# Petition — Ratcliff v. Estelle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 868

## Text

| 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+°°°

i

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

ii

%

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

oo

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

vi

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

|
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i
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‘

8
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.

10
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.

11
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

12
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).

14
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,

15
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

16
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-

17
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.

18
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

19
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-

20
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

21
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

22
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

23
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

24
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,-

25
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-

:
}
;
;
;

26
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

27
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-

28
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.

29
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.

30
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

31
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

32
Opinion, Court of Appeals

APPENDIX A

Elijah W. Ratcliff,
Petitioner-Appellant,

V.

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

33
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.

34
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

35
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.

36
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,

37
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.

38
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,

V.

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

41
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

42
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

43
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

44
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;

45
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

46

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-

47
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

48
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.

49
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

50
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

51
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

52
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

53
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

V.

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.

55
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.

56
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-

57
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

58
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).

59
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

61
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.’’ .

62
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-

63
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”

65
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
or
Judgment of the Court

67
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.

68
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”

69
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

71
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

72
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.

73
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.

(c) The writ of habeas corpus shall not extend to
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

74
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.

75
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

76
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.

77
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;

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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-

79
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).

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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

81
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-

83
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0613%3A1. Public record. Not legal advice.