Wе reverse the district court’s issuance of a writ of habeas corpus based upon the petitioner’s being tried in prison coveralls because it appears from the record that he waivеd his right to be tried in civilian clothes rather than jail clothes. This court has stated that it is inherently unfair to try a defendant in prison garb, 1 but that eaсh case must be considered in its own factual context to determine whether the conviction from such a trial must be set aside. 2
*656 García was caught driving a new automobile which had been taken from thе fenced-in yard of a Dallas Ford dealer. Indicted for theft of thе car, the defendant’s only defense was to attempt to negаte the specific intent required for a felonious taking. In the absence of intent he could have been convicted of driving an auto without the owner’s consent, but this could not be used for enhancеment of a prior burglary conviction. So intent was important to the state’s case for enhancement and critical to the defense.
Garcia testified that he had been drinking heavily and did not remember how he came into possession of the car. Defensе counsel sought to persuade the jury that the defendant could nоt have had the specific intent to steal because he was drunk. Counsel thought that being tried in prison clothes strengthened his ease on this point. At a hearing on the state habeas corpus petition, the transcript of which was before the district court, Garcia's triаl attorney testified as follows:
“Q Okay. Now, what was your reason — did you have any strategy in allowing him to wear [jail clothes] during the trial?
A [Petitioner’s Trial Attorney]. I did not request that he be tried in the jail coveralls, however I did not object to it because my approach to this сase was that we had a fellow here who was a nice fellow except that he had a drinking problem and he wasn’t like the members of the jury and I didn’t want him put on the same plane as the members of the jury. I wanted them to look at him differently and consequently the fact thаt he was dressed in jail coveralls rather than very neatly dressed in an expensive suit, I thought this might make me get the idea across to the jury.
* * * * *
Q Okay. This was your trial strategy as far—
A Yes, sir, partly.”
This case then differs from Hernandez v. Beto, supra, whеre counsel admittedly gave no thought to such tactics at the timе of trial but did not object to the trial in prison garb because from past experience he thought such a motion would be treated as frivolous. Accordingly, the order of the district court is reversed with dirеction to discharge the writ and dismiss the petition. 3
Reversed.
Notes
. This court said in Brooks v. Texas,
“It is inherently unfair to try a dеfendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and рermissible argument.”
Id. at p. 624.
. Hernandez v. Beto,
“Appellee’s petition for rehearing states, ‘Surely some burden must be put on the defendant and his attorney to make known that he desires to be tried in civilian clothes before the stаte can be held accountable for his being tried in jail clothеs.’ We agree, and our opinion is not to the contrary. A defendant may not remain silent and willingly go to trial in prison garb and thereafter сlaim error.
*656 “We do not paint with a broad brush these types of cаses. Each case must be considered in its own factual context.” Id. at p. 637.
. The district court found that there was not sufficient evidence to support the suggestion of ineffective assistance of counsel. This finding is not clearly erroneous.