Petition — Estelle v. French

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

W.J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

¥.

RAY FRENCH,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JIM MATTOX

CHARLES A. PALMER

Attorney General of Texas Assistant Attorney General

DOUGLAS M. BECKE

R P.O. Box 12548, Capitol Station

Assistant Attorney General Austin, Texas 78711

Acting Chief,

Enforcement Division

(512) 475-3281

Attorneys For Petitioner

="

QUESTION PRESENTED

IS A FEDERAL HABEAS CORPUS PETITIONER

WHO DESIRES RELIEF GREATER THAN THAT

ACCORDED BY THE DISTRICT COURT RE-

QUIRED BY RULE 4(a)(3), FEDERAL RULES OF

APPELLATE PROCEDURE, TO FILE NOTICE OF

CROSS-APPEAL?

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

INDEX OF AUTHORITIES ii

OPINIONS BELOW Ve l

Po 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ; 2

STATEMENT OF THECASE ............. 2

SUMMARY OFARGUMENT.......... 6

REASONS FOR GRANTING THE WRIT 7

I. THERE ARE SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT : 7

Il. RESPONDENT'S FAILURE TO FILE NOTICE

OF CROSS-APPEAL BARS HIM FROM APPELLATE

REVIEW OF HIS CLAIM THAT THE EVIDENCE

IS INSUFFICIENT TO SUSTAIN HIS LIFE

SENTENCE AS AN HABITUAL CRIMINAL ..9

CONCLUSION ............ ara eee eee a rei

-iii-

INDEX OF AUTHORITIES

Cases Page

Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1981),

cert. granted, US. , 102 S.Ct. 2927

RL Pinte RRS Ae, Ser St Se? Str an co

Burks v. United States, 437 U.S. 19(1978) .................. 11

Dandridge v. Williams, 397 U.S. 471,(1970) ..................8

Duriso v. K-Mart No. 4195, 559 F.2d 1274

RR Ras, AR Chane od aie ta popes Ope a ee

Federal Energy Administration v. Algonquin SNG.,

EES boca vicxevBe baan wee cose Bebe codes 4

Greene v. Massey, 437 U.S. 19 (1978) ....... BPN ret ll

Helvering v. Pfeiffer, 302 U.S. 238 (1937) ................... 10

LeTulle v. Scofiela, 308 U.S. 415 (1940) ...........0..0..40.., 10

Mills v. Electric Auto-Lite Co., 396 U.S. 375

DN Roo occ 5 ces fa od EAE Dodie Cece) Usd Kem Te 4

Morley Construction Co. v. Maryland Casualty Co.,

I IS ros occ acaemce Gok est he ee kas eee )

Singleton v. Wulff, 428 U.S. 106 (1976) ..................... 11

Stachulak v. Coughlin, 520 F.2d 931 (7th Cir. 1975)

cert. denied, 424 U.S. 947(1976) ............... erring 7

Weingart v. Allen & O'Hara, Inc., 654 F.2d 1096,

SE MIs cay cence ed he vewen Siew owen 4

Statutes and Rules

SP COS acct Treas cuca ard nacniteetd 2

Rule 4(a)(3), Federal Rules of Appellate Procedure ........ passim

Rule 42(b), Federal Rules of Appellate Procedure.............. 8

-iv-

Tex. Penal Code Ann. § 12.42(d)(Vernon) _..

Other Authorities

J. Moore, B. Ward & Lucas, 9 Moore's Federal

Practice paragraph 204.11[3}, at 4-45 (2d ed. 1982)

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

W.J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

RAY FRENCH,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

The Petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit entered in this

case on December 6, 1982, rehearing en banc denied on

December 29, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 592

F.2d 1021, reh. denied, F.2d (5th Cir., Dec.

29, 1982). (Appendices B and C). On January 6, 1983,

the court entered an amended order denying Petitioner's

suggestion or rehearing en banc (Appendix A). The

report and recommendation of the United States

Magistrate, adopted by the district court, appears as

Appendix D.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on December 6, 1982. A

timely filed petition for rehearing en banc was denied on

December 29, 1982. This petition for certiorari is filed

within sixty days after final judgment in this case. This

Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Rule 4(a)(3), Federal Rules of Appellate Procedure,

provides as follows:

If a timely notice of appeal is filed by a party,

any other party may file a notice of appeal

within 14 days after the date on which the first

notice of appeal was filed or within the time

otherwise prescribed by this Rule 4(a),

whichever period last expires.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below

Petitioner has lawful custody of Respondent pursuant

to a judgment and sentence of the 47th District Court of

Potter County, Texas, in Cause No. 17,037-A, styled The

State of Texas v. Ray French. Respondent was charged

with the offense of burglary, to which he entered a plea

of not guilty. Respondent was tried by a jury, which on

-3-

March 3, 1976, found him guilty of the offense charged.

The jury also found two prior convictions alleged for

enhancement of punishment to be true, and the court

assessed Respondent's punishment at imprisonment for

life. Respondent’s conviction was affirmed by the Texas

Court of Criminal Appeals on January 16, 1980. French

v. State, No. 57,881. Respondent filed three applica-

tions for state writ of habeas corpus challenging this

conviction, and they were denied by the Court of

Criminal Appeals on June 11, 1980; October 11, 1980;

and January 28, 1981. Ex parte French, Application

No. 9228.

On January 29, 1981, Respondent filed a petition for

writ of habeas corpus in the federal district court.

French v. Estelle, No. CA2-81-016. On February 9,

1982, the district court adopted the magistrate’s recom-

mendation finding appellate counsel ineffective and

granted the writ of habeas corpus. The order of the

district court provided that ‘‘the State of Texas should

have the opportunity to retry petitioner [Respondent

herein] for the offense of burglary and, at the option of

the state, with the prior convictions being alleged in the

indictment for enhancement purposes.” Petitioner gave

timely notice of appeal. Respondent did not file notice

of cross-appeal.

After Petitioner’s brief was filed in the Court of Ap-

peals, counsel was appointed for Respondent and filed a

brief in his behalf. Therein, counsel argued that the

evidence was insufficient to support Respondent's life

sentence as an habitual offender and that ‘‘the district

court’s order should be modified to bar resentencing

under Section 12.42(d)’’ (Respondent’s Brief at

28). Likewise, the conclusion in Respondent’s Brief

stated that the order granting the writ should “be

modified to preclude resentencing of Petitioner under

Section 12.42(d)’’ (Brief at 29). In his reply brief, Peti-

tioner pointed out that Respondent’s failure to file

of

notice of cross-appeal barred review of his claim that the

evidence was insufficient to support his life sentence

(Reply Brief at 6-7). The panel opinion disposed of this

point in a footnote:

The State, relying on Federal Energy Ad-

ministration v. Algonquin SNG, Inc., 426 U.S.

548, 560 n.11, 96 S.Ct. 2295, 2302 n.11, 49

L.Ed.2d 49 (1976); Mills v. Electric Auto-Lite

Co., 396 U.S. 375, 381 n.4, 90 S.Ct. 616, 620 n.4,

24 L.Ed.2d 593 (1970); and Duriso v. K-Mart

No. 4195, 559 F.2d 1274, 1278 (5th Cir. 1977),

contends that the question of the insufficiency

of the evidence is not properly before this court,

since the petitioner did not cross-appeal the

district court’s decision. We have consistently

held, however, that an appellee, without cross-

appealing, ‘‘may rely upon any basis in the

record in support of the judgment,”’ whether or

not the trial court reached the issue on the

merits or simply ignored it. Weingart v. Allen

& O'Hara, Inc., 654 F.2d 1096, 1106 (5th Cir.

1981); see also, J. Moore, B. Ward & J. Lucas, 9

Moore’s Federal Practice 4204.11[3], at 4-45 (2d

ed. 1982). The cases cited by the State are inap-

posite as they involved requests for a modifica-

tion or a reversal of specific holdings by the

courts below. We may affirm the district

court’s grant of habeas corpus relief on any

ground supported by the record.

Appendix C at 8 n.5. In denying Petitioner's sug-

gestion of rehearing en banc, which reurged this argu-

ment, the Court of Appeals held that notice of cross-

appeal is not required where the record reflects ‘‘a clear

violation of the law ...’’ (Appendix A at 3).

-5-

B. Statement of Facts

The panel opinion accurately summarizes the facts

which supported the district court’s grant of habeas

relief.

The petitioner was indicted for burglary. The

indictment also alleged, for the purpose of

enhancement of the sentence, two prior felony

convictions: a 1964 conviction and a 1966 con-

viction, both for theft of over $50.00. A jury

found the petitioner guilty of the primary of-

fense alleged in the indictment.

At the sentencing phase of the petitioner's

trial, the State attempted to punish him as an

habitual offender under section 12.42(d) of the

Texas Penal Code, Tex. Penal Code Ann.

§12.42(d) (Vernon 1974). The State introduced

into evidence two pen packets from the Texas

Department of Corrections. The pen packets

revealed that the petitioner had been sentenced

on November 25, 1974, for theft of over $50.00

and sentenced on November 9, 1966, also for

theft of over $50.00. While these exhibits

showed the respective dates on which the two

convictions had been obtained, neither exhibit

specified the date on which the peitioner had

committed the offense that led to the second

conviction. No other evidence was presented to

the jury showing the date on which the second

offense occurred. The jury found the allega-

tions concerning the two prior convictions to be

‘true’ and the district court sentenced the peti-

tioner to a term of life in the state penitentiary.

The petitioner's trial attorney did not com-

plain of the State's failure to prove the date on

which the second offense occurred. Similarly,

6-

he did not raise the issue in the petitioner's ap-

peal to the Texas Court of Criminal Appeals.

The petitioner submitted a supplemental pro se

brief to the state appellate court claiming that

the evidence was insufficient to support his

sentence and that he had been denied effective

assistance of counsel. The Court of Criminal

Appeals disposed of the petitioner's claims,

stating that they had examined both grounds

of error and found them to be without merit.

French then filed three pro se applications for a

writ of habeas corpus in state court, all of which

were denied.

Appendix C at 4-5.

SUMMARY OF ARGUMENT

The district court found appellate counsel ineffective

and held that the State could retry Respondent as an

habitual offender, again alleging the same two prior con-

victions for enhancment purposes. In challenging the

sufficiency of the evidence on punishment on appeal,

Respondent sought greater relief than that accorded by

the district court, ie, that the State be barred from

again using the prior conviction as to which he argued

the evidence was insufficient. Thus, under well settled

precedent, Respondent's failure to file notice of cross-

appeal as required by Rule 4(a)(3}, Federal Rules of Ap-

pellate Procedure, barred him from review of this claim.

The issue in question—the applicability of double

jeopardy decisions to the punishment phase of a

criminal trial—is one soon to be decided by this Court in

Estelle v. Bullard, No. 81-1774. There is, therefore, no

substance to the Court of Appeals’ reasoning that notice

of cross-appeal is not required when there is ‘‘a clear

violation of the law."’

Je

REASONS FOR GRANTING THE WRIT

I,

THERE ARE SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT

The Court of Appeals for the Fifth Circuit has

disregarded controlling decisions of this Court and clear-

ly misapplied a rule of appellate procedure. Further, the

decision of the Fifth Circuit is in direct conflict with the

decision of the United States Court of Appeals for the

Seventh Circuit in Stachulak v. Coughlin, 520 F.2d 931

(7th Cir. 1975), cert. denied, 424 U.S. 947 (1976). In the

instant case, the district court found appellate counsel

ineffective and held that the State could retry Respon-

dent as an habitual offender, again alleging the same

two prior convictions for enhancment purposes. In

challenging the sufficiency of the evidence on punish-

ment on appeal, Respondent obviously sought greater

relief than that accorded by the court below, i.e., that the

State be barred from again using the prior conviction as

to which he argued the evidence was insufficient. Thus,

under well settled precedent, Repondent was required

by Rule 4(a)(3), Federal Rules of Appellate Procedure, to

file notice of cross-appeal. The parties agreed that

Respondent was seeking a modification of the district

court's judgment and the panel opinion seemingly so

recognized:

The magistrate should, however, have reached

a determination of the petitioner's claim of in-

sufficiency of the evidence before he considered

the alleged ineffectiveness of counsel precisely

because of the double jeopardy implications in-

volved. The double jeopardy clause would pro-

hibit the resentencing of petitioner under sec-

tion 12.42(d) if the State failed to provide suffi-

cient evidence of habitual offender status at the

-8-

first trial. Bullard v. Fstelle, 665 F.2d 1347 (5th

Cir. 1981), cert. granted, US. , 102

S.Ct. 2927, 73 L.Ed.2d 1328 (1982). Therefore,

a decision to grant the writ on the grounds of in-

sufficiency of the evidence as to one of the

‘“priors’’ covered in his indictment would have

spared the petitioner the necessity of having to

go through a second enhancement to life pro-

ceeding on the basis of that prior.

Appendix C at 6-7. The Fifth Circuit also held that

the failure to file notice of cross-appellee did not bar

review of Petitioner's claim of insufficient evidence

because the Court of Appeals ‘‘may affirm the district

court’s grant of habeas relief on any ground supported

by the record.” Appendix C at 8 n.5.

In Stachulak, the Seventh Circuit affirmed the

district court's grant of habeas relief, as in this case, but

refused to consider a separate ground raised by the peti-

tioner and rejected by the district court:

Stachulak also challenges the Sexually

Dangerous Persons Act as void for vagueness

and overbreadth in violation of the Fourteenth

Amendment's Due Process and Equal Protec-

tion Clauses. This attack was rejected by the

district court, and respondents contend that

Stachulak is barred from raising the issue in

this court due to his failure to maintain a cross-

appeal. Initially, Stachulak had filed a cross-

appeal, but on his own motion this was dismiss-

ed pursuant to Rule 42(b), F.R.A.P. Now, he

relies on the rule that an appellee may urge any

ground of record of the lower court's judgment.

Dandridge v. Williams, 397 U.S. 471, 475-76,

n.6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

-9-

The judgment of the district court ordered

that if the state did not bring a renewed com-

mitment proceeding within 60 days, Stachulak

was to be enlarged. If Stachulak were to

prevail on his contention that the statue is un-

constitutional he would be entitled to his

freedom instanter and could not be subject to a

renewed commitment proceeding. It is plain

therefore that he is not merely attempting to

support the judgment but rather to expand his

rights under the decree. Accordingly, in the

absence of a properly maintained cross-appeal,

the statute's constitutionality is not before us.

520 F.2d at 937 (footnote omitted).

Because Stachulak cannot be harmonized with the ins-

tant case, this Court should grant certiorari to resolve

this conflict between the circuits.

RESPONDENT'S FAILURE TO FILE NOTICE OF

CROSS-APPEAL BARS HIM FROM APPELLATE

REVIEW OF HIS CLAIM THAT THE EVIDENCE IS

INSUFFICIENT TO SUSTAIN HIS LIFE

SENTENCE AS AN HABITUAL CRIMINAL

The court below held in its original opinion that notice

of cross-appeal is not required because its opinion mere-

ly affirmed rather than modified the judgment of the

district court. There are at least two flaws in this

reasoning. First, it is logically impossible for a court to

“affirm” a point of law which was specifically pretermit-

ted by the court below. Second, the result reached is at

odds with any number of decisions of this Court and the

Fifth Circuit. Particularly illustrative is Morley Con-

struction Co. v. Maryland Casualty Co., 300 U.S. 185

(1937), in which the district court held a surety was

-10-

entitled to exoneration but not specific performance.

Even though the surety did not file notice of cross-

appeal, the court of appeals concluded that specific per-

formance was proper. In reversing the court of appeals,

this Court reasoned as follows:

The substitution of specific performance for ex-

oneration at the instance of the surety was not

in affirmance of the decree below, as if the

reasons only had been changed with the deci-

sion standing firm. Alike in substance and in

form there was a modification of the decree

itself, the facts being found anew and different-

ly, the law declared anew and differently, and

the relief remodeled and adapted to the new law

and the new facts. Without a cross-appeal, an

appellee may “‘urge in support of a decree any

matter appearing in the record, although his

argument may involve an attack upon the

reasoning of the lower court or an insistence

upon matter overlooked or ignored by it.’’ What

he may not do in the absence of a cross-appeal is

to “attack the decree with a view either to

enlarging his own rights thereunder or of

lessening the rights of his adversary, whether

what he seeks is to correct an error or to supple-

ment the decree with respect to a matter not

dealt with below.”

300 U.S. at 190-91 (citation omitted).

To the same effect are LeTulle v. Scofield, 308 U.S.

415 (1940) and Helvering v. Pfeiffer, 302 U.S. 238 (1937),

in which the Court held that the failure of the respon-

dent to file cross-petition barred review of his claim that

certain items were improperly excluded from taxation

since that claim, if sustained, would result in greater

liability than that assessed in the court below. In light

of the reasoning of these cases, it is impossible to

understand the Fifth Circuit's holding that Respondent

did not seek a modification of the judgment of the court

below.

The amended order of the Court of Appeals denying

Petitioner's suggestion of rehearing relied on dicta in

Singleton v. Wulff, 428 U.S. 106 (1976) to the effect that

a federal appellate court may resolve an issue not passed

on below ‘‘where the proper resolution [was] beyond any

doubt...or where ‘injustice might otherwise result."’’ 428

U.S. at 121. In Singleton, however, this Court expressly

held that the Court of Appeals had erred in deciding an

issue not resolved by the district court. Further, the in-

stant case is patently not one in which the legal issue

pretermitted by the district court is well settled. The

ground upon which the Fifth Circuit granted relief in-

volves the applicability of Burks v. United States, 437

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

to the punishment phase of a criminal trial, an issue to

be decided by this Court in Estelle v. Bullard, No.

81-1774.' Thus, the Fifth Circuit was clearly incorrect in

asserting that there was no doubt as to the merits of this

contention,

1. On January 17, 1983, the Court entered an order vacating the

judgment and remanding this case to the Fifth Circuit for con-

sideration in light of Ex parte Augusta, _. SW2d 2

(Tex.Crim.App. 1982).

-] 2-

CONCLUSION

For these reasons, Petitioner prays that the petition

for certiorari to the United States Court of Appeals for

the Fifth Circuit issue.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DOUGLAS M. BECKER

Assistant Attorney General

Acting Chief,

Enforcement Division

CHARLES PALMER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys For Petitioner

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1116

RAY FRENCH,

Petitioner-Appellee,

versus

W.J. ESTELLE, JR., Director,

Texas Department of Corrections,

Respondent-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(AMENDED JANUARY 6, 1983)

Before RUBIN, RANDALL and JOLLY, Circuit

Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the peti-

tion for panel rehearing is DENIED. No member of the

panel nor Judge in regular active service of this Court

A-2

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16), the suggestion for rehear-

ing en banc is DENIED.

In its suggestion for rehearing en banc, the state

reiterates its contention that under Fed. R. App. P. 4(a),

this court was precluded from considering the peti-

tioner’s double jeopardy claim because of his failure to

file a cross-appeal. We rejected this claim in the panel

opinion, French v. Estelle, No. 82-1116, slip op. at 947

n.5 (5th Cir. Dec. 6, 1982), on the ground that we could

affirm the district court’s grant of habeas corpus relief

on the basis of any claim supported by the record. The

state maintains that we have not simply affirmed the

district court’s decision, but have modified that decision

to enlarge the petitioner’s rights under the writ. See

Stachulak v. Coughlin, 520 F.2d 931 (7th Cir. 1975), cert.

denied, 424 U.S. 947 (1976).

We take this opportunity to elaborate further on our

comments in the earlier opinion. It is well established

that an appellate court is not precluded from consider-

ing an issue not properly raised below in a civil pro-

ceeding, if manifest injustice would otherwise result. In

Singleton v. Wulff, 428 U.S. 106 (1976), the Supreme

Court stated that a federal appellate court would cer-

tainly be justified in resolving an issue that was not

passed on below ‘“‘where the proper resolution [was]

beyond any doubt ... or where ‘injustice might otherwise

result.’’’ 428 U.S. at 121 (citations omitted). In Empire

Life Insurance Co. v. Valdak Corp., 468 F.2d 330, 334

(5th Cir. 1972), we held that “‘it is well established that

as a matter of discretion, an appellate court could pass

upon issues not pressed before it or raised below where

the ends of justice will best be served by doing so,’’ and

that this court has a “duty to apply the correct

law.’’ (citations omitted) (emphasis in original) See also

Thorton v. Schweiker, 663 F.2d 1312, 1315 (5th Cir.

A-3

1981) (rule that court will not consider issue not raised

below on appeal is not inflexible and gives way to pre-

vent a miscarriage of justice); Weingart v. Allen &

O'Hara, Inc., 654 F.2d 1096, 1101 (5th Cir. 1981) (rule

that appellate court will consider only errors of which

appellant specifically complains is not inflexible); Mar-

tinez v. Matthews, 544 F.2d 1233, 1237 (5th Cir. 1976)

(rule requiring issues to be raised below ‘‘can give way

when a pure question of law is involved and a refusal to

consider it would result in a miscarriage of justice’’).

The considerations that allow us to reach an issue not

raised below also allow us to reach an issue of law in a

habeas case that was raised below and argued and brief-

ed to this court, where our resolution of that issue is

necessary to prevent a miscarriage of justice. The state

in this case failed to prove the proper chronology of the

prior offenses needed to enhance the peititioner’s

sentence to life imprisonment under Tex. Penal Code

Ann. § 12.42(d) (Vernon 1974). As discussed in our

earlier opinion, the bringing of a second enhancement-to-

life proceeding, under section 12.42(d) on the basis of the

same ‘‘priors,’’ would result in a clear violation of the

double jeopardy clause of the United States Constitu-

tion. Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1981),

cert. granted, US. , 102 S.Ct. 2927

(1982). See also Ex Parte Augusta, 639 S.W.2d 481

(Tex. Crim. App. 1982) (en banc) (adopting the same in-

terpretation of the Texas Constitution). If we were to

refuse to affirm, on the basis of the double jeopardy

claim, the district court’s decision to grant the writ, we

would be closing our eyes to a clear violation of the law

and to a denial of the petitioner’s constitutional rights.

In the contest of this appeal from the district court's

grant of habeas relief, rule 4(a) does not preclude our

review of the petitioner’s claim. The petitioner raised

this claim in both his direct criminal appeal and in the

habeas corpus proceedings in state and federal court.

Ac

The district court recognized the probability of a double

jeopardy violation, but granted the writ on the ground

of ineffective assistance of appellate counsel. The state

then filed this appeal. The petitioner did not file a cross-

appeal, possibly because the writ had been granted. We

note further that the petitioner was pro se until counsel

was appointed to represent him on appeal. As we

originally stated, slip op. at 947 n.5, the petitioner may

urge the appellate court to affirm the district court's

decision on any ground raised below. Weingart, supra.

The only difference in this case is that the cvilateral con-

sequence of affirming the writ on double jeopardy

grounds prohibits the state from bringing a second

enhancement-to-life proceeding on the basis of the prior

conviction insufficiently proven during the first pro-

ceeding.

Under all these circumstances, where the double

jeopardy violation is clear, and where we are affirming

the district court's decision to grant habeas relief to a

pro se petitioner, we hold that the failure to file a cross-

appeal does not preclude our review of the constitutional

claim.

B-1

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1116

RAY FRENCH,

Petitioner-Appellee,

versus

W.J. ESTELLE, JR., DIRECTOR,

Texas Department of Corrections,

Respondent-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 12/6/82, 5 Cir., 198 ; _F.2d ).

(December 29, 1982)

Before RUBIN, RANDALL and JOLLY, Circuit

Judges.

PER CURIAM:

( X ) Treating the suggestion for rehearing en banc

as a petition for panel rehearing, it is ordered that the

B-2

petition for panel rehearing is DENIED. No member

of the panel nor Judge in regular active service of this

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the suggestion

for Rehearing En Banc is DENIED.

( ) Treating the suggestion for rehearing en banc

as a petition for panel rehearing, the petition for panel

rehearing is DENIED. The judges in regular active ser-

vice of this Court having been polled at the request of

one of said judges and a majority of said judges not hav-

ing voted in favor of it (Rule 35, Federal Rules of Ap-

pellate Procedure; Local Fifth Circuit Rule 16), the sug-

gestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Carolyn Denise Randall

United States Circuit Judge

CLERK’S NOTE:

SEE RULE 41 FRAP AND

LOCAL RULE 17 FOR STAY

OF THE MANDATE

Cl

APPENDIX C

Ray FRENCH, Petitioner-Appellee,

if

W.J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellant.

No. 82-1116.

United States Court of Appeals,

Fifth Circuit.

Dec, 6, 1982.

State of Texas appealed from an order of the United

States District Court for the Northern District of Texas,

Mary Lou Robinson, J., granting a writ of habeas corpus

to petitioner. The Court of Appeals, Randall, Circuit

Judge, held that: (1) in view of fact that chronology of

commission of prior felonies is an essential element of

enhanced sentence statute, state's failure to introduce

any evidence of date on which second prior felony alleg-

ed for purpose of enhancement was committed would

result in granting writ of habeas corpus to petitioner on

grounds that petitioner's life sentence was not sup-

ported by sufficient evidence, and (2) where petitioner

was once subjected to an enhancement proceeding

where state failed to produce sufficient evidence of

habitual offender status to support a life sentence, dou-

ble jeopardy clause barred second trial-like enhancement

proceeding on basis of the one prior felony insufficiently

proven at earlier trial.

Affirmed.

1. Criminal Law - 163

Double jeopardy clause would prohibit resentencing of

a defendant under habitual offender statute if state fail-

ed to provide sufficient evidence of habitual offender

status at first trial. U.S.C.A. Const. Amend. 5;

V.T.C.A., Penal Code § 12.42(d).

2, Criminal Law - 161

Where a habeas corpus petitioner's allegations raised

possiblity of a violation of double jeopardy clause, court

must reach merits of his claim if it is to protect peti-

tioner’s right not to be subjected to hazards of trial and

possible conviction more than once for an alleged of-

fense. U.S.C.A. Const.Amend. 5.

3. Habeas Corpus - 113(12)

In reviewing habeas corpus petitioner's application

for relief on grounds of insufficiency of evidence at

sentencing phase, Court of Appeals is not bound by

state appellate court's affirmance of sentence.

4. Habeas Corpus - 90

While a state appellate court's judgment affirming a

defendant's sentence in state court is entitled to federal

courts’ deference, federal courts have a duty to make

their own determination of sufficiency of evidence in a

federal habeas corpus challenge.

5. Habeas Corpus - 113(12)

Court of Appeals’ standard of review in habeas corpus

proceeding of sufficiency of evidence at sentencing

phase to sustain life sentence as an habitual offender is

whether record demonstrates that no rational trier of

fact could have found beyond a reasonable doubt facts

necessary to support life sentence.

6. Criminal Law - 1202(1)

Chronology of commission of prior felonies is an essen-

tial element of enhanced sentence statute. V.T.C.A.,,

Penal Code § 12.42(d).

7. Habeas Corpus - 85.5(15)

In view of fact that chronology of commission of prior

felonies is an essential element of enhanced sentence

statute, state’s failure to introduce any evidence of date

on which second prior felony alleged for purpose of

enhancement was committed would result in granting

writ of habeas corpus to petitioner on grounds that peti-

tioner’s life sentence was not supported by sufficient

evidence. V.T.C.A., Penal Code § 12.42(d).

8. Criminal Law - 163

Where petitioner was once subjected to an enhance-

ment proceeding in which state failed to produce suffi-

cient evidence of habitual offender status to support a

life sentence, double jeopardy clause barred second trial-

like enhancement proceeding on basis of the one prior

felony insufficiently proven at earlier trial. V.T.C.S.,

Penal Code § 12.42(d).

Appeal from the United States District Court for the

Northern District of Texas.

Before RUBIN, RANDALL and JOLLY, Circuit

Judges.

The State of Texas has appealed the United States

District Court's decision granting a writ of habeas cor-

pus to the petitioner, Ray French. The petitioner re-

quested habeas corpus relief on the grounds that he was

denied effective assistance of counsel at both his state

C4

trial and on appeal and that the state trial court's deci-

sion to enhance his sentence was based on insufficient

evidence. The district court granted the writ on the

claim of ineffective assistance of counsel on appeal. We

affirm the district court's decision on the basis of the

petitioner's claim of insufficiency of the evidence to sup-

port his sentence.

I, FACTS AND PROCEDURAL BACKGROUND.

The petitioner was indicted for burglary. The indict-

ment also alleged, for the purpose of enhancement of the

sentence, two prior felony convictions: a 1964 conviction

and a 1966 conviction, both for theft of over $50.00. A

jury found the petitioner guilty of the primary offense

alleged in the indictment.

At the sentencing phase of the petitioner's trial, the

State attempted to punish him as an habitual offender

under section 12.42(d) of the Texas Penal Code, Tex.

Penal Code Ann, § 12.42(d) (Vernon 1974).' The State in-

1, Section 12.42 of the Texas Penal Code, which sets forth the

penalties for repeat and habitual felony offenders, provides:

(a) If it be shown on the trial of a third-degree felony

that the defendant has been once before convicted of any

felony, on conviction he shall be punished for a second-

degree felony.

(b) If it be shown on the trial of a second-degree felony

that the defendant has been once before convicted of any

felony, on conviction he shall be punished for a first-

degree felony.

(c) If it be shown on the trial of a first-degree felony

that the defendant has been once before convicted of any

felony, on conviction he shall be punished by confinement

in the Texas Department of Corrections for life, or for any

term of not more than 99 years or less than 15 years.

(footnote continued on following page)

C-5

troduced into evidence two pen packets from the Texas

Department of Corrections. The pen packets revealed

that the petitioner had been sentenced on November 25,

1974, for theft of over $50.00 and sentenced on

November 9, 1966, also for theft of over $50.00. While

these exhibits showed the respective dates on which the

two convictions had been obtained, neither exhibit

specified the date on which the petitioner had commit-

ted the offense that led to the second conviction. No

other evidence was presented to the jury showing the

date on which the second offense occurred. The jury

found the allegations concerning the two prior convic-

tions to be ‘‘true’’ and the district court sentenced the

petitioner to a term of life in the state penitentiary.

The petitioner's trial attorney did not complain of the

State’s failure to prove the date on which the second

prior offense occurred. Similarly, he did not raise the

issue in the petitioner’s appeal to the Texas Court of

Criminal Appeals. The petitioner submitted a sup-

plemental pro se brief to the state appellate court claim-

ing that the evidence was insufficient to support his

sentence and that he had been denied effective

assistance of counsel. The Court of Criminal Appeals

disposed of the petitioner's claims, stating that they had

examined both grounds of error and found them to be

without merit. French then filed three pro se applica-

tions for a writ of habeas corpus in state court, all of

which were denied.

(footnote continued from previous page)

(d) If it be shown on the trial of any felony offense that

the defendant has previously been finally convicted of

two felony offenses, and the second previous felony con-

viction is for an offense that occurred subsequent to the

first previous conviction having become final, on convic-

tion he shall be punished by confinement in the Texas

Department of Corrections for life.

Tex. Penal Code Ann. § 12.42 (Vernon 1974).

C-6

II. INSUFFICIENCY OF THE EVIDENCE.

In a carefully reasoned opinion, the federal

magistrate, who originally heard the petitioner's claims,

recognized that the State had failed to produce suffi-

cient evidence of the petitioner's habitual offender

status under section 12.42(d) of the Texas Penal Code,

Tex. Penal Code Ann. § 12.42(d) (Vernon 1974), during

the sentencing phase of the petitioner's trial. The

State’s evidence demonstrated that the petitioner had

been convicted of the second felony after he was con-

victed of the first, but there was no evidence that he had

committed the second felony after the conviction for the

first became final, as required by the statute. See

Hickman v, State, 548 S.W.2d 736 (Tex.Cr.App.1977);

Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976).

The magistrate, however, recommended that the

district court grant the writ of habeas corpus on the

basis of the petitioner's claim of ineffective assistance of

appellate counsel, rather that on the evidentiary claim.

He suggested this disposition of the case in order to

avoid the double jeopardy implications involved in a fin-

ding of insufficiency of the evidence. See Burks uv.

United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1

(1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

L.Ed.2d 15 (1978). The district court then granted the

writ on the recommended grounds, co:ditioned on the

State’s failure to demand a new trial within ninety days

of its order.’

[1,2] The magistrate should, however, have reached a

determination on the petitioner’s claim of insufficiency

2. Although the error relates to punishment only, Texas law does

not allow a court to reform the sentence or remand for a new trial

solely on punishment where the jury originally assessed the punish-

ment. Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977).

C-7

of the evidence before he considered the alleged inef-

fectiveness of counsel precisely because of the double

jeopardy implications involved. The double jeopardy

clause would prohibit the resentencing of the petitioner

under section 12.42(d) if the State failed to provide suffi-

cient evidence of habitual offender status at the first

trial. Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1981),

cert. granted, U.S. , 102 S.Ct. 2927, 73

L.Ed.2d 1328 (1982).’ Therefore, a decision to grant the

writ on the grounds of insufficiency of the evidence as to

one of the ‘‘priors’’ covered in his indictment would have

spared the petitioner the necessity of having to go

through a second enhancement to iife proceeding on the

basis of that prior.‘ Where a habeas petitioner's allega-

3. After our decision in Bullard, the Texas Court of Criminal Ap-

peals reexamined its prior holdings and agreed that failure of proof

of prior convictions at an enhancement proceeding creates a double

jeopardy bar as a matter of federal law, Cooper v. State, 631 S.W.2d

508 (Tex.Cr.App.1982) (en banc), specifically overruling its decision

in Bullard v, State, 533 S.W.2d 812 (Tex.Cr.App.1976), and Porier v,

State, 591 S.W.2d 482 (Tex.Cr.App. 1980). In Cooper, as in

French's case, the State had failed to prove the date on which the se-

cond prior felony had been committed. The Texas Court of Criminal

Appeals held that this failure of proof constituted failure by the

State to produce evidence sufficient to support a life sentence and

that the State should be denied a second opportunity to prove what

it had failed to prove initially. 631 S.W.2d at 514, Furthermore,

the Court of Criminal Appeals has recently held, on facts similar to

those at issue here and in Cooper, that the double jeopardy clause of

the Texas constitution, Article I, sections 14 and 19, as well as the

United States Constitution, bars a retrial at either the punishment

or guilt stage of trial, where ‘‘the evidence is found lacking in the

resolution of factual issues presented..."’

Ex Parte Augusta, 639 S.W.2d 481 at 485 (Tex.Cr.App. Oct. 6,

1982) (en banc). Thus, the Texas courts have held that the Texas

constitution provides an independent state ground for barring the

relitigation of factual issues insufficiently presented at an earlier

enhancement proceeding.

4. See note 7, infra.

C-8

tions raise the possibility of a violation of the double

jeopardy clause, the court must reach the merits of his

claim if it is to provect the petitioner's right not to be

“subjected to the hazards of trial and possible convic-

tion more than once for an alleged offense,’ Greene v.

United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2

L.Ed.2d 199 (1957), which the prosecution has initially

failed to prove. Burks, supra.’

[3-5] We note at the outset that, in reviewing the peti-

tioner’s application for habeas corpus relief on the

grounds of insufficiency of the evidence at the sentenc-

ing phase, we are not bound by the state appellate

court’s affirmance of the petitioner's sentence in French

v. State, 592 S.W.2d 638 (Tex.Cr.App.1980). While a

state appellate court’s judgment affirming a

defendant’s sentence in state court is entitled to our

deference, the federal courts have a duty to make their

own determination of the sufficiency of the evidence in a

federal habeas corpus challenge. See Jackson v.

5. The State relying on Federal Energy Administrative v. Algon-

quin SNG, Inc., 426 U.S. 548, 560 N.11, 96 S.Ct. 2295, 2302 n.11, 49

L.Ed.2d 49 (1976); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 381

n. 4, 90 S.Ct. 616, 620 n. 4, 24 L.Ed.2d 593 (1970); and Duriso v.

K-Mart No. 4195, 559 F.2d 1274, 1278 (5th Cir. 1977), contends that

the question of the insufficiency of the evidence is not properly

before this court, since the petitioner did not cross-appeal the

district court's decision. We have consistently held, however, that

an appellee, without cross-appealing, ‘‘may rely upon any basis in

the record in support of the judgment,’’ whether or not the trial

court reached the issue on the merits or simply ignored it. Weingart

v. Allen & O'Hara, Inc., 654 F.2d 1096, 1106 (5th Cir, 1981); see also

J. Moore, B. Ward & J. Lucas, 9 Moore's Federal Practice

§204.11[3], at 4-45 (2d ed. 1982). The cases cited by the State are in-

apposite as they involved requests for a modification or a reversal of

specific holdings by the courts below. We may affirm the district

court’s grant of habeas corpus relief on any ground supported by

the record.

C-9

Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61

L.Ed.2d 560 (1979). Our standard of review is whether

the record demonstrates that no rational trier of fact

could have found beyond a reasonable doubt the facts

necessary to support the life sentence. Jd.’

[6-7] As the court below found, the record in this case

definitively shows that the State introduced no evidence

of the date on which the second prior felony alleged for

the purpose of enhancement was committed. The

chronology of the commission of the prior felonies is an

essential element of section 12.42(d). See Hickman,

supra; Wiggins, supra. The jury could not possibly have

found the proper chronology of prior convictions re-

quired for a life sentence under section 12.42(d) where

the State produced no evidence of the date on which the

second felony was committed. Accordingly, we must af-

firm the district court’s grant of habeas corpus relief, on

the grounds that the petitioner’s life sentence was not

supported by sufficient evidence.

[8] We hold further, as required by our prior decision

in Bullard, supra, that because the petitioner was once

subjected to an enhancement proceeding where the

State failed to produce sufficient evidence of habitual of-

6. Jackson v. Virginia involved a challenge to a criminal convic-

tion where the standard of proof of beyond a reasonable doubt is

constitutionally mandated, Jn re Winship, 397 U.S. 358, 90 S.Ct.

1068, 25 L.Ed.2d 368 (1970), while the petitioner here challenges the

constitutionality of his sentence. The Texas courts have held,

however, that the State must prove the facts necessary to support a

life sentence, as well as the facts relating to the defendant's guilt,

beyond a reasonable doubt. Ex Parte Augusta, supra; Jackson v.

State, 571 S.W.2d 1, 2 (Tex.Cr.App1978). Therefore, we may

assume that the Jackson v. Virginia standard of review is applicable

to the petitioner's claim that there was insufficient evidence to sup-

port his sentence as an habitual offender under section 12.42(d).

C-10

fender status to support a life sentence, the double

jeopardy clause bars a second trial-like enhancment pro-

ceeding on the basis of the one prior felony insufficiently

proven at the earlier trial.’ In light of our holding that

the writ should have been granted on the grounds that

there was insufficient evidence to support the

petitioner’s enhanced life sentence, we need not reach

the question of whether French was denied effective

assistance of counsel during the sentencing and ap-

pellate phases of his trial.

That portion of the district court’s decision granting a

writ of habeas corpus unless the State elects to retry the

peitioner within ninety days is accordingly

AFFIRMED.

7. The State, alleging that the petitioner has quite a number of

prior felony convictions, seeks the opportunity to prove the commis-

sion of a different prior felony by the petitioner at a second enhance-

ment proceeding. While none of the cases have specifically dealt

with the question raised by the State, the language in the prior opi-

nions of both this court and the Texas Court of Criminal Appeals

suggests that the double jeopardy clause bars the State from bring-

ing any enhancement proceeding for the purpose of obtaining a life

sentence under section 12.42(d), where the State has previously fail-

ed to prove its case under section 12.42(d) in an earlier

proceeding. See Bullard, 665 F.2d at 1349; Ex Parte Augusta, 639

S.W.2d at 485; Cooper, 631 S.W.2d at 508; Ex Parte Martin,

S.W.2d , No. 67,540, slip op. (Tex.Cr.Apy April 29,

1981) (en banc) (rehearing pending).

The State has, in effect, asked us to give an advisory opinion,

since it has not yet attempted to prove these other alleged prior

felonies in state court. As the State itself points out, the Texas

courts have not even specifically addressed the question whether

the State may subject the petitioner to a second enhancement to life

proceeding on the basis of a different ‘‘prior."’ Accordingly, the

question is more appropriately left to the state courts to determine

in the first instance.

D-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

RAY FRENCH,

Petitioner,

V. CA2-81-16

W.J. ESTELLE, JR..,

DIRECTOR,

TEXAS DEPARTMENT

OF CORRECTIONS,

COP COP CO? COP COP CO? GO? G2 Q2 LO LI LP

Respondent

REPORT AND RECOMMENDATION

Petitioner, Ray French, is a state prisoner by virtue of

judgment and sentence of the 47th District Court of

Potter County, Texas, in cause number 17,075A. After

trial commencing on March 3, 1976, petitioner was

found guilty under an indictment charging him with the

felony offense of burglary with two prior felony convic-

tions alleged for enhancement purposes. On March 19,

1976, the trial judge sentenced peititioner to life im-

prisonment as an habitual criminal in Texas Depart-

ment of Corrections. The Court of Criminal Appeals of

Texas affirmed the conviction by its per curiam opinion

French v. State, SW2d (No. 57,881, January

16, 1980).

Petitioner has filed application for writ of habeas cor-

pus pursuant to 28 U.S.C. §2241, et seq. and is pro-

D-2

ceeding in forma pauperis. Liberally construing his pro

se pleadings he contends that (1) the judgment and

sentence in the primary case are constitutionally invalid

and the evidence is insufficient to support the conviction

as an habitual criminal, because the prosecution failed

to prove that the second prior conviction alleged for

enhancement purposes was committed subsequent to

the first prior conviction alleged for enhancement pur-

poses as required by Texas Penal Code §12.42(d); (2) he

was denied effective assistance of counsel at trial

because the court appointed attorney failed to require

the state to produce evidence to prove that the second

prior conviction used for enhancement purposes was

committed subsequent to the first prior enhancing con-

viction; and (3) he was denied effective assistance of

counsel on appeal by the failure of the attorney to raise

the issue that the evidence was insufficient to prove that

the second prior conviction used for enhancement pur-

poses was committed subsequent to the first prior

enhancing conviction.

The statement of facts of the trial, the transcript of all

state court proceedings, and the per curiam opinion of

the Court of Criminal Appeals of Texas have been filed

as exhibits in this proceeding. Those records reflect that

petitioner had filed, pro se, a supplemental brief with

the Court of Criminal Appeals on direct appeal on

September 28, 1979, advancing the first and third

challenges which are contained in the application now

before the court. The appellate court had discussed the

issues raised by the attorney on appeal, but disposed of

petitioner’s pro se brief with the following notation:

“Appellant also advances two pro se grounds of

error. We have examined each and find both to be

without merit.”

Petitioner has filed at least three applications for writ

of habeas corpus in the trial court. In the first applica-

tion for writ of habeas corpus he raised the issue that the

D-3

judgment and sentence in the primary case is void for

the reason that the state failed to produce evidence that

the second prior conviction used for enhancment pur-

poses was committed susequent to the time that the

first prior conviction used for enhancment purposes had

become final. He included in that application a brief of

authorities supporting his contention. The trial judge

did not address the issue raised by petitioner, but

entered order on May 22, 1980, finding that ‘‘the peti-

tioner was rendered effective assistance of counsel” and

directing the clerk to forward certain records to the

Court of Criminal Appeals. The Court of Criminal Ap-

peals denied the application without written order on

June 11, 1980.

Petitioner then filed application for writ of habeas cor-

pus in the trial court, attacking the effectiveness of the

attorney at trial and on appeal, because counsel did not

raise the issue that the state failed to make the

necessary proof that the offense which resulted in the se-

cond conviction used for enhancement purposes occur-

red subsequent to the date the first prior conviction

became final. The trial judge entered order in identical

terms with the order on the first application and on Oc-

tober 1, 1980, the Court of Criminal Appeals denied the

application without written order on the findings of the

trial court without hearing.

Petitioner’s third application for writ of habeas corpus

in the trial court essentially iterated the sufficiency of

evidence contentions. No order was entered by the trial

judge and the Court of Criminal Appeals of Texas

denied the application without written order on January

28, 1981. Petitioner has exhausted available state

remedies.

The indictment charged as the primary offense that

petitioner had committed the offense of burglary on

November 23, 1975. It alleged further that prior to

D-4

November 23, 1975, the alleged date of commission of

the primary offense, petitioner had been, on November

25, 1964, in cause number 12446 in the 47th District

Court of Potter County, Texas, convicted for the felony

offense of theft over fifty dollars and that after the con-

viction in cause number 12446 had become final peti-

tioner committed the offense of felony theft and was

convicted of that offense on November 9, 1966, in cause

number 1633 in the 47th District Court of Randall Coun-

ty, Texas.

The indictment, therefore, attempted to punish peti-

tioner for repetition of criminal conduct as is authorized

by Texas Penal Code §12.42(d), providing:

“If it be shown on the trial of any felony offense

that the defendant has previously been finally

convicted of two felony offenses, and the second

previous felony conviction is for an offense that

occurred subsequent to the first previous con-

viction having become final, on conviction he

shall be punished by confinement in Texas

Department of Corrections for life.’’ (emphasis

added.)

Thus §12.42(d) requires the prosecution to prove that

the second previous felony conviction alleged for

enhancement purposes was committed after the first

previous conviction became final. Porier v. State, 591

SW2d 482 (Tex. Crim. 1979); Hickman v. State, 548

SW2d 736 (Tex. Crim. 1977); Wiggings v. State, 539

SW2d 142 (Tex. Crim. 1976). That requirement had also

been the consistent holding of the Court of Criminal Ap-

peals under former Penal Code Art. 63, the predecessor

to §12.42(d). Tyra v. State, 534 SW2d 695 (Tex. Crim.

1976), Kessler v. State, 514 SW2d 260 (Tex. Crim. 1974);

Hutchinson v. State, 481 SW2d 881 (Tex. Crim. 1972);

Lee v. State, 400 SW2d 909 (Tex. Crim. 1966); Rogers v.

State, 325 SW2d 697 (Tex. Crim. 1959). The construc-

D-5

tion placed by the courts of the State of Texas on Texas

Penal Code §12.42(d) mandated that before the second

felony conviction alleged for enhancement purposes

could be so used it was necessary that proof be adduced

that it was committed after the first previous conviction

alleged for enhancment purposes became final.

The state failed to meet the burden. During the

punishment phase of the bifurcated trial the ‘‘pen

records”’ of the two prior convictions were received into

evidence after proving identity by fingerprint com-

parisons. However, the indictment initiating the pro-

secution for each of the prior convictions was not offered

into evidence nor was there any proof adduced by other

means which established when each of the offenses

resulting in the two prior convictions occurred. Those

records reflected the dates when petitioner was con-

victed on each of the prior offenses, the date when he

was sentenced on each of them, his admission date at

Texas Department of Corrections, the date each

sentence began, and the maximum and minimum expira-

tion dates. Those records do not show, however, the

crucial date which would prove that the second previous

felony conviction is for an offense that occurred subse-

quent to the first previous conviction having become

final.

Petitioner has been frustrated in his attempts to raise

the issue in the state courts. First, the appellate court

found it unworthy of discussion when he attempted to

raise it, pro se, on direct appeal. When he tried to raise

it collaterally by application for writ of habeas corpus

the trial judge did not address the issue, but treated the

matter as if it were an attack on the effectiveness of

counsel, Even in this application for writ of habeas cor-

pus the state has not addressed the issue. The Attorney

General in brief in support of respondent's motion to

dismiss has treated the issue as one covered by the

Wainwright v. Sykes doctrine which would have re-

D-6

quired petitioner to object to the introduction of those

prior convictions at the time they were offered. The

defect is not in the exhibits which were received in

evidence, but in the fact that there was absolutely no

proof offered as to when the second prior conviction was

committed. That proof is more than a mere procedural

rule,

One could argue that notwithstanding that the ap-

pellate courts in Texas have construed the statute as re-

quiring that missing proof it does not necessarily mean

that the insufficiency issue here involved rises to con-

stitutional dimensions. I am not cognizant of any case

where a Jackson v. Virginia' analysis has been extended

to this precise issue, although I perceive no valid basis

why Jackson v. Virginia should not be applicable.

Pretermitting resolution on that basis, and thus

avoiding the concomitant problem of Greene v. Massey,

437 U.S. 19 (1978) which prohibits a second trial once a

reviewing court determines that there was insufficient

evidence to support a verdict of guilty to the charged of-

fense, there is another reason why the application for

writ of habeas corpus should be granted.

The ‘“‘white horse”’ case in law is often discussed, but

rarely found. Something approaching a white horse

case exists to support the conclusion that petitioner was

denied effective assistance of counsel.

As I have indicated above this case was tried on

March 3, 1976. Petitioner was represented by Fred

Leach, an attorney in Amarillo, The District Attorney

was Tom Curtis, although one of his assistants tried the

case, The trial judge was District Judge Bryan Poff, Jr.

1, 443 U.S, 307 (1979)

D-7

On March 30, 1977, the Court of Criminal Appeals of

Texas had delivered its opinion in another case from

Potter County, Texas in Hickman v. State, 548 SW2d

736. It reversed the conviction and remanded the case

on the precise issue raised by petitioner in this case, that

is, that there was no evidence in the record which

reflected that the offense resulting in the second convic-

tion alleged for enhancement purposes was committed

after the first enhancing conviction became final. The

appeal was from Potter County, Texas, and the trial

judge in that case was Bryan H. Poff, Jr., the District

Attorney was Tom Curtis, and the attorney for

Hickman was Fred Leach. Each of the principals (excep-

ting the defendant) in the Hickman case, where the

cause was reversed and remanded, is the same as in the

French case. There is nothing in the Hickman case

which indicates when that case was tried,’ or when it

was briefed on appeal, so one cannot say with authority

that Leach had already tried the Hickman case and was

thus cognizant of that precise issue at the time he tried

the French case on March 3-4, 1976. However, the

Court of Criminal Appeals of Texas entered order on Oc-

tober 28, 1977, extending to November 9, 1977, the time

in which petitioner should file his brief on appeal. It

entered another order on November 10, 1977, extending

the time to December 1, 1977, in which the brief should

be filed. Hickman had been decided on March 30,

1977. Thus the attorney was well aware of the possible

applicability of the Hickman case and failed to raise that

issue. The prejudice to petitioner is

apparent. Although it had nothing to do with guilt or

innocence on the primary case the use of that second

enhancing conviction was the one thing which converted

the case to one of mandatory life imprisonment from a

much lesser penal sanction.

2. However, the opinion in the Hickman case was delivered

almost three years prior to the appellate opinion in the French case.

D-8

Ordinarily the effectiveness of counsel is not deter-

mined on one defect, but the full spectrum of the

representation is considered. The default in this case is

so critical and damaging, however, that it requires that

petitioner have the requested relief.

I recommend that the application for writ of habeas

corpus be granted.

The clerk is directed to file this Report and Recom-

mendation and to send a copy of it to petitioner and a

copy to the attorneys for respondent. Any party may

object to the proposed findings and to the recommenda-

tion within ten days after having been served with a

copy thereof. Such party shall file with the clerk of the

court, and serve on the Magistrate and on all parties,

written objections which shall specifically identify the

portions of the findings, recommendation, or report to

which objection is made and shall set out fully the basis

for each such objection,

Recommended this 7th day of May, 1981.

/s/ Bill H. Brister