jury that he made multiple

independent examinations and evaluations of the pertinent

check without relying on any representation of Petitioner

(No. 47,600, SF pp. 42 and 51-52). Anderson v. O’Bryant,

3 S.W. 2d 842 (1928).

Due process requires that a criminal statute give

fair warning of the conduct it prohibits, and the highest

court of a State cannot circumvent the legislature and

achieve such a result by judicial construction. Hesbrook

vy. State, 194 S.W.2d 260 (1946); Beard v. State, 287

S.W.2d 667 (1956); V.T.C.A., Bus. & C., §§3.409, 3.-

417, 4.303 and 4.403; Title 42, United States Code,

Sections 1981, 1982 and 1983; Bouie v. City of Columbia,

378 U.S. 347 (1964), 12 L.Ed. 2d 894, 84 S.Ct. 1697.

“A law forbidding or requiring conduct in terms so vague

that men of common intelligence must necessarily guess

at its meaning and differ as to its application violates due

process.” Baggett v. Bullitt, 377 US. 360 (1964), 12

L.Ed. 2d 377, 84 S.Ct. 131.

Scientifically documented authorities and precedents

condone the line of reasoning adopted by Petitioner.

(See Bierman, Fouraker and Jaedieke, Quantitative Anal-

ysis for Business Decisions, Richard Irwin, Inc., Home-

wood, Illinois (1961), pp. 2, 10, 12, 20, 45-46, 57, 164

and 167). Brown v. Board of Education of Topeka,

Kansas, 347 U.S. 483 (1954), 98 L.Ed. 873, 74 S.Ct.

686. And it would have been totally unsound fo: Peti-

tioner to adopt the standard of conduct suggested by the

Texas judiciary (see Executive Order No. 10925, March

Argument

6, 1961). V.T.C.A., Bus. & Co., §§3.417 and 4.403;

Malphus v. Home Savings Bank of City of Albany, 254

N.Y.S.2d 980 (1965); Younger v. Harris, 401 U.S. 37

(1971) , 27 L.Ed. 2d 669, 91 S.Ct. 746.

All actions taken by and in behalf of Petitioner re-

sulting in the refusal to pay the pertinent check tendered

to Helton-Hodges Motor Company, the complaining wit-

ness and Seller, on April 6, 1970, were pursuant to and

prescribed by historical precedents. Vernon’s Ann. C.C.P.,

Art. 5.01; Vernon’s Ann. Civ. St., Art. 275, 342-712, 4076

and 6840; V.T.C.A., Bus. & Co., §§3.409, 3.417, 4.303

and 4.403; Title 28, United States Code, Sections 1443

and 1447 (d) ; Title 42, United States Code, Sections 1981-

1995, inclusive.

Petitioner’s proposition that Seller cooperate in re-

obtaining Petitioner’s Ford vehicle dispossessed in reli-

ance on the sufficiency of the Chevrolet vehicle from

Seller was not improper. Petitioner had a right to hold

the vehicle during negotiations with Seller and delibera-

tions with a third party who held the Ford vehicle. The

remedy was made additionally appropriate following the

malicious act of Seller, through its agent Leonard Hodges,

in filing the theft charge against Petitioner. V.T.C.A.,

Bus. & Co., §§2.601, 2.606, 2.608 and 2.721; Vernon’s

Ann. P.C., Art. 1410 and 1413; Title 28, United States

Code, Sections 1343 and 1443; Title 42, United States

Code, Sections 1981-1995, inclusive. The primary ob-

jective in the abolition of involuntary servitude was to

abolish all practices where by subjection some incidents

of slavery were legally enforced, either directly, indirectly

or insidiously. United States v. Shackney, 333 F.2d 475

(1964). Similarly, the prohibition against cruel and

Argument

unusual punishment is a positive limitation on legislative

and judicial action, and habeas corpus is the popular

remedy for accomplishing the constitutional goal. United

States Code, Const. Amend. VIII and XIII; Title 28,

United S»utes Code, Sections 2241, 2242 and 2243; Dear-

man v. Woodson, 429 F.2d 1288 (1970); Ralph v. War-

den, Maryland Penitentiary, 438 F.2d 786 (1971).

A charge or special instruction to the jury defining the

applicability of the Uniform Commercial Code or the

Texas Business and Commerce Code to the transaction,

as well as the significance of a solvent account as con-

trasted with a fictitious account would have diluted the

magnitude of the unconstitutional application of the

Texas theft statutes, but this procedure was declined by

the trial Court (No. 47,600 Tr. Items 57 and 58, pp. 136-

138). (Note: Details of the motions and discussions as

well as exceptions to the jury charge were alleviated from

the record. However, an excerpt is included as footnote

“14” in the opinion of the Court of Criminal Appeals of

Texas, Ratcliff v. Texas, 504 S.W.2d 883 (1974)).

Vernon’s Ann. P.C., Art. 37.09 and 37.10; Title 42,

United States Code, Sections 1981-1995, inclusive; Bouie

v. City of Columbia, 378 U.S. 347 (1964), 12 L.Ed. 2d

894, 84 S.Ct. 1697; Douglas v. Buder, 412 U.S. 430

(1973) , 37 L.Ed. 2d 52, 93 S.Ct. 2199.

Argument—Discussion of Facts and Authorities III

The evidence presented in the trial Court showed

that on April 6, 1970, Petitioner obtained from Helton-

Hodges Motor Company in Livingston, Texas, Seller, a

Argument

1966 Chevrolet pick-up truck tendering a check as the

consideration (No. 47,600, SF pp. 98-104 and 187).

The vehicle proved substantially defective following de-

livery to Petitioner without the opportunity for prior in-

spection, and Petitioner refused to permit the check to be

paid in due course. V.T.C.A., Bus. & C., §§2.601, 2.-

606, 2.608, 2.721 and 4.403.

Notwithstanding Seller’s refrain from testifying that

the subject vehicle was in good condition (No. 47,-

600, SF pp. 113-115) and Petitioner’s presenting of tax

records reflecting multiple repair charges to show the

defective condition of the vehicle (No. 47,600, SF pp.

90-91) , the trial Court refused to permit such records into

evidence to raise the issue of failure of consideration and

an intent to engage in a lawful transaction on the part

of Petitioner (No. 47,600, SF pp. 176-186). V.T.C.A.,

Bus. & C., §§2.601 (a) and 4.403. To the contrary, even

though the Statement of Facts as transcribed by Official

Court Reporter, Mary Frances Dameron, does not contain

the interjections and miscellaneous developments, an aura

of impropriety was created by the prosecution and sanc-

tioned by the Presiding Judge with respect to the offering

of the described evidence by Petitioner. Vernon’s Ann.

P.C., Art. 37.09 and 37.10; Title 42, United States Code,

Sections 1981, 1982 and 1983; United States Code, Const.

Amend. V, VIII and XIV.

The State court records show without controversion

that Seller, Helton-Hodges Motor Company, and its agent,

Leonard Hodges, made an independent examination of

the relevant check, and it made no reliance to its detriment

on any representation by Petitioner (No. 47,600, SF p.

42 and pp. 51-52). Anderson v. O’Bryant, 3 S.W.2d

Argument

842 (1928); Beard v. State, 287 S.W.2d 667 (1956);

Eason v. State, 320 S.W.2d 11 (1959). This issue was

supplemented and further developed by evidence in fact

admitted of Petitioner’s bank statements from the Chase

Manhattan Bank, N. A., One Chase Manhattan Plaza,

New York, N.Y. 10015, as they established without con-

troversion the solvency of the subject account (No. 47,-

600, SF pp. 91-99). V.T.C.A., Bus. & C., §§3.409 and

3.417; Vernon’s Ann. Civ. St., Art. 3713, Rules 5 and

6; Bledsoe v. Yarborough, 412 S.W.2d 222 (1967);

Hamilton v. Newburg, 412 S.W.2d 801 (1967); Modine

Manufacturing Co. v. Northeast Independent School Dis-

trict, 503 S.W.2d 833 (1974); United States Code, Const.

Amend. V, VIII, XIII, XIV and XV.

Argument—Discussion of Facts and Authorities IV

The trial Court abused its constitutional discretion

exceeding fundamental fairness standards in permitting

the jury to consider an unrelated and improper transac-

tion, fully distinguished from the immediate transaction,

wherein Petitioner exercised rights of a prayer on a

negotiable instrument (No. 47,600, SF pp. 121, 123 and

128). Tarkington v. Brunett, 51 S.W. 274 (1899) ;

Vernon’s Ann. Rules Civ. Proc., Rule 185; V.T.C.A.,

Bus. & C., §4.403; United States Code, Const. Amend.

V, VIII, XIII, XIV and XV.

The unrelated transaction involved a check payable

to Angelina Chevrolet-Cadillac Company admitted into

evidence over the timely objection of Petitioner (No. 47,-

Argument

600, SF pp. 123 and 127-128). Vernon’s Ann. Civ. St.,

Art. 3713, Rules 5 and 6; Bledsoe v. Yarborough, 412

S.W.2d 222 (1967); Hamilton v. Newburg, 412 S.W.

2d 801 (1967). Such auto company was indebted to

Petitioner through an agency relationship for an off-set

in an amount exceeding substantially the amount of the

draft admitted into evidence (No. 47,600, SF pp. 119-

1310) and such procedures of the State trial Court cir-

cumvented Petitioner’s conventional rights under nego-

tiable instruments law. Vernon’s Ann. Rules Civ. Proc.,

Rule 185; Vernon’s Ann. Bus. & C., §§3.409, 3.417, 4.-

303 and 4.403; Baggett v. Bullitt, 377 US. 360 (1964),

12 L.Ed. 2d 377, 84 S.Ct. 131. Similarly, the ruling

coupled with the refusal to instruct or charge the jury

specifically on the issues under the Texas Business and

Commerce Code, or the Uniform Commercial Code, evades

Petitioner’s statutory right to exercise self-help in prevent-

ing an inherently criminal act against him. Vernon’s

Ann. Bus. & C., §§4.303 and 4.403; Title 42, United

States Code, §§1981, 1982 and 1983; Bouie v. City of

Columbia, 378 U.S. 347 (1964), 12 L.Ed 2d 894, 84

S.Ct. 1697.

Argument—Discussion of Facts and Authorities V

The exemplar of the trial judiciary of the State of

Texas, along with its prosecutors, was a global effort cal-

culated to deprive Petitioner of due process and his rights

as an American citizen (No. 47,600, Tr. Items 62 and 63,

pp. 152-161). United States Code, Const. Amend. V,

VIII, XIII, XIV and XV. The irregularities may be ap-

}

;

Argument

preciated graphically by following an event to event ob-

servation of prejudicial errors some of which are not as-

signed to isolated arguments in this petition.

While the proceeding was in the District Court of

Polk County, Texas, the judiciary exemplified contempt

for Petitioner in a hearing at Montgomery County, Texas

by summarily denying his motion seeking to set aside the

indictment, and such was done without granting an evi-

dentiary hearing (No. 47,600, Tr. Items 35 and 31, pp.

97 and 89, out of logical order in transcript, SF pp. 1-2,

of Motion Docket, 5/11/1972). This obviously prevented

a plenary reflection and detailed disposition of Petitioner’s

objection to the pertinent Grand Jury composition.

Castaneda v. Partida, 524 F.2d 481 (1975), aff’d, 430

U.S. 482 (1977), A) ae S.Ct.

The second notorious irregularity was the refusal of

the trial Court to sequester the petit jury. Vernon’s Ann.

C.C.P., Art. 35.23; Burris v. State, 40 S.W. 284 (1898).

The injury attached to jurors being subjected to unlimited

contacts and potential influences is too obvious to belabor,

and duplicitous discussion of the inflammatory factors is

not merited.

Another impropriety diminishing the integrity of the

State trial Court was the inability of the Seller to identify

the vehicle allegedly taken through theft in light of Peti-

tioner’s motion for judgment after the prosecution had

rested (No. 47,600, SF p. 38 and pp. 66-69). Hall v.

State, 219 S.W.2d 475 (1949); May v. State, 34 S.W.2d

594 (1930). It is, also, unconscionable that the trial Court

would deny Petitioner’s motion for judgment while Seller

had admitted in sworn testimony before the Court and jury

Argument

that he made multiple independent examinations and evalu-

ations of the subject draft without relying on any repre-

sentation by Petitioner (No. 47,600, SF p. 42 and pp. 51-

52 and pp. 66-69). Anderson v. O’Bryant, 3 S.W.2d 842

(1928); Title 42, United States Code, Section 1981.

The irregularities were not limited to judicial acts.

Official Court Reporter Mary Frances Dameron, also, con-

tributed to the mockery of justice. Muncy v. Johnston,

402 S.W.2d 525 (1966). This initially consisted of failure

to note Petitioner’s exception to the ruling of the trial

Court admitting testimony elicited through leading ques-

tions of law from the Seller that title to the vehicle in ques-

tion had left him (No. 47,600, SF p. 55). Vernon’s Ann.

P.C., Art. 37.09 and 37.10; Capitol Hotel Company v. Rit-

tenberry, 41 S.W.2d 697 (1931); Paxton v. Spencer, 503

S.W.2d 637 (1973).

The next violation of legal standards under due pro-

cess requirements involved the trial Court’s denial of Pe-

titioner’s motion to question a witness, Gilbert Woods of

Goodrich, Texas, as an adverse witness (No. 47,600, SF

p. 73). This witness had been employed by Seller for

several years including the date of the subject transaction,

and the trepidation attached to the witness by virtue of

the employer-employee relationship merited granting of

Petitioner’s motion to examine him as an adverse witness.

Webb v. State, 7 S.W.2d 562 (1928).

Again at page 123 of the Statement of Facts from the

Court of Criminal Appeals of Texas, No. 47,600, the un-

just character of the proceedings was manifest in the con-

tinuation of hearsay evidence before the jury which, though

nominally disapproved by the trial Court, prejudiced Pe-

Argument

titioner’s case more than a mild instruction to disregard

could rectify. O’Beirne v. State, 365 S.W.2d 787 (1963).

Still further procedurally unfair was the refusal of

the trial Court to require witness B. A. Hunter to answer

before the jury, “Did you get an insurance company to

pay you on insurance that was obtained by Elijah W.

Ratcliff?” This testimony, truthfully recited, would have

approached proper depiction of Petitioner’s position that

the witness had a fraudulent, profit-making, overriding

objective, for impeachment purposes (No. 47,600, SF p.

129). Lon L. Fuller, Basic Contract Law, West Publish-

ing Co., St. Paul, Minn. (1947), p. 285; Vernon's Ann.

C.C.P., Art. 38.01-38.03; Shivers v. State, 374 S.W.2d

672 (1964) ; Hanover Insurance Co. v. Johnson, 397 S.W.

2d 904 (1965), ref., n.r.e.; City of Longview v. Boucher,

274 S.W.2d 274 (1975), ref., n.r.e.

Petitioner sought again to protect the jury from un-

limited outside influences at the conclusion of the presen-

tation of evidence, but the trial Court denied the request

to sequester (No. 47,600, SF p. 132). Vernon's Ann.

C.C.P., Art. 35.23.

The most damaging irregularity, ultimately, of the

multitude probably is one where Official Court Reporter

Mary Frances Dameron failed to include the full discus-

sions surrounding the submission of the charge to the jury

as a part of the appellate record. Her transcription deletes

all description of the triai Court’s refusal to honor the dis-

cussions on the jury charge in open court as well as in

chambers even though it does show via the transcript cer-

tain proposed charges and instructions to the jury from

Petitioner which would have presented the law applica-

ble to the case in a less vague context (No. 47,600, Tr.

Argument

Items 57 and 58, pp. 136-144, SF pp. 131-132). Vernon’s

Ann. P.C., Art. 37.09 and 37.10; Vernon’s Ann. C.C.P.,

Art. 36.14 and 36.15; Parker v. Keyser, 540 S.W.2d 827

(1976) ; Baggett v. Bullitt, 377 U.S. 360 (1964), 12 L.Ed.

2d 377, 84 S.Ct. 1316. |

During the arguments to the jury, the most prejudicial

irregularities consisted of repetitious interruptions by the

prosecutors, apparently to curry favor with the jury, where

not a semblance of an objection was proper (No. 47,600,

SF p. 151); the extension of the prosecutors’ argument to

contexts unrelated to and inconsistent with statements

and testimony during the presentation of evidence (No.

47,600, SF pp. 154-157); and the comparable extension

of the prosecutors’ argument to speculation on law (No.

47,600, SF pp. 160-161) even though similar argument

was denied Petitioner in spite of the objective of Petition-

er’s argument being to rectify a deficiency inherent in the

jury charge (No. 47,600, SF p. 152). 56 Tex. Jur. 2d,

Trial §240; V.T.C.A., Bus. & C., §§3.409, 3.417, 4.305

and 4.403; Fultz v. First National Bank, 380 S.W.2d 894

(1964).

A further noteworthy irregularity by the Official

Court Reporter at this stage consisted of striking the pre-

fix “in” from “inconsistent” to evade Petitioner’s objec-

tion to arguments by the prosecutors which were incon-

sistent with the evidence received during the presentation

of cases (No. 47,600, SF pp. 154-157). United States

Code, Const. Amends. V, VIII, XIII, XIV and XV; Ver-

non’s Ann. P.C., Art. 37.09 and 37.10; Jordan v. Massa-

chusetts, 225 U.S. 167 (1912); 56 L.Ed. 1038, 32 S.Ct.

651; Johnson v. Mississippi, 403 U.S. 212 (1971), 29

L.Ed. 2d 423, 91 S.Ct. 1778.

Argument

CONCLUSION

Petitioner’s conviction in the District Court of Mont-

gomery County, Texas, No. 11,064, should be voided; his

illegal restraint upon liberty personally incurred termi-

nated; and his rights as a citizen declared. Vernon’s Ann.

C.C.P., Art. 11.01-11.64, inclusive; Title 42, United States

Code, Sections 1981, 1982 and 1983; Miller v. Winn, 28

S.W.2d 578 (1930); Pryor v. Beto, 460 F.2d 307

(1972); Fay v. Noia, 372 U.S. 391 (1963), 9 L.Ed. 2d

837, 83 S.Ct. 822; Cox v. Louisiana, 379 U.S. 536 (1965),

73 L.Ed. 2d 471, 85 S.Ct. 453.

The mandate of the Supreme Court of the United

State should order the United States Court of Appeals,

Fifth Circuit, to direct the United States District Court

for the Southern District of Texas, Houston Division, to

grant the writ of habeas corpus and enter judgment void-

ing the State trial Court conviction of Petitioner herein.

Title 28, United States Code, Sections 1651, 1652, 2241,

2242 and 2243; United States Code, Const. Amends. V,

VIII, XIII, XIV and XV.

Even though more than six (6) years elapsed from

the date of the subject State trial Court judgment of con-

viction, suspension and disbarment orders were recently

entered by the Supreme Court of the United States with

respect to Petitioner as a member of the Bar of this Court,

No. D-159, In the Matter of the Disbarment of Elijah W.

Ratcliff US. (1979) , 59 L.Ed. 2d 450, 99 S.Ct.

1206; and US. (1979), L.Ed. 2d , 99

S.Ct. 2025. The order of the Court under the immediate

docket should judicially note and nullify the earlier orders

Argument

and reinstate Petitioner’s good standing as an attorney

with the Bar of this Court. Fed. Rules Evid., Rule 201,

28 U.S.C.

July 23, 1979

Date

ELIJAH W. RATCLIFF,

Petitioner, Pro Se

P.O. Box 862

Livingston, Texas 77351

Ph. 713 327-4948

Opinion, Court of Appeals

APPENDIX A

Elijah W. Ratcliff,

Petitioner-Appellant,

W. J. Estelle, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 78-1870

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

June 20, 1979

Appeal from the United States District Court for the

Southern District of Texas.

Before Thornberry, Clark and Roney, Circuit Judges.

Roney, Circuit Judge:

[1] Ifa state court finds that a procedural default

forecloses a convicted defendant’s right to challenge col-

laterally the composition of the grand jury which indicted

him, but then proceeds to consider and deny the challenge

on the merits, must a federal court deny habeas corpus

Opinion, Court of Appeals

relief under the contemporaneous objection rule, without

reaching the merits of the constitutional attack? We agree

with the district court that it must.

On appeal from a dismissal of a petition for habeas

corpus relief, petitioner Ratcliff contends that blacks were

systematically excluded from the grand jury whose indict-

ment lead to his Texas theft conviction. Petitioner did not

raise the issue of grand jury composition in the Texas

courts until his second petition for habeas corpus almost

two years after his trial and three-and-a-half years after

the indictment was presented. Applying the statutory rule

providing for procedural default for failure to make a

timely objection to the composition of a grand jury, the

Texas court dismissed his challenge. It then went on to

find no merit to the grand jury challenge.

Had the Texas court grounded its decision solely on

the procedural waiver, the law is clear that the federal

court could not reach the merits. It appears, without ques-

tion, that the state court properly applied the Texas proce-

dural rule.

[2,3] The Texas courts have construed Tex. Code

Crim. Proc. Ann. art. 19.27 (Vernon)* to mean that a de-

fendant must raise a challenge to the composition of the

grand jury at the earliest point possible. Valadez v. State,

408 S.W.2d 109 (Tex. Cr. App. 1966). Where there has

1Tex. Code Crim. Proc. Ann. art. 19.27 (Vernon) provides:

Before the grand jury has been impaneled, any person

may challenge the array of jurors or any person presented as

a grand juror. In no other way shall objections to the quali-

fications and legality of the grand jury be heard. Any per-

son confined in jail in the county shall upon his request be

brought into court to make such challenge.

Opinion, Court of Appeals

been no neglect, a challenge to the composition of the

grand jury can be raised before trial by a motion to quash

the indictment. See, e.g., Carter v. Texas, 177 US. 442,

20 S.Ct. 687, 44 L.Ed. 839 (1900); Dumont v. Estelle,

513 F.2d 793, 976 (5th Cir. 1975); Ex parte Covin, 161

Tex. Cr. R. 320, 277 S.W.2d 109 (1955). Since petition-

er waited almost two years after trial to raise the issue of

grand jury composition, this procedural rule applied and

petitioner does not suggest that there was any impropriety

in its application.

[4] Recent Supreme Court cases have indicated

that, absent a showing of cause and prejudice, federal

courts must respect a procedural rule such as that em-

ployed here by Texas. Davis v. United States, 411 US.

233, 93 S.Ct. 1577, 36 L.Ed. 2d 216 (1973) (challenge

to grand jury make-up under 28 U.S.C.A. §2255 rejected

under federal contemporaneous objection rule, Fed. R.

Crim. P. 12 (b) (2)); Francis v. Henderson, 425 U.S. 536,

96 S.Ct. 1708, 48 L.Ed. 2d 149 (1976) (Davis rule ap-

plied to state contemporaneous objection rule in a habeas

corpus petition, 28 U.S.C.A. §2254). See also Wainwright

v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594

(1977).

[5] Petitioner has failed to show cause for his fail-

ure to make a timely objection. Petitioner has suggested

that federal pleadings filed in connection with a removal

petition under 28 U.S.C.A. §§1442 and 1443 served in-

formally upon remand to the state court to raise the issue

of jury composition. These federal pleadings were a mo-

tion to quash the indictment based on the allegation that

the grand jury was racially prejudiced, and interrogatories

attempting to ascertain the racial make-up of the grand

Opinion, Court of Appeals

jury. There were served upon the State and were avail-

able to the state court. The state court did not rule upon

them, however, and petitioner has not shown that in any

manner he requested the state court to consider them or

sought to raise the issues in separate state pleadings. Ab-

sent some indication that the state court considered the

_ federal pleadings or was asked to do so, such pleadings

cannot be said informally to satisfy a state contemporane-

ous objection rule.

[6] At oral argument petitioner indicated that as

an attorney he was aware of the disproportionate racial

make-up of the grand jury but lacked facts and figures to

substantiate his position. He did not file interrogatories

in the state court to obtain this information. He indicated

that it was his impression that an objection to the Texas

trial court would have been futile. The fact that an ob-

jection may be overruled does not, however, constitute the

requisite cause which would excuse a procedural default

under the rule of Davis and Francis and their progeny.

See Buckelew v. United States, 575 F.2d 515, 519-520

(5th Cir. 1978); Evans v. Maggio, 557 F.2d 430 (5th Cir.

1977); Wright v. Wainwright, 537 F.2d 224, 226 (5th

Cir. 1976). Since Ratcliff has not shown cause, we need

not inquire whether prejudice existed since both are re-

quired. Lumpkin v. Ricketts, 551 F.2d 680, 681-682 (5th

Cir.) , cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.

2d 316 (1977). In any event, Ratcliff did not allege any

specific prejudice.

Consequently, the district court was correct in con-

cluding that the state court had properly applied Texas

procedural law in holding that Ratcliff waived his right

to challenge the composition of the grand jury.

Opinion, Court of Appeals

[7] The difficult part of this case arises because the

state habeas corpus court in its opinion proceeded to dis-

cuss the merits of the constitutional challenge after ruling

that there was a procedural default. Ratcliff contends that

this discussion of the merits brings the case within the

rule that prohibits a federal court from applying a state

timely objection rule where the state court itself has not

done so. Newman v. Henderson, 425 U.S. 967, 96 S.Ct.

2162, 48 L.Ed. 2d 791 (1976) ; Francis v. Henderson, 425

U.S. 536, 542 n. 5, 96 S.Ct. 1708, 48 L.Ed. 2d 149

(1976) ; Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9,

95 S.Ct. 886, 43 L.Ed. 2d 196 (1975); Fay v. Noia, 372

US. 391, 435, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963);

Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed. 2d

900 (1959); Bromley v. Crisp, 561 F.2d 1351, 1359-1360

(10th Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct.

1458, 55 L.Ed. 2d 499 (1978); Newman v. Henderson,

539 F.2d 502, 503-504 (5th Cir. 1976), cert. denied, 433

U.S. 914, 97 S.Ct. 2986, 53 L.Ed. 2d 1100 (1977); Par-

tida v. Castaneda, 524 F.2d 481, 483 (5th Cir. 1975).

Proper resolution of such a case turns on careful at-

tention to the basis of the state court decision. Two con-

solidated habeas corpus cases from this Court challenging

the composition of grand juries illustrate this point. New-

man v. Henderson, 496 F.2d 896 (5th Cir. 1974). In

the case of the first petitioner, Newman, the state court

had denied relief on the merits of petitioner’s claim. The

federal district court held that there was grand jury dis-

crimination but its grant of habeas corpus was vacated by

this Court which detected a failure to object in a timely

manner under state law, even though the state court had

not so held. The Supreme Court vacated our judgment,

Opinion, Court of Appeals

noting that the federal court could not apply a state waiver

rule that the state court had declined to impose. Newman

v. Henderson, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed. 2d

791 (1976). In the case of the second petitioner, Fran-

cis, the state court had based its decision on petitioner’s

failure to file objections within the period specified by

state law, and did not reach the merits of the grand jury

challenge. We held that under Davis v. United States, 411

US. 233, 93 S.Ct. 1577, 36 L.Ed. 2d 216 (1973), a fed-

eral court cannot reach the merits of a grand jury chal-

lenge in the face of a state procedural default, absent a

showing of cause or prejudice. The Supreme Court af-

firmed. Francis v. Henderson, 425 U.S. 536, 96 S.Ct.

1708, 48 L.Ed. 2d 149 (1976). In each case, the basis of

the state court’s decision was decisive in determining

whether the federal court could reach the merits.

Other cases demonstrate the same point. In Lefko-

witz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.

2d 196 (1975), the Supreme Court held that where a

guilty plea did not bar state appellate review, a habeas

corpus petitioner was not prevented from litigating a con-

Stitutional issue in federal court. In Irvin v. Dowd, 359

US. 394, 79 S.Ct. 825, 3 L.Ed. 2d 900 (1958), the de-

cision that the federal court could rule on the federal

claim turned on the Court’s conclusion that the state su-

preme court decision rested on the merits of the constitu-

tional claim rather than on a procedural point.

Thus the rule is that if “the state courts entertained

the federal claims on the merits, a federal habeas corpus

court must also determine the merits of the applicant’s

claim.” Lefkowitz v. Newsome, supra, 420 U.S. at 292

n. 9, 95 S.Ct. at 891.

Opinion, Court of Appeals

In the instant case, there is no doubt that the proce-

dural default rule was applied in state court. The state

trial court squarely held that petitioner had failed to make

a timely objection to the grand jury array. It then went

on to discuss the merits, apparently with a view to dis-

posing of all issues in the event it was in error on the pro-

cedural point. Without written order the Texas Court of

Criminal Appeals denied petitioner's application based on

the findings of the trial court.

[8] It is fair to assume that the appellate court ap-

plied the procedural default rule. First, the language in

the trial court opinion regarding procedural default is

absolute and there is no subsequent language which would

qualify or compromise it. Second it is well settled that a

court will not reach a constitutional question if it can rest

its decision on nonconstitutional grounds. See Rescue

Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409,

91 L.Ed. 1666 (1947). See generally Nowak, Rotunda &

Young, Constitutional Law 83-85 (1978). Third, there

is no question that the trial court correctly applied Texas

law on the procedural issue.

Having decided here that the state court applied its

procedural default rule and did so correctly, the federal

courts must abide by that decision, cause for failure to

object and actual prejudice not having been shown. The

district court’s dismissal of the petition for habeas corpus

relief on the grand jury issue must, therefore, be affirmed.

Ratcliff raises several additional points which we re-

ject: (1) He alleges that the statutes under which he was

convicted are unconstitutionally vague. Aside from ‘this

conclusory statement, however, petitioner does not in any

a 39

Opinion, Court of Appeals

way demonstrate their vagueness. (2) He ar

trial court erred in two evidentiary Bidrgrs a ra

court refused to admit Ratcliff’s income tax records into

evidence. In the other, the court admitted evidence of an

extraneous transaction offered for the limited purpose of

showing intent. See Hafti v. State, 416 S.W.2d 824, 825

(Tex. Cr. App. 1967). In neither instance did the trial

court’s ruling deprive the trial of fundamental fairness

Heads v. Beto, 468 F.2d 240 (5th Cir. 1972), cert de-

nied, 410 U.S. 969, 93 S.Ct. 1454, 35 L-Ed. 2d 704

(1973). (3) He contends that the proceedings in the

State trial court were calculated to deprive him of due

process and to influence the Texas Board of Pardons and

Paroles. These allegations are merely conclusory and are

unsupported by specific facts.

Affirmed.

[A copy of recited “Meniorandum and Order” of

January 27, 1977 was never furnished Petitioner related

to Final Judgment of June 28, 1977, United States Dis-

trict Court, Southern District of Texas, Houston Division

CA No. 75-H-1945, even though repetitious requests

were made to the Clerk of the Court.]

40 :

U. S. District Court, Final Judgmeni

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. 75-H-1945

Elijah W. Ratcliff,

Petitioner,

W. J. Estelle, Jr., Director, Texas Department of

Corrections, et al.,

Respondents.

Clerk, U.S. District Court

Southern District of Texas

Filed

Jun 28 1977

V. Bailey Thomas, Clerk

By Deputy: [Illegible ]

FINAL JUDGMENT

BE IT REMEMBERED that the above entitled and

numbered habeas corpus action came on for a determina-

tion on Respondent’s Amended Motion to Dismiss, and

U. S. District Court, Final Judgment

it appearing to the Court that respondent’s motion should

be granted for the reasons stated in the Court’s Memoran-

dum and Order of January 27, 1977,

NOW, THEREFORE, it is ORDERED, ADJUDGED,

and DECREED that Respondent’s Amended Motion to

Dismiss be, and the same hereby is, GRANTED and the

above entitled and numbered action is accordingly here-

by DISMISSED without prejudice for failure to exhaust

state remedies as to all of the claims raised in his peti-

tion.

This is a FINAL JUDGMENT.

The Clerk shall file this Final Judgment and send a

copy to the parties.

DONE at Houston, Texas, this 28th day of June,

1977.

(s) James Neal

Judge Presiding

True Copy I Certify

Attest:

V. Bailey Thomas, Clerk

By [Illegible]

Deputy Clerk

Order, August 19, 1977

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. 75-H-1945

Elijah W. Ratcliff,

Petitioner,

vs.

William J. Estelle, Jr.,

Respondent.

Clerk, U.S. District Court

Southern District of Texas

Filed

Aug 19 1977

V. Bailey Thomas, Clerk

By Deputy [Illegible ]

ORDER

This action is before the Court on petitioner’s mo-

tion for certificate of probable cause to appeal, and it

appearing to the Court that the appeal is not taken in

good faith and the Court finding that the appeal is plain-

ly frivolous, it is

Order, August 19, 1977

ORDERED that petitioner’s motion for certificate of

probable cause be, and the same hereby is, DENIED.

The Clerk shall file this Order and send copies to the

parties.

DONE at Houston, Texas, this 19 day of August,

1977.

James Neal

Senior United States District Judge

Memorandum and Order, December 19, 1977

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-77-1542

Elijah W. Ratcliff

Petitioner

vs.

W. J. Estelle, Jr.

Respondent

Clerk, U.S. District Court

Southern District of Texas

Filed

Dec 19 1977

V. Bailey Thomas, Clerk

By Deputy: [Illegible ]

MEMORANDUM AND ORDER:

This cause of action is before the Court on the Peti-

tioner’s application for writ of habeas corpus. Petitioner,

in his present writ application, contends the following:

1. that he was convicted under an unconstitu-

tionally vague statute;

Memorandum and Order, December 19, 1977

2. that Blacks were systematically excluded

from the Grand Jury;

3. that the trial court abused its discretion in

refusing to permit Petitioner’s tax records into evi-

dence;

4. that the trial court abused its discretion in

admitting evidence that Petitioner had stopped pay-

ment on a check in another transaction; and

5. that the proceedings in the district court

were calculated to deprive Petitioner of due process

and that such actions influenced the conduct of the

officials of the Texas Board of Pardons and Paroles.

The Court having considered the pleadings and the

response thereto is of the opinion that Petitioner’s appli-

cation for writ of habeas corpus should be and the same

is hereby dismissed.

First, Petitioner’s contention that he was convicted

under an unconstitutionally vague statute is without merit.

The Fifth Circuit has held that habeas corpus is not a

proper means for attacking a statute on the ground of

facial unconstitutionality, Walters v. Clement, 544 F.2d

1340 (5th Cir. 1977). Thus, in the absence of allegations

that the statute as applied to Petitioner was unconstitu-

tional, Petitioner is not entitled to habeas corpus relief.

Secondly, Petitioner’s allegation that Blacks were sys-

tematically excluded from the Grand Jury is a mere con-

clusion as he has failed to state any facts supporting this

allegation. Petitioner must do more than assert conclu-

sions. Woodward v. Beto, 447 F.2d 103 (5th Cir. 1971).

Also, Petitioner’s failure to object to the makeup of the

Grand Jury prior to trial waived any arguable defect in

the constitution of such juries. Francis v. Henderson, 425

Memorandum and Order, December 19, 1977

US. 536, 96 S.Ct. 1708 (1976). Petitioner, therefore, is

not entitled to habeas corpus regarding this allegation.

Third, Respondent contends that Petitioner’s conten-

tion that the trial court erred in refusing to permit Peti-

tioner’s tax records into evidence, even if true, does not

raise an issue of constitutional dimension upon which fed-

eral habeas corpus relief might be granted.

Petitioner’s contention raises a question of the pro-

priety of evidentiary findings. These are matters deter-

mined by state courts and are not amenable to federal

habeas corpus relief. Nelson v. Moriarty, 484 F.2d 1034

(ist Cir. 1973).

The Fifth Circuit, in Heads v. Beto, 468 F.2d 241

(5th Cir. 1972), held that questions concerning the ad-

missibility of evidence are not subject to a review by a

federal court in a habeas corpus proceeding unless the

error is of such a magnitude as to deny fundamental fair-

ness to the criminal trial. Respondent asserts that error,

if any, does not rise to the level of a denial of such funda-

mental fairness.

Fourth, Petitioner’s allegation that the trial court

erred in admitting evidence of an extraneous transaction

does not state a cause of action upon which relief may be

granted. Admission of evidence of extraneous offenses in

a state trial does not present a federal question upon which

habeas corpus relief may be predicated. Murphy v. Beto,

416 F.2d 98 (5th Cir. 1969) ; Heads v. Beto, 468 F.2d 241

(5th Cir. 1972).

Respondent would note that the trial judge did not

err in admitting the evidence. The State offered the evi-

Memorandum and Order, December 19, 1977

dence regarding the transaction for the limited purpose of

showing intent (see Statement of Facts p. 108) and the

jury was clearly advised of this fact in the jury charge.

Evidence of such extraneous offense may be admitted into

evidence to show the scheme, design, identity, or intent.

Newman v. Texas, 485 S.W.2d 576 (Tex. Crim. App.

1972) ; Nees v. Culbertson, 406 F.2d 621 (5th Cir. 1969).

Finally, Petitioner’s contention that the proceedings

in the district court were calculated to deprive Petitioner

of due process and that such actions influenced the con-

duct of the officials of the Texas Board of Pardons and

Paroles is conclusory in nature and as such does not entitle

Petitioner to federal habeas corpus relief. Woodward v.

Beto, 447 F.2d 103 (5th Cir. 1971). Generalities are not

sufficient. Specific factual allegations are required.

The Clerk shall file this Memorandum and Order and

provide all parties with a true copy.

Done at Houston, Texas, this 19th day of December,

1977.

(s) Woodrow Seal

United States District Judge

Memorandum and Order, January 20, 1978

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-77-1542

Elijah W. Ratcliff,

Petitioner

VS.

W. J. Estelle, Jr.,

Respondent

Clerk, U.S. District Court

Southern District of Texas

Filed

Jan 20 1978

V. Bailey Thomas, Clerk

By Deputy: J. McCullough

MEMORANDUM AND ORDER:

This cause of action is before the Court on the Ap-

pellant’s Application for Certificate of Probable Cause.

The Court has considered the Application and hereby

ORDERS:

Appellant’s Application for Certificate of Probable

Cause is DENIED.

Memorandum and Order, January 20, 1978

The Court is of the opinion that a certificate of prob-

able cause should not issue pursuant to Fed. R. App. P.

22 (b) because this appeal is frivolous.

The Clerk shall file this Memorandum and Order and

provide all parties with a true copy.

Done at Houston, Texas, this 20 day of January, 1978.

(s) Woodrow Seal

United States District Judge

Memorandum, March 27, 1978

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Office of the Clerk

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

Telephone 504-589-6514

March 27, 1978

MEMORANDUM TO COUNSEL OR PARTIES

LISTED BELOW:

No. 77-8424—Elijah Ratcliff vs. W. J. Estelle

(Dist. Ct. No. 75-H-1945)

No. 78-8093—Elijah Ratcliff vs. W. J. Estelle

(Dist. Ct. No. 77-1542-CA-H)

The following action has this day been taken in the

above case:

* * *

(XXX) Order enclosed has been entered.

cc Mr. Elijah W. Ratcliff (w/personal papers)

Mr. Alvin K. James

Mr. John Pierce Griffin

Mr. V. Bailey Thomas, Clerk

Memorandum, March 27, 1978

P.S. to Mr. Thomas: Returned herewith are your original

papers in No. 77-1542-CA-H to be certified as the

record on appeal.

Also returned herewith are your original papers in No. 75-

H-1945. Please acknowledge receipt.

Edward W. Wadsworth, Clerk

By (s) Clare F. Sachs

Deputy Clerk

Order, U. S. Court of Appeals

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 77-8424 & 78-8093

U. S. Court of Appeals

Filed

Mar 27 ’78

Edward W. Wadsworth

Clerk

Elijah W. Ratcliff,

Petitioner,

versus

W. J. Estelle, Jr.,

Respondent.

On Application for Certificate of Probable Cause

ORDER:

These cases were consolidated on the unopposed mo-

tion of petitioner. The Court has been holding No. 77-

8424 pending en banc resolution of a case dealing with

the exhaustion question there presented. However, be-

cause state remedies have now been exhausted and the

Order, U. S. Court of Appeals

same issues are raised in No. 78-8093, petitioner’s pro se

application for certificate of probable cause in No. 77-

8424 is DENIED. However, petitioner’s pro se applica-

tion for certificate of probable cause in No. 78-8093 is

GRANTED.

SO ORDERED.

(s) Homer Thornberry

United States Circuit Judge

Opinion, Feb. 25, 1974

OPINION, COURT OF CRIMINAL APPEALS OF

TEXAS

Filed

Feb 25 1974

District Clerk

Montgomery County, Texas

By Peggy Stevens, Deputy

No. 47,600

Elijah W. Ratcliff,

Appellant

The State of Texas,

Appellee

Appeal From Montgomery County

OPINION

Appellant was indicted for the offense of felony theft

as defined in Art. 1410, V.A.P.C., and the jury found him

guilty and fixed his punishment at confinement for six

years. The trial was held in Montgomery County after

the Court ordered a change of venue from Polk County

on its own motion following appellant’s application for

a change of venue.

Opinion, Feb. 25, 1974

On April 6, 1970, appellant appeared at an automo-

bile dealer’s place of business in Livingston and there ne-

gotiated with one of the partners for the purchase of a

1966 Chevrolet pickup truck. The parties agreed upon a

price of $895 plus taxes and transfer charges, the total

price being $923.60. Appellant then wrote a check for

the full amount of the price of the vehicle payable to the

dealer, and received the certificate of title and license re-

ceipts for the truck. He then drove away in the truck.

However, before completing the transaction, the

dealer had his bookkeeper telephone the bank upon which

the check was drawn, Chase Manhattan Bank in New

York City, to determine if appellant’s check was covered

by funds then on deposit in the bank and would be hon-

ored on presentation. Upon being assured that funds were

on deposit sufficient to cover the check, the dealer com-

pleted the transaction.

The seller deposited the check in the bank for col-

lection in accordance with usual banking practices, but it

was returned to him by his local bank within a short time

thereafter with the notation that payment thereon had been

stopped by the maker. The dealer made several unsuccess-

ful attempts to secure the money or the truck from the ap-

pellant, but no civil proceedings resulted from the trans-

action.

Appellant testified that he had never paid the dealer

anything for the truck, that he still had it and the certifi-

cate of title in his possession. As we read the testimony,

he attempted to defend the charges by offering his own

testimony that the truck was defective in several respects

and was not worth the price agreed upon.

Opinion, Feb. 25, 1974

Appellant offered in evidence his copies of the bank

records of the New York bank upon which the check was

drawn and such records established that he actually had

on deposit in said bank, for a substantial period before

and after the date of the check, funds sufficient to cover

the face of the check which he had given in payment of

the truck.

Appellant presents grounds one and three together in

his argument and we will consider them jointly. Ground

one contends that the evidence is insufficient to sustain

the conviction and, by ground three, he contends that the

trial court erred in overruling his motion for an instructed

verdict.

Neither party cites nor refers us to a case precisely

in point upon the question now under review. Appellant’s

cases refer to theft by false pretext by the giving of a

worthless check in payment of merchandise. E.g., Dins-

more v. State, 169 Tex. Crim. 504, 335 S.W.2d 612

(1960). Others relate to the offense of swindling. E.g.,

Jones v. State, 123 Tex. Crim. 437, 59 S.W.2d 418 (1933).

None are found to be apposite.

The State’s brief, although elaborate and lengthy, like-

wise fails to present either case or statutory authority con-

trolling the disposition of the grounds of error now under

review.

The indictment charged theft as defined in Art. 1410,

V.A.P.C., reading:

“ ‘Theft’ is the fraudulent taking of corporeal

personal property belonging to another from his pos-

session, or from the possession of some person hold-

ing the same for him, without his consent, with in-

Opinion, Feb. 25, 1974

tent to deprive the owner of the value of the same,

and to appropriate it to the use or benefit of the per-

son taking.”

The charge, which followed the pattern found in 5

Branch’s Ann. P.C. (2d ed. 1956) §2683.1 at 131, submit-

ted theft by false pretext as defined in Art. 1413, V.A.P.C.

The latter part of Art. 1413 reads: “[I]f the taking,

though originally lawful, was obtained by any false pre-

text, or with any intent to deprive the owner of the value

thereof, and appropriate the property to the use and bene-

fit of the person taking, and the same is so appropriated,

the offense of theft is complete.”

It is now well-settled that a conviction of theft by

false pretext can be had upon an indictment in ordinary

form charging felony theft as defined in Art. 1410,

V.A.P.C. Anders v. State, 171 Tex. Crim. 344, 350 S.W.

2d 549 (1961), and authorities therein cited. And, as said

in 5 Branch’s, supra, §2681, p. 127:

“The offense of theft is complete under this arti-

cle [1413] when the owner of property capable of

being stolen surrenders possession of it to one who

had the fraudulent intent to appropriate it and did

appropriate it to his own use, and the owner’s con-

sent to such fraudulent taking does not prevent the

conviction of theft.”

It was incumbent upon the State, to sustain a con-

viction of theft by false pretext, to prove beyond a reason-

able doubt that appellant obtained possession of the pick-

up truck: (a) through some pretext; (b) that the pretext

was false; (c) that there existed an intent on the part of

appellant to appropriate the truck at the time he obtained

Opinion, Feb. 25, 1974

possession thereof; and (d) he did so appropriate it to

his own benefit. Willims v. State, 152 Tex. Crim. 233, 211

S.W.2d 951, 952 (1948). Moreover, the State had the

further burden of proving there was a reliance upon the

false pretext. Womack v. State, 408 S.W.2d 119, 121

(Tex. Cr. App. 1967). See also Colaluca v. State, 494

S.W.2d 885, 886 (Tex. Cr. App. 1973).

Appellant’s argument that the evidence is insufficient

to support the conviction is stated in this manner:

“[{T ]he issue is whether the defendant promised

not to stop payment on the check and such promise

was a false one. We submit that no such proof be-

yond a reasonable doubt was presented in the instant

case. There was no proof of any verbal acts on

[the] part of the defendant; no proof of a promise.

And if an inference is to be made that there was a

promise, there is no proof that the promise was

false.”

Regrettably, appellant refrains from citation of au-

thority supporting the contention so advanced.

The general rule is announced in Dixon v. State, 152

Tex Crim. 504, 215 S.W.2d 181, 182 (1948):

“Verbal assertions or direct representation are

not required to show a false pretense or representa-

tion. Such may be shown by the conduct and acts

of the party.” (Citations omitted.)

Accord: Westover v. State, 167 Tex. Crim. 589, 322 S.W.

2d 279, 280 (1959); Luster v. State, 172 Tex. Crim. 319,

356 S.W.2d 934, 935 (1962); Hogan v. State, 393 S.W.

2d 898, 901 (Tex. Cr. App. 1965).

Opinion, Feb. 25, 1974

In his own testimony, appellant admitted obtaining

title to and possession of the truck, his issuance of the

check in payment therefor, that he requested the drawee

bank to stop payment thereon, his refusal to return the

truck or to release the stop payment order on the check,

his refusal to pay the face of the check in cash, his pres-

ent possession of the truck, and the fact that he had not

paid (in money or other thing of value) anything there-

for.

We also note that although appellant testified in de-

tail as to the transaction, at no time did he ever deny his

intent to procure title and possession of the vehicle

through the issuance of the check and then stopping pay-

ment thereon. Giving due consideration to all of the facts

enumerated above, we find the evidence sufficient to sus-

tain the conviction and grounds one and three are over-

ruled. Dixon v. State, supra, and authorities following it.

We are strengthened in this conclusion when we take

into consideration the fact that appellant had acquired

possession of another vehicle from another dealer through

the same stratagem, a matter to which we now turn.

Appellant’s second ground of error complains of the

admission of evidence of a similar crime. Upon cross-

examination, appellant was asked:

“Q. Did you ever buy another vehicle from

any other person and stop payment on the check that

you gave in payment for it?

“A. No.

“OQ. You may not have understood my ques-

tion. I’ll rephrase it. Did you buy a vehicle from

Opinion, Feb. 25, 1974

Mr. Hunter in Lufkin and give him a check for the

vehicle and then stop payment on that check?

“A. No.”

After appellant rested his case the State called R. A.

Hunter, an automobile dealer from Lufkin, and estab-

lished that in April, 1971 (a year after the transaction

here involved) , he sold a 1972 Vega to appellant, receiv-

ing his check drawn upon a Chicago bank in the amount

of $500 in part payment therefor. This check was re-

turned shortly after it was deposited with the notation

“Payment Stopped”; that he was unable to locate either

appellant or the vehicle for a long time thereafter; and,

when finally found, the vehicle had been wrecked and that

appellant had never paid him therefor.

The State offered this testimony for the limited pur-

pose of showing intent at the time appellant obtained pos-

session of the truck involved in this case. The Court so

advised the jury at the time of its admission and covered

the matter in detail in the charge.

Appellant’s objection to the receipt of the testimony

was expressed in this manner: “Objection to that. It’s

too remote. It’s irrelevant. No predicate has been laid to

establish the relevancy of it.”

Appellant cites only Jones v. State, as authority; but

there is no volume listed for the particular “Jones” case

which he has in mind and we are not disposed to read the

hundreds of Jones cases listed in Volume 40 of the Texas

Digest table of cases which bear the same title in an ef-

fort to locate the one cited.

Our record discloses that the trial court had before ©

him at the time the testimony was admitted the opinion

Opinion, Feb. 25, 1974

in O’Brien v. State, 376 S.W.2d 833, 836 (Tex. Crim.

App. 1964). There, quoting from an earlier case, the

Court said:

““*When an extraneous crime, or other transac-

tion, tends to show intent when intent is in issue,

proof of same is admissible.’ ”

In 1 Branch’s Ann. P.C. (2d ed 1956) §188, p. 200,

many cases are cited supporting the rule stated above.

The rule so enunciated is still valid. See, e.g., Blanken-

ship v. State, 448 S.W.2d 476, 480 (Tex. Cr. App.

1969).

Indeed, it appears that the testimony was admissible

for still another reason: it controverted the defensive

theory of lack of intent which found support only in

his own testimony. Cf. Frison v. State, 473 S.W.2d 479,

483 (Tex. Cr. App. 1971). Ground two is overruled.

In his fourth ground of error, appellant contends

that the trial court erred in refusing one of his requested

charges, reproduced in the margin.' The only authority

cited is Goldman v. State, 468 S.W.2d 381 (Tex. Cr. App.

1971), enunciating the well-established rule that an ac-

cused is entitled to an affirmative instruction on every de-

fensive issue raised by the evidence, even though such is-

sue is raised by his testimony alone. We readily acknowl-

edge the rule so announced, but do not find it to be ap-

plicable.

1“*Tf you find that sufficient funds were in the account of

the applicable Bank to pay the amount of the check tendered to

Helton-Hodges Motor Company, and that the defective condition

of the vehicle delivered to Defendant as consideration justified

a request that payment of the check be stopped, then you must

find the Defendant not guilty.’’ .

Opinion, Feb. 25, 1974

The charge found in our record, to which appellant

made no objection, is substantially the same charge found

in 8 Texas Practice, Criminal Forms (Morrison and Black-

well, 7th ed.) §3559, p. 564. In Dennis v. State, 420 S.W.

2d 940, 942 (Tex. Cr. App. 1967), the Court said:

“The charge as given in this case is substan-

tially in the same terms as the charge which is rec-

ommended in Willson’s Criminal Forms, Seventh

Edition, Section 3559. Without further authority we

would not be inclined to require the giving of

additional charges for the jury’s guidance.”

See also, Colaluca v. State, supra (494 S.W.2d at 887).

Judge Onion, speaking for the Court in Parks v.

State, 437 S.W.2d 554, 557 (Tex. Crim. App. 1969),

cited two key numbers to Texas Digest, along with two

cases supporting this statement.

“Further, it is well established that special re-

quested charges may be properly refused where the

instructions given by the court are adequate and fully

protect the rights of the accused.”

Moreover, appellant does not refer us to any authori-

ty supporting his major premise, that an uncommunicated

unilateral subjective determination by an accused as to

the value of property received in exchange for a check is

a defense to theft by false pretext. We find no error in

the refusal of the requested charge and ground four is

overruled.

The judgment in the case at bar orders confinement

in the state penitentiary for not less than two nor more

than six years. This appears to be an improper applica-

tion of Art. 42.09, V.A.C.C.P., (the indeterminate sen-

Opinion, Feb. 25, 1974

tence law) to the judgment rather than the sentence. The

judgment will be reformed to comply with the jury’s ver-

dict assessing a definite penalty of six years confinement

in the Texas Department of Corrections. Bradley v. State,

450 S.W.2d 847, 854 (Tex. Crim. App. 1969).

As reformed, the judgment is affirmed.

Quentin Keith,

Commissioner

(Delivered January 23, 1974)

Opinion approved by the Court

A True Copy

Attest:

Glenn Haynes, Clerk

Court of Criminal Appeals of Texas

By: Tommy [Illegible]

Deputy

ey WU) «

. : Sede OE oe Fs OE

pn Oe ee Re a

Rae tee ee

Order, Feb. 22, 1974

Trial Court No. 11,064

Filed

Feb 25 1974

R. J. Gray

District Clerk, Montgomery County, Texas

By Peggy Stevens, Deputy

The State of Texas,

To the 9th Judicial District Court of Montgomery

County—Greeting:

Before our COURT OF CRIMINAL APPEALS, on

the 20th day of February A.D. 1974, the cause upon ap-

peal to revise or reverse your Judgment between ELIJAH

W. RATCLIFF Appellant, No. 47,600

vs.

The State of Texas, Appellee, was determined; and

therein our said COURT OF CRIMINAL APPEALS made

its order in these words:

“This cause came on to be heard on the tran-

script of the record of the court below, and the same

being inspected, because it is the opinion of this Court

that there was no error in the judgment, but that

there was error in pronouncing judgment upon the

appellant, the judgment is reformed.

“TO COMPLY WITH THE JURY’S VERDICT

ASSESSING A DEFINITE PENALTY OF SIX

YEARS CONFINEMENT IN THE TEXAS DE- >

PARTMENT OF CORRECTIONS”

Order, Feb. 22, 1974

It is ordered, adjudged and decreed by the Court

that the judgment be in all things affirmed, and that

the appellant pay all costs in this behalf expended,

and that this decision be certified below for observ-

ance.”

LEAVE TO FILE APPELLANT’S MOTION FOR

REHEARING IS DENIED

WHEREFORE, We command you to observe the

order of our said COURT OF CRIMINAL APPEALS in

this behalf and in all things to have it duly recognized,

obeyed and executed.

WITNESS, the HON. JOHN F. ONION, JR., pre-

siding Judge of our said COURT OF CRIMINAL AP-

PEALS, with the Seal thereof annexed, at the City of

Austin, this 22ND day of FEBRUARY A.D. 1974.

GLENN HAYNES

Clerk.

Troy Bennett

Deputy Clerk

Ent: Vol 7, Page 492

Sentence, October 10, 1972

IN THE DISTRICT COURT OF MONTGOMERY

COUNTY, TEXAS

No. 11064

October 10, 1972

The State of Texas

vs.

Elijah W. Ratcliff

This day this cause being again called, the State ap-

peared by her District Attorney, and the defendant Elijah

W. Ratcliff, was brought into open Court in person, in

charge of the Sheriff, for the purpose of having the sen-

tence of the law pronounced in accordance with the*

verdict and judgment herein rendered and entered against

him on a former day of this term. And thereupon the

defendant Elijah W. Ratcliff- was asked by the Court

whether he had anything to say why said sentence should

not be pronounced against him and he answered nothing

in bar thereof. Whereupon the Court proceeded, in the

presence of the said defendant Elijah W. Ratcliff to pro-

nounce sentence against him as follows:

It is the order of the Court that the defendant Elijah

W. Ratcliff who has been adjudged to be guilty of Theft

and whose punishment has been assessed by the* verdict

* Insert the words applying:

Verdict of the Jury

Judgment of the Court

Sentence, October 10, 1972

of the jury at confinement in the penitentiary for Six (6)

years, be delivered by the Sheriff of Montgomery County,

Texas, immediately to the Director of Corrections of the

Texas Department of Corrections, or other person legally

authorized to receive such convicts, and the said Elijah

W. Ratcliff shall be confined in said penitentiary for a

term of not less than Two (2) years nor more than Six

(6) years in accordance with the provisions of the law

governing the penitentiaries and the Texas Department of

Corrections. And the said Elijah W. Ratcliff is hereby

remanded to jail until said Sheriff can obey the directions

of this sentence.

J. S. Holler’ in

Judge Presiding

Judgment of Conviction—Not Guilty

BE IT REMEMBERED, That on Monday, the 17th

day of July 1972, there came on and was held a regular

term of the Honorable District Court of Montgomery

County, Texas, at the Court House thereof, at Conroe,

Texas.

Present and presiding: Hon. J. S. Holleman, Judge,

Criminal District Court of Montgomery County; Ellis A.

Qualline, Jr., District Attorney; R. J. Gray, District Clerk,

and A. E. Reaves, Sheriff.

Sentence, July 26, 1972

N. 11064

July 26th, 1972

Indicted for THEFT

The State of Texas

Vs.

Elijah W. Ratcliff

THIS DAY this cause was called for trial, and the

State appeared by her District Attorney, and the Defend-

ant Elijah W. Ratcliff appeared in person and by Counsel,

and both parties announced ready for trial; and the

Defendant in open Court pleaded not guilty to the charge

contained in the Indictment herein; and thereupon a jury,

to-wit:

Fred E. Wilson and eleven others, was duly selected,

empaneled and sworn, according to law, who, having

heard the indictment read, and the defendant’s plea of

not guilty thereto; and having heard the evidence submit-

ted, and having been duly charged by the Court, retired

in charge of the proper officer, the Defendant being pres-

ent, and in due form of law returned into open Court the

following verdict, which was received by the Court, and

is here now entered upon the minutes of this Court, to-

wit:

“We the jury find the defendant Elijah W. Rat-

cliff guilty as charged.

/s/ Fred E. Wilson, Foreman”

Sentence, July 26, 1972

It is, therefore, considered and adjudged by the Court

that the Defendant Elijah W. Ratcliff is guilty of the of-

fense of Theft as found by the jury, and that he be pun-

ished, as has been determined, by confinement in the State

penitentiary for a term of Six (6) years, and that the State

of Texas do have and recover of said Defendant Elijah W.

Ratcliff all costs in the prosecution expended, for which

execution will issue, and that said Defendant be remanded

to jail to await the further order of this Court herein.

aq + 7

-onstitutional Amendments and Statutory Provisions

APPENDIX B

UNITED STATES CODE, CONST. AMEND. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or In-

dictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any per-

son be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use

without just compensation.

UNITED STATES CODE, CONST. AMEND. VIII

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.

UNITED STATE CODE, CONST. AMEND. XIII

1. Neither slavery nor involuntary servitude, except

as punishment for crime whereof the party shall have

been duly convicted, shall exist within the United States,

or any place subject to their jurisdiction.

2. Congress shall have authority to enforce this -

article by appropriate legislation.

ee CR On Ne re oe, ee EMO CT eae er

Constitutional Amendments and Statutory Provisions

UNITED STATES CODE, CONST. AMEND. XIV

1. All persons born or naturalized in the United

States, and subject to the jurisdiction 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 pro-

tection of the laws.

2. Representatives shall be apportioned among the

several States according to their respective numbers,

counting the whole number of persons in each State, ex-

cluding Indians not taxed. But when the right to vote

at any election for the choice of electors for the President

and Vice-President of the United States, Representatives

in Congress, the executive and judicial officers of a State,

or the members of the legislature thereof, is denied to any

of the male inhabitants of such State, being twenty-one

years of age, and citizens of the United States, or in any

way abridged, except for participation in rebellion or

other crime, the basis of representation therein shall be

reduced in the proportion which the number of such male

citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

3. No person shall be a Senator or Representative

in Congress, or elector of President and Vice-President,

or hold any office, civil or military, under the United

States, or under any State, who having previously taken

an oath as a member of Congress, or as an officer of the

Constitutional Amendments and Statutory Provisions

United States, or as a member of any State legislature,

or as an executive or judicial officer of any State, to sup-

port the Constitution of the United States, shall have en-

gaged in insurrection or rebellion against the same, or

given aid or comfort to the enemies thereof. But Con-

gress may, by a vote of two thirds of each house, remove

such disability.

4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in sup-

pressing insurrection or rebellion, shall not be questioned.

But neither the United States nor any State shall assume

or pay any debt or obligation incurred in aid of insurrec-

tion or rebellion against the United States, or any claim

for the loss or emancipation of any slave; but all such

debts, obligations, and claims shall be held illegal and

void.

5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

UNITED STATES CODE, CONST. AMEND. XV

1. The right of citizens of the United States to vote

shall not be denied or abridged by the United States or

by any State on account of race, color, or previous condi-

tion of servitude.

2. The Congress shall have power to enforce this

article by appropriate legislation.

Constitutional Amendments and Statutory Provisions

TITLE 28, UNITED STATES CODE, SECTION 2241

Power to Grant Writ

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdictions. The

order of a circuit judge shall be entered in the records of

the district court of the district wherein the restraint com-

plained of is had.

(b) The Supreme Court, any justice thereof, and

any circuit judge may decline to entertain an application

for a writ of habeas corpus and may transfer the applica-

tion for hearing and determination to the district court

having jurisdiction to entertain it.

a prisoner unless—

(1) He is in custody under or by color of the

authority of the United States or is committed for

trial before some court thereof; or

: (2) He is in custody for an act done or omitted

in pursuance of an Act of Congress, or an order,

process, judgment or decree of a court or judge of

the United States; or

G3) He is in custody in violation of the Con-

stitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done or

omitted under any alleged right, title, authority, priv-

ilege, protection, or exemption claimed under the

commission, order or sanction of any foreign state,

or under color thereof, the validity and effect of

which depend upon the law of nations; or

Constitutional Amendments and Statutory Provisions

(5) It is necessary to bring him into court to

testify or for trial. (As amended by the Act of May

24, 1949.) 3

TITLE 28, UNITED STATES CODE, SECTION 2242

Application

Application for a writ of habeas corpus shall be in

writing and signed and verified by the person for whose

relief it is intended or by someone acting in his behalf.

It shall allege the facts concerning the applicant’s

commitment or detention, the name of the person who has

custody over him and by virtue of what claim or authority,

if known.

It may be amended or supplemented as provided in

the rules of procedure applicable to civil actions.

If addressed to the Supreme Court, a justice thereof

or a circuit judge it shall state the reasons for not making

application to the district court of the district in which

the applicant is held.

TITLE 28, UNITED STATES CODE, SECTION 2243

Issuance of Writ; Return; Hearing; Decision

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to show

cause why the writ should not be granted, unless it ap-

pears from the application that the applicant or person:

detained is not entitled thereto.

Constitutional Amendments and Statutory Provisions

The writ, or order to show cause shall be directed

to the person having custody of the person detained. It

shall be returned within three days unless for good cause

additional time, not exceeding twenty days, is allowed.

The person to whom the writ or order is directed

shall make a return certifying the true cause of detention.

When the writ or order is returned a day shall be

set for hearing, not more than five days after the return

unless for good cause additional time is allowed.

Unless the application for the writ and the return

present only issues of law the person to whom the writ

is directed shall be required to produce at the hearing

the body of the person detained.

The applicant or the person detained may, under

oath, deny any of the facts set forth in the return or al-

lege any other material facts.

The return and all suggestions made against it may

be amended, by leave of court, before or after being filed.

The court shall summarily hear and determine the

facts, and dispose of the matter as law and justice require.

TITLE 42, UNITED STATES CODE, SECTION 198!

Equal Rights Under the Law

All persons within the jurisdiction of the United

States shall have the same right in every State and Terri-

tory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of parties.

& es a ee ee

Constitutional Amendments and Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1982

Property Rights of Citizens

All citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by white

citizens thereof to inherit, purchase, lease, sell, hold, and

convey real and personal property.

TITLE 42, UNITED STATES CODE, SECTION 1983

Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

theteof to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress. (R.S.

Sec. 1979).

TITLE 42, UNITED STATES CODE, SECTION 1984

Same; Review of Proceedings

All cases arising under the provisions of this Act in

the courts of the United States shall be reviewable by the

Supreme Court of the United States, without regard to

the sum in controversy, under the same provisions and

regulations as are provided by law for the review of other -

causes in said court.

Constitutional Amendments and Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1985

Conspiracy To Interfere With Civil Rights

(1) Preventing officer from performing duties. If

two or more persons in any State or Territory conspire

to prevent, by force, intimidation, or threat, any person

from accepting or holding any office, trust, or place of

confidence under the United States, or from discharging

any duties thereof; or to induce by like means any officer

of the United States to leave any State, district, or place,

where his duties as an officer are required to be per-

formed, or to injure him in his person or property on ac-

count of his lawful discharge thereof, or to injure his

property so as to molest, interrupt, hinder, or impede him

in the discharge of his official duties;

(2) Obstructing justice; intimidating party, wit-

ness, or juror. If two or more persons in any State or

Territory conspire to deter, by force, intimidation, or

threat, any party or witness in any court of the United

States from attending such court or from ,éstifying to any

matter pending therein freely, fully, and in any such court,

or to injure such party or witness in his person or prop-

erty on account of any verdict, presentment, or indictment

lawfully assented to by him, or of his being or having

been such juror; or if two or more persons conspire for

the purpose of impeding, hindering, obstructing, or de-

feating, in any manner, the due course of justice in any

State or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his prop-

erty for lawfully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the equal pro-

tection of the law;

Constitutional Amendments and Statutory Provisions

(3) Depriving persons of rights or privileges. If

two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immuni-

ties under the laws; or for the purpose of preventing or

hindering the constituted authorities of any State or Ter-

ritory from giving or securing to all persons within such

State or Territory the equal protection of the laws; or

if two or more persons conspire to prevent by force, in-

timidation, or threat, any citizen who is lawfully entitled

to vote, from giving his support or advocacy in a legal

manner, toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice-Presi-

dent, or as a Member of Congress of the United States;

or to injure any citizen in person or property on account

of such support or advocacy; in any case of conspiracy

set forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is in-

jured in his person or property, or deprived of having

and exercising any right or privilege, of a citizen of the

United States, the party so injured or deprived may have

an action for the recovery of damages, occasioned by such

injury or deprivation, against any one or more of the con-

spirators. (R.S. Sec. 1980).

TITLE 42, UNITED STATES CODE, SECTION 1986

Same; Action for Neglect To Prevent

Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in Sec-

Constitutional Amendments and Statutory Provisions

tion 1985 of this Title, are about to be committed, and

having power to prevent or aid in preventing the com-

mission of the same, neglects or refuses so to do, if such

wrongful act be committed, shall be liable to the party

injured, or his legal representative, for all damages caused

by such wrongful act, which such person by reasonable

diligence could have prevented; and any number of per-

sons guilty of such wrongful neglect or refusal may be

joined as defendants in the action; and if deceased shall

have such action therefor, and may recover not exceeding

$5,000 damages therein, for the benefit of the widow of

the deceased, if there be one, and if there be no widow

then for the benefit of the next of kin of the deceased.

But no action under the provisions of this section shall

be sustained which is not commenced within one year

after the cause of action accrued. (R.S. Sec. 1981).

TITLE 42, UNITED STATES CODE, SECTION 1987

Prosecution of Violation of Certain Laws

The United States attorneys, marshals, the commis-

sioners appointed by the district and territorial courts,

with power to arrest, imprison or bail offenders, and

every other officer who is especially empowered by the

President, are authorized and required at the expense of

the United States to institute prosecutions against all per-

sons violating any of the provisions of Section 1990 of

this Title or of Sections 5506 to 5516 and 5518 to 5532

of the Revised Statutes, and to cause such persons to be

arrested, and imprisoned or bailed for trial before the

court of the United States or the territorial court having

cognizance of the offense. (R.S. Sec. 1982).

Constitutional Amendments and Statutory Provisions

TITLE 42 UNITED STATES CODE, SECTION 1988

Proceedings in Vindication of Civil Rights

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons in

the United States in their civil rights and for vindication,

shall be exercised and enforced in accordance with the

laws of the United States so long as such laws are suitable

to carry the same into effect; but in all cases where they

are not adapted to the object, or are deficient in the pro-

visions necessary to furnish suitable remedies and punish

offenses against law, the common law, as modified and

changed by the constitution of the State wherein the court

having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Constitu-

tion and laws of the United States, shall be extended to

and govern the said courts in the trial and disposition of

the cause, and, if it is of a criminal nature, in the inflic-

tion of punishment on the party found guilty. (R.S.

Sec. 722).

TITLE 42, UNITED STATES CODE, SECTION 1989

Commissioners; Appointment of Persons To Execute

3 Warrants

The district courts of the United States and the dis-

trict courts of the Territories, from time to time, shall

increase the number of commissioners, so as to afford a

speedy and convenient means for the arrest and examina-

tion of persons charged with crimes referred to in Sec-

tion 1987 of this Title; and such commissioners are au-

thorized and required to exercise all the powers and duties

Constitutional Amendments and Statutory Provisions

conferred on them herein with regard to such offenses

in like manner as they are authorized by law to exercise

with regard to other offenses against the laws of the

United States. Said commissioners are empowered, with-

in their respective counties, to appoint, in writing, under

their hands, one or more suitable persons, from time to

time, who shall execute all such warrants or other process

as the commissioners may issue in the lawful performance

of their duties, and the persons so appointed shall have

authority to summon and call to their aid the bystanders

or posse comitatus of the proper county, or such portion

of the land or naval forces of the United States, or the

militia, as may be necessary to the performance of the

duty with which they are charged; and such warrants

shall run and be executed anywhere in the State or Terri-

tory within which they are issued. (R.S. Sec. 1983,

1984).

TITLE 42, UNITED STATES CODE, SECTION 1990

Marshal To Obey Precepts; Refusing To Receive or

Execute Process

Every marshal and deputy marshal shall obey and

execute all warrants or other process, when directed to

him issued under the provisions of Section 1989 of this

Title. Every marshal and deputy marshal who refuses to

receive any warrant or other process when tendered to

him, issued in pursuance of the provisions of this section,

or refuses or neglects to use all proper means diligently

to execute the same, shall be liable to a fine in the sum

of $1,000, for the benefit of the party aggrieved thereby.

(R.S. Sec. 1985, 5517).

82 Ee

Constitutional Amendments and Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1991

Fees; Persons Appointed To Execute Process

Every person appointed to execute process under

Section 1989 of this Title shall be entitled to a fee of $5

for each party he may arrest and take before any com-

missioner with such other fees as may be deemed rea-

sonable by the commissioner for any additional services

necessarily performed by him, such as attending at the

examination, keeping the prisoner in custody, and provid-

ing him with food and lodging during his detention, and

until the final determination by the commissioner; such

fees to be made up in conformity with the fees usually

charged by the officers of the courts of justice within the

proper district or county, as near as may be practicable,

and paid out of the Treasury of the United States on the

certificate of the judge of the district within which the

arrest is made, and to be recoverable from the defendant

as part of the judgment in case of conviction. (R.S. Sec.

1987).

TITLE 42, UNITED STATES CODE, SECTION 1992

Speedy Trial

Whenever the President has reason to believe that

offenses have been, or are likely to be committed against

the provisions of Section 1990 of this Title or of Section

5506 to 5516 and 5518 to 5532 of the Revised Statutes,

within any judicial district, it shall be lawful for him, in

his discretion, to direct the judge, marshal, and United

States attorney of such district to attend at such place

within the district, and for such time as he may designate, —

for the purpose of the more speedy arrest and trial of per-

Constitutional Amendments and Statutory Provisions

sons so charged, and it shall be the duty of every judge

or other officer, when any such requisition is received by

him to attend at the place and for the time therein de-

signated. (R.S. Sec. 1988).

TITLE 42, UNITED STATES CODE, SECTION 1993

(Repealed Sept. 9, 1957)

TITLE 42, UNITED STATES CODE, SECTION 1944

Peonage Abolished

The holding of any person to service or labor under

the system known as peonage is abolished and forever

prohibited in any Territory or State of the United States;

and all acts, laws, resolutions, orders, regulations, or

usages of any Territory or State, which have heretofore

established, maintained, or enforced, or by virtue of which

any attempt shall hereafter be made to establish, main-

tain, or enforce, directly or indirectly, the voluntary or

involuntary service or labor of any person as peons, in

liquidation of any debt or obligation, or otherwise, are

declared null and void. (R.S. Section 1990).

TITLE 42, UNITED STATES CODE, SECTION 1995

Criminal Contempt Proceedings; Penalties; Trial by Jury

In all cases of criminal contempt arising under the

provisions of this Act, the accused, upon conviction, shall

be punished by fine or imprisonment or both: Provided

however, That in case the accused is a natural person

the fine to be paid shall not exceed the term of six months:

84 ft

Constitutional Amendments and Statutory Provisions

Provided further, That in any such proceeding for crim-

inal contempt, at the discretion of the judge, the accused

may be tried with or without a jury: Provided further,

however, That in the event such proceeding for criminal

contempt be tried before a judge without a jury and the

sentence of the court upon conviction is a fine in excess

of the sum of $300 or imprisonment in excess of forty-

five days, the accused in said proceeding, upon demand

therefore, shall be entitled to a trial de novo before a

jury, which shall conform as near as may be to the prac-

tice in other criminal cases.

This section shall not apply to contempts committed

in the presence of the court or so near thereto as to inter-

fere directly with the administration of justice nor to the

misbehavior, misconduct, or disobedience, of any officer

of the court in respect to the writs, orders, or process of

the court.

Nor shall anything herein or in any other provision

of law be construed to deprive courts of their power, by

civil contempt proceedings, without a jury, to secure com-

pliance with or to prevent obstruction of, as distinguished

from punishment for violations of, any lawful writ, pro-

cess, order, rule, decree, or command of the court in ac-

cordance with the prevailing usages of law and equity,

including the power of detention.

V.T.C.A., BUS. & C. §2.6C1

§2.601. Buyer’s Rights on Improper Delivery

Subject to the provisions of this chapter on breach >

in installment contracts (Section 2.612) and unless other-

Constitutional Amendments and Statutory Provisions

wise agreed under the sections on contractual limitations

of remedy (Sections 2.718 and 2.719), if the goods or the

tender of delivery fail in any respect to conform to the

contract, the buyer may

(1) reject the whole; or

(2) accept the whole; or

(3) accept any commercial unit or units and

reject the rest.

(59th Legis., Ch. 721, Sec. 2—-601.) Acts 1967, 60th

Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §2.606

§2.606. What Constitutes Acceptance of Goods

(a) Acceptance of goods occurs when the buyer

(1) after a reasonable opportunity to inspect

the goods signifies to the seller that the goods are

conforming or that he will take or retain them in

spite of their non-conformity; or

(2) fails to make an effective rejection (Sub-

section (a) of Section 2.602), but such acceptance

does not occur until the buyer has had a reasonable

opportunity to inspect them; or

(3) does any act inconsistent with the seller’s

ownership; but if such act is wrongful as against the

seller it is an acceptance only if ratified by him.

(b) Acceptance of a part of any commercial unit

is acceptance of that entire unit. (59th Legis., Ch. 721,

Sec. 2—606.) Acts 1967, 60th Leg., vol. 2, p. 2343, ch.

785, §1. he

a Sn nw aaeee

86 a

Constitutional Amendments and Statutory Provisions

V.T.C.A., BUS. & C. §2.608

§2.608. Revocation of Acceptance in Whole or in

Part

(a) The buyer may revoke his acceptance of a lot

or commercial unit whose non-conformity substantially

impairs its value to him if he has accepted it :

(1) on the reasonable assumption that its non-

conformity would be cured and it has not been sea-

sonably cured; or |

(2) without discovery of such non-conformity

if his acceptance was reasonably induced either by

the difficulty of discovery before acceptance or by

the seller’s assurances.

(b) Revocation of acceptance must occur within

a reasonable time after the buyer discovers or should have

discovered the ground for it and before any substantial

change in condition of the goods which is not caused by

their own defects. It is not effective until the buyer

notifies the seller of it.

and duties with regard to the goods involved as if he had

rejected them. (59th Legis., Ch. 721, Sec. 2—608.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, $1.

V.T.C.A., BUS, & C. §2.721

§2.721. Remedies for Fraud

Remedies for material misrepresentation or fraud in-

clude all remedies available under this chapter for non-

fraudulent breach. Neither rescission or a claim for re-

Constitutional Amendments and Statutory Provisions

scission of the contract for sale nor rejection or return of

the goods shall bar or be deemed inconsistent with a claim

for damages or other remedy. (59th Legis., Ch. 721, Sec.

2—721.) Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785,

§1.

V.T.C.A., BUS. & C. §3.409

§3.409. Draft Not an Assignment

(a) A check or other draft does not of itself op-

erate as an assignment of any funds in the hands of the

drawee available for its payment, and the drawee is not

liable on the instrument until he accepts it.

(b) Nothing in this section shall affect any liability

in contract, tort or otherwise arising from any letter of

credit or other obligation or representation which is not

an acceptance. (59th Legis., Ch. 721, Sec. 3—409.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §3.417

§3.417. Warranties on Presentment and Transfer

(a) Any person who obtains payment or acceptance

and any prior transferor warrants to a person who in good

faith pays or accepts that

(1) he has a good title to the instrument or is

authorized to obtain payment or acceptance on behalf

of one who has a good title; and

(2) he has no knowledge that the signature

of the maker or drawer is unauthorized, except that

Constitutional Amendments and Statutory Provisions

this warranty is not given by a holder in due course

acting in good faith

(A) to a maker with respect to the maker’s

own signature; or

(B) to a drawer with respect to the drawer’s

own signature, whether or not the drawer is also the

drawee; or

due course took the draft after the acceptance or

obtained the acceptance without knowledge that the

drawer’s signature was unauthorized; and

(3) the instrument has not been materially

altered, except that this warranty is not given by a

holder in due course acting in good faith

(A) to the maker of a note; or

(B) to the drawer of a draft whether or not

the drawer is also the drawee; or

an alteration made prior to the acceptance if the

holder in due course took the draft after the accept-

ance, even though the acceptance provided “payable

as originally drawn” or equivalent terms; or

(D) to the acceptor of a draft with respect to

an alteration made after the acceptance.

(b) Any person who transfers-an instrument and

receives consideration warrants to his transferee and if

the transfer is by indorsement to any subsequent holder

who takes the instrument in good faith that

(1) he has a good title to the instrument or .

is authorized to obtain payment or acceptance on

ee 89

Constitutional Amendments and Statutory Provisions

behalf of one who has a good title and the transfer

is otherwise rightful; and

(2) all signatures are genuine or authorized;

and

(3) the instrument has not been materially

altered; and

| (4) no defense of any party is good against

him; and

(5) he has no knowledge of any insolvency

proceeding instituted with respect to the maker or

acceptor or the drawer of an unaccepted instrument.

‘feror limits the obligation stated in Subsection (b) (4) to

a warranty that he has no knowledge of such a defense.

(d) A selling agent or broker who does not dis-

close the fact that he is acting only as such gives the war-

ranties provided in this section, but if he makes such dis-

closure warrants only his good faith and authority. (59th

Legis., Ch. 721, Sec. 3—117.) Acts 1967 60th Leg., vol.

2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §4.303

§4.303. When Items Subject to Notice, Stop-Order,

Legal Process or Setoff; Order in Which Items May be

Charged or Certified

(a) Any knowledge, notice or stop-order received

by, legal process served upon or setoff exercised by a

payor bank, whether or not effective under other rules

of law to terminate, suspend or modify the bank’s right

Constitutional Amendments and Statutory Provisions

or duty to pay any item or to charge its customer’s ac-

count for the item, comes too late to so terminate, suspend

or modify such right or duty if the knowledge, notice,

stop-order or other legal process is received or served and

a reasonable time for the bank to act thereon expires or

the setoff is exercised after the bank has done any of the

following:

(1) accepted or certified the item;

(2) paid the item in cash;

(3) settled for the item without reserving a

right to revoke the settlement and without having

such right under statute, clearing house rule or agree-

ment;

(4) completed the process of posting the item

to the indicated account of the drawer, maker or

other person to be charged therewith or otherwise

has evidenced by examination of such indicated ac-

count and by action its decision to pay the item; or

(5) become accountable for the amount of

the item under subsection (1) (d) of Section 4.213

and Section 4.302 dealing with the payor bank’s re-

sponsibility for late return of items.

(b) Subject to the provisions of subsection (1)

items may be accepted, paid, certified or charged to the

indicated account of its customer in any order convenient

to the bank.

V.T.C.A., BUS. & C. §4.403

Customer’s Right to Stop Payment; Burden of Proof

of Loss

Ese 91

Constitutional Amendments and Statutory Provisions

(a) A customer may by order to his bank stop pay-

ment of any item payable for his account but the order

must be received at such time and in such manner as to

afford the bank a reasonable opportunity to act on it prior

to any action by the bank with respect to the item de-

scribed in Section 4.303.

aS (b) An order is binding upon the bank only if it

is in writing, dated, signed, and describes the item with

certainty. An order is effective for only six months un-

less renewed in writing.

of loss resulting from the payment of an item contrary to

a binding stop payment order is on the customer. (59th

Legis., Ch. 721, Sec. 4.403.) Acts 1957, 60th Leg., vol.

2, p. 2343, ch. 785, section 1.

VERNON’S ANN. CIV. ST., ART. 3713, RULE 5

Evidence must relate to facts in issue and to relevant

acts.

VERNON’S ANN. CIV. ST., ART. 3713, RULE 6

Facts are relevant when so connected with a fact in

issue as to form part of the same transaction or subject

matter.

VERNON’S ANN. P. C., ART. 1410

(Now Repealed)

Theft is the fraudulent taking of Corporeal personal

property belonging to another from his possession or from

Constitutional Amendments and Statutory Provisions

the possession of some person holding the same for him,

without his consent, with intent to deprive the owner of

the value of the same, and to appropriate it to the use

and benefit of the person taking. |

VERNON’S ANN. P. C., ART. 1413

(Now Repealed)

The taking must be wrongful, so that if the property

came into the possession of the person accused of theft

by lawful means, the subsequent appropriation of it is

not theft, but if the taking, though originally lawful, was

obtained by any false pretext, or with any intent to de-

prive the owner of the value thereof, and appropriate the

property to the use and benefit of the person taking, and

the same is so appropriated, the offense of theft is com-

plete.

Notice of Review and Request

APPENDIX “C”

IN THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 78-1870

Elijah W. Ratcliff,

Petitioner-Appellant

vs.

William J. Estelle, Jr., Director of the Texas Department

of Corrections,

Respondent-Appellee

NOTICE OF REVIEW AND REQUEST FOR

TRANSMITTAL OF CERTIFIED RECORD

To the Honorable United States Court of Appeals for the

Fifth Circuit and the Honorable Mark White, Attor-

ney General of Texas:

Elijah W. Ratcliff, Petitioner-Appellant, Pro Se, in

the above entitled and numbered Appeal, hereby, gives

notice that such party intends to seek a review of

the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit entered herein on the 20th

day of June, A.D., 1979, improperly refusing to reverse

Notice of Review and Request

an order by the United States District Court for the

Southern District of Texas, CA No. H-77-1542, as con-

solidated with Civ. No. 75-H-1975 from the same United

States District Court and numbered as No. 78-1870 upon

the granting of a Certificate of Probable Cause in the

more recent proceeding wherein Petitioner-Appellant, Pro

Se, sought a writ of habeas corpus against Respondent-

Appellee, William J. Estelle, Jr., Director of the Texas

Department of Corrections.

Jurisdiction for the review sought is vested by Title

28, United States Code, Section 1254(1), such review

being sought from tiie Supreme Court of the United States.

REQUEST FOR RECORD

Petitioner-Apnel!ant, Pro Se, requests the Clerk of

the United States Ccurt of Appeals for the Fifth Circuit

to certify the complete record under Appeal No. 78-1870

as filed and as recuested by the parties that such complete

record be filed ir the United States Court of Appeals for

the Fifth Circuit and transmit such complete record forth-

with to the Clerk of the Supreme Court of the United

States at Washington, D.C. 20543 for filing and proper

review.

Witness my hand this 2nd day of July, A.D., 1979.

(s) Elijah W. Ratcliff

Petitioner-Appellant, Pro Se

Elijah W. Ratcliff

P. O. Box 862

Livingston, Texas 77351

Ph. 713 327-4948

Notice of Review and Request

AFFIDAVIT OF SERVICE

State of Texas

County of Polk

Petitioner-Appellant, Pro Se, states under penalties of

perjury as if executed before a proper notary public for

such County and State that a copy o the foregoing Notice

of Review and Request for Transmittal of Certified Rec-

ord was served this 2nd day of Julv, A.D., 1979, on the

Honorable Mark White, Attorney General of Texas, Su-

preme Court Building, Austin, Texas 78711, by first class

United States Mail.

(s) Elijah W. Ratcliff

Affiant

Schedule of Abbreviations

SCHEDULE OF ABBREVIATIONS FOR RECORD

Reference to Record

Court of Criminal Appeals of

Texas on Appeal, Direct,

No. 47,600

Court of Criminal Appeals of

Texas on Application for

Writ of Habeas Corpus, No.

4624

Page

Pages

Statement of Facts from State

trial Court

Transcript

United States Court of Ap-

peals, Fifth Circuit, No. 72-

3127

United States District Court,

Southern District of Texas,

Houston Division, CA No.

75-H-1945

United States District Court,

Southern District of Texas,

Houston Division, CA No.

H-77-1542

Abbreviation

No. 47,600

Tr.

No.

72-3127,

US.C.A.,

5th Cir.

CA No.

75-H-1945,

US DC SD

CA No.

H-77-1542,

US DC SD

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.