Petition for a Writ of Certiorari — Donald v. Jones

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. os AR 3!

JULIAN J. DONALD,

Petitioner

Vv.

CLARENCE JONES,

Sheriff of Dallas County, Texas,

Respondent

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

Hume Cofer

1408 Capital National Bank Bldg.

Austin, Texas 78701

Counsel for Petitioner

John E. Powers

1408 Capital National Bank Bldg.,

Austin, Texas 78701

Of Counsel

FIRM FOUNDATION PUBLISHING HOUSE—AUSTIN

bisa FOP Ee tr RET TER HRS weap Ne ete

PLEA OLY SR QIAR EE) EI OY a

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INDEX

Page

Opinions Below ______-__--- sais 1

II - cteiitisldlinhncdnscrapnircemnnnintlnaieth aa ee.

Questions Presented ___--- 2-3

Constitutional Provisions and Statutes . ee 2 3-10

Statement of the Case ____ hoes _._ 10-13

Reasons For Granting The Writ __--_.__----_---_-_- 13-15

RNIN seethereacy-nciieecemonnmenaion oe

Appendix A

Opinion in Texas Court of Criminal Appeals ____--- 16-21

Certificate of Clerk ________ ‘ —e

Appendix B

District Court Findings of Fact and Conclusions

of Law, United States District Court, Northern

I: a snemenennanaieael 24-35

Final Order Denying Relief and Granting Cer-

tificate of Probable Cause ______________________ 35-36

Appendix C

Opinion in the United States Court of Appeals

for the Fifth Circuit __________ ___ 37-47

Judgment in the United States Court of Appeals ____ 48-49

Denial of Appelliant’s Petition for Rehearing ~-___-- 50

CITATIONS

Page

Cases:

Reazell v. Ohio, 269 U.S. 167, 70 L.Ed. 216,

Ss I as tcsed bcetnsisaneciensenitesensoh iki solace aia dba cies Meek. ae

Donaid v. Decker, 318 F.Supp. 568 __________________ 2

Donald v. State, 453 S.W.2d 825 __..______________ 1

Duncan v. Missouri, 152 U.S. 377, 38 L.ed. 485,

RO MI: HEI svsucccipcicccning oncsntanstecnoeibinarebeoiegradewen saa

Kring v. Missouri, 107 U. S. 221, 27 L.ed. 507,

a Mc IIT Aces cu dncccontindacensdaiealeetle-sebtaedh cdo sinliclas cal haiia deepen aia 13

Lindsey v. Washington, 301 U.S. 397, $1 L.ed. 1182__._. 14

Thompson v. Utah, 170 US. 348, 42 L.ed. 1061,

I Uy eg ee adel 18, 14

Williams v. Florida, 399 U.S. 78, 26 L.ed. 2d 446,

Oe i a cal 14

Ex Parte Young, 418 S.W.2d 824____.._-_ 12

Statutes:

Texas Code of Criminal Procedure, 1925

a cele ac edealiae kc eae 11

Texas Code of Criminal Procedure, 1966:

IY TR aa ee aaceinieneiaanees 12

I: a kiaamaadansamaiaonon 4

I 4,11

CITATIONS

Page

ce, ee ee EE PY 4,11

kL ee RI 5, 11

eg TE TCT A 6,11

Article 37.07 (Effective Jan. 1, 1966) _____ 7,11

Article 37.07 (Effective Aug. 28, 1967) ______ 8, 11

Constitutional Provisions:

U. S. Constitution, Article I, See.9 _.--.. 3

U. S. Constitution, Article I, Sec. 10 __________ & 2,3, 13

28 U.S.C. 1264(1) ....__________ ae 2

28 U.S.C. 1788 ________ inhaled aeeiiihahaipatigaie danced 3, 10, 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

ee ee

JULIAN J. DONALD,

Petitioner

Vv.

_ CLARENCE JONES,

Sheriff of Dallas County, Texas,

Respondent

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

Petitioner, Julian J. Donald, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered

in the above entitled case on June 14, 1971. (Rehear-

ing denied July 22.)

OPINIONS BELOW

The opinion of the Texas Court of Criminal Appeals,

printed as Appendix A hereto, is reported at 453 S.W.

2d 825. The United States District Court’s Findings

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of Fact and Conclusions of Law and its Final Order

Denying Relief And Granting Certificate-Of Probable

Cause are printed as Appendix B hereto. That Order

is not reported; the Findings and Conclusions are re-

ported at 318 F.Supp. 563. The opinion of the United

States Court of Appeals, not yet reported, is printed

as Appendix C.

JURISDICTION

The judgment of the Court of Appeals was dated

and entered June 14, 1971. Timely petition for re-

hearing was filed June 28, 1971 and was denied by

the Court of Appeals on July 22, 1971. (Appendix D)

The jur‘sdiction of the Supreme Court is invoked un-

der 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the proscription in Article I, Section 10,

of the United States Constitution that no State shall

pass any ex post facto law was contravened where

the Texas courts entirely deprived petitioner of his

Texas statutory right to elect to have a jury determine

punishment, by applying to his case a recently

amended statute which shifted the last opportunity for

making that jury election backward in time to his

pretrial hearing which had occurred before the statute

was amended, and by denying petitioner’s mid-trial

request which was timely under the law in effect up

until just before the trial began.

—

2. Whether the prohibition of Article I, Section 10,

of the Constitution toward ex post facto laws applies

to procedural laws which materially alter the situa-

tion of the accused ww his disadvantage, as well as to

substantive laws.

3. Whether the only evidence of previous cenviction

of an offense of the same nature, which was an essen-

tial element of the State’s case on enhancement of the

sentence, may be supplied by documents which were

not exemplified as required by 28 U.S.SC. 1738 for

records of a judicial proceeding of another State.

CONSTITUTIONAL PROVISIONS AND

STATUTES

The constitutional provisions and statutes which

this case involves are:

(1) Article I, Section 10, of the Constitution of the

United States provides, “No State shall . . . pass any

Bill of Attainder, ex post facto Law or Law impairing

the Obligatior. of Contracts...” Also, Article I, Sec-

tion 9 of the Constitution of the United States pro-

vides the same restraint upon the power of the general

government: “No Bill of Attainder or ex post facto

Law shall be passed.”

(2) Texas Code of Criminal Procedure

(a) In Chapter Twenty-six, which is entitled

“Arraignment”:

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Art. 26.11 Indictment read

The name of the accused having been called, if no

suggestion, such as is spoken of in the four preceding

Articles, be made, or being made is diosposed of as

before directed, the indictment shall be read, and the

defendant asked whether he is guilty or not, as therein

charged.

Art. 26.12 Plea of not guilty entered

If the defendant answers that he is not guilty, such

plea shall be entered upon the minutes of the court;

if he refuses to answer, the plea of not guilty shall in

like manner be entered.

(b) In Chapter Twenty-seven, “The Pleading

“The Pleading In Criminal Actions”:

Art. 27.02 Defendant’s pleadings

On the part of the defendant, the following are the

only pleadings:

1. The motion to set aside the indictment or infor-

mation;

2. A special plea setting forth one or more facts as

cause why the defendant ought not to be tried upon

the accusation presented against him;

3. An exception to the indictment or information

for some matter of form or substance;

4. A plea of guilty;

5. A plea of not guilty;

6. A plea of nolo contendere. The legal effect of

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such plea shall be the same as that of a plea of guilty,

but the plea may not be used against the defendant as

an admission in any civil suit based upon or growing

out of the act upon which the criminal prosecution is

based ;

7. Defendant’s application for probation, if any;

and

8. Defendant’s election, if any, to have the jury

assess the punishment if he is found guilty. (Section

8 was added by the August 27, 1967 amendment in-

volved in this case.)

(c) In Chapter Twenty-eight, “Motions, Plead-

ings and Exceptions”:

Article 28.01. Pre-trial

Sec. 1. The court may set any criminal case for a

pre-trial hearing before it is set for trial upon its

merits, and direct the defendant and his attorney, if

any of record, and the State’s attorney, to appear be-

fore the court at the time and place stated in the

court’s order for a conference and hearing. The de-

fendant must be present at the arraignment, and his

presence is required during any pre-trial proceeding.

The pre-trial hearing shall be to determine any of the

following matters:

(1) Arraignment of the defendant, if such be nec-

essary; and appointment of counsel to represent the

defendant, if such be necessary;

(2) Pleadings of the defendant;

—6—

(Subsections (3) through (8) involve pretrial

consideration of the indictment, continuance, evidence,

venue and discovery. )

Sec. 2. When a criminal case is set for such pre-

trial hearing, the defendant shall have five days after

notice of setting in which to file his motions, pleadings

and exceptions; and any such preminary matters not

raised and filed within the time allowed will not there-

after be allowed to be raised or filed, except by per-

mission of the court for good cause shown. The rec-

ord made at such pre-trial hearing, the rulings of the

court and the exceptions and objections thereto shall

become a part of the trial record of the case upon its

merits.

(Sec. 3, added in 1967, provides the manner of giv-

ing notice of such setting. )

(d) In Chapter Thirty-six, “The Trial Before

The Jury”:

Article 36.01 Order of proceeding in trial

A jury being impaneled in any criminal action, the

cause shall proceed in the following order:

1. The indictment or information shall be read to

the jury by the attorney prosecuting. When prior con-

victions are alleged for purposes of enhancement only

and are not jurisdictional, that portion of the indict-

ment or information reciting such convictions shall

not be read until the hearing on punishment is held

as provided in Article 37.07.

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2. The special pleas, if any, shall be read by the

defendant’s counsel, and if the plea of not guilty is

also relied upon, it shall also be stated.

(Sections 3 through 7 list other stages of the trial.)

8. In the event of a finding of guilty, the trial shall

then proceed as set forth in Article 37.07.

(e) In Chapter Thirty-seven, “The Verdict”:

(When petitioner was indicted, and when he was ar-

raigned and his plea was entered at the time of his pre-

trial hearing, the January 1, 1966 version of Article

37.07 was in effect, as follows:)

Art. 37.07 Verdict must be general; separate hearing

on proper punishment

1. The verdict in every criminal action must be

general. When there are special pleas on which a jury

is to find, it must say in its verdict that the allegations

in such pleas are true or untrue. If the plea is not

guilty, it must find that the defendant is either guilty

or not guilty.

2. Alternate procedure.

(a) In felony cases less than capital and in cap-

ital cases where the State has made it known that it

will not seek the death penalty, and where the plea is

not guilty, the judge shall, before the argument begins,

first submit to the jury the issue as to the guilt or in-

nocence of the defendant of the offense or offenses

charged, without authorizing the jury to pass upon

a

the punishment to be imposed; provided, however, that

in the charge which submits the issue of guilt or inno-

cence there shall be included instructions showing the

jury the punishment provided by law for each offense

submitted.

(b) If a finding of guilty is returned, it shall

then be the responsibility of the judge to assess the

punishment applicable to the offense charged where

the same is not absolutely fixed by law to some par-

ticular penalty except when the defendant, upon the

return of a finding of guilty, requests that the punish-

ment be assessed by the same jury. In the event the

defendant elects to have the jury fix the punishment

in cases where the punishment is fixed by law, the

court shall instruct the jury that if they find the de-

fendant is the same person who was convicted in the

prior conviction or convictions alleged for enhance-

ment, they should set his punishment as prescribed by

law.

(Additional provisions of Art. 37.07, not pertinent

here, are omitted.) -

(After petitioner entered his plea on September 26,

1966, the Texas legislature convened in January of

1967, and on August 28, 1967 the following amended

version of Article 37.07 became effective: )

Art. 37.07 Verdict must be general; separate hearing

on proper punishment

1. The verdict in every criminal action must be gen-

eral. When there are special pleas on which a jury

is to find they must say in their verdict that the alle-

casio

gations in such pleas are true or untrue. If the plea

is not guilty, they must find that the defendant is ei-

ther guilty or not guilty, and, except as provided in

Section 2, they shall assess the punishment in all cases

where the same is not absolutely fixed by law to some

particular penalty.

2. Alternate procedure

(a) In all criminal cases, other than misde-

meanor cases of which the justice court or corporation

court has jurisdiction, which are tried before a jury

on a plea of not guilty, the judge shall, before argu-

ment begins, first submit to the jury the issue of guilt

or innocence of the defendant of the offense or of-

fenses charged, without authorizing the jury to pass

upon the punishment to be imposed.

(b) If a finding of guilty is returned, it shall

then be the responsibility of the judge to assess the

punishment applicable to the offense; provided, how-

ever, that (1) in capital cases where the state has

made it known in writing prior to trial that it will

seek the death penalty, (2) in any criminal action

where the jury may recommend probation and the

defendant filed his sworn motion for probation before

the trial began, and (3) in other cases where the de-

fendant so elects in writing at the time he enters his

plea in open court, the punishment shall be assessed by

the same jury. If a finding of guilty is returned, the

defendant may, with the consent of the attorney for

the state, change his election of one who assesses the

punishment,

I i i bl ot i

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(Additional provisions of Art. 37.07, not pertinent

here, are omitted.)

(3) 28 U.S.C. 1738

§ 1738. State and Territorial statutes and judicial

proceedings; full faith and credit

The Acts of the legislature of any State, Territory,

or Possession of the United States, or copies thereof,

shall be authenticated by affixing the seal of such

State, Territory or Possession thereto.

The records and judicial proceedings of any court

of any such State, Terirtory or Possession, or copies

thereof, shall be proved or admitted in other courts

within the United States and its Territories and Pos-

sessions by the attestation of the clerk and seal of the

court anexed, if a seal exists, together with a certifi-

case of a judge of the court that the said attestation

is in proper form.

Such Acts, records and judicial proceedings or cop-

ies thereof, so authenticated, shall have the same full

faith and credit in every court within the United

States and its Territories and Possessions as they have

by law or usage in the courts of such State, Territory

or Possession from which they are taken. June 25,

1948, c. 646, 62 Stat. 947.

STATEMENT OF THE CASE

On the date of the alleged offense, August 12, 1965,

=<

Article 693 of the 1925 Texas Code of Criminal Pro-

cedure provided a single, general verdict by which a

jury determined both guilt, or innocence, and punish-

ment, if any. January 1, 1966 was the effective date

of the new Code of Criminal Procedure. Article 37.07

thereof established the bifurcated trial in Texas. Un-

der that statute the defendant was entitled to wait

until the conclusion of the first part of the trial and

the return of a finding of guilty before he made his

election between jury and judge for the assessment of

punishment. That was the status of the law when

defendant Donald was indicted on May 9, 1966 and

when he was arraigned and entered his plea in open

court at the pre-trial hearing on September 26, 1966.

August 28, 1967 was the effective date of an amend-

ment to Article 37.07, which required that an election

that punishment be assessed by the jury be made “at

the time he (the defendant) enters his plea in open

court.”

The Code provision that defendant’s plea “shall be

entered” is in Article 26.12 which sets forth the pro-

cedure at arraignment, which occurs at the pretrial

hearing. Article 28.01. The 1967 amendment express-

ly added the election to have the jury assess punish-

ment to the Article 27.02 list of defendant’s pleadings,

which are determined at the pre-trial hearing. Art.

28.01.*

Petitioner’s trial began on October 23, 1967, where-

*The Code does not provide for arraignment at the trial.

The indictment is simply read to the jury and defendant’s

counsel states defendant’s plea. Art. 36.01.

=

upon defendant Donald was “arraigned” again on the

first paragraph of the indictment and pled not guilty.

On October 26, 1967, while the jury was deliberat-

ing on guilt or innocence, defendant filed his request

that the jury assess the punishment. The trial judge

endorsed said request: “This was not filed until the

trial had been held and the jury was deliberating.”

The jury then returned its verdict of guilty and was

discharged. The defendant was then “arraigned” on

the second paragraph of the indictment and pleaded

that the allegations therein were not true.

The trial judge admitted into evidence State’s Ex-

hibits 7 through 11 (See Appendix in Court of Ap-

peals), which were offered on the issue of enhance

ment of the sentence and which were not exemplified

in the manner provided by 28 U.S.C. 1788. Petition-

er’s counsel made timely objection that these exhibits

were not exemplified.

Punishment was enhanced under Texas Penal Code

Article 62 (concerning previous conviction for offense

of the same nature), and the trial judge fixed the

maximum sentence, ten years. Gn appeal from this

conviction the Texas Court of Criminal Appeals af-

firmed. Donald pursued and exhausted his Texas

post conviction remedy (Texas Code of Criminal Pro-

cedure Art. 11.07, Ex Parte Young, 418 S.W.2d 824)

and then immediate filed the habeas corpus applica-

tion which is the subject of this petition.

The United States District Court denied relief but

granted a certificate of probable cause and bail. Sub-

a

stantially all of the pertinent facts are covered by the

Findings of Fact made by the United States District

Court (App. B), and neither party questions those

Findings.

REASONS FOR GRANTING THE WRIT

The opinion of the Court of Appeals in this case

deserves the attention of the Supreme Court because

it holds that “the prohibition of Article I, Section 10,

of the United States Constitution toward ex post facto

laws applies only to changes in substantive law.” This

holding, on a federal question, is in conflict with ap-

plicable decisions of the Supreme Court.

A substantial right which the law gave the de-

fendant at the time to which his guilt relates cannot

be taken away from him by ex post facto legislation

simply because, in a general sense, the legislation in

question may be said to regulate procedure. Kring v.

Missouri, 107 U.S. 221, 27 L.Ed. 507, 2 S. Ct. 443,

referring to “the law with regard to bail, to indict-

ments, to grand juries, to the trial jury” as involving

substantial rights which may not be changed after the

offense is committed. Thompson v. Utah, 170 U.S. 343,

42 L.ed. 1061, 18 S. Ct. 620; Beazell v. Ohio, 269 U.S.

167, 70 Led. 216, 45 S. Ct. 68. An accused is pro-

tected against subsequent legislation which materially

alters the situation to his disadvantage, Duncan v.

Missouri, 152 U.S. 377, 38 L.ed. 485, 14 S. Ct. 570;

and whether the subsequent statute “is more onerous

within the meaning of the constitutional prohibition”

=o

is a federal question. Lindsey v. ee 301

U.S. 397, 81 L.ed. 1182.

The amended provisions of the Texas Code of Crim-

inal Procedure which became effective after petitioner

was indicted clearly moved the time for his election to

have the jury assess punishment back to the pretrial

hearing, when he was arraigned and entered his plea.

That had occurred before the Code was so amended,

and the result of this sequence of events was to de-

prive petitioner of his previously existing right to

elect to have a jury assess punishment.

This petition presents the question whether any

character of procedural protection of less than con-

stitutional dimension is subject to the ex post facto

provision of the Constitution, because from the view-

point of the accused the right to elect to have a jury as-

sess punishment must surely be among the most valu-

able procedural rights not guaranteed by the Constitu-

tion.* The Court recently mentioned this question in

Williams v. Florida, 399 U.S. 78, 26 L.ed. 2d 446, 90

S. Ct. 1893, observing that the reversal of the convic-

tion in Thompson v. Utah may have been justified

“wholy apart from the Sixth Amendment”, because the

statute of the new State of Utah reduced the defen-

dant’s jury to eight jurors instead of twelve as pro-

vided by the territorial statute in effect at the time of

the crime. (399 U.S. p. 90, footnote 26)

The present case would provide an effective vehicle

*The question whether procedures protected by the Bill of

Rights are also protected by the ex post facto provision of the

Constitution seems rather academic and probably would not

justify certiorari.

wiiiiiiien

for consideration and determination by the Supreme

Court of the nature and extent of this fundamental

right which was twice guaranteed by the Constitution

itself, long before the Fourteenth Amendment.

Moreover, this question of ex post facto deprivation

of a right to a jury on punishment arises here in a

case in which the maximum sentence was assessed on

the basis of records of another State which were not

exemplified in the manner required by federal law.

This nation is passing through an era of explosive

change of procedural law in federal and state criminal

cases. Cases such as the present one will inevitably

result from such change, and Supreme Court consid-

eration of the problem at this time would be in the

best interests of the administration of justice.

CONCLUSION

For the foregoing reasons this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Hume Cofer

1408 Capital National Bank Bldg.

Bey

Counsel for Petitio

John E. Powers

1408 Capital National Bank Bldg.,

Austin, Texas 78701

Of Counsel

wiittin

APPENDIX A

Opinion In Texas Court of Criminal Appeals

JULIAN J. DONALD, Appellant

No. 42,412 v. —Appeal from Dallas County

THE STATE oF TEXAS, Appellee

OPINION

The offense is theft by false pretext, with a prior

conviction for an offense of the same nature alleged for

enhancement; the punishment, ten years.

His first ground of error is that he was allegedly

denied compulsory process of witnesses at his pre-trial

hearing. What he actually seemed to want was the

records of the banks described in vague language in

part as follows:

“And bring with you any ‘Stop Payment’ orders

issued on said cashier’s check together with your

records of whether the payment was successfully

stopped or not. And bring with you your records

showing whether or not any financial loss, at all,

and, if so, how much, was sustained on these

cashier’s checks.”

The trial court found that “subpoenas were and are

vague and indefinite for this hearing,” and we agree.

In Sonderup v. State, 418 S. W. 2d 807, we held that

the trial court did not err in declining to require the

attiv

production of “all statements, documents and evidence

now in the possession of police officers or the District

Attorney of Nueces County.”

We overrule his contention, not supported by any

authority, that he was denied the effective assistance

of counsel, because the court set the pre-trial hearing

in seven cases against appellant for the same day. The

hearing was set more than five (5) days prior to the

trial and complies with Article 28.01, Section 2,

V.A.C.C-P. Appellant’s contention that Judge A. D.

Bowie was disqualified is moot because Judge Penn

Jackson heard this case in the absence of Judge Bowie

who was ill. At the pre-trial hearing, the Honorable

A. D. Jim Bowie testified that he as Assistant District

Attorney had never heard of appellant and did not

participate in any investigation of the cases against

the defendant nor did he present the matter to the

grand jury. Muro v. State, 387 S. W. 2d 674, is the

authority for the rule that, where a judge had been an

assistant district attorney “at the time of the offense

but had no recollection of working on the case,” he

was not disqualified.

Appellant next contends that District Attorney

Henry Wade and his assistants were disqualified to

prosecute this case because the District Attorney was

on the Board of Directors of the First Citizens Bank

of Dallas. We need not pass upon the question of dis-

qualification because there is no evidence in this case

that such bank was in any way connected with the

transactions invoived in this case.

The motion for change of venue was insufficient

_

since it was not sworn to in accordance with the terms

of Article 31.03, V.A:C.C.P., and nothing is presented

for review.

Appellant’s challenge to the array was not supported

by affidavits as required by Article 35. 07, V.A.C.C.P.,

and nothing is presented for review.

Appellant moved for the trial court to suppress the

testimony of Jane Savage because she was an accom-

plice witness. Nash v. Illinois, 389 U.S. 906, 19 L. Ed.

2d 223, 88 S. Ct. 222, and Napue v. Illinois, 360 U. S.

264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, which are relied

upon by appellant, can have no application to the case

at bar. The court’s charge on the question of Jane

Savage being an accomplice is substantially that ap-

proved by this Court in Angle v. State, 306 S. W. 2d

718.

Appellant’s motion to quash the indictment was on

the ground that the prosecution was based upon a

written instrument and such instrument was not set

out in the indictment. The holding of this Court in

Mounts v. State, 317 S.W. 2d 212, clearly disposes of

this contention.

Another motion to quash the indictment is predi-

cated upon the contention that the witnesses whose

names were listed on the back of the indictment were

not called to testify before the Grand Jury. The

grounds set forth in the motion were not those author-

ized by Article 27.03, V.A.C.C.P. Furthermore, the

Supreme Court of the United States in Castillo v. U.

S., 350 U. S. 359, 100 L. Ed. 397, 76 S. Ct. 406, put this

niin

question to rest when it held that an indictment might

be based upon hearsay.

Appellant’s motion to produce a certain identifiable

exhibit was granted by the court. On the day of the

trial, although apparently tardy, the State complied

with this order. We do not find that appellant was

harmed by such delay under the facts of this case.

Nor do we find any error in the trial court’s failure to

grant his motion for continuance filed on the day the

trial began.

Appellant’s contention that the evidence was insuffi-

cient to support the jury’s finding that appellant ap-

propriated any money to his own benefit requires a

discussion of some of the facts. Appellant, who ac-

cording to this record was the alter ego of a number

of “companies,” none bearing his name, employed one

Jane Savage to work in his office and had her open

an account in the American Bank and Trust Company

of Dallas in the name of “Cal-Mex Station 66” and

authorized her, alone, to sign checks. On the day in

question, he instructed her to write a check on the

American Bank and Trust Company account in the

sum of $9,640.19 payable to the order of the Hillcrest

State Bank of Dallas. This check was exchanged at

the Hillcrest State Bank for a cashier’s check with ap-

pellant’s name as purchaser, payable to the Dallas

County State Bank. This cashier’s check was ex-

changed by appellant at the Dallas County State Bank

for nine cashier’s checks, five of which were made to

the order of Cal-Mex Leasing and Distributing Com-

pany (another of appellant’s companies) in the sum

of $1722.41 each, and he then secured Jane Savage’s

—20—

endorsement thereon as signer for Cal-Mex Leasing

and Distributing Company.

The original $9,647.17 check on the American Bank

and Trust Company was disohnored because of insuffi-

cient funds. The above facts clearly establish the

elements of the offense of theft by false pretext from

the Hillcrest State Bank.

The fact that appellant, through one of his attor-

neys, later made partial restitution will not prevent

prosecution for the original theft, 16 Tex. Jur. 2d,

Section 90, p. 207.

Appellant contends that the Hillcrest State Bank

through its agent, Eddie Smith, consented to the tak-

ing of the sum involved. He bases this contention .n

the testimony of Jane Savage who stated that on July

19, 1966, prior to the issuance of the check in question

on August 12, 1966, she had had a telephone conversa-

tion with one Eddie Smith at the Hillcrest State Bank

in connection with some checks to be cashed that day.

She informed Smith that the Cax-Mex Station 66 ac-

count did not have sufficient funds in said bank to

cover the checks she was then writing, and Smith ad-

mitted that he knew such to be the case. Jane Savage’s

testimony stated that at the time she wrote the checks

in question, as well as the checks she was drawing on

July nineteenth, appellant assured her that he would

have the money in the American Bank and Trust

Company in time to cover the Hillcrest State Bank

cashier’s check. This testimony plus the fact that an

examination of the daily balance sheets for the Cal-

Mex Station 66 account at the American Bank and

—

Trust Company from July twentieth through August

sixteenth would indicate that such account was not

overdrawn. For this reason, Eddie Smith was not

charged with the knowledge that the August twelfth,

check would be dishonored when it was present. If

the checks he had issued on July nineteenth had been

paid, as it would appear from this record they had

been, then no question of acquiescence of appellant’s

illegal act on the part of Eddie Smith would be raised.”

All the items shown that were introduced in evidence

are before this Court.

The trial court covered any question of Eddie

Smith’s participation in appellant’s crime when he

charged the jury as follows:

“. ... You are further instructed that if you

find from the evidence or if you have a reasonable

doubt that at the time State’s Exhibit No. 1 was

used to purchase a cashier’s check, being State’s

Exhibit No. 3, that Hillcrest State Bank of Uni-

versity Park or the person acting for said bank

in the issuance of the said cashier’s check did not

believe that State’s Exhibit No. 1 would be paid

when presented to American Bank and Trust

Company in the due course of business, then in

such event you will find the defendant not guilty.”

This we believe is a fair discussion of the grounds

of error that the appellant seriously asserts.

Finding the evidence sufficient to support the con-

viction and finding no reversible error, the judgment

‘Eddie Smith was shown to be dead at the time of this trial.

is affirmed.

Morrison, Judge

(Delivered December 10, 1969) :

A True Copy

Attest:

Glenn Haynes, Clerk

Court of Criminal Appeals of Texas

By: Glenn Haynes

CLERKS OFFICE, COURT OF CRIMINAL

APPEALS OF TEXAS

AUSTIN, TEXAS

I, GLENN HAYNES, Clerk of the Court of Crim-

inal Appeals of Texas, do hereby certify that in Cause

No. 42,412 styled:

JULIAN J. DONALD, Appellant

vs.

_ STATE OF TEXAS, Appellee

judgment of the Criminal District Court of Dallas

County, Texas, was affirmed on December 10, 1969.

Appellant’s Motion for Rehearing was overruled, with-

out written opinion April 29, 1970, and on May 26,

1970 mandate issued.

THEREFORE, with the overruling of Appellant’s

Motion for Rehearing, this cause was disposed of by

this Court on April 29, 1970, appellant having ex-

- =

hausted all remedies in this, The Court of Criminal

Appeals of Texas and said judgment has now become

final on the docket of this Court.

WITNESS my hand and Seal of said Court, at office,

in Austin, Texas, this the 5th day of June, A.D., 1970.

GLENN HAYNES, CLERK of the Court

of Criminal Appeals of Texas

SEAL

a

APPENDIX B

DISTRICT COURT FINDINGS OF FACT AND

CONCLUSIONS OF LAW

UNITED STATES DISTRiCT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JULIAN J. DONALD

v.

BILL DECKER, SHERIFF OF DALLAS COUNTY

TEXAS

No. CA-3-3891A

In the Matter of the Application of

Julian J. Donald For a Writ

of Habeas Corpus

Findings of Fact

—

I.

Procedural Matters

1. On the 4th day of June, 1970, when the petition

for habeas corpus was filed in this case, and thereafter

until June 12, 1970 when petitioner was enlarged on

recognizance pursuant to order of this Court, the pe-

titioner was in the custody of the respondent, Bill

Decker, Sheriff of Dallas County, Texas, and peti-

tioner was detained in custody by respondent at the

Dallas County Jail in Dallas, Texas.

2. The respondent held the petitioner in custody at

such time pursuant to a Capias issued on June Ist,

1970 by the District Clerk of Dallas County, Texas.

Said Capias was issued pursuant to the Mandate of

the Court of Criminal Appeals of the State of Texas,

which Mandate was issued by the Clerk of said Court

on May 26th, 1970. Said Mandate was issued pur-

suant to the determination and order of the Texas

Court of Criminal Appeals on April 29th, 1970 over-

ruling the Motion for Rehearing of appellant Julian

J. Donald and affirming the October 26th, 1967 judg-

ment, and the December 14, 1967 sentence of the

Criminal District Court of Dallas County, Texas, by

which the petitioner was convicted of the offense of

theft of corporeal personal property of the value of

$50.00 or over, by false pretext, and by which punish-

ment was assessed at ten years imprisonment.

3. The petitioner urged that the writ be granted

for the reasons stated in his application for the writ.

, .

cetera RR TS CE SRT POU NT ETD a

—26—

4. Petitioner has exhausted the remedies available

in the courts of the State of Texas, in that petitioner

duly and timely appealed to the Texas Court of Crim-

inal Appeals from his conviction and petitioner prop-

erly pursued and exhausted the Texas past conviction

remedy provided by Article 11.07, Texas Code of

Criminal Procedure, as construed by Ex Parte Young,

filed in any Federal Court.

II.

FINDINGS OF FACT AS TO

PETITIONER'S GROUNDS 1, 2, 3 and 4

A. Petitioner was charged by indictment returned

May 9, 1966, with having committed the offense of

felony theft on August 12, 196&; and the second para-

graph of the indictment alleged a previous conviction

of an offense of the same nature (obtaining money by

false and fraudulent representations), in the State

of New Mexico on February 24, 1957.

B. On September 23, 1966, before the pre-trial

hearing, defendant filed his sworn application for pro-

bation, which application stated that he had never be-

fore been convicted of a felony in this or any other

state, except as to a felony conviction in the State of

New Mexico for which he had received a pardon.

=_ SS

C. On September 26, 1966 a pre-trial hearing was

held in the case to determine preliminary motions and

for arraignment of the defendant and for his plea.

On that date the defendant was arraigned and he pled

Not Guilty.

D. On October 23, 1967, the trial began and the

State Court record contains the following:

1. The docket sheet on page 8 of the State Court

record contains the following entry dated Oct. 23,

1967:

“Deft arraigned. Plead not guilty—Indict-

ment read, deft plead not guilty”. This entry whs

initialed by the Judge presiding over the trial,

Judge Penn Jackson.

2. On page 1 of the State Court Statemert of

Facts, which is page 244 of the State Court record,

the following appears:

“... the Defendant having been previously ar-

raigned and pled, ‘Not Guilty,’ the (first para-

graph of the) Indictment was read aloud to the

Jury, the Defendant again pled ‘Not Guilty’ ”.

3. On page 117 of the State Court Statement of

Facts, which is page 362 of the State Court record,

the following appears:

“Whereupon the Defendant was arraigned by

Mr. Stauffer reading the (first paragraph of the)

Indictment, the Defendant pled ‘Not Guilty’, then

=— =

the (first paragraph of the) Indictment was read

aloud to the Jury by Mr. Stauffer, and the De-

fendant again pled ‘Not Guilty’”

Tet

pg3is

bs "Ct

iE

E. On October 26, 1967 while the jury was still out

guilty

that

def

deliberating on the Petitioner’s

filed

in

and such

was

and the jury

a,

fas S3GE4t

ie. Hin

i; +

i iF ba

iets Uden

. $3 a a 2

HORT eo

lin,

dx 5

“Het + | til

—29—

been laid and that they were not exemplified. No

other exhibit concerning New Mexico proceedings was

offered in evidence.

IV.

FINDINGS OF FACT AS TO

PETITIONER’S GROUND 6

A. During 1963, 1964 and 1965, until October 1,

1965, A. D. “Jim” Bowie was First Assistant Crim-

inal District Attorney of Dallas County, Texas.

B. Criminal District Court No. 5 of Dallas County,

Texas came into existence on October 4, 1965 and

the said A. D. “Jim” Bowie was duly appointed as,

and was sworn in as, the first judge of said court.

C. On May 9, 1966 the indictment in this case,

State District Court No. C-66-1806-I, was presented

in Criminal District Court No. 2 of Dallas County,

Texas and was then transferred to and received by

Criminal District Court No. 5.

D. At the pre-trial hearing, at which he presided.

Judge Bowie testified that pr »r to assuming the bench

of Criminal District Court No. 5 he had never heard

of the Petitioner and did not participate in the investi-

gation, grand jury hearing, trial preparation or any-

thing whatsoever to do with this case, and had no

knowledge that this case was pending or that a com-

plaint was filed or presented to a grand jury.

E. Judge Bowie presided over the pre-trial hearing

in this case on September 26, 1966, and at such hear-

—30—

ing overruled the motion to disqualify himself, pre-

sided when the defendant was arraigned and pled not

guilty, overruled defendant’s Motion for Change of

Venue, overruled defendant’s raotion to dispose of

the pending cases made obsolete by the pending indict-

ments, overruled defendant’s application for subpoena

of witnesses for the pre-trial hearing, overruled de-

fendant’s Motion to Quash the Indictment; and on

September 29, 1966 Judge Bowie overruled defend-

ant’s First Application for Continuance, and qualified

defendant’s Bill of Exception No. 1.

F. The actual trial of this case, which started on

October 23, 1967, was presided over by Judge Penn

Jackson, sitting for Judge Bowie. On said date, be-

fore the jury was selected, Judge Jackson ruled that

the Court would take no further action on defendant’s

Motion to Produce, and also overruled motions to dis-

qualify the District Attorney, to quash the indictment,

to restrict State’s Argument, to continue the trial, to

suppress the testimony of Jane Savage and to quash

the jury panel.

CONCLUSIONS OF LAW

I,

The Court finds that as a matter of law the Peti-

tioner was not denied the right or opportunity to have

his punishment assessed by the jury.

=

II.

The Court finds that Art. 37.07 of the Texas Code

of Criminal Procedure is not an ex post facto law

which deprived the Petitioner the right to have the

jury set his punishment. ‘

III,

The Court finds that subdivision 3 of sub-section B

of Section 2 of Article 37.07 of the Texas Code of

Criminal Procedure as enacted in 1967 which provides

that the Defendant may elect to have a jury assess

his punishment when he enters his plea in open court

to mean that he may file such election at the time the

indictment is presented to the jury and the Defendant

pleads to them, the jury. The Court further finds

that the time of entering his plea in open court as

stated in such section does not mean such time as the

arraignment of the Defendant but as above stated,

the time the indictment is presented to the jury and

the Defendant enters his plea at such time.

IV.

The Court finds that the Petitioner was not deprived

of the right or opportunity to elect to have the jury

assess his punishment in this case even if subdivision

3 of sub-section B of Section 2 of Article 37.07 C.C.P.

which provides that a defendant may elect to have

the jury assess his punishment at the time he enters

—32—

his plea in open court means he must file his election

at the time of his arraignment and not the time of his

plea before the jury because the Petitioner in this

case was again arraigned on October 23, 1967, after

the jury was selected and just before the indictment

was presented to the jury, thus giving him the oppor-

tunity and right to file his election to have the jury

assess his punishment.

V.

The Court finds that the Petitioner was not deprived

of the right under Article 37.07 to have the punish-

ment assessed by the jury in this case wherein the jury

could recommend probation. The Court finds that the

jury could not recommend probation in this case be-

cause in both of the Petitioner’s applications for pro-

bation he stated under oath that he had a prior felony

conviction which, under said Article 37.07, would pre-

vent the granting of probation to the Petitioner by

the jury.

VI.

The Court finds that the petitioner was not deprived

of the right to have the question of probation sub-

mitted to the jury under Article 37.07 C.C.P., for the

reason as stated above, that the petitioner had a prior

felony conviction which would prevent the granting of

probation by a jury.

VII.

The Court further finds as a matter of law that the

_

wii.

trial judge correctly refused Petitioner’s election to

have the jury assess his punishment because the same

was filed too late under the Code of Criminal Proce-

dure in effect at the time of Petitioner’s trial.

VIII.

The Court finds that Article 37.07 C.C.P., as

amended in 1967 after Petitioner’s indictment but

before his trial, is not an ex post facto law as to the

Petitioner because such law as amended is but a law

of procedure of the State of Texas, leaving untouched

the substantive law under which Petitioner was in-

dicted. '

IX.

The Court finds that a person has no vested right

in any partial remedy or procedure and cannot insist

on the application to the trial of his case with any

other then existing rules of procedure. Gibson v. State

of Mississippi, 152 U.S. 565, 40 L.Ed. 1075, 16 S. Ct.

904.

X.

The Court finds that statutes making changes in

the remedy or procedure are always within the dis-

cretion of the law making power of the state and as

long as they do not deprive the accused of any sub-

stantial right or conflict with the provisions of the

Constitution they are not ex post facto laws. Thus a

change in the mode of trial, without changing the na-

ss

ture of the offense, or its constituent elements, or the

nature or amount of evidence necessary to prove the

charge, or altering the punishment, is not an ex post

facto law. Beazell v. Ohio, 269 U.S. 167, 70 L.Ed.

216, 45 S. Ct. 68; Thomas v. Utah, 170 U.S. 43, 42

L.Ed. 1061, 18 S.Ct. 620; Duncan v. Missouri, 152

U.S. 377, 38 L.Ed. 485, 14 S.Ct. 570.

XI.

The Court finds as a matter of law that Petitioner’s.

Ground No. 5 dealing with the introduction at his

trial of a prior felony conviction out of New Mexico

deals with a rule of evidence of the State of Texas

and thus does not present a Federal question under a

Federal Writ of Habeas Corpus.

XII.

The Court finds as a matter of law that Judge A. D.

“Jim” Bowie, who presided over Petitioner’s pre-trial

hearing in this case, was not disqualified to preside

over such hearing because he had been first assistant

District Attorney in the past; and the fact that Judge

Bowie did preside over such pre-trial hearing under

the facts of this case did not deprive Petitioner of a

fair and impartial trial.

XIII.

The Court finds as a matter of la.; that the Peti-

= Se

tioner’s Application for Writ of Habeas Corpus is

totally without merit and should be and is hereby de-

nied. |

October 7, 1970

S/_ W. M. Taylor, Jr.

UNITED STATES DISTRICT JUDGE

>

Final Qrder Denying Relief And

Granting Certificate of Probable Cause

(Number and Title Omitted)

Filed: July 6, 1970

The application of Julian J. Dor.ald for discharge

from custody was filed on June 4, 1970, and on June

5, 1970 the Court entered an order setting petitioner’s

application for bail for hearing on June 8, 1970, and

at said hearing on June 8, 1970 the respondent ap-

peared with the petitioner in custody, and at said hear-

ing the Court received all evidence which either party

desired to offer on petitioner’s application for habeas

corpus or on his application for bail, and the Court

having read and considered petitioner’s application

and the exhibit attached thereto and having consid-

ered the evidence oeffred at said hearing and having

considered the briefs subsequently submitted by the

petitioner and by the respondent, and it appearing to

—36—

the Court that the Court does have jurisdiction to en-

tertain, and should entertain, this application for

habeas corpus relief, and that the relief sought by the

petitioner should be denied;

It is therefore ordered that the application of Julian

J. Donald for discharge from custody shall be, and it

is hereby, denied.

The undersigned judge who renders such order cer-

tifies that there exists probable cause for appeal.

And it appearing to the Court that pending review

of said decision refusing to release petitioner, the pe-

titioner has been enlarged by the United States Com-

missioner for this Division upon recognizance in the

amount of $20,000.00, with surety, as authorized and

directed by the Order entered by this Court in this

action on June 12, 1970, said action of the Commis-

sioner is hereby approved and confirmed.

Dated this 6th day of July, 1970.

s/ W. M. Taylor, Jr.

United States District Judge

_

—37—

APPENDIX C

(1) Opinion of U. S. Court of Appeals

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 30389

JULIAN J. DONALD,

Petitioner-Appellant,

versus

SHERIFF CLARENCE JONES OF

DALLAS COUNTY, TEXAS,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

ao

(June 14, 1971)

Before SKELTON,* Judge, and MORGAN and

CLARK, Circuit Judges.

SKELTON, Judge: This is an appeal from an order

of the United States District Court for the Northern

District of Texas denying habeas corpus relief and

granting a certificate of probable cause. Petitioner,

Julian J. Donald, filed a petition for habeas corpus on

June 4, 1970, alleging, inter alia, that he was deprived

of the right to a jury trial on the punishment of a bi-

furcated trial, because of ex post facto application of

Article 37.07 of the Texas Code of Criminal Procedure.

The root of the problem in this case stems from a

change in Texas law with regard to the jury’s assess-

ing a defendant’s punishment. At the time of the of-

fense on August 12, 1965, Article 693 of the 1925

Texas Code of Criminal Procedure was in effect. It

provided for a single, general verdict by which a jury

determined both the defendant’s guilt and punishment.

However, a new Texas Code of Criminal Procedure

became effective on January 1, 1966, and was thus

operative at the time of petitioner’s indictment and

arraignment. Article 37.07' of this new Code estab-

*Honorable Skelton, U. S. Court of Claims, Washington,

D.., by designation as a member of this panel.

‘Article 37.07 2(b) states in part:

a» AS. Sy returned, it shall then be

is

the responsibility of judge to assess the punishment

i i Hl “|:t iit |

i 1 i Hage i

THC et ae

sla fuse ila

pple ETH

AR HEE ie

Hint eee ATT

—_— =

made. The facts leading up to appellant’s petition

are as follows.

+B inte He

alt Hi

, iat we il

fF Le :

j Hun 1; HE ia

Ht HIE lide!

Petitioner Donald was indicted on May 9, 1966, for

felony theft by false pretext alleged to have been com-

mitted on August 12, 1966. The indictment also al-

Dona wat arraigned and pl

and was discharged, because under Article 37.07, upon

a finding of guilty by the jury, it is the judge’s re-

sponsibility to assess punishment unless the defendant

had theretofore timely requested that the jury assess

his punishment. The second paragraph of the indict-

ment was then read alleging a prior felony conviction

in New Mexico for a prior offense of the same nature.

and, the trial judge, after hearing the evidence decided

the issue of enhancement against the defendant and

fixed his penalty at the maximum of ten years con-

finement in the penitentiary.

Petitioner Donald contends that the application of

Article 37.07 as amended was ex post facto in nature

because it deprived him of the opportunity to make

his jury election and thus have a jury assess his pun-

ishment. This contention is based on the premise

that “plea in open court” means at the time of ar-

raignment and since the time of arraignment had

passed when the new law became effective, defendant

was denied an opportunity to make his election. How-

ever, we find, as did the United States District J udge,

that Donald still had the opportunity to make an elec-

tion, because we interpret “open court” as used in Ar-

ticle 37.07 2(b)3 to connote the time the defendant

makes his plea to the indictment before the jury in

“open court.” Also, it should he noted here that even

if, as defendant contends, “open court” meant at the

time of arraignment, he would still not have been

denied the opportunity to elect to have the jury assess

his punishment because he was arraigned again and

made his plea in open court at the start of the trial

which was after the amendment became effective.

— =

Petitioner next argues that even if he were not de-

prived of the opportunity to make his jury election by

the 1967 amendment to Article 37.07, the application

of the amended statute nevertheless deprived him of

a substantial right and material advantage available

to him under the prior law. However, the prohibition

of Article I, Section 10 of the United States Constitu-

tion toward ex post facto laws applies only to changes

in substantive law. Beazel v. Ohio, 269 U.S. 167, 46

S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Utah,

170 U.S. 343, 18 S.Ct. 620, 42 T..Ed. 1061 (1898). A

person has no vested right in any partial remedy or

procedure and can not insist on the application to the

trial of his case of any rules of procedure other than

those existing at the time of trial. Gibson v. Missis-

sippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075

(1896). The legislature may prescribe at its discre-

tion different modes of procedure or different remedies

as long as they do not deprive the accused of a sub-

stantial right, such as changing the nature of the

offense, or its constituent elements. Beazell v. Ohio,

supra; Thompson v. Utah, supra; Duncan v. Missouri,

152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894). We

find that the 1967 amendment to Article 37.07 was a

procedural change in the law that did not deprive the

defendant of a substantial right. It did not take away

the defendant’s right to elect to have a jury assess

his punishment, but merely changed the time at which

the defendant could elect to exercise this still existing

right.

Defendant cites two Georgia Supreme Court cases

in support of his proposition that he was deprived of

a substantial right, Camp v. State, 200 S.E. 126 (Ga.

=

—43—

1938) ; Hurt v. State, 199 S.E. 801 (Ga. 1938). How-

ever, in these two cases the defendants had the abso-

lute right to have a jury assess their punishment un-

der the indeterminate sentence law in effect when the

criminal acts were committed. Before their trials,

such law was amended so that only the judge could

set punishment. The George Supreme Court held that

this was an ex post facto law as to these two defend-

ants because it deprived them of a substantial pre-

existing right. But, these cases are distinguishable in

that in the instant case, the right to have the jury

assess punishment was not taken away. The time of

election was merely changed and it is well established

that a change in the mode of trial without a change in

a substantial right is not vitiated as being an ex post

facto law. Furthermore, the Georgia statute is dif-

ferent in that it was mandatory that the jury assess

punishment. Here there is a choice. Defendant

claims only two alleged advantages that he would be

really deprived of under the new law: (1) hear the

evidence and observe its appeal to the judge and jury,

and (2) make the election after observing the jurors

when they return a guilty verdict. We find these are

not substantial advantages guaranteed to appellant

by the U. S. Constitution. Thus, it was proper for the

trial court to apply the change in the procedural law

of Article 37.07 as amended in 1967 to Donald’s case.

Petitioner also contends that he was entitled to a

jury on punishment under 37.07 2(b) (2)°* relating

to probation. Such contention is without merit. Un-

der article 41.12 3(a) of the Texas Code of Criminal

‘See footnote 2, supra.

—~ =

Procedure,* a defendant must file a sworn motive for

probation before irial, stating that he has never been

convicted of a felony in this or any other state. This

is one of the prerequisites for having the jury recom-

mend probation. 1n other words, the defendant must

take this sworn statement before the jury “may rec-

ommend probation” under Article 37.072(b) (2).

Thus, the requirement of 42.12 3(a) must be niet be- .

fore the provision of 37.07 2(b) can be invoked. Here

the defendant Donald admitted in his sworn statement

that he had been previously convicted of a felony in

New Mexico. Thus, the requirements of Article 42.12

were not met, and for that reason, this never became

a case where the jury could recommend probation

under 37.07. The.efore, the trial judge was correct

when he did not submit the issue of probation to the

jury.

Furthermore, defendant claims his felony convic-

tion should not be considered because he was granted

a pardon for such felony conviction in New Mexico.

However, the pardon does not vitiate the effect of de-

*Article 42.12 3(a) states in pertinent part:

Sec. 3a. Where there is a conviction in any court of

this State and the punishment assessed by the jury shall

not exceed ten years, the jury may recommend probation

upon written sworn motion made therefor by the de

fendant, filed before the trial begins. When the trial is

to a jury, and the deferdant has no counsel, the court

shall inform the defendent of his right to make such

motion, and the court shell appoint counsel to prepare

and present same, if desired by the defendant. In no

case shall probation be recommended by the jury except

when the sworn motion and proof shall show, and the

jury shall find in their verdict that the defendant has

never before been convicted of a felony in this or any

other State. * * *

he ee eee eee . —

ee

— =

fendant’s felony conyiction for the purpose of en-

hancement. Jones v. State, 147 S.W.2d 508 (Tex.

Crim. App. 1941), Logan v. State, 448 S.W.2d 462

(Tex. Crim. App. 1969). The reason for this was

stated in Gurleski v. United States, 5 Cir. 1968, 405

F.2d 253. “A pardon for any other reason than sub-

sequent proof of innocence does not obliterate the de-

fendant’s previous transgressions.”

Defendant next contends that the records that the

state introduced to prove his prior felony conviction

were not properly exemplified as required by 28 U.S.C.

1738 (1964).* The United States District Judge ccor-

rectly found that the introduction of evidence of a

prior felony conviction in New Mexico deals with a

rule of evidence of the State of Texas and thus does

not present a Federal question under a Federal Writ

of Habeas Corpus. Furthermore, 28 U.S.C. 1738

(1964) was enacted to implement the full, faith, and

credit clause of the United States Constitution by pro-

viding a way of exemplifying the records of judicial

proceedings held in one state so that such records

°28 U.S.C. 1738 (1964) states in pertinent part:

The records and judicial proceedings of any court of

any such State, Territory or Possession, or copies there-

of, shall be proved or admitted in other courts within

the United States and its Territories and Possessions by

the attestation of the clerk and seal of the court annexed,

if a seal exists, together with a certificate of a judge of

the court that the said attestation is in proper form.

Such Acts, records, and judicial proceedings or copies

thereof, so authenticated, shall have the same full faith

and credit in every court within the United States and

its Territories and Possessions as they have by law or

usage in the courts of such State, Territory or Possession

from which they are taken.

— =

would be admissible in later judicial proceedings held

in another state. Thus, this statute merely means full,

faith, and credit must be given if certain requirements

are met. However, evidence of judicial proceedings

may be admissible if less is shown than the statute

requires when it conforms to the rules of evidence of

the state where the trial is being held. Furthermore,,

any stringent rules as to what is required to prove a

prior conviction or identity of the convicted person in

another state is somewhat obviated by defendant’s own

admission that he was in fact previously convicted of

a felony in that state. The judicial commitment order

which ordered the appellant to be imprisoned in New

Mexico for obtaining money by means of false and

fraudulent representations and statements was ex-

emplified by an attestation by the Acting Warden of

the New Mexico Penitentiary that such documents

were true and correct copies of the original records on

file in his office, and also by a certificate of the Secre-

tary of the State of New Mexico that such attestation

by the Acting Warden™was in proper order. This,

coupled with defendant’s admission, is sufficient evi-

dence to support the enhancement finding.

Finally, defendant claims that he was deprived of

a fair and impartial trial because the judge, Judge

Bowie, who presided at his pretrial hearing was First

Assistant District Attorney at the time of the offense

in question. However, Judge Bowie had never heard

of appellant prior to assuming the bench nor had he

participated in the investigation of this case. In fact,

defendant was not indicted on his offense until over

eight months after Judge Bowie took the bench. Fur-

thermore, Judge Bowie did not sit at the actual trial

— =

of this case. Under these circumstances petitioner

was not deprived of a fair trial. Muro v. State, 387

S.W.2d 674 (Tex. Crim. App. 1965). In fact, de-

fendant did not insist on this point at oral argument.

Because of the above reasons, we conclude that the

District Court correctly denied petitioner’s application

for writ of habeas corpus and its judgment should be

and the same is hereby

AFFIRMED.

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1970

No. 30389

D. C. Docket No. CA-3-3891

JULIAN J. DONALD,

Petitioner-Appellant,

versus

SHERIFF CLARENCE JONES OF

DALLAS COUNTY, TEXAS,

Respondent-Appellee

Appeal from the United States District Court for the

Northern District of Texas

wie.

Before SKELTON,* Judge, and MORGAN and

CLARK, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record frorn the United States District Court for

the Northern District of Texas, and was argued by

counsel] ;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the

same is hereby, affirmed;

It is further ordered that petitioner-appeliant pay

to respondent-appellee, the costs on appeal to be taxed

by the Clerk of this Court.

June 14, 1971

Issued As Mandate:

“Honorable Byron Skelton, U. S. Court of Claims, Washington,

D. C., sitting by designation as a member of this panel.

ollie

:

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 30389

JULIAN J. DONALD,

Petitioner-Appellant,

versus

SHERIFF CLARENCE JONES OF

DALLAS COUNTY, TEXAS,

Respondent-A ppellee.

Appeal from the United States District Court

for the Northern District of Texas

(July 22, 1971)

ON PETITION FOR REHEARING

Before SKELTON,* Judge, and MORGAN and

CLARK, Circuit Judges

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby DENIED.