*1 ineq- potential the existence is clear that are appropriate rules generalized 416.1185 application § due to uities concerns, also and purposes its over- form the basis for cannot in this case determina- of individual difficulties there- decision. We Secretary’s turning increments marginal outweigh tions and Tenth Circuits First and join congression- fore precise effectuation in deem- determining whether in expected might be decide that they which al concern is child to the parents income ing produce. 1382c(f)(2), a under U.S.C. inequitable § Supreme at 2476. While 95 S.Ct. Secretary adjudication by case-by-case con- with a concerned Weinberger was in required. is deter- individual judgment gressional reasons, judgment foregoing the con- For the in undesirable and were minations REVERSED, and court is statute, district the First Circuit text of a different affirm directions to Weinberger REMANDED the rationale in case has found and to dismiss decision Secretary’s determina- of individual justified the lack Harris, v. and action. 1382c(f)(2). complaint Kollett tions under § Cir.1980). The (1st n. 4 619 F.2d issue of circuit to consider
only other under determinations
individual ra- Kollett has found 1382c(f)(2)
§
the Secre-
holding that
persuasive,
is
tionale
valid, and
is
on
416.1185
tary’s reliance
§
PLUNKETT,
Petitioner-Appellant,
an indi-
1382c(f)(2) does not require
that §
deeming is
v.
determination
vidual
Harris,
Sound Congress authorized our view firm spouses. of income between
“deeming” public assistance
The administration not inher- use of on the formula
based Salfi, arbitrary. Weinberger Cf. ently 2457, 2474, 749, 781, 95 S.Ct.
422 U.S. There (1975). on welfare. spend resources to
are limited individual determinations require
To factfinding would mandate costly
need resources dissipate that would
procedures needy. spent could have been at 2476. at 95 S.Ct.
Id. the limited 2642. Given be may which 416.1185
grounds Supreme holdings
overturned and Panthers, Grey Weinberger
1006 *2 Plunk- jury indicted grand Pinto
PaloA
two counts
ett, charging in
8th
Plunkett,
or about
A.D.1975, and before
January,
day of
indictment,
said
of this
presentment
and there
State,
then
*3
did
County and
knowingly cause
intentionally and
Pe
individual, April Dawn
of an
death
Tex.,
Worth,
for
Burns, Fort
Danny C.
hands;
with his
her
striking
ters, by
petitioner-appellant.
aforesaid,
Jurors
the Grand
And
Hexamer,
Gen., Maury
White, Atty.
Mark
aforesaid,
further
do
oaths
their
Tex.,
respon-
for
Austin,
Gen.,
Atty.
Asst.
or
to said
in and
present
dent-appellee.
A.D.,
January,
of
day
the 8th
about
to
and anterior
county and state
said
in
indictment, Larry
of this
presentment
recklessly
there
then and
did
individual, April
and HIG-
of an
BROWN,
the death
GOLDBERG
Before
his
her
striking
with
Peters, by
Judges.
GINBOTHAM,
Dawn
Circuit
hands;
...
HIGGINBOTHAM, Circuit
E.
PATRICK
1 of mur-
upon Count
was convicted
He
Judge:
fifty
to
same
by the
and sentenced
der
I.
was af-
His conviction
prison.
years
a denial without
from
appeal
is an
This
Ap-
Texas Court
firmed
prisoner’s
a state
hearing of
evidentiary
an
State, 580 S.W.2d
peals.
the murder
Convicted
petition.
habeas
Dis-
United States
The
(Tex.Cr.App.1979).
brings
child, petitioner
year-old
aof
two
recommendations
Court, adopting the
trict
of constitu-
assertedly
two errors
this court
federal
Plunkett’s
denied
magistrate,
of a
merit,
re-
we
Finding
dimension.
evidentiary
an
without
petition
habeas
verse.
convic-
that his
he contends
Here
hearing.
April Dawn
year-old
two
autopsy
An
for
unconstitutionally obtained
bruising over virtu-
extensive
Peters found
First,
argues that
he
reasons.
two
had suffered
body.
entire
She
ally her
to convict
allowed the
charge
heart,
Her
to her skull.
fracture
y-shaped
indict-
charged in the
an offense
severely
had been
liver,
spleen
pancreas
de-
he was
Second,
argues
he
ment.
injuries
or
the head
abdominal
Either
torn.
prosecutor
trial when
aof
fair
prived
death;
oc-
fracture
have caused
closing the
uncharged offense
argued
abdominal
one hour before
about
curred
case.
than twen-
were less
The bruises
injuries.
provide:
statutes
pertinent
The
hours old.
ty-four
if he:
an offense
commits
person
A(a)
Plunkett,
April’s
with
who lived
causes
knowingly
intentionally or
(1)
April
time, was with
from time
mother
individual;
of an
the death
had
that he
explained
He
she died.
when
bodily inju-
cause serious
(2) intends
lying in
April
found
thump
heard
clearly dan-
act
and commits an
ry
her
bed and
feet on
bedroom
that causes
to human life
gerous
He described
floor.
the carpeted
head on
individual;
...
an
death resuscitate,
includ-
his
efforts
extensive
judge
The trial
19.02.
Code §
Tex.Penal
accomplished
massage,
heart
ing direct
pages
his five
opening paragraph
hands to
application
forceful
jury:
told the
charge
lapse
explain
He did
chestwall.
com-
a person
provides
law
Our
injury
the head
time of
from
one
hour
know-
intentionally or
if
mits
injury.
suffering of abdominal
to individual,
ingly causes the death
an
or The Texas Court of Criminal Appeals ap-
bodily injury
intends to cause serious
plied its contemporaneous objection rule
dangerous
an
clearly
commits
act
to hu-
and confined its review to “fundamental
man life that causes the death of an
error.”
Therefore,
you
find from the evi-
dence beyond a reasonable
II.
doubt that the
defendant,
Plunkett,
did cause the
The Texas
Appeals
Court of Criminal
in
April
death of
Dawn Peters by striking
charge
its review the
found:
hands,
her with his
you
a
rea-
charge
abstractly,
defined murder
[T]he
sonable doubt that the defendant did in-
applied
and then
this
definition to
tentionally or knowingly cause death or
Paragraph
Although
facts in
3A.
a theo-
he
intended
April
to cause
Dawn
ry
alleged
the indictment is includ-
Peters serious bodily injury, then you will
3A,
ed
Paragraph
it is
important
acquit
murder,
the defendant of
and will
note that
this
is a converse
paragraph
consider
or
not he is guilty of
charge, directing acquittal and considera-
involuntary manslaughter.
offense,
tion of the lesser
included
objection
made no
Thus,
directing
finding
guilt.
Para-
allowed the
to convict for a
graph 3A did not
a conviction
authorize
violation of
19.02(a)(2).
19.02(a)(2),
Tex.Penal Code
provided
§
under Sec.
no
finding
without
ed for
jury’s find-
for the
guidance
affirmative
caused
knowingly
or
guilt.
ing
only intended
child’s death
Id. at 822.
On
at 817-18.
580 S.W.2d
bodily harm.
539, 101
Mata,
In Sumner
reached the
banc,
court
rehearing en
the Su-
(1981),
itself, the
reversing
In
opposite conclusion.
requirements
interpreted
preme
scope
altered the
substantially
Texas court
there
2254(d). The Court
U.S.C.
The court
looked
focus.
analytical
of its
no distinction
2254(d) drew
noted that §
and,
language
only
aof
determinations
the factual
between
found,
ambiguous,
it to be
considering
while
appel-
of a state
those
court and
state trial
that the
language,
parsing
aby
aided
to “a determina-
it
when
referred
late court
to inten-
confined
properly
had
been
merits of
on the
hearing
tion after
focus, the
its
narrowing
In
homicide.
stated:
The Court
issue.”
factual
closing
view the
put from
court
as
such
case
particularly
This is true
refusing
did this
It
prosecutor.
de-
its
court makes
this where
federal
argument because
prosecutor's
consider
record
on the identical
based
termination
objected to.
was not
appel-
the state
was considered
reason
no
there was
and where
late court
the Texas
company
partWe
court
consider
the state trial
point.
Appeals
to raise
failed
respondent
issue because
contemporane
Texas
application
*5
that level.
issue at
the
closing
objection
prosecutor’s
rule
ous
769.
547, 101
at
at
Id.
unexceptionable.
jury is
the
argument
to
us. Wain
before
error is not
claimed
That
of correct
“presumption
the
With
2497,
72, 97 S.Ct.
433
wright
Sykes,
v.
U.S.
Mata in
v.
in Sumner
explicated
as
ness”
follow, how
not
It does
594.
53 L.Ed.2d
the
that
Texas
mind, we conclude
prosecutor
ever, that
the
per
not
charge
the
did
determination
consideration
in the
ignored
be
can
for a non-indicted
to
jury
mit
convict
the
indisputably reserved
point,
Plunkett’s main
record.
by the
supported
is not
offense
jury was al
the
Whether
our review.
for
of Crimi
to the Court
due deference
With
violating
for
to
lowed
convict
opposite
the
precisely
we reach
nal Appeals,
not
offense was
when that
19.02(a)(2)
part
a
we consider
essentially
because
result
in the context
be decided
must
charged
consider.
declined to
record that
charge
must
only
Not
by the
the entire trial.
guided
reading
Our
whole,
it must be laid
as a
attention
be read
pay “careful
Supreme Court. We
all the props
...,
scene with
courtroom
actually spoken
to
words
nothing
Had
his
there existed.
scenery
has been
a defendant
accorded
charge,
conceded
way
rights depends
occurred
else
constitutional
been ambiguous,
in
to
juror
Texas court
have
a
could
reasonable
which
prose
The
agree.
inclined to
terpreted
instruction.”
Sandstrom
we
be
2450,
514,
510,
99
Montana,
jury,
442
however:
U.S.
cutor told the
we are
2454,
(1979). Finally,
F.2d (5th 180 n. Cir.1982). claimed error is was allowed When inflicting Plunkett was to convict Plunkett of non-charged of- injuries photograph to April We disagree fense. with the Texas Court Peters, Dawn beating when Appeals' refusal to look beyond girl, when he caused the skull fracture to ambiguous charge in answering this head, her something did he do that caused question. something death? Did he do murder, caused her para- death? That’s III. one,
graph cause serious bodily injury and commit an act clearly dangerous to hu- Having concluded that Plunkett was tried just man life is bigger than a in a manner that allowed the con- goose. If it looks like a duck and walks vict of distinct crime that the state had duck, well, like a duck and quacks like charged, we turn to consequences it’s just you, duck. Thank ladies and the error. We describe the standard gentlemen. review, then return to the trial scene for its application. given With the court having charge which was subject at least to a con already noted, As we have a state struction that intent to bodily cause serious prisoner seeking federal habeas relief for sufficient, injury explicit explana erroneous instructions faces a heavy prosecutor to the without jury, burden: court, intervention of the makes the conclu must be established not merely that ‘[I]t inescapable. sion reading A of the entire undesirable, the instruction errone- [was] record firmly supports the conclusion that *6 ous, or “universally condemned,” even the jury allowed to convict the right that it violated some which was non-charged theory of murder. guaranteed to the by defendant the Four- We share the view the dissent that we Amendment,’ teenth ‘the ailing and that must chary be of simply reading the same itself so the infected entire
record in a
way
different
than did the state
resulting
trial that the
conviction violates
emphasize
court. We
our
that
difference
due process.’
with the Texas Court of Criminal Appeals
Watkins,
1346, 1369
Washington
655 F.2d
v.
does not flow from reading
a
of the same
denied,
949, 102
456
(5th Cir.1981), cert.
U.S.
Instead,
record.
the Texas court declined
2021,
474 (1982).
S.Ct.
to consider a
the
part of
trial record which
right
implicated
The constitutional
we are persuaded must be considered.
In-
here is basic:
deed, the Texas Court of Criminal Appeals
process
principle
procedural
No
due
is
the
reached
same conclusion as this court
than
clearly
more
established
that notice
when it considered the entire record.
It
charge,
specific
of the
and a chance to be
was when it
refused
consider
prose-
heard
a trial of the issues raised
cutor’s
that
court concluded
that
...
charge,
among
are
the constitu-
permit
did not
rights
every
accused ...
convict of an offense not charged. The
Supreme
Cupp
Court in
Naughten
Arkansas,
196, 201,
v.
coun-
v.
68
Cole
333 U.S.
S.Ct.
514, 517,
seled that claimed instructional error
(1948).
can-
1010
have convicted Plunkett
could
Cir.1981);
juror
Watson
able
(9th
Raines,
569
662 F.2d
was not
which he
crime with
a distinct
Cir.1977).
(6th
Jago,
v.
F.2d
charged.
should
that we
suggests
The state
more than a
no
we have described
have con
So far
could
conclude that
in an indict
not contained
of conviction
risk
non-charged offense
Plunkett of
victed
right
had no
Plunkett
constitutional
his ment.
given
19.02(a)(2),
under §
of murder
constitutional
indictment. His
The
state
inquiry.
proper
ais
defense. This
“to be
right
Amendment
Sixth
right
non-
is
for
convictions
posed by
legal issues
cause of the
nature and
informed
in terms
addressed
may be
charged offenses
Wain
v.
Spinkellink
...”
accusation
and
indictment
between
of a variance
Cir.1978),
(5th
609 n. 32
578 F.2d
wright,
context,
have refused
we
In this
proof.
denied,
99 S.Ct.
440 U.S.
rt.
a feder
review of
on direct
proffered error
ce
(1979).
L.Ed.2d 796
“in the
the reason
al
prosecution
upon which
of evidence
absence
nothing in
argue
and
state does
The
not con
ground
on a
have convicted
might
conclusion
supports
record
reasonable
indictment,
the defendant’s
tained
might be
ever aware he
that Plunkett
In
not be reviewed.
shall
killing
conviction
not of
convicted
evidence,
inad
the court’s
absence of such
injure
her
child,
intending to
con
the instruction
vertent addition
indict-
caused
death.
blow that
Unit
‘trivial ...’”
in the
is
understanding
tained
of Texas
read with an
ment
n.
Thetford,
676 F.2d
ed
Un-
States
notice.
opposite
gave precisely
law
-
denied,
U.S.
Cir.1982), cert.
(5th
law,
19.02(a)(1)
19.-
§
§
der Texas
(1983).
-,
10H which was denied. We cannot find that (1983), 794 is a fresh reminder denial to have been harmless. The denial that the Courts of Appeals are not free to was unconstitutional and prejudiced the de- second-guess determinations made state fendant. The writ must issue. The denial courts. In case, this Court had re of the petition for habeas corpus is re- versed the district court granted and habeas versed. The case is remanded with instruc- relief to a petitioner who claimed he was tion that the district court set a reasonable mentally incompetent to have stood trial. time within which Texas may try Plunkett Fulford v. Maggio, 692 F.2d (5th 354 Cir. again. 1982). The issue had earlier been raised
REVERSED before AND court, trial REMANDED. which had found the defendant competent. The Louisiana Su JOHN R. BROWN, Circuit Judge, preme dis- Court upheld that finding on appeal. senting: Summarily reversing this Court’s decision, Supreme I Court had respectfully “not the slightest dissent. The majority re- hesitation in saying cites but ignores then trial recent teachings conclusion as to Fulford’s United States Supreme competency was Court. It ” ‘fairly repudiates supported by the record.’ carefully considered - findings U.S. at -, 103 Texas S.Ct. Court at Criminal L.Ed.2d Appeals and 799. impermissibly substitutes its own judgment for that of the state court. This unaccepta- In its decision on rehearing in this case, ble approach leads the majority to the the Court of Criminal Appeals pointed out wrong result. portion of the instructions which Clearly, a jury could referred find beyond a rea- non-indicted crime were sonable doubt phrased in such indictment fairly way as to direct acquittal, described Plunkett’s brutal crime. It is un- consideration of the lesser offense of disputed that the indictment manslaughter, constitu- the jury did not find cer- tionally adequate. The sole tain beyond issue facts is wheth- a reasonable doubt. Be- er the court’s charge to the cause funda- was instructed to return a mental error. The Texas verdict Court of guilty Criminal only if they found that Appeals found that it was not. This deter- did “intentionally or knowingly mination deserves far more than insub- death” of victim, the instruc- stantial deference shown it by panel tion did not authorize the jury to return a majority. guilty verdict on the nonindicted offense. In Sumner v. Mata, [T]he defined abstractly, then applied this L.Ed.2d 722 definition (1981) the Su preme facts ruled Paragraph that a 3A. Although state court’s fac theo- tual ry not alleged determinations in the must be indictment is accorded a includ- ed in “presumption of Paragraph 3A, it is correctness” under important U.S.C. note 2254(d). As paragraph recently a converse stated charge, in Marshall v. directing acquittal Lonberger, and considera- - U.S. -, -, tion of lesser offense, L.Ed.2d included “ 646, 657 (1983), directing a Sumner finding of guilt. calls for a Thus, ‘high Para- ” measure of graph deference’ 3A did not “requires that authorize a conviction a federal habeas *8 under court more See. 19.02(a)(2), than simply provided no disagree with the state affirmative court reject guidance before for the jury’s find- ing its factual ing of guilt. Instead, determinations. it must conclude that the state court’s find Plunkett v. State, 580 S.W.2d (Tex. ings lacked even support’ in the ‘fair[] rec Cr.App.1979). ord.” The conclusion by reached the Court of The Supreme Court’s decision in Maggio Criminal Appeals is fairly supported by the v. Fulford, - U.S. -, actual language of the jury charge majority Yet the whole. as a record
the America, interpre- STATES its own UNITED record give chooses to Plaintiff-Appellant, high properly to accord failing By tation. findings deference measure of majority Appeals, of Criminal Court LESS, LAND, OR MORE OF ACRES 33.90 Sumner, Lon- clear lesson overlooks the COUNTY, BEXAR IN SITUATED Fulford. berger, M. Schae and John TEXAS OF STATE majori- so, disagree I Even more Defendants-Appellees. al., fer, et closing prosecutor’s that the contention ty’s . No. 82-1215 acceptable otherwise elevated argument of fundamen- realm jury instruction Appeals, United States aof of the absence Because error. tal Fifth Circuit. objection, propriety contemporaneous 22, 1983. July is not before prosecutor’s majority question The sole Court. —as the instruction acknowledges —is circumstances
itself, context on the trial, a conviction authorized majority acknowl- offense.
unindicted arguably, least that at
edges I any such verdict. authorize did not
alone thesis that majority’s accept
cannot acceptable instruc- constitutionally into fundamental was somehow turned remarks. prosecutor’s
error in the Court nothing
I find suggest opinion en banc
Appeals’ a different result reached
would have charge in placed the it had
only That argument. prosecutor’s
context language considered autho- it did not concluded
charge and I offense. for non-indicted
rize-conviction finding. uphold fundamentally, constitu- more
But of an errorless acceptability an the words of advocate
charge cannot due process into a denial
be transmuted courts.
by the Texas