Reply Brief — Texas v. Mixon

IN THE

SUPREME COURT OF THE UNITED STATES-...

OCTOBER TERM, 1979

* * *

NOS. 79-608 and 79-949

* * *

THE STATE OF TEXAS,

Petitioner

V.

DONALD GENE MIXON, WELDON C. DIXON,

EDITH REYNOLDS, AND RUBEN COLUNGA,

Respondents

* * *

ON WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

* * *

REPLY BRIEF FOR PETITIONER

* * *

MARK WHITE THOMAS F. LEE

Attorney General of Texas District Attorney

63rd Judicial District

JOHN W. FAINTER, JR. Del Rio, Texas 78840

First Assistant

BILL M. WHITE

TED L. HARTLEY Criminal District Attorney

Executive Assistant Bexar County

San Antonio, Texas 78204

W. BARTON BOLING

Assistant Attorney General ROLAND SAUL

Criminal District Attorney

DOUGLAS M. BECKER Deaf Smith County, Texas 79045

Assistant Attorney General

JERRY SPENCER DAVIS

P.O. Box 12548, Capitol Station District Attorney

Austin, Texas 78711 Hunt County, Texas 75401

(512) 475-3281

TABLE OF AUTHORITIES

ARGUMENT

I.

INDEX

SPEER EER EERE EERE EEE EEE EEE EEE EE HEHE HEHEHE HEHE EEE

PETITIONER SEEKS REVIEW OF A TEXAS

COURT OF CRIMINAL APPEALS DECISION

BASED SOLELY ON FEDERAL CONSTITU-

TIONAL GROUNDS

A.

The Texas Court Relied only upon Federal

Law in its Opinion

1.

The mere citation of a Texas case that

itself relied only on federal constitu-

tional law does not transmute the

holdings in these cases to ones based

ces

The existence of a Texas prohibition

against double jeopardy is not an in-

dependent state ground for decision

because it was not discussed, relied

upon, or even cited in the Texas

OPINions in these CASES ...............cseceeeseeeees

SERRE EERE EEE EERE EERE EEE EE HEE HEHEHE ERE EEE

SERRE EERE REET EEE ERE EE EEE EERE EH EES

The Texas Court of Criminal Appeals Opinion

in White v. State Is Not an Independent

and Adequate State Ground for Relief

a

A majority of the Texas Court of Crim-

inal Appeals has never endorsed the

dictum quoted by respondents Mixon

I nn hetaens

The dictum by its own terms is in-

applicable to this case, which is civil,

I a

In any event, any Texas effort to re-

strict the jurisdiction of this Court

would be ineffective by virtue of the

Supremacy Clause of the United States

CII Bircicctncisackiicatciensatan idiabiabtaaiionen

The Texas Court of Criminal Appeals

recently refused to apply White v. State

i Se I II svancactceeicecttdiietcenpiticiciesi

-ii-

INDEX, continued

II. NO RATIONAL TRIER OF FACT WOULD

HAVE ACQUITTED RESPONDENT

REYNOLDS AT HER FIRST TRIAL ....................... 8

A. The Evidence Was Amply Sufficient in

any Constitutional Sense ..................cccscccessssceeeeees 8

B. This Court Sits to Enforce the Constitu-

CORI, BE I I | ctciecctanictlsinicestinictnainnicanmunnss 9

III. THE RETROACTIVITY AND SCOPE OF

BURKS AND GREENE ARE QUESTIONS

OF NATIONAL IMPORTANCE ..................00000 oda. ae

A. Texas Is Not the only State Facing this

NN BI iccciecinttalennicbidecinnitstmntrisondioneiain )

B. To Hold Burks and Greene Prospective

Only Would Properly Allow Retrial of

Jackson v. Virginia Habeas Petitioners

Who Successfully Challenge Their

CI eccltnicectheScaaihieni sinisiinissmcapainins )

CORREA <isintsninisiniinninkticstinettiddipmabiasinitesmmninceetnaen 10

INDEX OF AUTHORITIES

CASES Page

Botsford v. White, No. 7808

eR ee 7

Burks v. United States, 437 U.S. 1 (1978) ...............cccccsssseeseseees 2, 9

California v. Krivda, 409 U.S. 33 (1972) ............ccccssccesssseesceesseees 3

Duncan v. Tennessee, 405 U.S. 127 (1972) .............ccceccsscceeeeeeees 6, 7

Ex parte Colunga, 587 S.W.2d 426

Cre Ci Bi, TI cep risttcinisteinniccnnciiseisnitinisstinhiasesinaimaaean 2

Ex parte Dixon, 583 S.W.2d 793

Ca A, TIO achcchctscteteviteetnlastichininiiaiaasnbimiaees 2

Ex parte Halford, 536 S.W.2d 230

Cee Ere Bite, I apisiesstieeaccsssncectisiscstsnaientiansinngininbbiidatadicamiaiaadamines 3

Ex parte Mixon, 583 S.W.2d 378

CRreme, Cr ten Bian, SIG ID csceninicnsissincactstesicnstenticaiessnmesctessinasnnasigeensiiaiiniaiiaiian 2

-iii-

INDEX OF AUTHORITIES, continued

Ex parte Reynolds, 588 S.W.2d 900

I II senigunsemenepbnsubonshbiibeswonsennins 2

Greene v. Massey, 437 U.S. 19 (1978) ...sccssssssssssesssssecsesesssesssssen 2,9

In ve Winship, S07 U.S. B68 (1970) ......cccceccsscosccsceresscccsscessccccssscess 8

Ivan V. v. City of New York, 407 U.S. 203

a. ccsianmunnh encdidvieniattiniadiensaevianninuibbacs 8

Jackson v. Virginia, 433 U.S. —_,

99 S.Ct. 2781 (1979) ..........0004 OEE TRE EEN 8, 9, 10

Jankovich v. Indiana Toll Road Commission,

S379 U.S. 487 (AGES) .....ccccccccscccessceees aa ae eee 7

CPE BIO, GD GIB. TUG CIB TS) oncccccnciccccccscscccesscssccccssscceeess 2,6

Pate v. Robinson, 383 U.S. 375 (1966) ....... kak Leusliciaieadcaehacshelisnienkiadts 3

Texas v. White, 423 U.S. 67 (1975) secccssssssssssssssssssssssssssssssssssssees 4,5

White v. State, 521 S.W.2d 255

SN, I si cscs <snussisschasasnuscssvesdéciseseansonsccensos 4,5, 7,8

CONSTITUTIONS

as csarusbbuansbbwinbeviombenaass 6

i so casipiesiiocanbeinseabseniiarbentsnibe 4

I ac ccercsscisuntindndcbbtenonseninossetbssinesesenss 3

a asda cesuneahevannianneidadensivabuabiioneds 5

STATUTES

aes asssbacadieladeononbeasonnsenisies 6

Tex.Code Crim.Proc. Ann. art. 38.17 (Vernon) ............cccceeeee. i)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

NOS. 79-608 and 79-949

* * *

THE STATE OF TEXAS,

Petitioner

V.

DONALD GENE MIXON, WELDON C. DIXON,

EDITH REYNOLDS, AND RUBEN COLUNGA,

Respondents

* * *

ON WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

* * *

REPLY BRIEF FOR PETITIONER

kok *

ARGUMENT

I. PETITIONER SEEKS REVIEW OF A

TEXAS COURT OF CRIMINAL

APPEALS DECISION BASED SOLE-

LY UPON FEDERAL CONSTITU-

TIONAL GROUNDS.

Respondents Mixon and Reynolds in their briefs in

opposition urge this Court to deny the petition for writ of

certiorari because the Texas Court of Criminal Appeals’

decision below rested on independent and adequate

state grounds, even though the opinions in these cases!

rely solely on federal constitutional grounds.

Respondents make three arguments in support of their

position. The first two, discussed in part A below, are

1Petitioner’s motion to consolidate all these cases is pending.

-2-

frivolous. The third, discussed in part B below, is

without merit for four reasons.

A. The Texas Court Relied only upon Federal Law

in its Opinion.

1. The mere citation of a Texas case that itself

relied only on federal constitutional law

does not transmute the holdings in these

cases to ones based on state law.

The Texas Court of Criminal Appeals has in four

recent cases granted writs of habeas corpus after

applying this Court’s decisions in Burks v. United States,

437 U.S. 1 (1978); and Greene v. Massey, 437 U.S. 19

(1978); Ex parte Reynolds, 588 S.W.2d 900 (Tex.Crim.

App. 1979); Ex parte Colunga, 587 S.W.2d 426 (Tex.

Crim.App. 1979); Ex parte Mixon, 583 S.W.2d 378 (Tex.

Crim.App. 1979); and Ex parte Dixon, 583 S.W.2d 793

(Tex.Crim.App. 1979).

In all these cases, the Texas Court of Criminal

Appeals relied solely upon its interpretation of federal

law, particularly the Fifth Amendment to the United

States Constitution, and Burks v. United States and

Greene v. Massey. In its Reynolds opinion, the Texas

court neither cited a single Texas case nor referred in

any manner to any provision of the Texas Constitution.

The entire basis of its holding is a retroactive

application of Burks and Greene -- an application here

challenged as erroneous. Under Oregon v. Hass, 420

U.S. 714 (1975), and many other authorities, this Court

has jurisdiction to review state courts’ misinterpreta-

tions of federal law.

Yet respondent Reynolds argues that, in a case not

even cited in her case, Ex parte Mixon, 583 S.W.2d 378

(Tex.Crim.App. 1979), the Texas Court of Criminal

Appeals in a footnote to the opinion “indicated state law

was considered.” (Brief in Opposition, manuscript at 6).

es

Respondent Mixon of course relies also upon this

footnote in the same way. (Brief in Opposition,

manuscript at 5). The incredible basis upon which

respondents make this assertion is that in that footnote,

the Texas Court of Criminal Appeals cited, in addition

to four decisions of this Court, an earlier state decision

that had held Pate v. Robinson, 388 U.S. 375 (1966),

retroactive. That state decision, Ex parte Halford, 536

S.W.2d 230 (Tex.Crim.App. 1976), itself cited no state

law, but only interpreted the federal constitution. Thus,

this case is unlike California v. Krivda, 409 U.S. 33

(1972), where the Court was unable to determine

whether the state decision were based solely on federal

grounds because of the California Supreme Court’s

citation of one of its prior decisions that “relied

specifically upon both the state and federal provisions.”

Id. at 35 (emphasis added).

Respondents’ apparent opinion is that any time a state

court cites a state decision in an opinion construing the

federal Constitution, review by this Court is barred

because there is an adequate and independent state

ground for granting relief. The assertion is frivolous.

2. The existence of a Texas prohibition

against double jeopardy is not an

independent state ground for decision,

because it was not discussed. relied upon,

or even cited in the Texas opinions in these

cases.

Respondents correctly point out that the Texas

Constitution contains an independent prohibition

against double jeopardy. Tex. Const. art. 1, §14. At the

same time, respondents do not dispute that the Texas

Court of Criminal Appeals has never discussed, relied

upon, or even cited the Texas constitutional prohibition

in any of these four double jeopardy cases. Instead,

respondents’ meritless contention is that the mere

existence of these possibly alternate state bases for

-4-

denial of relief -- depending upon the unknown interpre-

tation the Texas Court of Criminal Appeals might give

them -- bars review by this Court.

Numerous states have independent strictures against

search and seizure, coerced confessions, double

jeopardy, fair trials, and the like. If respondents were

correct, then any state which had promulgated such an

independent prohibition would by the mere enactment

of such a statute insulate its federally-based decisions

from Supreme Court review, even though the state

courts themselves did not rely upon, discuss, or even cite

any state basis for that decision. To state this proposition

is to refute it.

B. The Texas Court of Criminal Appeals Opinion

in White v. State Is Not an Independent and

Adequate State Ground for Relief.

In White v. State, 521 S.W.2d 255 (Tex.Crim.App.

1974), the Texas Court of Criminal Appeals on direct

appeal reversed a judgment of conviction on the ground

that the police search resulting in incriminating

evidence was illegal under the Fourth Amendment to

the United States Constitution. The State of Texas

petitioned this Court for writ of certiorari, which was

granted. In Texas v. White, 423 U.S. 67 (1975), this Court

reversed the judgment of the Texas Court of Criminal

Appeals and held, on the basis of the same federal

authorities misconstrued in the court below, that the

search was valid. Accordingly, the decision of the Court

of Criminal Appeals was reversed, and the case

remanded to that court for further proceedings not

inconsistent with the opinion. 423 U.S. at 68-69.

On remand, the Court of Criminal Appeals upheld the

conviction in light of this Court’s holding. The Court

declined to apply that portion of the Texas Constitution

prohibiting unreasonable searches and seizures -- Tex.

Const. art. 1, §9 -- to invalidate the search in that case.

——

-5-

In addition, two of the then five judges of the Court of

Criminal Appeals stated in a dictum that the State of

Texas should not have sought a petition for writ of

certiorari in this Court in the first place. It is that

dictum relied upon by respondents.

1. A majority of The Texas Court of Criminal

Appeals has never endorsed the dictum

quoted by respondents.

A minority of the judges of the Court of Criminal

Appeals in White v. State quoted Tex. Const. art. 5, §26,

“The State shall have no right of appeal in criminal

cases,” and concluded that Texas officials had violated

that provision of the state constitution by seeking a

petition for writ of certiorari in the case. A majority of

the court refused to concur in the dictum. A majority of

the Court of Criminal Appeals, in fact, has never >

espoused that view. The membership of the Texas Court

of Criminal Appeals has since expanded to nine

members. Only two of the nine have ever expressed the

view, and those two have not repeated it since White v.

Texas was decided in 1976.

2. The dictum by its own terms is

inapplicable to this case, which is civil, not

criminal.

The White v. State plurality stated that the state

should not seek review by appeal or writ of certiorari

from that court to this Court in any criminal case. The

plurality cited several sources for its clearly articulated

definition of a criminal case:

A “criminal case” is defined to be an action,

suit, or cause instituted to secure a.conviction in

punishment for crime, or to punish an

infraction of the criminal law.

White v. State, 543 S.W.2d at 368. Clearly, White‘itself

was within this definition because it was a direct appeal

6.

from the judgment of conviction.

None of the habeas corpus applications in these cases

is within the ambit of this definition. All are habeas

corpus petitions. Thus, not one is a suit or cause

instituted by the state to secure conviction and

punishment for crime. Instead, each is a suit or cause

instituted by a convicted criminal defendant to

invalidate a conviction and evade punishment for crime.

For that reason, the cases are civil, not criminal, under

the only authoritative definition in Texas law of a

a case” as that term is used in Tex. Const. art. 5,

3. In any event, any Texas effort to restrict

the jurisdiction of this Court would be

ineffective by virtue of the Supremacy

Clause of the United States Constitution.

As explained above, there is no barrier in Texas law to

filing the petition for writ of certiorari in this case. Even

if there were, the instant writ of certiorari is authorized

by 28 U.S.C. §1257(3). If state law purports to forbid an

act and federal law operates to allow it, the latter

controls under the Supremacy Clause of the United

States Constitution:

This Constitution, and the Laws of the United

States which shall be made in Pursuance there-

of ... shall be the supreme Law of the Land; and

the Judges in every State shall be found

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

U.S. Const. art. VI.

In any event, it is more than a little difficult to see how

respondents’ argument, even if true, would be sufficient

to constitute an adequate and independent state ground

for the decision in the court below as that term has been

defined in Oregon v. Hass, 420 U.S. 714 (1975); Duncan

wR Bt ones ie Rhine Stat NED a RE

a a 2

v. Tennessee, 405 U.S. 127 (1972); Jankovich v. Indiana

Toll Road Commission, 379 U.S. 487 (1965), or any other

case. An independent ground for decision refers to a

ground for deciding the merits of the case. Here,

respondents refer to no independent basis for the

decision in their cases, but only for an allegedly inde-

pendent state ground precluding this Court’s review of

the merits of those cases. For the reasons above stated,

the argument is without merit.

4. The Texas Court of Criminal Appeals

recently refused to apply White v. State to

these very cases.

In the paragraphs above, Petitioner has argued that a

majority of the Texas Court of Criminal Appeals has

never and would never disapprove the filing of the

petitions for writ of certiorari in these habeas corpus

cases. Recently that opinion was vindicated.

On February 8, 1980, an application for writ of

prohibition and/or writ of mandamus, Botsford v. White,

No. 7808, was filed in the Texas Court of Criminal

Appeals. For substantially identical reasons to those

enumerated in respondents’ briefs in opposition in these

cases, the application alleged that the State of Texas was

without authority under Texas law to file the petitions

for writ of certiorari in these cases, Texas v. Mixon &

Dixon, No. 79-608, and Texas v. Reynolds & Colunga,

No. 79-949. (A certified copy of the application is on file

in the office of the Clerk of this Court, Hon. Michael

Rodak.)

By a margin of 6-3, the Court of Criminal Appeals on

February 13, 1980, refused to order the State of Texas to

refrain from taking any action in furtherance of the

petitions for writ of certiorari [in these cases] or to seek

withdrawal of these petitions for writ of certiorari. (A

certified copy of this order is on file with Mr. Rodak, and

is also attached hereto as Appendix A.)

-8-

Petitioner is confident that the entire White v. State

argument would in any event have been given short

shrift by this Court. Now that the Texas courts

themselves have rejected respondents’ position, it is

entitled to no consideration whatsoever.

Il. NO RATIONAL TRIER OF FACT

COULD HAVE ACQUITTED RE-

SPONDENT REYNOLDS AT HER

FIRST TRIAL?

A. The Evidence Was Amply Sufficient in any

Constitutional Sense.

Petitioner does not dispute that the Constitution

requires proof beyond a reasonable doubt of every

element of an offense. E.g., Ivan V. v. City of New York,

407 U.S. 203 (1972); In re Winship, 397 U.S. 358 (1970).

But the constitutional test for determining upon collat-

eral attack whether this burden was met at a criminal

defendant’s trial is established in Jackson v. Virginia,

443 US. — 99 S.Ct. 2781 (1979). In a habeas corpus

action, the evidence at trial is constitutionally sufficient

unless it is concluded that no rational trier of fact could

have found guilt beyond a reasonable doubt.

The petition for writ of certiorari herein establishes

that at respondent Reynolds’s first trial, “her daughter’s

vivid, detailed account of how her mother and another

man had murdered her step-father” (Petition at 13) was

augmented by a large quantity of circumstantial

evidence (Petition at 3-4 n.3). It is obvious that a rational

trier of fact could have found respondent Reynolds

guilty of every element of the offense of murder beyond a

reasonable doubt.

Only respondent Reynolds has challenged the merits of

Petitioner’s argument that the Burks-Greene cases should be

applied prospectively only. (Brief in Opposition, manuscript at 10-

12.) Consequently, this portion of the brief is directed only at her

arguments.

-9-

B. This Court Sits to Enforce the Federal

Constitution, not Texas Law.

In spite of the necessity for the reversal of

respondent’s initial conviction for insufficient evidence

to corroborate the accomplice witness testimony under

Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon), the

Texas Court of Criminal Appeals for the reasons stated

above erred in construing Burks and Greene as

mandating acquittal rather than retrial. As a matter of

federal constitutional law, the evidence at respondent’s

trial was not insufficient. Thus, to order acquittal on the

basis of Burks and Greene is an erroneous application of

those cases. Texas law entitled respondent to retrial

rather than acquittal prior to the holdings in these

Texas double jeopardy cases. All those cases erroneously

interpret Burks and Greene as mandating acquittal. The

error should be corrected by this Court.

III. THE RETROACTIVITY AND SCOPE

OF BURKS AND GREENE ARE

QUESTIONS OF NATIONAL

IMPORTANCE.

A. Texas Is Not the only State Facing this

Troublesome Issue.

Respondents complain that the state has not

established the national importance of this legal issue.

They criticize the failure of the state to set forth reliable

statistical substantiation of the actual number of

persons who might be affected by holding Burks and

Greene retroactive. It requires no particular

clairvoyance to perceive that it is likely that other

jurisdictions in addition to Texas are facing the problem

of proper disposition of successful habeas applications

in these circumstances.

B. To Hold Burks and. Greene Prospective only

would Properly Allow Retrial of Jackson v.

-10-

Virginia Habeas Petitioners who Successfully

Challenge their Convictions.

Respondents criticize the possible collateral

consequence referred to by Petitioner as “beg[ging] this

Court’s complicity in the harassment of a second trial.”

(Reynolds’s Brief in Opposition, manuscript at 14;

Mixon’s Brief in Opposition, manuscript at 10). With all

due respect, Petitioner is at a loss to understand how a

successful habeas petitioner under Jackson v. Virginia

could complain of “harassment” at a second trial that he

himself obtained by virtue of challenging the

sufficiency of the evidence at his first trial. A habeas

petitioner could avoid the emotional trauma, expense,

and harassment of the second trial by the simple

expedient of electing not to challenge the first trial. The

choice is no different from that faced by any convicted

defendant who must decide whether to appeal his

conviction.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the decisions of the Texas Court of Criminal

Appeals.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

THOMAS F. LEE

JOHN W. FAINTER, JR. District Attorney

First Assistant 63rd Judicial District

Del Rio, Texas 78840

TED L. HARTLEY

Executive Assistant

ROLAND SAUL

W. BARTON BOLING Criminal District Attorney

Assistant Attorney General Deaf Smith County, Texas 79045

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

xs

BILL M. WHITE

Criminal District Attorney

Bexar County

San Antonio, Texas 78204

JERRY SPENCER DAVIS

District Attorney

Hunt County, Texas 75401

APPENDIX A

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DAVID L. BOTSFORD,

Petitioner it

\(

VS. « ORIGINAL APPLICA-

x TION FOR WRIT OF PRO-

MARK WHITE, X HIBITION AND/OR

Attorney General, « WRIT OF MANDAMUS

Respondent \

ORDER

On this 11th day of February, 1980, came to be

considered by the Court of Criminal Appeals an

Original Application for Writ of Prohibition and/or

Writ of Mandamus presented to this Court by

Petitioner, David L. Botsford. Said Application was not

accompanied by a motion for leave to file same; but this

Court has considered such application in the nature of a

motion for leave to file and is of the opinion that said

motion for leave to file said application should be denied.

Therefore, it is ORDERED, ADJUDGED and

DECREED by the Court of Criminal Appeals that said

application for Writ of Prohibition and/or Writ of

Mandamus, considered as a motion for leave to file

same, as aforesaid, be, and it is hereby, in all things

denied.

It is so ordered this 18th day of February, 1980.

PER CURIAM

En Bane

Onion, P.J., Roberts, J., and Clinton, J. dissent.