# Reply Brief — Texas v. Mixon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1088%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1980 - **Citation:** 445 U.S. 919 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1088%3A2. Public record. Not legal advice.