Lester Morris Pickens v. The State of Texas

probated The revocation of a RIVES, RONEY, Before GEWIN and a trial discre sentence is within court’s Judges. Circuit tionary powers and not be will disturbed showing of an without a clear abuse PER CURIAM: Garza, that discretion. United States v. petition Lester Pickens filed a (5th 1973); 484 F.2d 88 Cir. United corpus writ of habeas in the United Langley, (5th v. 438 F.2d 91 Cir. States 1970); seeking States District Court to remove States, Burns v. United 287 U.S. placed a detainer warrant on him the 154, L.Ed. 266 53 S.Ct. 77 serving State Texas. Pickens was (1932). It is not an abuse of discretion year probated Texas 10 sentence for rob- finding based on a revoke bery participated assault when he probationer that the conduct of the activity alleged to inbe violation of the required by the not been as con proba- terms and conditions of the State ditions of United States tion in that he interfered with a nurse 1970) ; Bryant, (5th F.2d v. 431 425 Cir. in the exercise of her duties and en- Clanton, F.2d 1304 United States v. 419 gaged conduct both of (5th Manning 1969); v. Cir. against which were offenses law. (5th Cir.), States, 827, F.2d 829 161 472a, Texas Penal Ann.P.C., Art. Vernon’s 102, denied, 792, cert. 332 U.S. 68 S.Ct. and Art. V.A.P.C. A. (1947). 92 L.Ed. 374 hearing court, was held in the state argues Pickens was found violation his cоnduct probation, and the terms not an offense State Subsequently protected by tion was revoked. convict- First Texas but was ed and incarcerated in the Federal Before constitutional Amendment. however, ‍​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌‌‌​​‌‌​​‌​​‌​​‌​‌​‌​‌‌​​‌‌‌‍Correctional question reached, Institution at Fort Leaven- it must be Kansas, charges worth, proba recognized on federal stem- that a “revocation of ming from require proof occurrence, another a detain- tion does not er warrant was filed a criminal conviction.” United sustain

Q»3 (5th сontrary Garza, Amendment, 484 F.2d First to the States Beto, 1973); Amaya supported terms of Cir. its Manning 1970); (5th v. United revocation. (5th Cir.), States, 161 F.2d Affirmed. denied, U.S. 68 S.Ct. cert. (1947). 92 L.Ed. 374 APPENDIX proba- Manning, of In the conditions AND MEMORANDUM ORDER probationer not required the tion that probated The sentence Pickens, violate law. is Petitioner, Lester Morris charge on that the by was revoked based prisoner virtue of presently federal using Manning the to defraud was mails 18, 1971, the on June sentence practicing without a and medicine for District Court the United States of Manning’s to In conten- licensе. answer of He Northern District Kansas. the July 22, tion insufficient that evidence was originally on been convicted charge, support to a conviction on either Court in the 47th Judicial District 1965 that Court stated County, placed on Texas and Potter of period years. probation ten On for a of proof support to a criminal April probation the Tex required support is to conviction not Petitioner was case was revoked and as judge’s discretionary order years in the Tex to serve ten sentenced probation. judge proceed- A in such Department Revoca as Corrections. need not have that evidence would affirmed, probation tion beyond a doubt establish reasonable vigorous dissenting opinions, by the guilt two All is of criminal offenses. that Appeals Texas. Criminal required is that the evidence and facts (Tex. State, v. 466 S.W.2d 563 reasonably satisfy be such as to Cr.App.1971). judge that the tioner has re- not been as appeal case was on While Petitioner’s quired the conditions of Appeals the Texas Cоurt of Criminal to custody of the he was delivered into 161 F.2d at 829. See United States Marshal to answer federal States Langley, 1970) United (5th F.2d Cir. charges pending (Revocation him allegedly improper ‍​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌‌‌​​‌‌​​‌​​‌​​‌​‌​‌​‌‌​​‌‌‌‍on based The con- Kansas. Northern District of upheld); state conviction charges resulted 1970) on those Bryant, (5th viction 431 F.2d 425 Cir. serving. he now State (Revocation alleged is sentence insuffi- based on placed detainer with charge Texas has upheld); cient evidence crime federal authorities. Clanton, United States v. (5th 1969) (Revocatiоn on based application for Petitioner has filed charge upheld). dismissed state corpus pursuant to Title of habeas writ 2241 et Code, Section 28 United States judge state trial found that Pick- The pauper- seq., proceeding in forma disorderly. ens’ conduct was The record challenging federal not He is is. supports finding. decision His (1) the He contends that conviction. revoke did not amount to an placed Texas is detainer State abuse of discretion. of Texas lost invalid because affirming jurisdiction it surren- over him when District Court’s corpus denial of him to federal authorities habeas relief Pick- dered ens, the state do not determine in manner the revocation infirm, scope constitutionally judge because of First Amendment possessed by merely urged probationer. the State of We the acts and conditions hold of terms did not violations state protected determining are abuse his discretion in conduct, and Fourteenth Amendment than which First might arguably protected Consti- States upon arrival at the remedies at the scene state available All tution. challenges he showed the nurses related exhausted have been signs No doctor was of life. no vital properly this Court. before duty the time. on conclusively the case records appellant and others re- several entitled no ar- Petitioner show that condi- anxious to determine the rived that the State lief his contention appel- of their friend. When the jurisdiction to file its tion Texas has lost three four others were lant and that when state settled well tainer. It is emergency he leave room prisoner fed- asked to surrender authorities card, displayed prosecution a civil defense eral authorities by the there was told nurse in the state service of sentence emergency prisoner no he would have right re- to have its waived waiting room he custody to the which trial or service retire for turned to its emergen- Texas, Dorrough he did. Later re-entered 5th of sentence. cy attempting get 1063; to Montos room McDonald’s F.2d Cir. 1243; etc., permission Smith, sister, and mother 5th granted. enter, He was Beto, 403 F.2d which was 5th Cir. Bilton v. again asked to leave and did. He lat- 664. asking permission to er re-entered his First contention Petitioner’s deceased, comfort mother of were and Fourteenth again he which was refused and was presents more difficult issue. violated a group asked to leave. The outside transcrip- it the This has before Court to be from 15 to 20 was estimated hearing proceedings of the tion during persons period time. on the the trial conducted Superintendent tes- application of Nurses Garrett to revoke state’s appellant summary opinion tified that had entered the of Pre- The siding emergency room twice before the de- Onion of the arrived; Appeals supported by later ceased’s mother Criminal adopted by upset McDonald’s hysterical, and record this Court: mother became and is though patient and not a January “The record reflects that on hospital, began to she care for McDonald, a one Ronald bathing cloth, her, her face with wet appellant, close friend of the shot was taking pulse pres- her her blood and near the one Preston Cheeks Club ap- sure. She related that when the pellant fell De Lisa Amarillo and face emergency room re-entered appellant down in the street. When taking stop pulse she had to and per- arrived on the scene he obtained readings pressure him blood and ask mission from officer leave; that if he had not continued alive, if determine his friend was still in she come could have attended to and he turned McDonаld’s face out her duties on the other floors puddle of mud. Soon crowd hospital. people gathered, apparently 100 to 200 making appellant angry shooting, While denied about and the de- getting McDonald, lay statement, such two officers testified aid to began they urge peo- yelling him ‘pigs’. heard the 15 to 20 ‘honkies’ and ple rush in The could not witnesses described the distur- stopped. ring No leaders, such action ever oc- bance named appellant. curred. did not include the Only one witness said he observеd group people there appellant yelling ‘pigs’ ‘honkies’ ‘orderly,’ many scribed along with most of the others in the friends or relatives of deceased. crowd. hallway They mostly remained hospital waiting The ambulance driver testified that room the appear open public. McDonald did not to be to the alive ly appellant was not arrested and interfered with a nurse while the subsequently funeral left nurse was in the exercise of functions injury persons intended to contain home. during disturbance,1 (2) en- Pickens thаt each reflects The record gaged disorderly in an unreasonable leave, appellant asked to time shooting duct at the scene of the reluctantly, though with- even did, he provoke manner to cause or a distur- difficulty.” causing any trouble or out (3) engaged bance and in an unreasonable to re- filed motion of Texas The State contending in such manner to cause or essentially voke voke a disturbance.2 unlawfully and willful- (1) Pickens (3) violent and forceful behavior at Art. 1. Penal Interference Jft2a. public place, time in or near a such that peace officers, firemen, service or medical present danger there is a clear riots, during personnel etc. persons free movement of other will be as that term “Interfere” Section restrained, persons arrested or or other mean to intervene used herein shall incapacitated will be thereby passage in the lawful exercise free move- obstruct amusement; materially ment, delay, prohibit, business or di- involving personal behaviоr abuse or means. rect devious any person assault when such behavior creates clear It shall be unlawful for Sec. present danger po- causing willfully fireman, assaults or interfere with affrays; peace liceman, or or other in the law- officer (5) public duties, any private place engages discharge in a or ful with or violent, abusive, doctor, nurse, indecent, profane, in or ambulance bois- attendant terous, any persons unreasonably loud, while such are in the exercise or otherwise control, of functions intended to in reduce or conduct under circumstances injury persons pro- property contain ing or which such dur- conduct tends to cause or riot, disturbance, disturbance; pub- a voke a civil or or other (6) lic wilful disaster. and malicious behavior that in- Any person terrupts speaker any Sec. 3. who shall assem- violate the lawful provisions bly impairs guilty right or hereof shall be the lawful of a of others felo- ny participate upon effectively assembly conviction shall in be confined suсh meeting penitentiary in the state or when such not less than tends to years. provoke ; two nor more than cause or a disturbance or provisions (7) Sec. of this Act shall behavior near a courthouse or other penal public building judicial proceed- cumulative of all other laws wherein of this ings being held, designed having state. are or any provision interfering Sec. 5. If of this Act of effect of with the administra- application any person justice, disrupting thereof tion of or cir- whether invalid, cumstance is invalidity intimidаting held judges, such courts or wit- provisions shall nesses, not appli- jurors, persons having affect other or other cations given of this Act ; which can be ef- business with the courts or provision fect without appli- (8) any invalid public building or behavior near cation, provisions and to this affecting public end the wherein matters this Act are declared deliberated, designed to be severable. considered or having interfering or the effect of Code, Temas Ifil,.. Penal Disorderly proceedings Art. such under circumstances cоnduct. which such conduct cause tends to or person, Section acting 1. No disturbance; alone or in a voke or others, may concert with derly engage (9) in disor- wilful and malicious behavior which Disorderly conduct. any conduct con- obstructs or causes the obstruction of following: sists of of the doorway, hall, passageway in or other (1) behavior of a public building boisterious and tumul- to such an extent tuous character in a employees, officers, persons, residential area or a and other public place such including tourists, having there is a clear and visitors present danger alarming persons government business with the are denied legitimate no exists; reason for into, from, passage alarm entrance exit free (2) interfering peaceful with the building; in such lawful persons conduct of involving display in or about behavior public places their homes or any deadly weapon public place under circum- in a stances in which frighten such conduct tends to such a manner alarm or as to provoke cause or disturbance; persons present; allegation pretermits found The trial court This Court determination concerning disorderly scope rights conduct at of First Amendment possessed shooting probationer. mer- scene of be without The law is difficulty finding well had a violation settled that it and revocation of concerning is an exercise of the trial Petitioner of the statute court’s broad discretionary powers and action a nurse in violation of interference with Code, will not Art. He did be disturbed of a Texas Pеnal 472a. absence showing engaged clear of abuse of find that Petitioner dis- that discre orderly support tion. Proof conduct in violation of Texas Pe- required criminal nal Art. conviction is not revoked support discretionary probation.3 revoking order probation. required All that is is that challenge The thrust of Petitioner’s reasonably satisfy the evidence and facts alleged that the statements to have been proba that the conduct of the made him and revoca- required tioner been as рrotect- tion of was based are the conditions of United ed under the First Four- Langley, 1970, States v. 5th Cir. F. teenth Amendments. He contends fur- 92; Clanton, 2d United 5th States v. ther that Texas Penal Code Article 472a Manning 1304; 419 F.2d and Texas Penal Code Article 474 are States, 5th Cir. unconstitutional each those den., cert. 332 U.S. 68 S. vague. overly statutes is broad and Ct. 92 L.Ed. 374. constitutionality The attack on the the statutes cannot be considered say This Court cannot the trial Court. Neither contention has been judge clearly abused his discretion or in meaningfully presented ‍​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌‌‌​​‌‌​​‌​​‌​​‌​‌​‌​‌‌​​‌‌‌‍to the Courts of any manner committed error of constitu- Texas, responsi- where the tional dimensions bility for initial determination of claims tion. Petitioner is not entitled to the deprivation of constitutional lies. corpus. writ of habeas Therefore, challenges concerning is, therefore, constitutionality appli- It ordered that the of those statutes are prejudice. dismissed without cation of Lester Morris for writ upon property orderly enters of anoth- conduct in a manner calculated to provoke purpose by making er and for a liberately or lewd unlawful disturbance com- dwelling making, looks into a on ment that he denies that is property any through by officers, window or other testified two with reference opening overpowering getting in it. the resistence and Any person despite room, any Sec. 2. into the back the fact that who violates of ejected provisions he had been from it of Section 1 at least twice of this Article times, guilty probably and shall be three and this sort of of misdemeanor and just thing tolеrated, punished by conviction cannot be because shall be a fine of place sup- people is not more than Two Hundred Dollars posed helped, ($200). and and subsequent treated For second or people may fact that these been provisions have conviction of of of Sec- cerned about whether this man was alive person tion of this Article such shall be permitted disrupt punished cannot be dead a fine of than less One orderly public hospital. function of the ($100) Hundred Dollars nor more than effect, inciting I think his in —in action ($1,000), One Thousand Dollars im- by advocating mob violence this case prisonment jail county in the for not more that storm the door of room in thirty (30) days than both fine body which the nurses and the and mother imprisonment. and were, disorderly the deceased 3. Revocation, Statement provoke Facts. Probation conduct a manner to cause 25,1970, p. March 187. a disturbance. “Now, Therefore, opinion judgment much more serious and more sub- and of the stantiating charge charge last Court that defendant has violated the against him, cooperating probation, proba- in that instead of his term of and that his engage be, and he did hereby, in unreasonable and dis- tion should and revoked. hereby, effect, his in—in “I think action incit- corpus be, and it is of habeas ing in this case mob violence advo- denied. cating that storm the door of judgment. This is a final the nurses and the room is which Mem- to file this is directed The Clerk were, body and mother of the deceased a true send and Order orandum clearly disorderly conduct a mannеr copy at- to each copy and a to Petitioner provoke a disturbance. to cause torney of record. “Therefore, opinion judgment day Amarillo, 6th Texas this Done the defendant has of the Court that July, probation, the term of his violated O. Woodward Halbert s/ be, should and is that District hereby, revoked.” disagree deference, with the ba- With I Judge (dissenting): RIVES, Circuit holding is, of the sis majority —that adopted quoted court The district trial the state court based the revocation opinion summary Pre- arguably pro- the siding Judge on conduct other than the Texas Onion The First Amendment. tected Appendix to Appeals. portion See above-quoted opinion of Criminal of the opinion majority Pick- this Court’s trial makes the Texas court it clear State, ens v. 466 S.W.2d me that the basis for revocation the conten- court then reviewed district was Pickens’ comment con- in its of Texas emergency made cerning rushing tions into the revoke Pickens’ motion to amended bation, room. Texas and concluded “pretermit- federal district court en- that Pickens trial court found scope determination of the of first ted gaged in violation possessed amendment par- Texas Art. 474. Penal tioner,” stating that, made the ticular, the trial court “The law is well settled that revoca- following remarks is an tion exercise probation: discretionary pow- court’s broad “Now, more more serious and much dis- ers and such action will not be substantuating the last [sic] show-, of a clear turbed absence him, charge against instead discretion. Proof of abuse of that engage сooperating in un- he did support a criminal con- in a reasonable required support a to is not viction provoke distur- manner calculated discretionary revoking order by making he the that bance comment required All tion. that that making, denied is testified reasonably satisfy evidence and facts by officers, two with reference judge conduct of the that the get- overpowering the resistance re- as bationer not been ting room, despite into the back quired the conditions ejected it fact that he had from been omitted]. [cases probably three at least twice and say that the trial “This Court cannot thing times, just sort of can- this or his discretion abused tolerated, hospital is not be because a any error of manner committed place people supposed where dimensions constitutional helped, be treated and and the probation.” may people have these been was that Pickens' com- cerned whether this man it seems to me about Since revocation, I permittеd alive or dead cannot be basis ment was disrupt orderly as- court should have function the district think public hospital. his statement whether certained door, simply Amendment.1 and storm the protected the First he stated fact; e., appeared they either for what to be i. if Revocation of get they protected speech or all stormed the door the Constitution could in.” law, Judge where such 566.2 Morrison also state S.W.2d for violation hollering speech protected noted that Pickens was not or is based violation surely speaking Constitution, shouting, would that he consti- was at most tone of voice tute an abuse discretion. which was “loud enough by apparently to be heard sever- Brandenburg Ohio, In 395 U. people vicinity.” al of the in the After 1827, 1829, L. 89 S.Ct. S. question, Pickens made the statement in recapitu Supreme Ed.2d persons present said, one of the accord- pro speech for whether lated the test Judge Morrison, “Get out of the tected the First Amendment: way stop this foolishness.” “These later decisions have fashioned light In of thе facts revealed principle the constitutional case, ques- record there is serious guarantees speech free free tion whether Pickens’ statement was press permit do not to forbid truly inciting producing “directed to advocacy proscribe the use imminent lawless action.” His state- except force or of law violation apparently hypothetical ment was in a inciting advocacy such is directed form and was not linked with producing imminent lawless action inflammatory persua- remarks of an likely produce and is to incite or such Very possibly sive nature. his state- action.” simply expression ment was meant anas present case, In the made Onion anger excluded from the following relevant observations: presence dying Certainly friend. appellant making “While denied “likely his statement was not to incite or statement, two officers testified produce such action.” This is demon- they urge peo- heard him the 15 to 20 group strated orderliness ple to rush could not be apparent аt all times total fail- stopped. No such action ever oc- anyone group say ure of to do or curred. anything supportive sugges- of Pickens’ group people “The there fact, person present one tion. told ‘orderly,’ many being scribed as “stop Pickens to this foolishness.” The friends or relatives of the deceased. ap- law enforcement officials themselves They mostly hallway remained parently took no action to restrain or to waiting room of the arrest Pickens after madе he the state- open public.” to the question. suggests ment in This Judge Morrison in really dissent noted that ac- did not think his statement cording to likely both versions of what Pickens was to cause trouble. To be said, Pickens guaran- “nowhere made the out- removed from the constitutional right persons gath- ty assertion that speech, advocacy of free lobby join together ered should the use of force must both be “di- Judge 1. It standing evident from Morrison’s dis- len was there the doors with senting opinion me, that Pickens’ first amend- and I heard Mr. Pickens make the ment claims were considered the Texas in a statement loud voice re- that —I don’t Appeals. Court of wording it; Criminal See 466 S.W.2d call the exact it Judge at 566. very many Morrison dissents “because of effect there aren’t there, violation of the First them, if we all rushed get in; Constitution stop us, United States.” can can’t I believe ” ending that was the of it.’ “ reported opinion majority 2. As in the Witness Allen stated: ‘And he said there is Appeals, in the only Texas Court of them, Criminal 466 three or four of and if we storm 565, S.W.2d at door, nothing witness McAdams testified: in the there is can do “ ” standing my T was back to the about it.’ 466 S.W.2d 563. doorway, Deputy Sheriff John P. Al-

989 case, present inciting no producing there indication imminent rected to (2) “likely that the terms action,” to that advised Pickens was be lawless curtailment of included Brand- produce action.” incite I his first amendment liberties. there- 447, supra, S.Ct. enburg, at 89 395 U.S. ‍​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌‌‌​​‌‌​​‌​​‌​​‌​‌​‌​‌‌​​‌‌‌‍fore the Texas court Indiana, 1973, conclude that 1829; v. U.S. at Hess its 326, abused discretion 109, 303. 38 L.Ed.2d 94 S.Ct. protected speech requirement Since Amendment. First met, doubt there considerable (1), requirement I conclude about speech сonstituted Pickens’ statement

protected by First Amendment.

Apparently trial court re- the Texas theory probation on the

voked Pickens’ an offense constituted

that his comment Texas, against and that laws of thereby violated condition INC., Brookpark CHINA, ROYAL Pickens’ state- his release.3 Since Plaintiffs-Appellees, Royalon, Inc., protection ment within v. Amendment, statement should his First COMPANY, TRAVELERS INDEMNITY him as violation not be held Defendant-Appellant. Otherwise, the penal a Texas statute. involved, 474, must Article Texas statute CHINA, INC., Brookpark ROYAL applied unconstitutional considered Royalon, Inc., Plaintiffs-Cross- tо Pickens’ statement. Appellants, Alternatively, court the Texas trial v.

may probation be revoked Pickens’ have COMPANY, TRAVELERS INDEMNITY in and itself vio Defendant-Cross-Appellee. cause his comment his lated terms and conditions of 74-1024, Nos. 74-1025. regardless probation, whether Appeals, penal a Texas statute. comment violated Sixth Circuit. that first amendment It now clear seems Argued April 1974. ap protections expression of freedom of except possibly ply probationers,4 Decided June 1974. gov justified where restrictions dе similar those ernment interests Martinez, 1974, scribed Procunier - at---, U.S. S.Ct. legiti In L.Ed.2d 224. cases some government justify

mate interest would probationer’s

limitation of first amend freedom,

ment such limitations should be

specifically con out terms and set probation

ditions of so that proscribed.

er is on notice of what is prisoner majority opinion by wiih as a or with the Odom status legitimate objectives Appeals penological Court ‍​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌‌‌​​‌‌​​‌​​‌​​‌​‌​‌​‌‌​​‌‌‌‍of Criminal seems the cor- proceed system.” theory. Also, rections see on this Procunier See S.W.2d - Martinez, -, -, U.S. S.Ct. Douglas (Justice L.Ed.2d - joined curring, -, -, Procunier, Brennan 4. Pell Justices U.S. Marshall) -, -, and---[94 1800] L.Ed.2d S.Ct. S.Ct. (Justice joined by concurring, speaking Marshall Jus- said: Justice Stewart “ * * * Douglas II). prison in Part tices Brennan and inmate retains those hirst that are not inconsistent

Case Details

Case Name: Lester Morris Pickens v. The State of Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 15, 1974

Citation: 497 F.2d 981

Docket Number: 73-3121

Court Abbreviation: 5th Cir.