Brief for the Respondent in Opposition — Lefors v. Texas

IN THE

Supreme Court of the United States

OCTOBER TERM, 1954

No. 689

CHARLES MELTON LEFORS,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

Case No. 26,987, Court of Criminal Appeals

of the State of Texas

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JOHN BEN SHEPPERD

Attorney General of Texas

ROBERT O. FAGG

Assistant

Capitol Station

Austin, Texas

Attorneys for Respondent

HAROLD B. WALLEY, Cle

EE

SUBJECT INDEX

Opinions Below.

Jurisdiction

Questions Presented_......__________.

Statement

Argument

Petitioner’s Question (a)

Petitioner’s Question (b)..

Conclusion _........

Page

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‘

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an Rt So eT

pc EE a tt CS ene

INDEX OF AUTHORITIES

Page

Caldwell v. Texas, 187 U.S. 692 (1891) -..---.. 14

Chambers v. Florida, 309 U.S. 227 (1940)... 6

Cooper v. State, 154 Tex. Crim. 182, 226 S.W. 2d 122

(1949) q7

Dimery v. State, 156 Tex. Crim. 197, 240 S.W. 2d 293

UIE ‘cacssshbnkcstietheicoianieniacedntidchucladeammiaundis 9

In re Duncan, 139 U.S. 449 (1991) ee 14

Farrow v. State, 152 Tex. Crim. 595, 216 S.W. 2d 217

(1949) 7

Gallegos v. Nebraska, 342 U.S. 55 (1951) 6, 10

Goleman v. State, _.... Tex. Crim. _..., 247 S.W. 2d 119

(1952) _. 10

Holt v. State, 151 Tex. Crim. 399, 208 S.W. 2d 643

(1948) _... 7

Hooker v. Los Angeles, 188 U.S. 314 (1903)... 14

Hurtado v. California, 110 U.S. 535 (1884) 13

Leeper v. Texas, 139 U.S. 462 (1891) 14

Louisville & Nashville Railroad Co. v. Schmidt, 177

I TR ica acta en iinnctinhceisaniecnaccbiddiguieeiooos 14

Lynch v. New York, 293 U.S. 52 (1934)... 2

Martinez v. ‘pace 151 Tex. Crim. 316, 207 S.W. 2d

387 (1948) _ PO 7

Newsom v. State, 1386 Tex. Crim. 114, 123 S.W. 2d

I i uk eeidanen 11, 12, 18

Pennoyer v. Neff, 95 U.S. 714 (1877)... 14

Picket v. State, 155 Tex. Crim. 195, 228 S.W. 2d 516

I, ocitcahic ch cuchsncod Aceeciautinunslaissnunsaaaus bien Gtanaeoes

Prince v. State, 155 Tex. Crim. 108, 231 S.W. 2d 419

I ka ee

Rogers v. Peck, 199 U.S. 425 (1905) leas, Neen 14

Roller v. Holley, 176 U.S. 398 (1899). 14

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INDEX OF AUTHORITIES hii

Page

Sanchez v. State, 155 Tex. Crim. 364, 235 S.W. 2d

Se EE sedition uate stank stemkasairadsintataatiebhtinsisacicanaatcail 7

Stembridge v. Georgia, 348 U.S. 541 (1952). 2

Twining v. New Jersey, 211 U.S. 78 (1908)... 18, 14

Walker v. Souvient, 92 U.S. 90 (1875)... 14

Statutes

Article 62, Penal Code (Vernon 1948) 11

RR a aE ee 2

Constitutional Provisions

United States Constitution, Fourteenth Amendment . 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1954

No. 689

CHARLES MELTON LEFORS,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

Case No. 26,987, Court of Criminal Appeals

of the State of Texas

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Now comes Respondent, The State of Texas, and

files this its brief in opposition to the petition for writ

of certiorari.

ADB LEIA I nae

a

Opinions Below

The opinions of the Court of Criminal Appeals of

the State of Texas in this case are not yet printed,

They appear, however, in the Appendix of Petition-

er’s brief pages 24 through 34.

Jurisdiction

This Court does not have, nor should it exercise,

jurisdiction under 28 U.S.C.A., Section 1257 (3),

because:

The decision of the Court of Criminal Appeals of

Texas rests upon non-federal grounds which ade-

quately and independently support its holding as will

hereinafter appear.

As stated in Lynch v. New York, 293 U.S. 52

(1934) :

“It is essential to the jurisdiction of this

Court in reviewing a decision of a court of a

State that it must appear affirmatively from the

record, not only that a federal question was pre-

sented for decision to the highest court of the

State having jurisdiction but that its decision

of the federal question was necessary to the de-

termination of the cause, and that it was ac-

tually decided or that the judgment as rendered

could not have been given without deciding it.”

Furthermore, where it appears that the judgment

of the State Court might* have rested on a non-fed-

eral ground, this Court will not take jurisdiction.

Stembridge v. Georgia, 343 U.S. 541 (1952).

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=

It is submitted that the Court of Criminal Appeals

of Texas in this case did not find it necessary to base

its decision on the merits, if any, of a federal claim

or claims, if any, but that adequate State grounds

existed for final determination of the cause.

Questions Presented

1. Was Petitioner’s confession voluntary and

therefore admissible?

2. Was the action of the Court of Criminal Ap-

peals of Texas in finding from its records that Peti-

tioner’s previous conviction was final, in violation of

the United States Constitution on the basis that

Petitioner has not been confronted by his accusers?

Statement

The Petitioner, Charles Melton LeFors, alias

Sonny Lefors, was indicted on October 8th, 1953, for

the offense of Felony Theft and Repetition of the

same offense under Article 62 of the Penal Code of

the State of Texas.

The primary offense was alleged to have been com-

mitted on or about the 23rd day of August, 1951,

and alleged the theft of certain corporeal personal

property from one Marie Ellis; the property alleged

to have been taken being a pair of ear rings of the

value of $250.00, a ring of the value of $60.00, and

$15.00 cash. The prior offense was alleged to have

been committed on the 27th day of February, 1940,

in Dallas County, and the conviction was alleged to

*Emphasis added throughout.

—

have been on the 17th day of April, 1940, in the same

county. The jury found Petitioner guilty of the of-

fense of felony theft as charged in the indictment

and further found that Petitioner had been convict-

ed before of an offense of like character. (Tr. 49.)

The court then entered judgment and sentenced

Petitioner to a term of ten years in the State Peni-

tentiary as provided by Article 62, Penal Code of the

State of Texas. (Tr. 50-51.)

An authenticated copy of the indictment of the

1940 conviction, as well as an authenticated copy of

the judgment and sentence in that cause, were intro-

duced in evidence, and it was stipulated by the de-

fense that the defendant presently on trial was the

same man who was found guilty in the cause in Dal-

las County in 1940. (S.F. 1, 2, and 3, State’s Ex. No.

1, 321 to 324.)

The facts as disclosed by the evidence adduced on

the trial of this case show that Petitioner came to

Beaumont in the company of one Neal Aeby and Bob

Braggins in the month of August, 1951, for the pur-

pose of ‘“‘working on a box,” meaning to open a safe.

(S.F. 274 and 275.) That while they were in Beau-

mont they wandered into the Princess Night Club

for the purpose of having a beer. That they were

waited on by the proprietress of the place, one Marie

Ellis, the injured party, and that no one else was

present in the place except Marie Ellis and Peti-

tioner, along with Neal Aeby and Bob Braggins.

(S.F. 5, 276, 286.) While they were talking with

Marie Ellis she made a remark that she wished she

had what she used to have or how much money she

used to have in here cedar chest. (S.F. 7, 276). The

i a

cedar chest was in the same building in the living

quarters of the injured party, Marie Ellis. The ac-

complices, Neal Aeby and Bob Braggins, later lured

Marie Ellis to the back of her place so that they could

give Petitioner LeFors a chance to look around in

the cedar chest. (S.F. 277.) When Marie Ellis, Aeby

and Braggins returned from the back end of the

place Petitioner, LeFors, was seen to come from the

area of Marie Ellis’ bedroom in which the cedar

chest was located. After the three men left the place

Marie Ellis discovered that a pair of diamond ear-

rings, an amethyst ring, and a small amount of

money were missing from the purse and cigar box

which had been in the aforesaid cedar chest, (S.F. 8.)

In order to establish the guilt of Petitioner, the

State relied (1) upon his written confession (S.F.

331-333), (2) the oral confession of Petitioner which

was corroborated by the finding of certain articles

of the stolen property (S.F. 53-59), (3) the testi-

mony of the accomplice witness, Neal Aeby (S.F.

272-289), and (4) the identification by the injured

party, Marie Ellis, of Petitioner as being in her place

of business on the day that the property was taken.

(S.F. 13.)

Petitioner relied upon the defense of alibi and

claimed that he had never been in the place belong-

ing to Marie Ellis, but he did not attempt to estab-

lish where he was at the time that the theft was ac-

tually committed. He claimed that the written con-

fession was coerced as the result of physical abuse,

and that it was not freely and voluntarily given. This

issue was controverted by the State and. the issue as

cele

to the voluntary nature of the confession was sub.

mitted to the jury.

Petitioner brings forward no informal bills of ex.

ception.

Argument

1. Was Petitioner’s confession voluntary and

therefore admissible? [Petitioner’s question (a) |

The test applied by the Court of Criminal Appeals

of Texas and the Supreme Court of the United States

is to examine the undisputed evidence and determine

therefrom if there is any evidence, prior to the con-

fession used herein, which would render the confes-

sion inadmissible. Chambers v. Florida, 309 U.S. 227

(1940). And since a State court has a better oppor-

tunity to appraise conflicting testimony, this Court

will give deference to the conclusions of the State

court on disputed and essential issues of what ac-

tually happened. Gallegos v. Nebraska, 342 U.S. 55

(1951).

Bill of Exception No. 2 (Tr. p. 64), is based upon

the trial Court’s refusal to suppress the written con-

fession introduced by the State in this case. After the

State had qualified the person taking the confession

and had shown that the same was taken in the man-

ner required by law, Petitioner asked that the jury

be retired and that the Court hear evidence on the

motion to suppress the said confession. This was done

and all of the testimony on the motion to suppress is

incorporated in this bill of exception. After hearing

the motion and the evidence, the Court allowed the

written confession to be introduced as evidence but

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a

submitted the question of its voluntary nature to the

jury under appropriate instructions. (Tr. 42.) It is

Petitioner’s contention that the evidence adduced

on the motion to suppress showed that the confession

was inadmissible as a matter of law.

In looking to the bill itself we find that the Peti-

tioner detailed certain alleged cruel treatment on the

part of certain officers, and testified that he gave the

‘statement, if he gave it at all, as a result of such

physical abuse. Each and every officer named by

Petitioner was placed upon the stand by the State

and categorically denied any abuse of any nature

whatsoever. Thus the Court in his charge to the jury

properly submitted the question of the voluntary

character of the confession.

If the evidence raises un issue as to the facts nec-

essary to be established to make the confession ad-

missible, for example properly warning the accused,

or the voluntary making, such issues are for the jury

under appropriate instructions. Sanchez v. State, 155

Tex. Crim 364, 235 S.W. 2d 149 (1951); Prince v.

State, 155 Tex. Crim. 108, 231 S.W. 2d 419 (1950) ;

Picket v. State, 155 Tex. Crim. 195, 228 S.W. 2d 516

(1949) ; Cooper v. State, 154 Tex. Crim. 182, 226

S.W. 2d 122 (1949); Martinez v. State, 151 Tex.

Crim. 316, 207 S.W. 2d 387 (1948) ; Farrow v. State,

152 Tex. Crim. 595, 216 S.W. 2d 217 (1949; Holt v.

State, 151 Tex. Crim. 399, 208 S.W. 2d 643 (1948).

The facts as adduced by the State’s witnesses on

which the Petitioner relies as showing that the con-

fession was inadmissible as a matter of law, are as

follows: Petitioner was arrested at his place of busi-

ness in Dallas, Texas, on the night of April 4, 1952,

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by a Texas Ranger, a deputy sheriff from Jefferson

County, and a city detective from Beaumont, Texas.

The arrest was made by virtue of a warrant issued

in Jefferson County, Texas, charging the Petitioner

with the offense of Felony Theft. When Petitioner

was arrested at his place of business in Dallas,

Texas, he requested that he be allowed to call the

Sheriff of Dallas County, and this request was re-

fused by the officers. The Petitioner was placed un-

der arrest and was placed in the car with the officers

who were also carrying another prisoner who had

been arrested, and proceeded toward Jefferson

County. When they arrived at Woodville, Texas, the

home of the Texas Ranger, they parted company and

left the Ranger in Woodville and proceeded from

there to Newton County, Texas, arriving there in the

early morning hours of April 5, 1952. The purpose

of taking Petitioner to Newton County rather than

proceeding on to Beaumont with him is explained by

the officers by showing that they wanted to question

the other prisoner that they had with them and that

they knew the Sheriff of Newton County had an out-

standing warrant for this same defendant. When

they arrived at Newton County, Texas, they turned

over the prisoner (Petitioner) to the Sheriff of New-

ton County, Texas. The Sheriff of Newton County

questioned Petitioner in reference to an offense com-

mitted in that county for approximately two hours

after the officers from Jefferson County had left him

there in his custody. When he was convinced that

Petitioner had nothing to do with the offense com-

mitted in his county, he notified the officers from

Jefferson County to come and pick him up. The of-

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ficers from Jefferson County returned to Newton

County during the early morning hours of April 6,

1952, and picked up Petitioner and proceeded on to

Beaumont, Jefferson County, Texas, with him. When

they arrived in beaumont, they immediately took

him before a magistrate to set his bond in the Jeffer-

son County case. This was on Sunday morning of

April 6, 1952. The confession of Petitioner was taken

on the morning of April 7, 1952, the following day,

by the investigator of the District Attorney’s office.

It is well to note that even though Petitioner detailed

much abuse on the pari of the officers, which he

claims continued over a period of some 58 days, he

does not deny specifically that this confession was

taken on April 7th, less than three days after his

arrest. In fact, Petitioner claims that although it is

his signature on the confession, he does not remem-

ber making a confession, nor does he remember sign-

ing the same.

Inasmuch as the verdict of the jury constituted

a finding that the confession was voluntarily made in

accordance with the statutes of this State, Petitioner

must show that the facts as a matter of law render

the confession inadmissible. The only facts upon

which Petitioner can rely as showing that the con-

fession was inadmissible as a matter of law are those

which show that Petitioner was not brought directly

to Jefferson County, but was taken to Newton Coun-

ty where he was delayed some 24 hours before he

was brought on to Jefferson County and then

promptly carried before a magistrate.

In Dimery v. State, 156 Tex. Crim. 197, 240 S.W.

2d 293 (1951), where the accused was detained in

ne Bis g oe AN

jail for four days without being taken before a mag-

istrate prior to the taking of the confession, the

Court of Criminal Appeals held that the confession

was admissible unless it was shown that there exist-

ed a causal connection between the arrest and failure

to take before a magistrate and the making of the

confession. This case received the approval of the

Supreme Court of the United States in Gallegos v,

Nebraska, supra. In Goleman v. State, __ Tex.

Crim. , 247 S.W. 2d 119 (1952), the Court of

Criminal Appeals held that, even though the arrest

may have been made without a warrant, there still

must be a causal connection between the failure of

the officers to secure a warrant and the securing of

a confession, In the instant case, the facts show that

Petitioner was carried before a magistrate prior to

the taking of the confession and was taken before a

magistrate immediately upon his arrival in the coun-

ty out of which the warrant had issued. Certainly

there is no causal connection between the taking of

the confession and the delay of some 24 hours in

Newton County where another warrant was out-

standing for the arrest of Petitioner herein. (Tr. 84-

230.) Under these facts there is no violation of the

Fourteenth Amendment to the United States Con-

stitution.

2. Was the action of the Court of Criminal Ap-

peals of Texas in finding from its records that Peti-

tioner’s previous conviction was final, in violation

of the United States Constitution on the basis that

Petitioner has not been confronted by his accusers?

| Petitioner’s Question (b).]

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It is submitted that Petitioner could not, at the

time of trial, offer any evidence in rebuttal as to the

finality of his previous conviction. He urges for the

first time in his first Motion for Rehearing that the

evidence at the trial level was insufficient to show

a previous final conviction. That the evidence is suf-

ficient cannot be denied.

In Newsom v. State, 136 Tex. Crim. 114, 123 S.W.

2d 887 (1939), the Court of Criminal Appeals held

that if the State’s evidence shows that the prior judg-

ment relied upon was appealed from, the defendant

was relieved of the burden ordinarily resting upon

him to show that the prior conviction was not final.

The State’s evidence herein did not show that the

prior judgment was appealed from. A notice of ap-

peal is quite generally a matter of form in all cases,

but it does not follow that an appeal is actually per-

fected, and the judgment can therefore become final

without an appeal.

Article 62 of the Penal Code of the State of Texas

(Vernon 1948), reads as follows:

“Tf it be shown on the trial of a felony less

than capital that the defendant has been before

convicted of the same offense, or one of the same

nature, the punishment on such second or other

subsequent conviction shall be the highest which

is affixed to the commission of such offenses in

ordinary cases.”

In proving the former conviction relied upon by

the Court, the State offered in evidence a certified

copy of the sentence in Cause No, 5983(a) in the

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Criminal District Court of Dallas County, dated

June 22, 1940.

Petitioner in no way rebutted this evidence, nor

did he offer to do so.

The Court of Criminal Appeals in taking judicial

notice of its own records does not operate to deprive

Petitioner herein of any of his constitutional rights.

Such judicial notice could have as easily operated in

his favor if the conviction had not in fact become

final.

The statute calls for the state to show that a de-

fendant has previously been convicted, and the sole

burden on the State was to establish as an historical

fact such a prior conviction.

In the Newsom case, supra, the Texas Court of

Criminal Appeals stated on page 889:

“The doctrine laid down by the State in its

motion for rehearing that it is incumbent on

the defendant to show that his previous case

has been appealed and reversed is borne out by

eases of Tall v. Commonwealth, Ky., 110 S.W.

425, and Gragg v. Commonwealth, Ky., 104

S.W. 285, which hold that such is a matter of

defense. We think this is a correct legal propo-

sition.”

In the Newsom case, the State itself showed that

a motion for new trial was filed and overruled, and

notice of appeal was given, and that the clerk never

prepared a transcript, that the records of his court

showed that a notice of appeal was given and that he

issued a commitment to the sheriff ordering him to

take appellant to the penitentiary, and that he did

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an

not know what disposition of the case was made by

the Texas Court of Criminal Appeals.

The court in the Newsom case was concerned with

preserving the right of appeal, stating that:

“ .. the failure of any officer to perform his

plain duty cannot deprive a person convicted of

crime of his legal right to have this court re-

view the proceedings in his case. Unless such

notice of appeal was properly withdrawn, Cause

No. 104 should have been presented to this

court, at least by transcript showing the pro-

ceedings had therein; and the refusal or failure

of any officer to perform his duty in connection

therewith would not deprive appellant of any

of his rights therein.”

Petitioner herein had an adequate opportunity at

the trial level, having been confronted with evidence,

to establish, if he could, that the previous conviction

was not final.

In approaching the question of due process, it must

be remembered that in our particular dual form of

government, nothing is more fundamental than the

full power of the State to order its own affairs and

govern its own people, except so far as that power

has been withdrawn by the Federal Constitution.

Hurtado v. California, 110 U.S. 535 (1884). This

Court may not pass upon the expediency, wisdom, or

justice of the laws of the State, but may only deter-

mine their conformity with the Federal Constitution.

In determining due process this Court may take into

account only those fundamental rights which are ex-

pressed in that provision. Twining v. New Jersey,

211 U.S. 78 (1908). Due process requires that the

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Court have jurisdiction, Pennoyer v. Neff, 95 US.

714 (1877), and that there shall be notice and op-

portunity for hearing given the parties. Roller vy,

Holley, 176 U.S. 398 (1899). Subject to these two

fundamental rules, this Court has sustained all State

laws regulating procedure, evidence, and methods of

trial as being consistent with due process of law.

Walker v. Sauvinet, 92 U.S. 90 (1875) ; Caldwell v.

Texas, 137 U.S. 692 (1891); Leeper v. Texas, 139

U.S. 462 (1891); In re Duncan, 139 U.S. 449

(1891), and Twining v. New Jersey, supra.

From these decisions it is clear that the Four-

teenth Amendment in no way undertakes to control

the power of the State to determine by what process

legal rights may be asserted, or legal obligations be

enforced, provided the method of procedure adopted

complies with reasonable notice and affords fair op-

portunity to be heard. As stated in Louisville and

Nashville Railroad Co. v. Schmidt, 177 U.S. 230

(1900) :

“. .. It is no longer open to contention that

the due process clause of the Fourteenth Amend-

ment to the Constitution of the United States

does not control mere forms of procedure in

state courts or regulate practice therein. All its

requirements are compiled with, provided in

the proceedings which are claimed not to have

been due process of law the person condemned

has had sufficient notice and adequate oppor-

tunity has been afforded him to defend; .. .”

See, also, Hooker v. Los Angeles, 188 U.S. 314

(1903), and Rogers v. Peck, 199 U.S. 425 (1905).

ES —_ <=

=

The cases cited by Petitioner on page 16 of his

brief are cases descriptive of situations not existing

in Petitioner’s case herein, as is shown by the un-

disputed facts.

Conclusion

For the foregoing reasons the petition for writ of

certiorari should be denied.

Respectfully submitted,

JOHN BEN SHEPPERD

Attorney General of Texas

ROBERT O. FAGG

Assistant

Capitol Station

Austin, Texas

Attorneys for Respondent

CC — , 1955

A copy of this Reply, together with a copy of the letter of

transmittal to the Clerk of the United States Supreme

Court, have been mailed this date to Hon. Maury Hughes,

(First Class Postage Prepaid). Also Howard Dailey, 522

Davis Bldg., Dallas, Texas.