Appendix — Loper v. Beto

Supreme Court brief1972

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Text

| Bape Court t the Rate States

ae Sues a, 1971

| . : No.’705388°

1 \

. g f

Oris LOPER,., 5

N „ Petitioner,

f 98 g vv a

Eronn J. Brro, ‘Dmector,

Tas DEPARTMENT OP CORRECTIONS,

N WRIT OF CERRORARE 10 THE GATED STATES COURT OF

— 755 Amme ;

N aS .

„Corpus in the United States District Court

____—-Respondant’s Reply in the United Stites District Court

Excerpts from reporter’s. transcript of proceedings in the :

~~ United States District Court :

" Excerpts from the direct testimony of Otis. 1

Excerpts from the testimony on direct examination of.

Respondent's withess L. D. Harris

- Excerpts from the cross examination of. ‘Respondent's =

* witness L. D. Harris

_ Petitioner’s Exhibit No. 1 in the United States District Court i

—reporter’s transcript of proceedings in es * criminal res

— * 33

trial, Cause. No. 58,888

5 a 3 =" 25 = 8 15

2 a ° 5 * 1 ‘ 7 \ @ 7 :

ww 2 — 2

; Amended Petition of Otis 3 for the. Writ of Shes

Dok tod

"Petitioner's Exhibit No. 8 in the United States District

_. + Court—Mississippi v. Loper, No. 1597 in Circuit Court of

Laa County, Mississippi

Court—certified copies of. indictment and judgment—State

v. Leper, No. 66629 in the Criminal Court of Hamilton

County, Tennessee f

Petitioners Exhibit No. 10 in the United States District.

purring 1g indictment and minutes of the —

Court of ty, Mississippi, in State v. Fred Loper,

Otis Loper and Louis Avery ,

2 85 Findings of Fact and {

States

i at of the United States District Court

8 of Law in. the United

5 Fifth Cireuit, J. Gervin

oe «| Judgment of the United ‘States Court of ‘Appeals tor the

Se order ‘of the United: States Court of Appeals for the Fifth

AS -. Cireuit on Petition for Rehearing.

BON ou: Order of the United States Court of Appeals for the Fifth

5 Wore Circuit on Petition for Rehearing pro se i

. * ae Satng peli for writ of certiorari - —.—

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pe : Seats uae

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Petitioner’s Exhibit No. 9 in the United States Distriet

Opinion of the United States Court of Appeals for ‘the =

order granting motion for leave to proceed in forma pauperis

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SOUTHERN DISTRICT OF TEXAS

— HOUSTON DIVISION

Civil Action No. 66°H-657 Pia bates eee

Ds. GEORGE J. Beto, DIRECTOR, _ 5

TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT

7 AMENDED PETITION OF OTIS’ Lor RR •ü

n THE Warr or HABEAS Corus

T0 SAID HONORABLE COURT: „500

Comes now OTIS LOPER, Petitioner in the abovt en-

- titled and numbered cause, and with leave of Court fils

this his Amended Petition for the Writ of Habeas Corpus

and would respectfully show: =. 7 „„

FTetitioner is a citizen of the United States and a resi-

dent of Walker County, Texas. | 5

Petitioner is restrained: of his liberty in violation of

the Constitution and laws of the State of. Texas and the

United States in the custody of Dr. George J. Beto, Re-

spondent, Director, Texas Department of Corrections.

* U *,

ste Je

—

„

. . Petitioner is incarcerated at the Wynn Unit of the Tena

Department of Corrections located in Huntsville, Walker ee e

Rg ete nce .

1 The claim and authority by virtue of which Petitzoner

wis restrained of his liberty is a judgment of | ne Urimin⸗

— —

District Court of Harris County, Texas, in Cause No.

58,883, styled “The State of Texas v. Otis Loper,” ren-

- dered on November 20, 1947. The judgment of the Crim- ~

_ inal District Court of Harris County, Texas, is void and n

without authority of law, and the imprisonment of Peti-

tioner is a. denial of the rights guaranteed him by the ~

Constitution and laws of the State of Texas and the

5 cress States as hereinafter mown: |

At the time of his W and arrest for the 6 felony .

offense of rape for which he was tried and convicted, Peti-

tioner was indigent, and this fact was well. known to the

Court, and the Distriet Attorney. Despite the State's

knowledge of his i eer gency making it impossible for Peti-

tioner to empley to assist him in defending the

charge against him, Petitioner was denied Court-appointed ©

counsel to assist him in the investigation and preparation

of his defense until the day of trial. In this

' Petitioner would show that he was arrested on the charge

of rape and héid in the Harris County jail for à con-

siderable period prior to trial, and that he was not in-

formed that counsel had been appointed to represent him

until November 17, 1947, the date of trial. Petitioner

8 says that he was thereby denied an opportunity to con-

sult with his attorney prior to trial and to obtain as-

sistance of counsel in the investigation and preparation of

his defense to the charge, all of which resulted in a

denial of Petitioner’s rights to a fair and impartial’ trial

and to the effective assistance of ‘counsel.

—

—.

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petitioner further says that he was denied the right

do have an examining trial and to appear before the court .

“and ask for an attorney, to request bond be set, and to: -

-examine the witnesses against him before —_ jury ac-

8 en * a ;

és 5 6. sets ‘ at 4 ‘

pe Petitioner. was scene. on August 9, 1947. He was

; e Gow The en of raps, for which bs is now; in

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¢arcerated, on November 17, 1947. Between the a fore.

mentioned dates, Petitioner was at all times in eustody * aa

case, and the trial was begun im- tgs :

_ unlearned in the law and the prepesses thereof, and did

not know of his right to time to. prepare his defense.

Moreover, he yas wholly dependent upon the. assi

of the attorney’ the Court had provided him. | |

would show that the totality of circumstances surround-

ine this “hurry up procedure of arraignment, trial and

Conviction on the ‘same day, coupled. with the fact that

he was not given an opportunity to consult, with his

court- appointed counsel prior to trial, and, being in-

~ carcerated: and not versed in law, was not himself able to

Prepare for trial, resulted in a denial of a petitioners

g * * = E LEG a EURO co

_ Petitioner would further show that during the trial

of the case he was denied his. constitutionally ‘protected

“right to confront the witnesses against him and that the =

State of Texas suppressed evidence and witnesses, there

by denying his right to a fair and impartial trial. In

_ , this regard, Petitioner would show that, not having Been

afforded, counsel prior to trial, he, finally and ifi despera-

‘tion caused to be issued several witness Subpoenas, and

that the State had ‘subpoenaed: Petitioner’s then Wife, Wil-

lett Loper. The subpoena directed to’ Petitioner’s wife

Aas returned unserved, and when Petitioner, on trial of

the case, called his wife as a witness she was not in at-

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Petitioner requested the Court to couithnns d ns

‘ease until he had an opportunity to try and secure her ;

attendance as a witness, but the Court refused such a

eontinuance, and directed the trial to proceed. Petitioner

believes that at the time his wife was living in Lufkin,

Texas, and previous to the trial had written represent:

8 tives of the State of Texas asking to be notified of the

a ‘ate of trial so she could be in attendance. | Petitioner. *

a ee -did not know the. whereabouts of his wife, and

not himself inform her of the date and time ef the

“trial: Petitioner: would show that the State, knowing the

- whereabouts. of the witness and. knowing her ‘materiality

asa for the defense, failed to notify Petitioner of

ber wh uts, allowed the subpoena to be returned un-

2 = without relating to Petitioner or to the Court the

ä “whereabouts of the witness. and: her desire. to Be in at-

<<.” “ tendanee, and thereby actively or negligently ressed

. and testimony material to Petitioner's defense

in violation of his constitutionally guaranteed right of a

fair trial. Moreover, Petitionek alleges that the State

had knoweldge of witnesses who would testify that the

_* offense for which Petitioner was convicted was never in

fact committed, and that knowledge of the existence of

these witnesses was willfully or negligently suppressed

tom the Petitioner and. the Court, denying Petitioner

Set oes ta} * Be 8. | ‘ ö 2 =

DdDetitoner trial 3 aon

ee November 17, 1947, gad was begun and concluded on that. 7

=" date. In fact, Péiitioner would show the Court that the

; : trial took àpproximately 2 or 3 hours from the

e jury selection began until the verdict was returned.

— after the . was returned, Petitioner’s:

— pointed .counsel courtroom and Petitioner —

never saw his — em att — ae

on Ne 3

the right to appeal and of counsel on appeal by the

abandonment of his Court-appointed counsel as men-

tioned in the preceding paragraph, and the failure of the as

Court to afford him counsel to. perfect. his appeal. In

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__ Petitioner would further show that he was deprived of

this regard Petitioner would show that he brought home

“,

to the Court his desire to appeal by requesting from the

1 Court a transcript of the trial, stating to the t

be wanted to do something about his case. The Court 5

thereupon referred him to the Clerk of the Court, but, be:.

KLause of his inéarceration and his transfer to the State

Prison in Huntsville, and because of the lack of as-

sistance of a counsel, Petitioner was unable to perfect his

appeal. Petitioner would show that he was thereby denied

the right to appeat, equal protection of the law, and ef-

fective assistance of counsel. : >

10.

. _ Petitioner would further show that he was denied equal

Would show that he was paroled by the State Board of

protection of law and due process of law in connection

with revocation of his parole. In this regard, Petitioner

_ Pardons and Parole on November 15, 1962 And obtained

that revocation of his parole was being considered by the

7 N i

permission to and did move to Mississippi. While in

Carthedge, Mississippi, on February 11, 1963} he was ar-

rested on a charge of car theft which was later dismissed. -

When he attempted’ to secure his release from jail in

Mississippi, on the car theft charge, he was informed by

sissippi that the Texas authorities had revoked his parole.

Petitioner syould show that he was not afforded notice.

Texas authorities. Petitioner ‘was denied a hearing before

the Texas Board of Pardgns and Paroles as was required:

by Section 20 of Artiele Nosid of the Texas Code of

Criminal Procedure of 1948) then in effect. Nor was he

the parole officer fo whom he had been assigned in Mis- -

afforded counsel to represent hin at the revocation of, Sa

parole proceedings. Petitioner was returned to the Texas

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c˖arceration has continued to the 9 time. oe

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Petitioner. took the. wand in his own defense at his

‘trial, and the State was allowed to introduce evidence of,

and question him concerning, prior convictions in an at-

‘tempt to discredit his testimony. Petitioner would show

the Court that the convictions used. for im ent were

‘void for the reason that Petitioner’ was’deprived of the

ae Se right to representation by counsel on the trials resulting

in such prior convictions: The prior tonvictions were,

therefore, unavailable for impeachment or any other pur-

pose; and their use by the State eee — of fair

a: and rr trial by jury. on

12.

ee, " Petitioner has applied to the District Court of Harris

County, Texas and the Court of Criminal Appeals of

Texas for the writ of habeas corpus on the same grounds

ineluded herein, but said applications were without hear-

ing denied by the 176th District Court, Honorable Wen-

dall A: Odom, Judge, on the 17th day of October, 1968,

and by the Court of Criminal — of Teras on the

25th day of April, 1969.

‘WHEREFORE, Petitioner prays that a writ. of 1

corpus issue directed to Dr. George J, Beto, Directory...

Texas Department of Corrections, by whom Petitioner 1

1 for the purpose of inquiring into the cause of

imprisonment and restraint, that Petitioner be afforded |

a a full plenary hearing hereon and that upon final hearing

hereof W be eee from the legal confine-

ment. 5

n „ Dan G. Matthews

ae 800 Bank of the Southwest Bldg.

See Hauston, Texas 77002

[erro ae

5 Attorney for Petitioner

Una omitted in e.

IN THE UNITED STATES DISTRICT COURT

_ FOR THE SOUTHERN DISTRICT OF-TEXAS | ip

\-* “Houston Division = ss

_ {Caption Omitted in Printing]

answer as follows:

Respondent denies each and every ‘allegation of fact

made by petitioner except those faets supported by the

Record and those facts specifically admitted by the Re.

spondent. a

: i,

Corrections and holds legal custody of Petitioner by virtue

of a valid judgment and sentence iff? Cause No. 58,883

from the Criminal District Court of Harris County, Texas

styled The State of Texas v. Otis Loper.

The Grand Jury of Harris County, Texas, returned an

indictment against Petitioner. on September 17, 1947

‘Charging him with the capital offense of rape. Of Au-

gust 9, 1947, Petitioner had obtained: unlawful carnal

knowledge of the 8 year old daughter of a woman with

= whom he had bsen living

Petitioner retained two attorneys to represent him on

this charge. One of the ttorneys was the Honorable

James Letts, now deceased,

Who at the time he was

Respondent is the Director of the Texas Department of... |

reisten by Petitioner, had specialized in the deten ,

criminal cases for over 30 yi The other. attorney

was Mr. J. D. Harris who was also experienced in the

fice of the Sheriff of Harris County where, as counsel for

Petitioner, he approved the list of 125 Special veniremen

ent for Petitioner's case. A copy of the. =

_ who had been ch

served om Petitioner at a later date.

- 4, 1947, Mr. Letts was present in the of-

: _ testified, it would seriously harm the defense. Since Peti-

- from the doctors, it was deci

8 Counsel for Petitioner filed a Motion for New Trial

1947 with the retained counsel present in his behalf. Peti-

tioner had, without the knowledge of his counsel, caused _

~~ pubpoenas to be issued for several ‘persons, including two

doctors. ‘The prosecution had issued subpoenas for sev-

eral persons including the mother of the victim. All the

the subpoena on Willette Loper, the victim’s mother. The

subpoena for Willette Loper had been returned unserved

With the notation that Willette Loper had moved from

the address on the subpoena and that her whereabouts

were unknown. These facts were made known to all- the

parties before they announced ready for trial. The prose-

cution did not attempt to call Willette Loper because she

torneys saw Willette Loper i the Courthouse and con-

cluded that she had consumed too much Alecholie bever-

ages to be useful as a witness for the defense .

Petitioner was duly arraigned by having the indictment

read to him and by entering a plea of not guilty. ter

de jury was sel ; Petitioner again entered a plea of

not guilty and the evidence was then presented to the

jury. On the same flay, November 17, 1947, the jury re-

turned its verdiet_finding Petitioner guilty as charged in

„e indictment. Petitioner and his counsel were both re-

lieved that the jury did not assess the death penalty.

During the trial, Petitioner, and counsel- discussed the

advisability of calling the two doctors as witnesses. Coun-

sel informed Petitioner that counsel understood that Peti-

tioner had seriously injured the victim and that counsel -

felt the doctors should not be called because if they so

tioner had no. idea what 3 would be gained

ed, not to take a chance

which was overruled by the trial court on November 20,

1947. The. Motion was not seriously urged because of

obounsel's feeling that if it were granted, the second trial

—

probably was the common law wife of Petitioner and,

under Texas law, she could not be used as a witness

against her husband. During the trial, the Defense at-

Petitioner s case came ‘on for trial on November 17,

subpoenas of both parties had been served except for

8 eee = a

would be conducted by the Criminal District Attorney —

personally and would in all probabjlity result in the a-

sessment of the death penalty. ee een .

After the overruling of the Motion for New Trial, Peti-

tioner was formally sentenced to confinement in the State :

penitentiary for not less than five nor more than fifty .

years. No Notice of Appeal was given because it was not 5

the intent of the Petitioner or his counsel to. appeal -the

conviction. Since no appeal was perfected, there is no

record of the testimony presented at the Petitioner’s trial.

—

Peꝛtitioner is a veteran applicant for the writ of habeas

corpus who has filed , ote reese: in State Dis-

trict Courts, the Court of Criminal Appeals, and at least

two United States District Courts. Two Staté District

Courts have held evidentiary: hearings on Petitioner’s ess

applications. The first hearing was conducted in Cause

No. 10,048 in the District Court of Houston County,

Texas on December 15, 1948. Petitioner was : ep

person and a full heari was held with Petitioner being

assisted r. J. B. Sallas an attorney from Crockett, N

Texas. The grounds for relief urged by Petitioner were:

(1) That he was denied the right to have a medical

examination of the victim made by doctors Robert

Moers and Arthur Moers. S

(2) That he was indicted for one offense and tried

for another.

tioner leave to obtain a record on appeal without pay-

ment of costs. | &

for Rehearing was denied. The Court's opinion is at-

tached to this Answer and is reported as Ex Parte Loper,

219 S. W.2d 81 (Tex. Crim. App. 1949). Pe

ae 555

ö The second evidentiary hearing in the State trial ert

was .conducted in Cause No. 61,536 in the Criminal Dis-

trict Court of Harris County, Texas, on July 15, 1949.“ }

» Petitioner prepared an application for habeas corpus

on June 18, 1949 which he send to the Honorable Ben W.

Boyd, J Fudge. of the 16th Judicial District Court of Denton

County, Texas. Judge Boyd issued the writ and made it

~ returnable before the Honorable Frank Williford, Judge

of the Criminal District Court of Harris County, Texas.

The effect of Judge Boyd’s order was to cause a full hear-

-ing on Petitioner’s application to be held before Judge

Williford on July 14, 1949, in Cause No. 61,536 of the

Criminal District. Court of Harris County. Petitioner ~

was present in person at fhe hearing and a number of

'. ‘witnesses, including Mr. Letts, Peitioner’s former attorney

Se _ testified. The grounds for relief urged by Petitioner were: f

(1) That he was denied the. right to have a

ien ere and to cross-examine the wi

(2) That he was artet the. right 1 be con-

5 fronted by the witnesses against him and to eross-

examine them.

(3) That he tras indicted for statutory rape and.

convicted. of rape.

deere all the evidence, J wig? Williford found:

(1) That Petitioner had been ably defended by 1

ö Mr. Letts and Mr. Harris.

(2) That Mr. Letts had practiced 1 law

a prineipally for more than 30 years at the bar of the

25 (3) That Mr. Harris was also’ erperiencad in-

ö eee \"

(4) That Petitioner had received à fair trial.

tioner s guilt.

es (6) Aha Petitioner was’ trying to use the Writ

‘of Habeas Corpus as a substitute for appeal.

se That we was no merit to any of Petitioner's a

(5) That there was substantial evidence of Peti- 8

6705

188

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at arg é gee a

7 . *

Judge Williford, pursuant to Texas practice, certified te a

record and his Findings to the Court of Criminal Appeals

of Texas., The Court ordered a Statement of Facts for-

, warded without, costs to Petitioner who claimed to be 4

" pauper. The Court of Criminal Appeals denied the ap-

a plication on October 12, 1949 in an opinion styled Ex |

Peuarte Loper, 223 S.W.2d.523 (Tex. Crim.. App. 1949). :

Copies of all records in the te evidentiary hear- .

: expressly made a part hereof" -

On November 30, 1949, Petitioner-escaped from Re-

spondent's custody and remained on escape until January .

20, 1951. He did not file any applications for habeas ee

corpus during this period of time. a ee 75 I ig

i 5 F 5 a v. | ; 5 ; ;

Petitioner has showered the Court of Criminal Appeals

of Texas with applications for the writ of habeas corpus

Which have all been denied and assigned to application file

No. 59 of said court. In addition to the foregoing, Peti-

tioner has applied for the writ of certiorari from the

Supreme Court of the United States on at least three oc-

casions and all have been denied. ~~ ,

Petitioner has filed at least six applications for writ

been given cause numbers are: (1) CA, 4568; (2) CA.

Sac, (3) CA. 12,188; (4) CA. 12,226; (5) CA. 66-H-

3657 (present ease); and (5) CA. 67-H-207.

No records are now available in Civil Action No. 4568.

Brit of habeas corpus was denied by the Honorable T. M.

Ae Kennerly, United States District Judge. Upon appeal,

the Court pf Appeals reyersed and remanded the case to

ue trial court for proceedings not inconsistent with its ©

ZS 7

I f 5

at habeas ‘corpus in the United States District Court for

de Southern District. The six applications which have 86

„ Action No. 8469, Petitioner’s application for

opinion iin: The Court of Appeals opinion is re-

ported in Loper v. Ellis, 224 F. 2d 901 (5th Cir. . 1955).

Upon remand the District Court dismissed the petition

with prejudice on January 3, 1956/ because Petitioner

| had failed to comply with the decision of the Court of Ap-

No further action was taken by. Petitioner in

Cause No. 8469. The Opinion and other records in Cause

No. 8469 are attached hereto and made expressly a part

5 hereof. .

The petition in Civil Action No. 12 133 was filed on

September 16, 1957. The application was denied by the

Honorable Joe Ingraham, United States District Judge,

on September 21, 1957. The Statement of Facts in Cause

No. 58,883 in the Criminal District Court of Harris Coun- . |

ty, Texas, styled The State of Texas v. Otis Loper was at-

tached as. part of Respondent's Answer. It was, however,

on August 6, 1959, released to Petitioner who has failed

to return such Statement of Facts to this Honorable Court.

Civil Action No. 12,226 was begun in the Southern.

District of Texas on Juze 21, 1958 after having been

transferred from the Eastern District of: Texas where it

‘had been given Civil Action No. 2526. After an evi-

-dentiary hearing on September 2, 1958, the petitioa was

denied and the formal Order of Dismissal was entered on

September 10, 1958. The Court of Appeals affirmed the

judgment of the District Court in Loper v. Ellis, 263 F. 2d 4,

2211 (6th Cir. 19599.

| ° Phe petition filed in Civil Action No. 66-H-657 is, of

course, the petition presently pending before the Court

upon remand of the Fifth. Circuit’s opinion in Loper v.

Beto, — F.2d ——, decided October 6, 1967.

Civil Action No. 67-H-207 was filed on March 17, 1967

before the Honorable Allen B. Hannay, United States

District Judge. The petition was denied on October 17,

1967 after Judge Hannay had found that the Petitioner

had not éxhausted his available State remedy under Ar- 4

tiele 11.07 of the Texas Code of Criminal Procedure. The

record reveals that Petitioner had, in fact, exha all

the remedies available to him in the State courts on all

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VII.

Petitioner has filed at least six applications for writ of

habeas corpus in the United States District Court-for the

Eastern District of Texas. These six petitions are: .

Civil Action No. 2236; (2) Civil Action No. 2526 ( 5

‘ferred to the Southern Distiet); (3) Civil Action No.

2703; and (6) Civil Aetion No. 4458. 5

While no opinions or records in Civil Action Nos. 2596

and 2703 are attached to this Answer, they are considered

in the other opinions rendered by the Judge of the Eastern

been without merit and the Court took judicial notice of

each of the prior proceedings in Civil Action No. 4458.

The Opinions in Cause Nos. 2236, 2526, 2641 and 4458

are attached hereto and expressly made a part hereof for

all purposes. Also attached to this Answer are the depo-

sitions of witnesses in Civil Action No. 2641 and the

deposition of Petitioner in Civil Action No. 4458.

An examination of the opinions rendered by Judge

Sheehy shows that all allegations with the exception of

that concerning reyocation of parole have been previously. ,

developed and have been determined to be without merit.

. VIII.

Petitioner’s applications for the writ of habeas corpus

have time and time again been held to be without merit

after a full and adequate development of the facts and

evidentiary hearings conducted by both the State and

Federal courts: Successive, repetitious, meritless appli-

cations need not be entertained by the Court. under the

authority of 28 U.S.C. Section 2244. FV

Petitioner has exhausted the remedies available a him |

‘

2296; (4) Civil Action No. 2641; (5) Civil Action’ No s

Distriet of Texas, the late Honorable Joe Sheehy as having 5

Parole and the conditions and revocation thereof are

matters of executive clemency. to be determined by the

eee oe ee or cere pet the Teen Board. cf

Pardons and Paroles. NOS constitutiona] or other federal-

ly protected right of P tioner has been violated by the

revocation of his parole and no federal a. is pre-

e n Court: fer; n ; |

Petitioner has 9065 accorded each and every niht ond |

privilege guaranteed to him by the Constitution of the

United States and by the ä and laws of the

State of Texas. 15

WHEREFORE. PREMISES CONSIDERED, Respond-

ent respeetfully prays that Petitioner’s. application for

* writ of habeas corpus be, in all things, denied. .

—

Respeettully submitted,

| . „ dune d Marri ir

e Attorney General of Texas

ae Gxonon M. CowneN. =

| oo Ge First Assistant AttoPney General

eee a fe ee 3

: ee Executive Assistant eee

VVV n. I. Larriore .

„ . ude Len Attorney General 5

„% Bae Assistant, Attorney General,

5 i 8 5 27 af Thomas F. Keever PG

a Tous F. Keeven-°.

/ _ Assistant Attorney General

25 « —

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ee IN THE UNITED STATES DISTRICT couttr.

„ FOR ‘THE SOUTHERN DISTRICT OF TEXAS

oe ee pee. _ Hguston DNS |

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[fol. 38] 2 A1 right, sir. Now, 3 of facts · N

of the trial, Mr. Loper, reveal that the state was allowed 3

to cross-examine you concerning certain prior con¥ictions,: ,

fol. 39 and I would like to ask 88 “a few questions ‘

about those, if I war. . i

2 A Yes, sir Sir. ies

e Were you convicted in* 1981 of burglary in Scott | 9

ce County, Mississippi? pain os

* A Les, sir. f 5 8 „„

22 Ho old were, you at this time? 5

3 A I dont remember, but I believe I was around 17

a8 years, something around that age. I’m not for sure. sue

: Were you represented by an pepe, Se in connection

with that roceedings? ee

: A No sir, I didn’t have aagattorney. ;

3 Q . Were you advised that you bel Fight to an at ;

1 torney whether you could afford one or not See tee

™ A No, sir. | eee

Did you know that you wer‘ etl to one whether

a ; you could afford one or not? Soe 3

„ Oe e

55 5 2d nfo th ur ne ue ,

_ be represented by an attorney? 7 „„

4 No, air „

08 ‘Were you ende u bes beet,

1 n

eee ope, of burglary in 1940 N

pee

Are f

his uae re the time that occurred

Were you

ira eve I was about 25 25 or 28, 1 dort remember

—

— ; ; 22.

. , :

% ¥ ‘ae

e.. 2 sian 4

. . Popa

* * 1 | 7 ‘ 1 .

fe / h te oY 7 er tet apy % ; 5 ori 7 Fe r 225 8 3

* . ¢ * x 5 2

5 * — * « 4

2 . * a ‘ ‘ 6 e 3 e 5 ;

fy 27 ‘ . a , ; ‘ , wis N ,

3 1 1 ö * ; 5 ; ; N 7 5 i

1 re : 7 , 7 Palle Foe 2

~ ae > + / ‘ 7 82 . ‘ 1 ghee ve. ‘ ,

1 “s ~ . a * /

oe Wa ; : A , e a

on 7 Pi fe j * „ ; 1 pee a 75 5 5 3 8

orm 2 79 | . 5 N f 7 2 ö

{fol 40

2 Ga

Tow ta".

5 Q Did you conduct your own trial? |

E Let- me ask you one more W about that Scott =

County, Mississippi, conviction. Did ” plead guilty or

? :

not

I plead guilty. 5

FF :

Tes, e

Al right, sir. Now, in connection with the 1940 |

viction,. wey you * by an attorney?

A No, sir.

1 At any stage of the proceedings? |

9 Were you 1 advised that you . ght to an at-

torney whether jer you could afford one or ner. |

A No, sir. .

Q Could you in fact afford r. 5

„A I don’t believe I could have then.

Q What about 1931, the conviction in Scott County,

. Q.

con

55 IIississippi, could you have afforded an attorney?

A I couldn’t have, no, sir.

- Q Did you know in connection with the 1940 proceed-

| ing that you were entjtled to be represented by counsel

whether you could afford it or not?

[fol. 411 A No, sir. |

Did you inform the eourt. tha you ‘did not want *

be represented by an attorney? N

A No, sir.

Q Was the 1940. proceeding in Leake County, Mis-

— aia yo plead guilty or not. guilty? oe

Was a trial held? eee on |

A Yes, sir. 5 .

Wo conducted the defense in that trial?

A Well, there wasn't anybody. I just didn’t know .

what to ask the people. I didn't know = about

As far as it was conducted, yes, sir. :

Why did vou attempt to do 80 yourself? |

a Well, I didn't have an attorney, and gered to help

me. I didn’t want to plead guilty’ to it.

8 * * .

~ {REPORTER’S. TRANSCRIPT OF 3 as Dune Exaiy 8

. INATIQN OF RESPONDENT’S W D. Harkis, p.

* * 9 *

lol. 971 A Yes: E appeared in the trial of the ease,

2 plea of guilty, He refused to plead guilty, over Jim

Letts recommendation. Xnd then during the trial, I ob-

[fol. 98] in, that had been d in the record. ‘I 1

didn't see any ju

gives the District Attorney the right:to ask-the defendant

if he had been convicted in this state or any other state

torney or any other attorney asking that question coul

go. And Judge Williford overruled me, “I know what is

. good evidence and what is not, so we will just go ahead.

_ And then, When the case was at a—

THE COURT: Now finish, Mr. Harris, what hp.

a : ay, and von

were convicted of a robbery or something else on another

[fol.99] date, and the only time that

THE COURT:

J oe Proceebarce Dagar Tar

e ares te n 1111

4 2

Ree * „ .

oid 1101. 1111 A What kind of trial attorney, or do you

ee Letts?

A Well, you have classifications with haps Percy

ee ee ee ee ae tts was a

detter attorney than P ercy Foreman, as far as trial work

is concerned. He bad the ability to turn on what ve

| call crocodile tears, and he could cry. a verdict out of a

jury better than anybody I have ever seen. And he was

a good attorney as far as— | 3

THE COURT: He was certainly-an experienced law-

a. tale

* Ba! > 4

„o

Na rloN or n WITNESS . L. D. HARAAS

; Se = page 1181 8 Ce | hs

5 S

mat Betty Fay Darti was the only witness for the state

a r ‘being the one who committed

eee

A Yes, sir, and 1 thought it was very led evi

Se * „ * 89

e bes No, ses

e | 0 CRIMINAL DISTRICT oo

HARRIS COUNTY, TEXAS

VEMBER 3 A D. 1947

: nce ms Re 75 7

ö | eo Se

be ah STATEMENT or FACTS

+ —

* 4

\ aD

33 S

— : * %

= — :

0 2 © °

5 — 5 .

eee _ “GENERALINDEX T

Betty Fay Darty — Direct .

Dr. F. B. Weller ——. Direct

8 DEFENDAN T ——. Direct

sere Nn A8

. ‘Re-Direct . |

_ DEFENDANT RESTS — 51

SrarR RESTS ___— — 61.

“COURT REPORTER'S CERTIFICATE z 61

Cause ‘No: 58,888 Soe

IN THE CRIMINAL DISTRICT COURT

er HARRIS COUNTY, TEXAS: sss

NOVEMBER TERM, A.D. 1947 |

— ‘

cen eae x

TEE STATE oF TEXAS,

‘OT 1 ss .

E IT REMEMBERED, that upon this the 17th day

of November, A. D. 1947, the above numbered and en-

titled cause coming on for trial, upon. regular call of the

docket, before the HON. FRANK WILLIFORD, IR,

JUDGE OF SAID COURT,..and all parties having ap-

peared in person, and by their respecti e counsel, ang

having announced ready for trial, the following evidené

was adduced and facts proven, to-wit: - 3 J eee

APPEARANCES = 200 ces, |

7 FOR THE STATE: x ee ay

Mr. E. B. Duggan ae

and =

Mr. J. H. Meyers, . e e

Assistant Criminal Distriet Attorneys. .-

9098

é ni

daa 21 N a

"BETTY FAY. DARTY, Ree ae

“called as a witness on’ behalf of the STATE, and after.

__ Mating bom. Galy ˙ tentified, 26 follows: ae paca:

| a DIRECT EXAMINATION.

„ Questions by Mr. Duggan

— —

ee ae Tour naine is 2 Fay d

Q Do you go to schoo)?

A Tes sir.

wat grade are you in?

A Lam in the 3rd 5

Q Do you go to Suriday school?

A Yes sir.

Q. Do you know the difference between telling + sat

truth and telling a story, or an untruth?

Q What happens to you when you tell a story?

& I IT would go to the devil.

Q Nav, how od id you say you were, Betty Pay?

A Eight. .

5 . And do you know Otis Loper, t the Defendant °

“seated at the counsel table? | is

fol. 31 A Tes, IO. him. fis

e whet ration isthe Defendant, Oss ne to

you?. . |

A What do you mean? 5

Q. Is be your father or your stepfather?

A .

Q_ How long has he been ebe be, that you

A I don’t remember.

Q What place or State did you come from when you

eame here to live in Houston?

A Sumiton, Alabama. a Nii

Q A you came over here to be with your siother?

A Yessir. gts ee ee ä

MR. LETTS: Your honor, we objet to cu lad

ing the witness. :

_ THE COURT: " Objection over-ruled.

MR. LETTS: _Notes@ur exception.

[. The above is defendant’s Bill of Exception No. Eee

Q When you came here to Houston to live with your

| 5 mother, did you see this defendant, Otis Loper?

4A Tes sir.

Q Had you ever seen him before that time? „

A Yes, when he and my mother came out there to

visit my grandmother. . .

[fol. 41 Q Your mother and this defendant, Otis Loper; Sy

ame to Alabama to visit your grandmother and with

whom you were staying with there in Alabama? :-

A Les sir.

2 And ghen later you came to Houston to live with

e a ‘eee.

A Yessir.

0 n We bjt, your Bona, as that is lad

7 ing an suggestive repetitious. 3 :

THE COURT: Tes, don’t repeat, please. :

ae Boley aps ds Pou nisin oer doth ee dns ta

1947, ‘on or about that date, soon after you cathe to

Houston here? 11 N

A I don’t know exactly when I came out here, but I

think that-time was about when I came out here.

Q bet art e eee, od

date?

A Yes sir. iid

3 Q Did something bed happen to you, Betiy Fay, a

that time? t

A Tes. sir.

2 And that was on or about the 9th dn et August,

I9GtT “at

A Les, I think s. .

d Q. What day’ of the week was that, if you know, ae

remember, Betty Fay?

eS That*was a Saturday.

-Q Where were you on tat garant

. &

deg

2§ popororee **

—

to the grocery store.

to the grocery store?

was between eleven o’clock and ‘something.

ees

ren gelockt

it was in the mo

Bos

iff

bok

PEs

Paes

ae and your little baby brother?

At that

father, do to you?

his finger up me.

> nd

ER E

jd you do when he did that?

nasty thing up me.

what I mean when T talk about this

a? .

erer

Tes sit

defendant’s priv

sir.

ere was your mother at that time?

and Mrs. Baker, a neighbor, had gone out—

rning.

left you there at home with this detend-

you know what 1 mesn' when f ay your ef

hia finger up in your private partt ee

‘he dd. .

Wi you when i hat Baty Pa? :

you recall, Betty Fay, about what time was ‘thet

Saturday morning did your mother and Mrs.

was on the morning of that Saturday 2 5 75 ,

time what, if anything, did this Ae dent :

. f

e e in your privat parts,

- And ‘id he finally get off of 7 :

Yes. Taps metals Sal Eso

Q How long did the defendant have his private parts 5

in your private parts? .

st ta highly: projec and Eier te ary ys

as it pre ens to 5

THE COURT: Objection over- ruled. Pee

MR. LETTS: Note our exception. :

(The above is defendant’s bill of exception No. 2)

A I don’t know.

2 Wes inst rim inthe hu i he defend 1555

ES 3 ant pw his private parts in. four private parts?

A In the bedroom. i *

Q Where was itn te bedroom, was ion the oor

og ‘the bed?

On the bed, rhe „5

Q Did you bléed from your private parts during or’

after he had his private parts in your. private parte?

A ‘Yes sir Ae i „

2 Did you bleed very WNT en Ns ee ee

A Yes, I did. ee

Q on this was over, Betty Fay, where did

you go, ff place?

A 1 ‘where, but he went outdoors in the

yard. I went atside in the yard later: \ )

[fol. 81 Q Why did you go out in the yard—wh ere was

EE m the

house? i * i

A 3

wen you went etd in the yard, .

ö go to the b ;

A Yes sir. :

me. a ° ; 5

‘you where you were hurt? i

8 bake, e eee

: = and ‘we object to it if the Court, please. ae

Se.

COURT: Objection over-ruled. ~*

LETTS: * Note our exception.

(woe above is defendant's bill of exception No. 8) a

: Hor long did you stay in the hospital? /

ne pm en ware é | =

tad “Q ‘Then where d you go, Betty Fay? oO

A I came over Hees

2 ‘You cathe over here to the Sheriffs Office that is

ro N wr

. r 5

mother, „ away ‘from :

rae

OOO

on 9 7 . *

‘ ; j ase eed 4

* : re 5 8 : 5 Nees

. 2 2 . 5 . ; sg Met Fie etek

8 : 1 . ¢ 2

. . N 5 x 5

5 . 7 7 2 2 > / « 8 2 i ait

1 5 @ 4 3 0 .

. 7 3 5 2 * 2 .

2 : „ * 7 232 >

Eek * 8 ;

Von are not the wite of i detendant, Otis Lape = :

; trol. 10] 2 je RPO CE NS th”

pened here in Hoyston, Harris County, Texas?

Ae |

Hee: t happened where you were'living with your

_. mother gut an Whitney ‘Drive, which is here in pi ieee,

Harris County, Texas?. 7 5 x

A Tes sir.

un DUGGAN: wies al he on- hve, your

honor,

„„ CROSS EXAMINATION Li £@

Quicetions by Mr. Letts.

Be By are Betty. Fay Darty? *

What ie your mother’s ist name, Betty Fay? |

Willett. 4 ee

—

255

Pad

L 85

8 a . |

E 75 4

)

‘

sas

* | 7

4 ;

Q. Did you ever li witha man by he name of

Willis? .

8 Yes sin

Q Your mother and you lived with hint”

A Yessir. He is dead now. 2

Q How long did you live with them? 5

A As much as I lived with my grandmother. He, Mr.

Willis, lived with my grandmother and I lived Sore with sc.

them. when I was a baby.

3 Ton were hurt in Alabama, weren't you?

A Tes, I guess I was.

2 Did'you fall on something and hurt:yourself while

et. in Alabama?

you were in

I didn’t fall on ‘anything but I was afraid my

What did you tell her?

Ad ther T fell on: stick of wood.

8 No,

lig 121 mo mother would spank me if I told her the truth.

ell

Mier At wes 2 — 4

e e 5 3

* * of 4 * >

. abo te Yo 1 3

* ae * . 2 8 ‘ 5

N 7 * ‘ 8 8

fe 4

2 2

„

Ps 1 91 ce

phe

4 |

Tell us what did happen—why didn’t you tell your

I didn’t tell them hecause I was afrajd of my step-

and my mother. —

“hat stepfather was that, Mr. Willis?

at did he do then, if anything?

j, and I also told my grandmother. ae

e you fell on a

6 other and my step-

was afraid my Mother would spank me.

he do to you?

base up me and pat his nasty old

you then?

21d the last time he did it. |

r kg

. B 2

@ time were you living with your father

-4t

a he dd . then he wert there; he was < ie

[fol. 131 Q. Wust was: your n — .

A I don't know. He never told me what his. name

was.

your grandfather? a 8. 85

A About 3 or 4 years. ee

Q Hom ong did yo live with your grasdmothet and

Q Aa wae tine is taco, ee ee.

. assault took place; have you been living here in Houston?

se The first time was in Alabama when I was Hping

with my grandparents and the second one was here in.

Houston When I was living with my mother and Otis :

Loper, and I am living at the Mary Burnett School now.

Q Have you talked to anyone about this case? |

A I-have talked to them here.

Did you tell. anyone in the Probation Department

about this case? :

A. Les. I told the laity that brought me out here.

Q What did she tell you to say?

A She told me to tell the truth. _.

Q Tet the tot, that is what a. fold you?

A Tes sir. 5

Didn't she tell vou anything else!

2 No sir.

2 ‘She just told you only to tall the truth about itt

A Yes sir.

fol. 141 0 Didn't she say anything else? e

A C0000

asked me here. :

- Q And you told her all about 3 eee Sa aaa

A Yes sir. aa

3 Q What was the doctor's. name that examined you at

the Jeff Davis Hospital?

oe I don’t know. 3 etre yt:

Tou haven't seen him here soiled’? 3 ee

A No sir. Saree |

2 Now, tell this Jury and turn around and face them

' so they can. get your facial expression and answer this

-, Question, didn’t they tell you to tell here in’ court. that

tee eT aS

: 1 No sir.

5 ‘They mant tell you to thin witness stand and

da the Jury? e

A No. They told me to tell the truth. :

"nasty thing in. yout 8

A No, they didn't. 8

MR. DUSGAN: Your 3 has answered that two

or three times; she said they told her to tell the truth. —

fol. 15) THE COURT: Yes; that's right, but this is

ö tion.

MR. DUGGAN: Yes, your honor.

o told you this happened on August oth?

A I guess this lady did that other time when I came.

down here. . re. I don’t know her name, and I didn’t know it 5

5 was on August 9th. |

About four or five days before this defendant, your

stepfather, was arrested did your mother have any trouble

with your step-father? te |

MR. DUGGAN: I object to that question, your honor,

unless counsel can show what connection that has with

MR. LETTS: 1 will show that later, your honor.

THE COURT: I am not going to permit you to do

it. Objection sustained. .

MR LETTS: Note our exception. Prete

THE COURT: Tes sir. 8 . 9

(The above is defendant’s bill of exception No. 4)

0 On August 9th, your mother, stepfather and little

brother were at home there along with you? ,

A My mother and Mrs. Baker had gone to the store.

They weren’t there. My stepfather was there with me and

my little brother.

{fol 16] -Q- On August och around 8°80 or 9:00 A.M.

your ther and mother and Mrs, Baker. were at

~* home there, isn’t that right? =

A Not my father. He went to town, No, he went to

town later. *

2 ‘And Mrs. Baker and your mother went to the store

for groceries?

A Tes sir.

* N

Q. And they were gone about ari hour?

And when they came back your stepfather, you

d the little baby brother were at home? 5 i

A Tes sir. cae : ee

Q I ask you whether or not you left the house and

ran up the drive-way to meet your mother when she was

coming in and you asked her whether or not she brought

you some candy and ice-cream, did you do that oe

A. No, because she didn’t have enough money to buy

ice cream and candy; she just bought groceries. si

_. Q And you helped your stepfather and your mother

bring the stuff in the house? | W sett,

A Tes sir. | * i

Q You wasn’t crying then, were you?

A No sir. | .

Lou were out in the yard playing when your

A Yes sir.

that time, did you? . bes

A No, I didn’t say anything about what my step-

father did to me until my mother said she was going

ing and where I was hurting. oo - :

2 At that time you were not crying? .

A No, sir. nage 3

argument? N 5

A No, sir, my step-father went to town.

Lou never told your mother anything about it at 3

> i

a ¢

Q Your stepfather went to town in the afternoon?

A Yes, sir, after he got the stuff in the house be

went to town.

[fol. 18] 2 What did your mother do later on that

A She was still in the courthouse here. Eee

, stepfather whi while Mrs. Soler cen thane eth the grocer- .

ies were taken in the house? *

W. my ae gave me vome peaches. 7

town that you and your mother left the house?

A Ff

A That I was bleeding. e

VVV

— ‘Yes dr. 3

Q Be ans ta Gn preomms of

your mother that nothing was the matter with you? .

e He told my mother there was a split.

That what was split? 8

N A Whatever you call it; I don’t know. .

Q Then you and your mother got in an automobile |

fol. 19 and went where? 5

You see we went to the hospital first and then we

co phe: eee eee,

we went.

the hospital direetly over here? bes

eee ee te the Aee- 8

Q That was how late in the afternoon? 5

A About four.

50 — e in the afternoon?

4 75550 5

A. Yes, I guess 80. :

3 And it was about four blocks aay from your home

where he was arrested?

4 Yes sir.

home:

Q You and your mother got out ofthe ear and walk :

A Yes sir.

Q That Was on Stary fternon around ve ok

es sir. re

2 On Sunday, the following day, what did you do?

A: *

mother to get me some ice cream, and I asked my mother :

don’t know. I have forgotten now. I told my

to take me to Sunday School. My mother said she couldn’t

get me any ice cream because she didn’t have any money.

I could hear them singing at the church and I asked my

mother

to take me to Sunday School and she said she

didn't have any money.

Q On Monday, did you not go to where your father

worked,

A 1

| Jail. N

2 Just you and your mother went down on Commerce a

vou and your mother?

hadn't got"to see my father since he was put in

9 i

Q 1

“My Bare e its sed te Pot my mete Se

They took me and my mother. They put me in. the

Q ey put mother in jail that Monday?

A 703 ar Mrs. Baker

ä e N

oe 7) n know u girl by ‘the name ot Beatrice Mae

- McGee?

Baker and my mother had a fight.

A Mr. and Mrs. McGee?

Yes?

Yes, my mater and 1 went to visit them .

34 N

a. Mr. MeGee, you 3 sine at your house?

4 Yes, we went to visit them at his house. es

Where did you go after you met Mr. McGee?. $i

ee [fol. 211 MR. DUGGAN: I object to that, your honor,

855 nds it is irrelevant and immaterial to this case.

8 THE COURT: That's right, you have a fight that

happened 3 or 4 days after and now you are trying to

bring something else in, Mr. Letts. Objection sustained.

5 MR. LETTS: I take exception to the Court’s ruling.

(The above is defendant's bill of exception No. 5)

5 0 Isn't it a fact that your mother put you up to tell- 5

ing this on your stepfather and you are doing it here

today for your mother?

A No, sir, that is not so. My mother didn’t tell me

nothing to say. She was trying to find out about it when

ET ITS: . ae 2

bee shove u Sfedants Ml d auen No.6)

MR. LETTS: That all, no

I DUGGAN: T have no further fue

pine DR. F h. WELLER, ee ir

; called a8 witness on behalf of the STATE, sil etter

having been duly sworn, testified as follows: —

| DIRECT EXAMINATION. 5

Qusstions by Mr. Duggan, -

Q You are Dr. F. B. Weller?

A Yes, sir.

2 eee

7 5 :

A In 1946. 8

3 8 1 practicing physician here

in Houston, Harris County, Texas? :

A Tes sir. 25

Q How long, hive you beea a licensed and p g

physician here in Harris County and the State of Texas, .

_ doctor?

dhe witness stand?

A Since June of this year when I finished my interne

work here in Houston at the Jefferson Davie kapital 4

. Are you still there at the Jefferson Davis Hospital?

A Yes, sir, I have been there since June. :

eS On or about the 9th day of August, this year, 1947,

doctor, did you have occasion to examine a little girl by BS

ie inmate ee

A Yes sir.

„ Just what time of the

Q Sila approxima, ds her?

It must have been around 3:00 P..

Three o clock in the afternoon? /?

é 36 ae :

, 4

8 :

A Yeon ot want what fod in my man

mh ian of her? ;

2 Tes?

4 Well, Gi ihe: e th abe prtviten —

ing the vagina and the lips of the vagina were blood

_., tinged, and so were the interior parts of her vagina. The

opening of. her vagina was stretched evenly around and 5

it was blood tinged. At the end of the vagina canal, there

is the cervix uteri, which is the neck of the uterus which

opens into the womb, and the cervix uteri had blood on

it and it was inflated and tender. The cervix canal was

stretched evenly all the way back to the womb. There

were no jagged cuts or tears on either the vagina or

cervix, but they were stretched and bloody. Her hymen

was all broken, or torn out, and that is about all.

Q Moi~etsw 6,4

a is that right?

A Tes,

2 That is is commonly known to be the opening of the

vagina, the hymen, isn’t it? Can you explain the hymen

eee, Sad

kol. 251 A Ves. The Wen is a thin membrane that

vou ean nearly see through which is located just back in

ce the vagina and in this case there was no hymen. ae

ln other words, the hymen was completely torn out?

A Yes, it must have been. |

And you say ~_ even the opening to the womb

was blood tinged? , 5 : eit

A Yes sir.

, Q Something had N io e as far as

A Yes sir, but .

. ie 5 „„ ee ee rome permit itt

MMR. LETTS: We object to that, your honor, a as it is

asked to inflame the minds of the Jury. f 2

IHE COURT: Objection over- ruled.

- MR. LETITS: Note our exception.

(The above is defendant’s bill of exception No. 7 7)

2 “eg ors erage continue your answer to the ques-

tion?

A The lips of the cérvix canal, which is the opening

to thé womb had Heed on sod the wale of the vagina

‘ 8 * 8 2 i> , —

Comet . . re oe 7 ae . 5

2 + 2 * 3 5

e 2 1 . et: 4 7 > - .

blood at the opening of the womb does not |

that something had penetrated that far. It could have

been but to have blood on those interior parts it could.

have meant the heavy blood on the outside caused it to

[fol. 26] be tinged on the insideQ. 5 Ae:

Q How-about the walls of the vagina? Oe

4 The walls of the vagina were sti d, tender and

Q How far back did that condition exist, doctor! 2

2 And that condition of her private parts. could have

been caused by the penetration of a male organ, could

it not, doctor? Ate 3 a

A Yes, it could have.

Lou made this examination of this little girl, Betty :

Fay Darty, here in Harris County, didn’t you, doctor?

A Yessir. 5 . 5

MR. DUGGAN: That’s all, thank you, doctor.

CROSS EXAMINATION

Q When was ke brought there to the Jeff Davis hos-

[fol. 271 pital for you to examine, doctor? 5

A My record here shows that I examined her at 2:45

P.M. on the 9th day of August, 1947.

2 Now, doctor, upon your examination of this little |

girl, which you have just explained to the jury, can you

tell the jury whether or not her hymen was broken

A I saw no hymen in this child at all, :

e @ Didn't you find any of the hymen flesh, or frag

ents of it, remaining there? my Boe ee

Ai No td foo OO ges

a , 8

88 | :

Q. Now, a lager of parton could c that cont

tion, couldn't it? 7

4 Yes, it could. ä

; Q Sr & cid ef thet nego don’t lee find the

vagina raw or swollen where on occasions they use them-

* . selves, you know what I mean, don’t you, doctor? ,

A have seen no series, meaning a good many cases,

on that, but I will say that a’ small percentage of children

a may use themselves but that would be pretty young at

e her age to do it—it would be quite voung, but it could

be possible.

Did you mest the mother of this little girl at the

- time she brought ild over to the hospital?

A I beli believe T met e mother. There was a lady there

with the child, and eve she was the mother, but -

5 & I don’t remember. .

Did the mother of this little girl appear to be ex-

cited, or an like that? :

or anything pe

A No, she didn’t seem to be excited at that time, in

act, eg d be se at the number of those kind

tmat — ted that little girl and tore out. the hymen, -

They asked me if it could have been and I said it

a male organ that did it. 1

N "QI It could eae been a finger, too, couldn’t it—you 5

are not telling this jury. it was a. penis, are you? a*

7 2 No, 1 that seep ;

141

1717

171

8 THE 0 RESTS, “YOUR HONOR.

-'MWR\ LETTS: Your Honor, the Defendant wants his

eee ee, who we subpoened, here to testify in

THE COURT: Is she here now? .

MR. LET ITS: No, she hasn't appeared, but I think

eee ene Cs ke tart

25 pls eee If she isn’t here we can’t wait for you ;

. g a - —

You are ff..

MR. LOPER: Sodge, I want my. wife have, o tesity,

. _ fhe was (Defendant) subpoened to be here.

a! : teen carey No, this trial has to go on if she isn’t

MR. LETTS: Note our exception, Your Honor. ay

„ MR. OTIS LOPER, THE DEFENDANT,

ä took the witness stand in his own behalf, and after her-

ing been duly sworn, testified as follows: }

"DIRECT EXAMINATION - 5

ae e table

2 What is your full name?

A Otis Milton

[fol. 291 Q Mr. e Bow a bag gee

| I am 34 years old. ue ae :

Ihen were you born? i * „„

In 1913. 8

What is your native state?

Mississippi.

How 5 have you been living here i in Texas?

I came to Texas last November. |

Who did you come here with? | Bee

My wife. ,

: How log had yon been married previous» the

i time you edme to Texas? : ie ae

3) A We got married in 1945. 7

AE Bid e to Houston, Texas, thent

o, sir |

5 Je Where did you live before you came here? 3533

1 A I lived in Philadelphia, Mississippi, and then!

| 8 moved to Jackson, Mississippi, and lived ther for awhile’

| and then I moved. to Hattiesburg, Mississippi, and live

ae there for awhile, and then we moved to Louisiana where ao

nae back tr Mirek gol . for awhile, and then we moved 3

back to Mississippi.

-Q. How long have you been in Houston? 7

A About a year. We came here last November.

2 eee 5 f

ore;

d bel 1 1 .

ayer 4. Did your step-daughter come with you at that ume: 5

No sir.

When did she come here to Houston? Ugh

A We went and got her in he but I don’t remem-

ber the date.

3 Last year or this year? —

A This year.

Q Where did you live here in Houston?

A 3801 Whitney: Drive. ;

Q. How long have vou lived — or when did you

“move there? 1

A Last December. N

2 ‘While you were living there was any children ben

S aS : . oa

A Tes, a boy. 1 i

LTour wife went to Mississippi and “en this young ;

8 girl and ‘brought. her back here?

A She went to Alabama. . .

Qo And brought her back fo Houston? 3 .

2 2

5 2 Where were you working at that time? 8

A. For Swift & Company at 1102 Commerce Street.

A It is charged here that on or about the 9th day of

August, 1947, you committed as assault upon your step-

daughter, Betty Fay, who is 8 years old, will you tell

+ ffl. 311 us what happened, in your own words?

MR. MEYERS: Your. honor, we object to that in nar-

rative — 2 — and uld like for his counsel’ to interro- ä

2 n and answer form. a

COURT: ‘Objection sustained ; interrogate him,

* All richt, tur. honor. 8

<Q. Were you at home on August Oth, 19477

A Tes, air 8

ee. Who was with you?

3 n —. gud went to

. VE; ae pas She was back at nine ©

.. gelock. She fed the baby before she left. When my wife

the

house and went to the store with Mrs.

Baker I was left at home . = 5

who was about 4 months old, and the little girl, Betty

Fay Darty, was there. My wife fed the baby before she

left and the baby wouldn't hardly suck the bottle of milk;

he was crying. = ;

THE COURT: Interrogate your witness, Mr. Letts.

MR. LETTS: He is telling what happened, your honor.

THE COURT: All right, but interrogate him.

Q You say that the baby was crying and your wife

. 4 . *

. 1 : .

1 3 a

* : 41

7 . Py * * * . * 8

n had gone to the store with Mrs. Baker? are Aan Se RE

fol. 321 A That's right.

home?

A About an hour.

Q Where did they go, did they go to more than one

place? 3

A I really don’t know. e

Q What happened upon their return from where-ever

they went? E .

A When they got back the little girl ran out of the

house and met her mother as usual and wanted to know

ir she had brought her some ice cream and candy. I had

given my wife enough money to buy that extra stuff, but

5 she didn’t buy the ice cream and candy.

Q Did you help your wife unload the groceries?

A Ves, and there was some big boxes in there and 1

told her they were too big for her to carry but she lifted

some of them anyho w. os |

Q But you took most of the groceries. into the house,

you carried them in there? es

4ꝙßF?F . es

Q What happened after you took the groceries into

‘the house, did you and your wife have an argument?

is a leading and suggestive question.

IT THE COURT: „ iection over-ruled.

MR. DUGGAN: We object to that your honor, as that

A Tes, we didn’t get along very good ; we did have

an argument. „ SOS

[fol. 331 What was said in that argument between

you and your. wife, Mr. Loper? ö

A My wife got mad at me because I didn’t clean uͥß

the house while she was gone.

Q How long had they been gone when they got back

SS 2

| | .

Pee 3

Q Your wife got mad at you. for not cleaning up the |

house?

A She sure did. Phe a

Q While your wifé was gone did you, at any time, as-

mult that little girl, Betty Fay Darty?

A No, I did not. I didn’t stay in the house dandy at.

all with her during the time my wife was gone. I took

the baby boy out in the back yard to try and stop him

— erying and to take eare of him until my wife came

Has your wife. tried, at different times during your -

2 marriage, to send you to ‘the penitentiary, or threatened |

to try and send you to the penitentiary?

A Yes. She threatened to have me put in jail several

| times, and one time at the S.Y.S. Food Market when I

left her there, and Mr. Smith, who works there, can

verify that statement.

Q Do you know a man named McGee? ..

Yes sir, Arch McGee. 5 ö

Has this Mr. McGee been v vi Fiting your hous, and |

His son has. i

84) d This Mr. Metice s son had been visiting in

home? i. :

Yes. ;

How dd is his 7 :

bout 14 or 15 years old.

V. this McGee boy take the little gir, Betty Fay,

—

go>

you see this 14 year old McGee boy and Betty =

‘I saw them together quite often.

80 Did you remonstrate with your wife about her ac-

tions in letting the ats = go over to the McGee ad

7 f

A- Yes, I did. a . :

MR. DUGGAN: Your: honor, we object to thats as. be-

ing immaterial to this case.

THE COURT: — what is . materiality, Mr.

MR. LETTS: It is, your > ahaa to show what caused

the trouble between the defendant and his wife that would

cause her to. :

THE COURT: Mr. Letts, let’s b the testimony

to the matter of the charge, this matter — is on

tria

MR. LETTS: Yes, your’ honor. :

Q Was your child, your baby boy, erying at * time

fol. 35] you went out to the car in the drive- way when

your wife and Mrs. Baker came in from the grocery

store? f

A Yes:

Q Was the little girl. crying when your wife drive up

there about nine o'clock with the groceries?

A No.

Q And she went out to see her mother when she came.

in with the groceries?

A Yes sir, she ran out a little sooner... 5

Q When you were taken to jail your step-daughter

was left there at the house with the little baby boy?

A Yes, they were left there with my wife.

2 The little girl was 1. with your wife that morn-

ing, wasn't. she?

A I don't understand your question. ene

2 Your wife went to town, or to the grocery store

somewhere, With Mrs. Baker, didn’t she?

A Yes sir.

And she came back home, didn’t she?

A. Teak.

Q When your wife came back home with Mrs, Baker

did the child, the little girl, go out to the car with you?

A ‘Yes sir, she went ahead of me.

And later on your little step-daughter and your

[fol. 36] wife went to town, isn’t that right? .

A That was what I was told, as I left there first.

They. went to the J 2 Davis . didn't

they? ‘oe ; ats

A Tes. a

MR. DUGGAN: We object to that, your honor, as it

is hearsay. :

THE COURT: Objection sustained.

Q Wen were you 8 a

A It was around about five-thirty or n G clock

in the evening on August 9th. 8

3 . at the time you were ar.

My wits ae and the little girl, Betty Fay.

0 When you were arrested by the 4 officers, how

far were you from your home at that time?

A About 4 blocks. :

2 Did your wife go with you and the officers shee

you were arrested, or did she get out of the car and go

with the little girl?

3 rr ‘the little girl

towards home.

3 MR. LETTS: That's all I have, your honor.

choss EXAMINATION

Questions by Mr. Duggan.

: [fol. 371 Q Loper, you say your wife and Mrs. Baker

left you there at home with the little 8 year old step-

daughter and the little baby boy?

A Les sir.

At the time they left you there with Betty Fay

Darty, was there anything wrong with * was

_ Wrong with her then, was there? f

A There was nothing wrong with ber at any time.

Q. She wasn’t bleeding from her privates at any time

while she was there in your care? rigs |

A Personally, I couldn't say. :

Wasn't there any blood on her privates:

A I don't know. Bt

Q You lived there in a garage apartment back of 801

"Whitney Drive, didn’t you?

A Yes sir.

Q How far is that garage apartment Senn on houses

5 on either side of it?

das street?

A I don’t know exactly. There is a house across’ the

street in front of this other house at 801 Whitney. :

2 You were in the garage apartment and how far is

what from the nearest house, ao

a boat 125 feet, I would say, g approximately, ;

ou have one in that garage apartment?

[fol. 381 A Les sir. N

Q And did all 4 of you 3 in there, you, your: 5 85

* and Betty Fay?

Ves sir.

0 Lou all slept in that one bedroom?

A Tes. E

And there was no blood on the sheet of that bed

. that morning? | 85

A No. 3 e

Q And your wife left for this shot with Mrs Baker

around nine o’clock? |

A About eight o’clock, =

Aud they came back About eleven o'clock that morn-

A No sir.

Wat time was it then?

A Nine o’clock.

Q And right. after they ene back you had oocasion fe

to leave there, didn’t you? a 7

A Not right after they got back home, no.

2 What time did you leave there?

A Around eleven o’clock, —

Lou and your wife went over and visited Betty ;

Fay when she was living with her grandparents in Ala-

bama about a year ago, didn’t you?

[fol. 391 A It has been over a year ago. 5

Q And didn’t you molest her, or play with her pri-

vate parts, on that occasion when you were in Alabama? :

A No, I never have played with or. touched her pri- oe

vate parts. 8

And then Betty Fay was brought to Houston?

Tes. i

Q And she had been here ‘about 2 months up to the

5 time of this occurrence on August gth?

2 * She came here sometime in June. 1 don’t know the

date.

Q She came in June and she had been here 2 months? i

A No, she hadn’t been here 2 months. _

8 C

A No, Sir.

And hadn’t you 8 ber and told 41 what

: 1 4 55 do to ber if she told anyone about it?

e penetrated Betty Fay’s private parts wih. your®

N ys that meng of Angas | 9th, 1947, didn’t you?

Alfter you came to town on that morning of Au-

gust 9th, you know now that Betty Fay told her mother

what happened, and her mother immediately took her to Ae

the Jefferson Davis Hospital where she was examined by

a doctor, and they found out what happened to her, isn’t

that right?

ffol.40] A I know what L was charged with and that’s

_all.

2 And the officers picked you up between five-thirty 8

and six. thirty that same afternoon? 5

A Yes sir.

20 And you heard Betty Fay testify that thi thet time eu

vou molested her, she saying you put your private parts

in her private parts, and soon after when her mother

discovered she was pares and 1 e her mother took

her to the hospital?

A Yes, sir.

Q You heard her say that?

A Tes.

Q. And you say you never have touched her at all?

A I never have touched her privates at all.

22 You never had sexual intercourse with Betty Fay

Darty ? .

A No sir.

ze is a truthful child, isn’t she?

A As far as I know she is. :

Were is your wife now? — 3

A I don’t know. I have been in jail. I only know

where I heard she was.

, og Don’t you know that the reason your wife left you

was because as soon as she knew you had raped this 8

Fear old child of hers, she left you? :

[fol. 41] MR. LETTS: Your honor, I object to that.

rae oe COURT: e this ‘is =e.

3 , ae

0 Wr tsa inhale se

and refused to live with you, because you raped her 8

- year old daughter, isn’t that right?

A No, sir, that is not the reason she left me.

Q You can’t give me the reason she l¢ft you, can you?

A I thinkl en.

2 What is the reason?

She had been going to beer bre 1. is town all

the time with men. i

When? f

A When I was in jail. ee ;

dhe didn’t do that before you were put in jail?

AI don’t know. I was at work.

2 Didn't your wife confront you with her little girl,

Betty Fay, and accuse you of saad crime ba are ae

with?

A Nosir. sat

-Q You know that she can testify for ae don’t yout

A I don’t know whether she could or not.

_ Q During the past ten years how many times have

you. been indicted and convicted in this State or any

other State for a felony? ~ 3

[fol. 421 A About Wie thn pest ten’ years. .

. Q How about on May 7th, 1940, weren't vou ar-

rested

MR. LETTS: Your honor, T object to that, aa to his

being arrested, as that is admissible in case.

‘THE COURT: Well, 12 him finish the question, Mr.

9 ;

22A right—On y 7th, 1940, what were -you in- :

wre — fet 0

A | 8

- Q

Whee was that? :

C Mississippi. a „

What did you get for that? .

Five years in the penitentiary.

Q On January 15th, 1935, what were you indicted and

convicted for then? :

A Burglary.

MR. LETTS: We object, your ‘eae as that has been

over ten years. .

—

sod DUGGAN: It is not 1 years from 1940, your

honor. .

THE COURT: He is following the convictions. and

that is the correct ‘order in which they come, isn’t bas Mr.

MR. DUGGAN: Yes, your. honor.

[fol.48] MR. LETTS: Note our exception, your honor,

as that happened more than 10 years ago.

(The above is defendant's bill of exception No. 8)

Q. What were you indicted, tried and convicted for

then on January 15th, 1935, in e Mountain Parish, :

ae Petros, Tennessee?

7 0 OO

A Burglary.

Q What did you get for that?

4 Four years.

Q How about October 27th, 1931, what .

MR. LETTS: Your honor, we object to that and ask

the Court to ‘instruct the jury not to consider it. That

reaches way back to 1931 and the Court knows it would

prejudice and inflame the minds of the jury in this case.

IHE COURT: Objection over-ruled. 7

MR. LETTS: Note our exception.

(The above i is defendant's bill of exception Nb. 9).

2 Where were you arrested on November 29th, 1984?

A In Chattanooga, Tennessee. :

2 What about October 27th, 1931, what were you con-

victed for in Farchman, Mississippi, ‘then? 7

A.B

urglary.

* [fol. 441 Q What did you get for that?

A Six months, I think.

Q There have been so many 8 ‘you have com-

mitted that you. can't remember them straight, can you?

MR. LETTS: We object to that remark, your honor. as

THE COURT: Objection sustained.

It was for burglary i in 19317

Yes. . 7

Have you always gone by the name of Otis —

Not alwayn. 2

What other names hie you gone by?

— ys

Q That was in Mississippi, wasn’t it? e

A Tes sir.

Q What were you indicted and tried ~ on that case

in Mississippi in 19322 ; 8

A Burglary. « .

Q How much time did you get on that conviction?

A Two years. ae

We 2 that was under the name of Milton Cummings?

"See 72

2 And that is 4 times that t you have been convicted.

of ‘burglary, a felony? . N

A Tes. 5 fe

fol. 45] MR. DUGGAN: . That al, no more questions.

REDIRECT EXAMINATION.

Questions by Mr. Letts.

2 Now, tell these gentlemen of the jury, that after

going to the penitentiary all of those times that your

anaes on coming om, was to lead a clean and ee

life

5 MR. DUGGAN: We object to that question, your

honor, as he is putting words in the defendant's mouth.

THE COURT: That is right, objection sustained.

Q What were your intentions when you got out of

the penitentiary. the last time, you live a differenz life?

A Yes, and to get a job and settle down: 5

Q And you got married and had a baby?

A . Yes, but I-just married the wrong woman.

And while y. were in jail the baby was taken 5

away from vou and your wife? :

A Yes sir, it was taken. away from us and I didn’t 7

know where it was. :

Now, Otis, I want you to face this jury and tell

‘this jury whether or not you are guilty 1 . offense |

you are charged with here? a

A I am not guilty of it. ä

And you have been in jail since you were arrested,

[fol. 46] isn’t that right? 2 .

A Yes, I have.

0 Do you 8 where your wife 9855

2 o, sir.

Lou haven't heard from her? cee

A No, I haven't = from her eines the baby d died '

soon after I was arrested.

oe LETTS: That's 7

REC ROSS EXAMINATION

Questions by Mr. Duggan.

After you said vou wanted to go straight after

going to the penitentiary 4 times and getting out 4 times,

you ravished and raped . little 8 year old 8 Betty ;

Fay Darty, didn’t you? - 3

A No, sir. ä

—— And you don't know how she got that injury and

5 private parts, or vagina, to bleed, do you?

2 And you left the house there soon after her mother

returned from the store?

A I had some business to take care of at the Uptown

Clinic. Yo have to hñave a health card where I worked

and mine had run out, and my boss told me to get one

and I went down to the Uptown Clinic, which is down- 7

town, to get it. |

[fol.47] Q Did you say. you and your wife had i.

fight when she got back from the store?

A: Yes, we had an ent. : be

Q Wasn't that about bee ere this little „„

A No, nothing was said about her.

f Tou told the little girl what you would do 40 ber a

if she said anything about it and so you wasn't afraid

that she would say anything, were you?

A No, that's not right.

Q But she did say something: and you and your. wife

had a fight about it?

A No, that wasn't what we had the fight about.

oe: MR. DUGGAN: e

Og ae 1

REDIRECT EXAMINATION. ae

| Questions by Mr. Letts. 5 2 ee * |

Q You say you went down to the Uptown Clinic to .

A Ves sir. *

Q And you took a blood test?

4A Les sir.

Q Have you got that certificate? ax

A No, sir, I believe I gave that to you.

get a health: card?

Q But you did go down there 8 5

50 or had it renewed, so you could work?

[fol. 48 A Tes sir.

2 Now, Mr. Loper, can you tell this jury 155 you

think the little girl, Betty Fay, received that injury to

her private parts? |

A Yes. Mr. McGee’s son was always riding: over 55

our house and around there on a bicycle and the little

girl went over there occasionally to d the night with

them, and I think it happened over Phere at the McGee

house. I was after my wife about that all the time,

about letting the little girl go over there. ©

Then if it happened, how do think it happened?

A If it happened, I think that Boy did it. 8

Q You think the McGee boy did it, if it happened?

A i

Q Anyway, Mr. Loper, after you left the 8

Clinie you were on your way hou and was arrested by <<

the officers? —

A After I left the clinic, I m

a couple of boys 1 run:

around with and we went:to a in town.

Q And then you went re or was on ‘your. way

home and was arrested? ei

A Ves sir. 15

MR. LET TS: That's al, THE DEFENDANT en ae

_ RESTS.

MR. DUGGAN: THE STATE airs

EVIDENCE, CLOSED? 3

a Certificate omitted 1 printing)

. : . 2 . N 0

0 . 9 is : 7 2

52 | : ex,

5 38 : 0 cy +e : *

me .

Terios EXnib, No. 8.

CIRS UTP. COURT OF LEAKE COUNTY,

“MISSISSIPPI

AP RM OF, 1940 |

. — ae &

No. 1597 | (

eae . STATE OF MISSISSIPPI cane —

„ v8. “Eh. eo @.

Oris Lor RR

\ ohh . oo

Came the Distriet Attorney who prosecutes mee the |

‘State and came also the defendant in his own proper per-

son, both of whom announced ready for trial, came the

jury of twelve men towit: Rufus Logan and eleven others,

_~- who having heard the evidence both for the State and the

. defendant, and having received the instruetions of the

rt and argument, retired to the jury room to consider

in the indictment, whereupon the defendant was asked. by

the court if he had anything to say why a judgment.

should not be pronoificed against him, said naugh. The

court thereupon sentenced the defendant Otis Leper to.

— committed until dorm d executed. 0 me xk

ad or ere PERCY M. ‘LEE

aa 7 Judge

—

[Certificate Omitted in Printing]

cf their verdict; returned into open court the following 8

verdiet We the jury find the defendant guilty as charged

serve a term of five years in the State Penitentiary and

PErrnionE’s EXHIBIT No. 9

No, 65629

—

Ons LOPER

IN THE CRIMINAL COURT OF HAMILTON

COUNTY, TENN ESSEE—DIVISION I:

IVNDICTM ENT

December 21, 1934

Court met pursuant to adjournment, present and presid-

ing the Honorable Charles W. Lusk, Judge, ete., when the

rolle in N were had, to-wit: i}:

ied 8. „ 3 * ; aa

65629 State v. Otis Lober-— Burglary n

The Grand Jurors in a body on December 21, 1934, 1 \

turned into open Court an indictment against defendant, ane

endorsed, “A TRUE BILL” Robert S. Walker, Foreman

of the Grand J ury; State of Tennessee vs. Otis Be

T. A. Gillespie Proseeutor; Filed: December 21. 1984. |

Hays Clark Clerk, as follows: ; 3

State of Tennessee, Hamilton Weng Criminal Court,

December, 1934 Term. ä

The Grand Jurors for the State aforesaid, being duly

. summoned, elected, impaneled, sworn and charged to in-

gquire for the body of the 8 afroesaid, upon their

- oaths Pw fe present: 5

That Otis Loper, heretofore on the 29th dias of Novian: ce De

ber, 1934, in the County aforesaid did unlawfully, felon-

_.» _ dously and burglariously break and enter into the business

buouss of Templeton’s Inc., a Corporation, with intent to

commit a felony, to-wit a Larceny, and did then and there

unlawfully and feloniously take, steal and carry away

Eight ae Bulova * n of the value of * 00,

| nie i ae : <<

ty:

—

155 * the personal property of Templetor's Inc., a corporation, 5

with the intent to convert the same to his own use and to

deprive the true owner thersof, against the peace and dig-

nit of the State.

CAM

3 *

tt «=

pe Grand Jurors of the State aforesaid, being duly

summoned, elected, impanelled, sworn and: charged to in-

quire for the body of the-County aforesaid, upon their

oaths further present:

mat Otis Loper heretofore on the 29th day of Novem-

ber, 1934, in the County aforesaid, did unlawfully, fel-

* oniously ahd fraudulently receive and conceal, with intent

to deprive the true owner thereof Eight Gold Bulova strap

Poatches, of the value of $231.00 the personal property of

Templeton's Inc., a corporation which had before that

time been unlawfully and feloniously taken, stolen and

carried away, and he the said Otis Loper well knowing at

the time he so received and concealed said property as

aforesaid, that the same had been so stolen as. aforesaid, —

— against the pease and dignity of the State. Bee 3

Je PEABODY. HOWARD 7

_ Attorney General °

2 . ue? OR a

_. ‘Thereupon Court adjourned until tomorrow ‘morning at

nine o'clock. . :

: /s, CHARLES W. Lusk, Judge

Soe ue ob: . BOBO NE om

2 ee : | = ; 85 *

IN THE CRI ies COURT OF. HAMILTON

COUNTY; ENNESSEE—DIVISION i. 1

a January. Term — January 9, 1935

JUDGMENT. | 3

Court met pursuant to -adjourninent, present * presid-

ing the Honorable L. D. Miller, Judge, etc., when the fol- 8

: lowing Proceedings were had, to- wit:

„ * * 333

N 65629 5 State v. Otis Loper—Burglary

Came the Attorney: General and the defendant in per-

arguments of Counsel and the charge of the Court on

coath say defendant is guilty under First Count and fix

his punishment at not more than four 4) years in the

Penitentiary,

son, and this case was tried on the defendant’s Plea. ae

not guilty before the Court and the following jury: Harry

Price, J. H. Bullard, J. H. Allen, Paul Smith, John Boren,

J. R. Howell, John Henry, George Flinn, H. A. Odum,

Jack Smith, Jim McGuire and J. M. Randall, all duly

_ qualified, elected and sworn, who having heard the proof,

It is tber Fore adjudged: that defendant be infamous.

and he be confined In the penitentiary for a term of not

more than four (4) years and pay or secure costs. Ex- 5

ecution will issue against defendant for the cost. It is

suggested by the Court that defendant haye dessa treat-

ment as needed.

2 F

Gerne Court adjourned until tomorrow 7, morning at

/8/ I. D. nun Judge

9.80 A. M.

[ [Certificates @mitted in Printing! 8

> :

. 2 : ce. |

“5 7

2 oe ke ° : .

PerrrionEr’s. EXHIBIT No. 10

666 INDICTMENT N

Tue State of Mississippi,

e Scott Countʒ . ae |

In the Circuit Court of Scott County, Mississippi, at the

* October 3 in the Year of our Lord Nineteen Hundred

and Thirty-One * 5

ne Grand Jury, for the State of Mississippi, taken

from the body of good and lawful men of Scott County,

in the State of Mississippi, elected impaneléd, sworn and * —

charged to inquire in and for said County, in the State

_ aforesaid, in the name and by the authority of the State

of Mississippi, upon their oaths present: ee an

} That Fred Loper and Otis Loper and Louis Avery in

said County, on the day of October A.D. 1931 did

then and: there wilfully, feloniously and burglariously

break and enter the storehouse of P. H. Underwood in

Which goods, merchandise and other things of value were

kept for sale, the property of P. H. Underwood, with in-

tent of them the said Fred Loper and Otis Loper and

Louis Avery then and there wilf iously and burg -

merchandise, the property of P. H. Underwood found

kept for use and sale in said storehouse, a particular de-

scription of which is to the Grand Jurors unknown, of

the value of $200.00 in lawful money, contrary to the

form of the. Statute in such ease and provided, and

against the peace and dignity of the State of Mississippi.

— r

Distriet Attorney

—

ee,

— yy

— —

e, steal and carry away certain goods and *

—

INDICTMENT =~

No. 858

Cincurr CourT Bec

Scott County. | eee „„

October Term, 190

IIR STATE OF MISSISSIPPI : 3

aa . 3

e “Pum ler & On Les as Lous kn

2 | 75 Perey M. Lee

a | Prosecutor |

* atic,

A True Bill:

/ LIIlegibie :

Foreman Grand Jury

Sf; Witnesses’ Names: . N :

ay Wa 6

/s/ Duff 9

— /s/ Hi Johnson

red this the ath day of Oct 1981

/8/ vig ioe Moseley Clerk ~

Recorded den af 198.3 >

{Certificate Omitted in Printing)

* ie

1 pnvTES, October Term, 7th Day of October, 1981

| Minute Book 7, Page 278

„ 5 „ :

A. .

Fred Loper, Otis Loper and Louis very

This cause came on this ay to be heard and upon arraign-

ment each defendant en pleas 85 guilty, 8 a8 er

in the indictment. *

—

It was therefore the er that — be sen-

tenced | at a further er day in the term. |

(Certificate Omitted in Printing]

_MINUTES, October Term, 16th dey of October, 1981 2

Minute Bock 8 5 .

slate |

ai | a

This cause came on again on ‘this in: to be heard, the:

defendants on a former day when arraigned plead guilty.

to a edi of burglary, and owing their ages, Fred Loper

19 years of age and Otis Loper being only. 18

e court having thi is under consideration sentenced

each 3 to serve a of 6 months in the peni-

tentiary, and stand committed to jail until they be trans-

neee. ‘by She proper officer. 3

[Certificate Omitted ‘in n Printing)

—

IN THE UNITED STATES DISTRICT COURT

= FOR THE SOUTHERN ier OF TEXAS -

DIVISION

“Civil Action No. 66-H-657

_ OTs Loves, PETITIONER. ta *

5. 8

Ds. GzorcE J. Bro, Dinecror, ee

_ TEXAS “DEPARTMENT OF een rob r

—— 12, 1000 e

MEMORANDUM AND ORDER:

" FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The application’. of this petitioner for 3 corpus

relief comes before this Court again. His previous appli-

cations are so numerous as to fill his file to overflowing.

They present an almost insuperable challenge to one who:

Would track their points and their holdings. As early as

1959 the Court of Appeals of this Circuit had occasion

to refer to the prolixity of applications ‘by this petitioner. -

In 1947 petitioner. was convicted of the rape of his

eight year old stepdaughter in one of the criminal dis-

trict. courts of Harris County, Texas. He was repre- ,

- -gented by H. James Letts and L. D. Harris. Both at

that time were experienced and competent attorneys at

Ser egies: Res, Vel Yee he See ee

—

ILoper v. Ellis, 263 F.2d 211 (1959) J. On November

10, 1969, this Court held a plenary hearing: pursuant to

: remand by the Court of Appeals [Loper v. Beto, 383

F. 2d 400 618671 directing an evidentiary hearing on:

the question as to whether petitioner had been deprived

of his right to appeal. a

: we The conviction at the hands of a jury was not

appealed.

Following the remand to this Court, competent counsel

was appointed to assist petitioner in the gathering df

evidence, the preparation for triak and the presentation

of his case to this Court. Prior to trial, both ‘counsel and

ae petitioner were instructed that in addition to the single

issue remanded to this Court, petitioner was not only.

permitted, but directed, to raise any points which con-

5 ceivably might be raised in his behalf. The purpose ob-

. viously was the effort to afford petitioner a hearing on

any and all questions which might affect the legality of’

his ‘confinement. Pursuant thereto, a . <j other

points were raised. They were:

(1) That having been released on parole in 1962, fe

his parole was revoked: (for car theft, and escape

from jail) in 1963 i but his having been alforded

a hearing before the Parole Board;

: (2) That at the time. of his trial in 1947, and

while appearing as a witness in his own behalf, on.

eross- examination he was asked by way of ‘impeach:

ment with reference to some two or more prior felony

convictions, it being contended that he was not rep-

resented by counsel at the time of such’ prior felony :

as convictions; e

: (3) That he was deprived of the testimony ‘of his

5 wife as a witness on his behalf as result of action

by the state authorities; f

(4) That his representation by counsel was inade-

quate and insufficient; .

5 (5) That the totality of the circumstances sur-

.. > * pounding his trial was such as to constitute. funda-

mental unfairness;

(6) ea be Wak t prow

ent in the Grand Jury room when the witnesses

were heard and the indictment returned against him,

be was deprived of the opportunity to “confront the -

-witnesses against him”; and

(7) At-the time of tentencing, he was not repre

| ee

—

S&S

At thecouteet, it: might be stated that petitioner has

made false statements under oath, and has testified to a

set, of facts so roundly and thoroughly shown to be false /

by ‘unimpeachable evidence that little or no credence may

obe placed in his own testimony. Despite the passage of

some twenty-two years since the trial, however, there was

a surprising amount of credible evidence offered during

the present hearing.

Petitioner's. points are disposed of as follows:

- Abandonment of" Appeal by His 5 a

Court -Appointe Attorneys. 7

—_—

Mr. Letts, we ati, who took the’ lead ete te |

_ . fense of ‘petitioner, has Ween dead a number of years.

However, his partner at that time, L. D. Harris, is ‘alive ö :

and well and appeared as@ witness. He has. testified on

prior occasions in similar hearings with reference to the

same matters. It is his testimony, which I find to be

entirely credible and which I accept, that following the

petitioner; that petitioner advised his atterneys without

-. ‘qualification that he did not wish to, and would not take

an appeal. Mr. Harris thought petitioner was very angry,

and perhaps emotionally upset at that time. Thereafter,

in an abundance of eautiòm and to protect petitfouer if he

later changed his mind and desired to appeal, oe la

filed a formal motion for new trial within the time pre- -

requirement for am appeal. Neither he nor Letts were

ever contacted by petitioner as té a change of heart and

. he was hever asked E petitioner or anyone else to *

peal his ease.

It is petitioner’s testimony that he wrote his 8

that he desired to take an appeal and inquired of the ,

trial judge with reference to procuring a copy of the

naeeessary court records. He states that the trial judge

referred him to. the court elerk with respéct thereto, Mr.

Harris knew nothing of such letter. In ‘light’ of the energy : :

and diligence shown by the attorneys in representing the

defendant at the trial, I am convinced that had such

ree | been made they would have complied, with their

es ; :

* a i : 5 ee a Bea

= made no such request of his attorneys and made no such

> (iitimately was re-arrested. In this state the holding of“

— Sl N

with a hacksaw blade. Revocation of his probation was

_, equate the reference in his cross-examination with respect

to prior felonies, for impeachnient purposes only, to those

authorities wherein prior felony convictions, secured with- __

out the presence of counsél are used for enhancement of

I find this point without merit.

1962 and. paroled to the state of Mississippi under the

Interstate Patole Compact. Several months thereafter be

was charged with car theft and while being confined on

tionary. Bx Parte Sellars, 384 S. W. 2d 351. (Tex Pt. Crim.

295 U.S. 490 (1985); United States ex rel Heacock v.

Mere, 251 F. Supgp. 778 (E. D. Penn. 1966); Johnson v.

Tinsley, 284 F.Supp. 866 (D. Golo. 1964). Irrespective of

any, other consideration, it would appear that his admitted

dence other than petitioner's own statement that he was

not represented by, eounsel at the time of his prior con-

victions, which evidence, as stated above, I decline to ac- .

. cept’as credible. ~ Second, no objection. on this ground

App. 1964); Ex Parte Lewis, oy 900 Tex. Ct.

Crim. App. 1960), cert, denied, 368 U. 8. 9

duty with respect thereto, I End as a fact that petitioner

request of the district judge or other state official. Hence

Parole Revocation. | 8

‘It is undisputed that petitioner was granted parole in —

such charge escaped from jail by sawing his way out

recommended to e. Governor of the state of Texas and

the Governor -took the recemmended action. Petitioner —

was a fugitive for approximately a year. thereafter and

a hearing by N Board of Pardons and-Paroles js discre-

5 . 960. Such hear-

ings are not constituttonally required. Escog v. Zerbst,

escape from custody and remaining at large fpr an ex-

tended period would constitute a valid basis forjthe rev

cation. This point 1 ut merit and is demed.

5 _ Reference to Prior Peony Convictions. — |

shes rns 2 a ee |

- With res to this pomt petitioner.. undertakes. to

punishment. First, it should be noted that there is no evi-

8 5 eve

i 2 5

2» 68 8 N rae : ae me 2

2 :

* é —

ta 2

* 8 n *

Was made at the time that the impeaching testimony was .

offered. Had such objection been made, opportunity would

bave been offered for an inquiry into the matter ahd no

doubt the trial. judge would have taken appropriate ac-

tion. As the matter was purely of an evidentiary nature,

and particularly in the absence of objection, the.question +»

does not rise to constitutional stature and is not subject —

to collateral attack. Cf. Luna v. Beto, 395 F.2d°85 (Stu. |

Cir, 1968), cert. denied, 394 U.S. 9665.

Failure to Offer the Testimony of the Wife as a Witness

This question has been raised by petitioner repeatedl)7

in prior proceedings and after full consideration and evi-

dentiary bearing, the point has been denied. I refer to

Loper v. Ellis, C. A. 8469 (S. D. Tex. 1956), Loper v. Ellis,

224 F.2d 901 (5th Cir. 1955); and Loper v. Rusking,

C. A. 2641 (E. D. Tex. 1959). These prior dispositions

are bottomed on the fact that petitioner never showed

wherein his wife’s testimony would have been to his ad- me

vantage. The question having heretdéfore been répeatedly „

2 determined, this Court adopts that action.

As a matter of interest, however, it should ‘be noted

that with respect to this issue, Mr. Harris has testifted

. that the wife was in the corridor of the cburthouse await-

ing her time to testify earlier in the day. When he (Har-

ris) went to the corridor to call her, he was told by by- .

.. standers that the lady was- drunk, and had left the court-

house. A motion for continuance (at this point, in the |

middle of the trial) was denied. = &

a : R i ¢ * : " ; 3

| Inadequate Representation of Counsel. es

__ Petitioner here contends and has testified to minimal 7

contact with his attorneys prior to and following the trial.

He would have the Court believe that his lawyers had

done nothing more than meet him at the courtroom, con-

duct the trial, and then abandon him. V Such is not the

case. Frôm Harris’s testimony I find aò a fact that his

attorneys, through their employed investigator, had con-

tacted the various witnesses listed on the state’s com-

plaint well prior to trial and had ascertained the sub-

8 8 „

——

: * —

— —

* ie 2 ie re Se

. ° ° < S ee a

eS pee, Se Meng ee nt Ss 0

3 N 882 — .

ktance of their W that the eh had ex-

amined carefully into the indictment for any flaw which

they might find therein; that they had consulted fully

with the district attorney with respect to a plea of guilty

and an agreed‘ sentence, had arrived at an agreement

whereby the petitioner would plead guilty in return for a

ten year sentence, a trade which petitioner declined to

accept. I find as a fact that the representation of his

counsel was-entirely adequate and fully in. keeping with

the obligation of the attorneys concerned. They did the

very best they could for him. with what they had to work

a ty

8 The Totality of the Circumstances.

I am unable to determine to what the petitioner points 7

under this claim other than the fact that the trial lasted

no more than one day, being concluded in the afternooon

rather than before noon as he has testified. It would ap-

pear that there was a clear-cut jury issue as to whether

the petitioner. had committed the offense, a question which

the jury resolved against him. This paint is —

without merit. 3

Presence of the Attorney at the Time of en

This. point likewise has been raised on a number of

prior nm, at least one plenary ane held, and

resolved against petitioner. I refer to Loper v. Ellis,

No. 12226 SSD. Tex. 1958), aff'd. 263 F.2d 211 (5th Cir.

1959); Loper v. Ellis, No. 2236 (E. D. Tex. 1957). The

testimony at such former hearings clearly shows that Mr.

Letts was present at the time of the sentencing and did

what he could in petitioner's behalf.

At the present hearing Mr. Harris testified that the

matter of the sentencing was noted on Mr. Letts’ calendar,

that, Letts left the office for the purpose of going to the

courthouse for this purpose, and on his return discussed

what had transpired with his partner, Harris. I find

that petitioner's. testimony to the contrary is completely

false. This Point is denied.

8: 3 1 ö b

The Contention That the Right to Confrontation of <>,

Witnesses Includes Testimony of Such Sade

Witnesses Before the Grand J ury. ;

This point is considered frivolous and in denied without

further comment. = 5

As stated at the outsets:petitioner has filed innumer-

able applications for relief, Pound for pound, he is prob-

ably the most prolific writer of writs to come before this

Court. His applications, verified under oath, and his

testimony in open court under oath, have been found re-

peatedly to be completely false. In the present hearing, as

stated, with competent counsel to assist, he had been in-

structed to raise every point within his knowledge or

desire. In the event of an application to appeal in forma

' pauperis, I expect to grant same, and in the event of

affirmance, the clerk is instructed not to receive further

applications from this petitioner, but to return them to

im. Any further applications I consider to be an abuse

of the writ. 8 oe

The- :-ious points raised having been found to be

without merit, the application is denied and the pfoceed-

ings dismissed. Se. ce A

Done at Houston, Texas, this 12th day of December,

1969. ‘ | i 2 8 8 i 82 ae eer 8 .

/s/ Ben C. Connally 3

. ‘United States District Judge

5 IN THE UNITED STATES DISTRICT. COURT

_ FOR THE SOUTHERN DISTRICT OF TEXAS

oe HOUSTON DIVISION

* Coil Action No. 66-H-657

- Ons, LOPER, PETITIONER

Dr. GEORGE J. BETO, r

TEXAS DEPARTMENT OF ‘Corrections, RESPONDENT |

1 UDGMENT

Pursuant to the Memorandum and 9 filed this 1 |

it is the judgment of this Court that Feber motion

to vacate sentence be denied.

Done at Houston, Texas, this 12th h day of December,

1969.

_/sf Ben C. Connally woe

United States District J _—

November 20, 1947 Loper's motion for new trial was

Ree: state penitentiary. He did not appeal.

cokes . ae

70 THE FIFTH CIRCUIT aE

No. 20235 9

Ons LoPEr, PETITIONER-APPELLANT

versus

N BETO, DIRECTOR, TEXAS. .

DEPARTMENT OF ConREcTiONs, RESPONDENT-APPELLEE

a YY

Appea from the United States District Court for the

to Southern District of Texas

N |

. ~~» (March 24, 1971)

233 —

— —

Betore GEWIN, MORGAN and AD AMS," 2: eee

Circuit Judges.

GEWIN, Cireuit Judge: ’ Petitioner Otis Loper appeals

from the denial of his petition for writ of habeas corpus.

After conducting-a thorough and extensive hearing on

the petition, Judge Connally denied the writ in an un-

reported opinion wherein he made findings of fact and

conclusions of law pursuant to Fed. R. Civ. P. 52 (a). We

find no error in the findings and conclusions of the dis-

trict court, and affirm.. | -

Loper.was charged aud bed of the statutory rape

of his eight year old step daughter in the district court

of Harris County, Texas on November 17, 1947. On

denied, ee e eee

* Of thé Third Circuit, sitting by designation. Pgs

After serving fifteen years of his sentence, Loper was

~~ paroled on November 9, 1962 from the Texas Department

of Corrections and given permission to move to Mississippi

where he was assigned to a Mississippi state parole officer

for supervision. Loper's parole, however was of ‘short

duration. On February 5, 1963 he was arrested in Mis-

sissippi for car theft. Thereafter, when the Texas Board

of Pardons and Paroles learned from the Mississippi Pa-

role Board that Loper had been arrested for car theft and

that the evidence against him was conclusive, the Board

recommended to the Governor of the State of Texas that

he revoke Loper’s parole. In accordance with this recom-

mendation recommendation the Governor on March 4.

1968, entered a parole revocation order and directed the

issuance of a warrant. for Loper’s arrest. Before this

order could be exeeuted, however, Loper escaped from

Carthage, Mississippi, jail.and remained a fugitive for

cover a year. When he was finally apprehended on April

6, 1964, in St. Joseph, Louisiana, he was taken into eus-

tody and eventually transported to the Texas Department

_ of Corrections where he has since remained incarcerated.

Beginning in 1949 Loper has unsuccessfully filed .

steady succession of petitions for the writ of habeas. cor- .

pus, in the State District Court, the Court of Criminal

Appeals, and at least two United States District Courts.*

Following Lopgx’s. most recent petition,* the district court

_. + held a pl hearing on November 10, 1969 pursuant to

the order. of this court directing an evidentiary hearing

on the question whether petitioner had been deprived of

his right to appeal. Prior to the hearing petitioner and

his court-appointed counsel were instrueted that, in addi-

tion to the single issue remanded to the district court, peti-

tioner should present any and all conceivable issues which

might be raised on his behalf so that the legality of his

For the reported cases, see: Loper v. Beto, 3888 F.2d 400 (5th

Cir. 1967) ; Loper v. Ellis, 263 F.2d 211 (5th Cir. 1959) ; Loper v.

Ellis, 224 F.2d 901 (5th Cir. 1955); Ex parte Loper, 223 8. W. 2d

: 523 (Tex.Crim.App. 1949); Ex parte Loper, 219 S. W.2d 81 (Tex.

Crim: App.), cert. denied 337 US. 946, 93 L.Ed. 1749 (1949).

8 * Loper v. Beto, 388 F. 2d 400 (6th Cir. 1967).

| F

confinement might be 3 determined. In aceord-

ance with these directions the following points were

raised: (1) the propriety of impeaching defendant by pri-

or convictions wherein he was not represented by coun-

sel; (2) the adequacy of representation of counsel; (3)

the alleged suppression of evidence. by the state; (4) the.

denial of parole revocation hearing; (5) and the e denial Sie

pretense, o— 3

hips ; iy Prior Conviction )

State court: trial for rape in 1947, Loper took

— the stand and testified in his own behalf. During the

eross- examination of Loper, counsel for the state asked

him how many times he had been convicted of a felony:

in Texas or any other state. Loper readily admitted that

be had been convieted of burglary on four different o-

casions during the period 1931-40 —three times in Mis-

sissippi and one time in Tennessee. On one of the occa-

sions in question he used the assumed name of. Milton

Cummings. No objection as to the validity of these con-

victions was raised and the records of the convictions

were not offered in evidence. The evidence in question

_ was introduced solely for the purpose of impeachment; it

did not relate to, or increase the punishment. There ‘is

not the slightest suggestion in the record that’ the state ot

Texas had any knowledge of a possible infirmity in the

convietions. Loper now insists that evidence of these ä

convictions was flot admissible for the purpose of impeach-.

ment because the convictions were obtained in violation |

of the principles of Gideon v. Wainwright* He claim

that he did not have counsel at these trials and that he

did not voluntarily or intelligently waive the richt to

On this issue Loper places heavy reliadee upon ‘Burgett Be

v. Teras.“ which held that pens: convictions when coun- -

. 27ͤ 8

ee stom ake ot two of tis convictions sere too nemnete te thtes:

872 US. 885, 9 L.Ed.2d 799 (1968) .

n ne 10 LEA 2d 819 (1967)

be Secs

* : 1 4 15 ear . . * oy ;

9 i N 7 ‘

Pes 3 70 } * ay : 4 i 89

sel was not provided or intelligently waived could not

be used for the purpose of enhancement under the Texas

Penal Code. By analogy he argues that the same rule

should apply to the use of such former convictions for the

purpose of impeachment. We decline to extend the teach-

ings of Burgett to the situation here presented. The con-

victions mentidned have been of record for a number of

years, yet the record before us does not disclose that any

attack has ever been made upon those convictions. Ex-

cept for the assertions of Loper the record fails to furnish.

any conclusive information as to the facts and circum-

stances surrounding his former corivictions. So far as the.

record before us reveals, there are outstanding, unchal-

lenged, state court convictions of felonies in the States of

R application of the Gideon decision which was decided over

six years prior to the hearing under review. Further- 5

as evidenee for purposes of impeachment which goes

2 credibility, is hot nearly so serious as the use of :

a. conviction for enhancement, which may add years of

‘imprisonment to the sentence of, a defendant. Although

we do not feel bound on this issue by decisions of the

Texas Court of Crimi Appeals, we do take note of the

- faet | in the State of Texas have declined to

eet Loper’s eontention.* «Moreover, in the recent, case

“Sf Lade v. Craven; the Ninth Cireut likewise retused

_ Crim. App. Feb. 17, 1971). Sammons v. State, 456 8. W. 24 66 (Ter.

5 an 7 24 696°(9th Cir. 1970). In a0 ruling tus eourt stated:

8 u u settled California law that a defendant may be impeached

"by prior convictions not withstanding California , 1

* People v. Ricei, 289 Cal App 2d 288, 48 Ce. Rptr. 661 W

: 8

to grant relief in the circumstances here presented. The

issue presented raises an evidentiary question. The fact

N that there are possible infirmities in the evidence does

— not necessarily raise an issue of constitutional proportions

Which would require reversal. In Chapman v. California

We conclude that there may be come constitutional

errors which in the setting of a particular case are

‘so unimportant and insignificant that they may, con-

sistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the

convietion.“ b .

Effective Representation of Counsel ; |

Petitioner contends that the trial court erred in not

holding that_he was deprived of effective representation

of counsel. Although the right to counsel means the right

to effective assistance of competent counsel,® the Sixth ~

Amendment does not guarantee subjectively satisfactory

results for those accused of, crime; nor does it guarantee

errorless and prevailing counsel, or even the best counsel

available As we said in MacKenna v. Ellis: 2 :

102886 U.S. 18, 22. Ses also Dutton v. Evans, — Us. 27

the knowledge of agents of or counsel for the state. See; Mooney v.

Holohan, 294 U.S. 103 (1985) ; Jackson v. United States, 884 F.2d

875 (5th Cir. 1967), cert. denied 892 U.S. 982; Enzor v. United

States, 296 F.2d 62 (5th Cir. 1961); Sears y. United States, 265

F.2d 801 (5th Cir. 1959); United States v. Jakalski, 287 F.2d 508

(th Cir, 1956). N ee Ae Eo ae

_*McMann v. Richardson, — U.S. ——, 25. LEM zd 768,, 778

(1970). „ ee: 55

„See: United State v. Rubin, 488 F.2d 442, 444 (5th Cir.

1970) ; Caraway v. Beto, 421 F. ad 686, 687 (5th Cir. 1969); Bende-

low v. United States, 418 F.2d 42, 50 (5th Cir. 1969); Odum v.

United States, 377 F.2d 858, 859 (5th Cir. 1967). 55

280 F.2d 892 (5th Cir. 196009 i7.

„ PWWe interpret the right to counsel as the right to ef-

fective counsel. We interpret counsel td mean not

-errorless counsel, and not counsel judged ineffective

by hindsight, but counsel reasonably likely to render

and rendering reasonably effective assistance.” _

Only: if the attorney s conduct id “shocking. to the con-

science of the Court can the charge of ineffective coun-

sel prevail.“ 5 Ps f f 5 .

Alter an evidentiary hearing at which petitionér was

represented by vourt-appointed counsel at which peti-

tioner himself testified.on the matter, the trial court found

the following facts: that Loper’s attorneys * had contacted

various witnesses listed on the state's complaint prior to

trial and had ined the substance of their testimony;

that the attorneys had examined the indictment for fla w;

that they had. consulted with the ‘District Attorney with

respect to the plea of guilty and an agreed sentence, had

arrived at an agreement, whereby the petitioner would. -

_ plead guilty in return for a ten year sentence, a trade

_°. ° which petitioner declined to accept; and finally that they |

took steps to appeal the judgment of conviction but were

dissuaded from doing so by Loper.“ From these facts

12 Id. at 594. See: Bendelow v. United States, 418 F.2d 42, 50

* (5th Cir. 1969). e thy % ee |

5 u United States v. Mancuso, 423 F.2d 28, 29 (5th Cir. 19702 5 5

1s Although Loper insisted that his attorneys’ deprived un er his

rh oe

' .

. ‘ 4 ‘

. 7 . f ; —

° * ot 2 4 5 „ 7

F. 1 *

. 0 i — 8 1

0 . U * 0

bgt | ts

te - 4 0 .

i e 25 = 5 ;

the court 3 that Eee contenition that he was

deprived af af effective: e ee, of counsel was without

merit.

PD pon a full consideration of all ate testimony pre-

_ sented, this court must conclude that the findings of · the

‘district ie were not clearly erroneous. Rule 52 1 .

F. R. Civ. P.

; i

* ee of Evidenee

Petitioner claims that he Was denied due process 3 of law

because the state suppressed evidence favorable to his

defense. He contends that the state threatened. to prose-

cute his wife; Willette Loper, for insufficient: supervision of

her daughter if she appeared at the trial and that this

threat caused her to leave town 80 that ‘she could not

., testify i in-his behalf. :

With reference to the availability of Mrs Loper as a

„ and the possible relevancy of her testimony, it is

. fair to state that all of the evidence developed in the dis-

triet court:does not point in one ditection. There was evi-

‘dence tending to indicate that Mrs. Loper was present

in the hallway of the courthouse during the trial, but that

che was intoxicated. J. H. Letts, one of Loper’s attorneys,

Ae now deceased, testified in 1949 in a habeas or- 5

vun proceeding as follows: ag *

“ Your wife, Willette Loper, was N thé time of your

trial, but she did not take the witness stand and

"testify." She was outside of- the Courtroom ‘in the

hall. She had too much to drink and couldn’t take the

„Witness stand, I called for her but she didn't W a

in the Courtroom.**

v Defense attorneys asked for a. continuance and the state

trial court ‘inquired of them as to he nature and ma-

teriality of Mrs. Loper’s proposed testimony. Defense

‘counsel indicated tha /Loper’s p testimony.

would relate to what little girl” (a victim) said ;

5 e e e b a mt Godan SMG eGo dec. 5

oertiſied by the official Court Reporter the Criminal Court of

ae ae Teh, We Hee TE Aer 9 1949. -

2 ays on

my Ji

„

2 tn e store

hae tze motion for continuance on the ground that auch testi.

muony would only corroborate that the victim. It should

de noted that there are strong indications in the record

een A that Mrs. Loper took the victim to the hospital for a medi-

a hee cal examination 5 erime was supposed to

sae have been committed. (5 °

While we do not nécessarily agree with the reasons

5 assigned hy the Texas trial court for denying the motion, 5

we cannot conclude‘ that the ‘ruling was of such magnitude

N and importance as to require a reversal of the finding of |

Sy the United States. District Court on this issue. It is im-

„portant to remember that according to tit victim’s testi-

5 mony the attack occurred in che absence of Mrs. Laper— :

A ONT RP

she had gone to the 3 We also take particular ret

Inote of the affidavit: of in which she 8

that the Texas authorities “had atened her in order to

— prevent her testimony. To 9 this purported af

; fidavit” is of dubious quality merely echoes the accurate

8 . Elli i has ad :

5 3

en It is dated April 26, 1948, and is addressed “To the

a of Texas.“ It is certified as being a true copy by

. De Clerk.of the Court of Criminal Appeals of Texas.

a Harris County au itiés charged. with making

alleged threat are riot named as individuals or

5 office. The affidavit does not give the address f

ee affiant, though appellant states it was made at

oy ee L in Walker County. The seal of the .

cee Justice of the peace is not shown on the certi ca

‘copy, except for notation. Neither dees the affidayit

express 2 willingness on the part of affiant to re-

turn voluntarily to testify in person.

111

decisions dealing with this case, fails to make clear just

SFR y have. given:if she hed

* 224 F.2d 901, 904 (5th Cir. 1886).

8 : : 4 8 —

2 ~ . : —

8 „ = = .

8 R ;

+ * — 8

2 8

testified. Her affidavit executed sometime a rial 3

does purport to constitute an ex parte assertion that she

left town because of a “warning” from Harris County

authorities; ee substantial evidence in ae rec-

soon

feces he was arrested. 3 eS

Mrs. Loper had a fight on the day of the alleged ra

soon after Mrs. Loper returned from the grocery store, al- |

though he stated that the fight was not the result.

any attack on the child. At one point in the trial he vol -

mn the statement, 1 just married the wrong wo-

In rejecting the contention. with [ret to the sup-

pression of evidence, the district co relied upon the :

Seah fe hag Ka bind Uy ‘Haier eda 5

ly in prior proceedings and after full consideration

and evidentiary hearing, the point has been denied.

I refer to Loper v. Ellis, C.A. 8469 (S.D. Tex. 1956),

Loper v. Ellis, 224 F.2d 901 (5th Cir. 1955), and

Loper v. Rushing, C.A. 2641 (E.D. Tex. 1959). These

prior dispositions are bottomed on the fact that Pe-

tioner never showed wherein his: wife’s testimony

would have been to his advantage. The question hav-

ing been h nay eae W this court

8 os” adopts tha

Further, the e court: took adhe of the fact that Mr.

Harris, surviving associate counsel who represented Loper

during ‘the. rape trial, testified that he understood that

Mrs. Loper was in the corridor of the courthouse

on thig tet: we are firm in our e that the record

= | ~ amply supports the conclusion that the state did not sup-

press evidence by causing Mrs. Loper to_leave.* For all

of the foregoing reasons we are unable to conclude that:

conclusion.”

the district court ‘committed, error with 8 to this

- Parole Revocation

Loper next attacks the Texas “parole revocation. pro- .

cedure contending that he was denied equal protection of

the law because his parole was revoked without a hearing.

He argues that the Texas law in effect at the time of his

parole revocation provided two dissimilar and diserimina-

tory methods by which revocation could be accomplished.

On the one hand, Article 781b of the Texas Code of

Criminal Procedure delegated the power to revoke paroles

to the Board of Pardons and Paroles, and — the

following revocation procedure:

Sec. 20.

i a paroled prisoner is accused of a viola-

tion of his parole on information and complaint by a

law enforcement. officer and/or probation and parole

officer he shall be entitled to be heard on vat charges

before the Board on such rules and reg as

the Board may adopt; provided, however, said hear-

ing shall be held within forty-five days of the date

of arrest and at a time and place set t by the Board.

"Ue sm (Emphasis added)

18 The 8 issued subpoenas, for several person! including

- the mother of the victim, Willette Loper. All of the subpoenas were

served except for the subpoena on Mrs. Loper; her subpoena had

been returned unserved with the notation that her whereabouts

were unknown. The prosecution did.not attempt to call Mrs. Loper

to the witness stand because under Texas law a wife cannot ne used

as a witness against her husband. ’

Lamar v. Wainwright, 428 F.2d 1104, 1106 (5th Cir. 1970);

_ Caraway v. Beto, 421 F.2d 636, 687 (5th Cir. 1970); Washington 3

Smith, 417 F.2d 301, 302 (5th Cir. 1969); Heath v. Wainwright,

408 F.2d 1020 (5th Cir. 1969). Cf. Ballard v. Howard, 408 F.2d 658

(6th Cir. 1968). „

By contrast, Article 4, Section 11, of the Texas Consti-

tution made no ‘reference to revocation procedure but

governor. From this view he insists that che Texas erim-

inal procedure is in violatién of the equal protection

Clause because it prescribes ‘a different procedure for

persons in like situations. 3

In a proper case we might tend to agree with pett-

tioner’s statement. of the law, but under the facts and

in the. circumstances” presen by the record before us

we reject his contention, Th 2 is respectable authority

to the effect that the United States Constitution does not

compel a state to provide a hearing before exercising. its

discretion to:.terminate parole.“ Nevertheless, it is ele-

mental that the right to equal proteetion under state law

others accused of similar infractions. Th once a state

has determined to provide by statute the ri t to a hear-

ing on the question of parole“ revocation, as Texas did

with Article 781b, Tex.R.Cr.P., it must accord the bene-

_ fits of that procedural right equally to all parolees in

2 5 * i 4 :

Although the traditional view is that the Constitution does not ice

3 : es : 8 Shake = 2 a

_ gimilar circumstances.” Failure to afford a hearing on a

legitimate request in circumstances and under facts which

meet the requirements and provisions of the Texas stat-,

ute might deprive a«parolee of “equal provection” of the

state law, a right guarantesd by the appropriate provigion

of the Fourteenth Amendment. ak oP Se 8

l . per relies on the statute cited above and rules and

tions of the Board of Pardons and Paroles adopted

pursuant to its provisions. Such rules and regulations

rovide for a hearing within forty-five days after arrest

United States District Court conciuded: =,

nor of the state of. Texas and the Governor. took the

recommended action. Petitioner was a fugitive for -

approximately a year thereafter and ultimately was

In this state the holding of a hearing by

the Board of Pardons and Pai is discretionary.

91 *

Colo. 1964) ive of any other consideration,

it would appear that his admitted escape from cus-

tody and at large for an extended period

8 = é . . *

n gee: Cochran v. State of Kansas, 316 U.S. 255, 86 L. Ed. 1458

(1942); Hewett v. State of 1 Carolina, 415 F.2d 1316, 1322

(4th Cir. 1969); Hamrick v. Jes, 231 F. Supp. 507, 510 (ND.

W. Va. 1964). FR. RS

—

two weeks thereafter, on March 21, 1963. Loper tz

et Wn

would constitute ‘a valid basis for the revocation.

This point is without merit and is deniedo

The record discloses that the order of the Governor off

Texas revoking petitioner's parole was dated March 4,

1068. He escaped from the jail in Mississippi within

somewhat equivocally, that he heey" parole revo-—-

cation hearing while he was in jail in Mississippi. He

further testified that when he was arrested in June 1964, _

* -. tice from March 21, 1968 until June 1964. In fact we.

think it is incredible to conclude that he was seeking a

state parolees in a,

cover a year later, he stated to the arresting officers that

he desired to have a parole hearing: The credibility. of

Loper is subject: to serious doubt. As a matter of fact

the district court concluded that he had falsely testified to a

material facts from time to time. In any even, if it is

believed that Loper requested a hearing in accordance

with the rules and regulations of the Board, while con-

fined. in the Mississippi jail between March 4 and March

21, it would have been impossible to hold such *

in view of the fact that Loper was a fugitiye from jus-

hearing before the Texas Board of Pardons and Paroles

during the very period in which he was a fugitive, par-

ticularly in light of his conduct during this period. The

records indicate that he was apprehended in the State f

Louisiana while he was an escapee and charged with

driving while intoxicated, for which he served a period

"of 60 days. He was also arrested during. the period ef

escape in Louisiana for carrying a concealed weapon, but

these charges were dropped. Texas did not obtain cus-

tody of him until the latter part of June 1964. In view of

these facts we are unable to conclude that the district

court reached an improper conclusion or that Loper has

been denied any constitutional right.”

2 We do not decide the question whether a state may treat out of

ferent manner from those within the state.

If we should disregatd the particular facts of. this case, it could x

argued that serious doubts would still remain as to the equal pro-

tection argument. A parolee who is granted permission to leave the

d sentencing state spend his time on parole in another state, is

on as.

not in the same situation as those parolees who remain in the sen-

VVV

Moreover, the ‘court has received assurances. from re

spondent as well as from the Texas Board of Pardons and

Paroles that in all eases Where “‘a parole has been revoked ~

by the Governor, the parolee or his representative may | :

a hearing before the Board at, any time, seeking

reinstatement of parole.“ In accordance with this pro-

cedural stipulation by the Parole Board, we reject peti- 3

tioner’s contention that Article 781 (b) Tex. Cr. P..and -

- dencing state. A state would be at a substantial disadvantage ‘if it

could not revoke the parole of a violator beyond ‘its borders without

first conducting a hearing. The holding of a revocation hearing in

such. circumstances could present many practical difficulties involv-

ing arrest, custody and similar problems. In certain circumstances

it may not be unreasonable to conclude that the sentencing state

2 parole and the apprehension of an alleged parole violator who is

_ beyond its orders without a hearing prior to revocation.

Letter from Pat Bullock, member Texas Board of Pardons and

Paroles to Robert Darden, Assistant Attorney General, October 14,

1970. The letter in its entirety reads:

“Dear Mr. Dardennn er ce

In response to your question concerning the standard of the 5

= Texas Board of Pardons, and Paroles with reference to parole .

This procedure does not apply when the Governor exercises his ö

constitutional authority to revoke a parole without a recommen-

dation from the Board of Pardons and Paroles. ö

. If a parole has been revoked by the Governor, the parolee or his

representative may request a hearing before the Board at any

time, seeking t of parole. eee .

e Very truly yours,

——— 9 —

; | i

ited we advert to the . she of statutory

construction that, statutes and acts in pari materia should

be. construed together. Following this rule, Article 4,

Section 11 should-be construed withygeference to, oie

Er Fs with Article 781 (b) rath an be singled out

for independent consideration. We hold, therefore, that

Loper misy request a hearing before the: Boatd seeking 5

reinstatement of his parole.“ : ier

"Denial of Pre-trial Discovery

Petitioner asserts as his final contention that the dis-

tie. court erred in rejecting his pre-trial requests for

Admissions and Written Interrogatories. Petitioner's

counsel, in an effort to discover evidence which would be

bel pful to Loper in his habeaus corpus proceedings, served

the state with interrogatories and Request for Admis-

ions of Relevant Facts pursuant to Rule 33 and 36, Fed.

R. Civ. P. When the state filed objections on the ground

that the Request for Admissions was not authorized in

federal habeas corpus. proceedings, the court 8 the fol-

lowing docket entry: 5

8-26-69: Respondent's Motion to Deny Request 1 i

Admission and Written Interrogatories is hereby

granted. Harris v. Nelson, 394 U.S. 286 (1969).

In Harris v. Nelson the Supreme Court held that while 55

the discovery provisions of the Federal Rules of Civil Pro-

: cedure do not apply to habeas corpus proceedings, 8 eo 185

A te-suciabunciuee tnt <iite aae a

consideration by the Board of Pardons and Paroles of the State of

Texas. Attached to à pro se brief filed by him in this cause is a let-

| ter from the Board dated March 4, 1970, wherein it is stated:

Tou know. your long record; you know you have been paroled ö

and violated that parole. I don't think you should accept the

fact that you will never be paroled again. ‘Your case is set for

parole consideration in June, 1971, and it will be carefully eval-

- uated at that time. No one knows now what decision the Board

will reach at that time but don’t give up hope. Continue your

good adjustment and make the best ratings possible. 3

2 . 286, 22 LEd. 281 (1969), reh. den. 894 U.S. 1026.

guideline for the courts to follow:

| We Ge wok Sbm that courts In the exercise of

their discretion will pursue or authorjze pursuit of

all allegations presented to them. We are aware that

confinement sometimes induces fantasy which has its

basis in the paranoia of prison rather than in fact. —

But where. specific allegations before the court show

reason to believe that the petitioner may, if the facts ~

are fully developed, be able to demonstrate that he

is confined illegally and is therefore, entitled to re- |

Pn.

lief, it is the duty of the court to provide the neces-

sary facilities and procedures for an adequate in-

quiry. Obviously, in exercising this power, the court

may utilize familiar procedures, as appropriate,

whether these are found in the civil or criminal rules

or elsewhere in the “usages and principles of law..

In the circumstances of this case and considering the full

iary hearing afforded petitioner on each of his con-

tentions, in addition to numerous other court proceedings

in which he has attacked his convietion, we are convinced

that the trial court did not abuse its discretion in deny-

ing the Request for Admissions and Written Interroga-

tories.”" ee 5 . .

Due process postulates a. day in court which means

ttthat no one shall be personally bound until he has been

agatforded æ full opportunity to be heard. Beyond that

there must be a point at which the legality of eonfinement

14 at 800, (22 L. Edd 21). 5 ee

nn See: United States v. Wolfgon, 418 F.2d 804, 807 (2d Cir.

1969) ; Wilson v. Wiegel, 887 F. 2d 682 (9th Cir. 1967) ; Wilson v.

Harris, 878 F.2d 141, 142 (9th Cir. 1967) ; United States v. Wilman,.

$04 F.2d 58 (5th Cir. 1962) ; Levy v. Parker, 316 F. Supp. 473 (M.D.

* *

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for Loper, appointed by the court, have rendered outstanding

service. Thay have presented his contentions in a ddr and cogent

_» UNITED STATES COURT OF APPEALS

5 e e 8

o OCTOBER, TERM, 10

No. 29235

‘ a 5 ; > fe

iC . C. Docket No. CA 66-H-657

b Lore, PRriTionER APPELLANT

Pn. Georce J. Bevo, Director, TEXAS)

__ DEPARTMENT OF CORRECTIONS, ‘RESPONDENT-APPELLEE

Appeal from the United States District Court

for the Southern District of Texas

Betore GEWIN, MorcaN and ADAMS," Circuit Judges.

SOLER ee ,

„This cause came on to be heard on the transcript of the

record from thé ‘United States District Court—for the

Southern ‘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: --- 5 f

7 ay Arch 24, 1971

Issued A Mandate: e

— ö' — 7

* Of the Third Circuit, sitting by designation.

ie “UNITED STATES COURT OF APPEALS

OBE FOR THE FIFTH CIRCUIT

,, ͥ Ä

errs ws versus 15 * a

i ‘De Galler 3. Beto, Dimector, TEXAS: 3

‘DEPARTMENT OF CORRECTIONS, RESPONDENT APPELLEE 7

_ Appeal from the United States District Colirt -

, 53 2c 5

° é

„„ (April 26, 191)

„„ oe t PETITION FOR REHEARING

Before GEWIN, Moncan and n Cireuit Tudges.

PER CURIAM: _ ~ 1

IT IS ORDERED 4hat the e for nn filed

1 in the above erg ed., numbered cause be and e a

same is aa e . ,

—

* Of|the Third Cirenit, sitting by designation. —

IN THE.

No. 29235

Sante:

o\ ‘3

—

2 2

in the above entitled and n

“UNITED STATES COURT OF APPEALS

Fon THE FIFTH CIRCUIT

“Dm. Green J. Baro,-Dmecros, Txxas— 5

DEPARTMENT OF CORRECTIONS, RESPONDENT- APPELLEE

;

ay.

» eee a

* 8 z

8 : . @

2 g 20

: „

On petition for writ of Certiorari to the United States 1

Court of Appeals for the Fifth Cireuit. : Ss Seay

On consideration of thé motion “for leave to proceed

herein in forma pauperis and of the petition for writ of

5 certiorari, it is ordered: by this Court 0

proceed in forma pauperis be, and the same is hereby,

On '

granted; and that the petition for writ of eertiorari be,

and the same is hereby, granted limited to Question 1

Presented by the petition which reads a follows: atone

Does the use of prior, void corivictions ons for i

1 —— peumee orries; 1971 ~ : — ) 304

i :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.