The State of Texas v. Daniel Grundstrom

reference to trial court’s stated newspaper advertisement wanted, but were

pilots mechanics working part “as words omitted the resulted contends

ners.” Martin The members instruction. a slanted opportunity examine jury had the during their delibera the advertisement for them see contents

tion and could its

selves. objects Finally Martin conclusionary lan to certain

first which, guage is as trial jury.10 Thornberry, Judge, serted, province Circuit dissent- invaded whole ed. Considered context

charge, any error occurred think the instructions We harmless.

fairly did not cause the law and stated

prejudice accused.

Affirmed. Appellants, OF TEXAS et STATE al. GRUNDSTROM, Appellee.

Daniel

No. 25423. States Court Circuit. Fifth

Oct. 1968. actually the follow- or alter the facts stated in 10. The instruction consisted therefore, you deciding ing: “I, instruct whether the Defendant devised omissions, Record, you may a scheme to defraud.” Vol. consider Defendant’s suppresion [sic] 3 at concealments change materially facts, which would . punishment years imprisonment. his at 25 appealed Grundstrom his conviction to the Texas Court of Criminal claiming that evidence used at his trial had been violation of seized the fourth and fourteenth amendments. The state court held that Grundstrom had waived right challenge admissibility his to by of the evidence virtue of his counsel’s objection timely failure to make testimony. State, 363 Grundstrom v. (1963). Subsequently, S.W.2d sought Grundstrom a writ of habeas corpus in the Texas Court of Criminal Appeals claiming that his conviction was by tainted evidence seized violation of rights his constitutional did he right challenge not waive his this evi- petition dence. The court denied the opinion. without April 18, 1966, petition On he filed a corpus for a writ of habeas in the United States District Court for the Southern proceeding District of Texas. The was pur- Owen, Gen., transferred to Atty. the Northern Robert E. District Asst. Austin, 2241(d) Tex., Alexander, suant to 28 as amended U.S.C. § William F. Asst. September August Dallas, Atty., Tex., appellants. 1966. On Dist. holding the district court filed an Tex., Wright, Austin, Alan Charles evidence violation obtained of Christi, Jones, Jr., Corpus Luther E. fourth and fourteenth amendments Tex., Burnett, Odessa, Tex., for Warren improperly been admitted and that appellee. right Grundstrom had not waived his RIVES, Before and THORN GEWIN object to the evidence. Grundstrom BERRY, Judges. Circuit Beto, (N.D.Tex.1967). F.Supp. v. Consequently, by the court its order August 24, 1967, granted GEWIN, Judge: Grundstrom’s Circuit petition corpus pro- for habeas with the petition Grundstrom’s for a writ viso that “issuance of the and ac- writ granted corpus by was the United discharge sixty stayed cordant States District Northern (60) days, permit in order to the State retry District Texas State Texas, desires, if it so perfected appeal. Thereafter petitioner.” A motion State filed with this court a motion to September reconsideration was heard 8, 1967, appeal. dismiss the Grundstrom filed no memorandum, denied, with objections to the motion dis- State’s Beto, September 18. Grundstrom v. miss, requested impose this court to supra page at upon certain conditions the dismissal. grant We the State’s motion to dismiss of Texas filed its notice impose requested but decline to con- appeal September to this court on ditions. 1967, and on October 20 district February application State, stayed On court on Grundstrom of jury robbery August perfec- was “pending convicted in its order appeal. the Criminal District Court No. 3 of tion and determination of said * * *» County, jury Dallas Texas. assessed On October while the court, pending presented by was from those record State’s against indictment was returned instant case. Patton was first convicted County year given Grand counsel and Grundstrom Dallas without a 20 charged years. Jury. The new indictment which he served five represented of Upon offense with identical his second trial he was original charged by robbery required by indict- as the counsel Gideon v. addition, Wainwright, en- ment, it contained 372 but U.S. conviction, that, (1963) on 93 averments L.Ed.2d A.L.R.2d 733 hancement mandatory given again make a life but was convicted and an- would sentence Code, year Penal his Ann.Texas other sentence. When case under Vernon’s had, Circuit, reached the Fourth Art. 63. already experienced what Grundstrom January 2, 1968, indict- the new On now In Patton did not the court brought fears. on case ment was for trial. The anticipate the of constitutional existence pendency passed the due to of was questions and on then render Thereafter, January 4, appeal. on anticipated of the such issues. In view motion filed with to the State this court fact that and re- he been retried State, appeal. dismiss its Then the ripe presented were sentenced the issues January 8, again brought on the new us Grundstrom asks decision. again for trial and once assume the of and circum- facts existence passed state because of it indeed, which do and stances not exist by pendency appeal. of the This court may actually never record occur. The January assigned of order the State’s judice present in the case sub does not regular appeal motion to dismiss its to a equal protection process, of due issues panel hearing. of court for jeopardy and double as was true earlier, As stated Grundstrom Patton. dismiss, object not to the does motion to posi also his Grundstrom contends that Spe but seeks conditional dismissal. supported by tion of rationale cases cifically, provide us that he he asks decided in other United circuits. request not be retried. made Such White, (7 v. 382 F.2d 445 Cir. States theory that on the of was State Texas 1967); v. United Starner States ex rel. guilty judg appealing of bad faith in Russell, (3 1967); 378 F.2d 808 Cir. court, ment of district and since (9 States, Walsh v. United F.2d 421 retry not Texas did within him 1967); States, Cir. United Marano v. days of allowed order the court’s (1 1967); 374 F.2d 583 United Cir. August 24, he cannot now retried. Wilkins, Hetenyi rel. States ex v. Alternatively, we Grundstrom asks that (2 1965); Cir. F.2d 844 United States provide retried, re if he is such Adams, 1966). (6 362 F.2d 210 original charge, he trial be on the He further that his contentions claims subject any more sentence meaning spirit fall within and year original than the 25 severe Green v. United ly imposed given and that he be 61 A.L.R.2d time he his (1957). position 1962 conviction. This taken Grundstrom district that Patton State Texas admits presented but Carolina, supra, North tends State first time. support Grundstrom’s contentions distinguishes heavily it cases on the all other cited Grundstrom relies they nearly support and claims that more Patton v. Fourth Circuit State (4 position 381 F.2d 636 State. North distinguishes may 1967), unquestionably it Green United States, supra, argued that Stroud in that case contends the decision authority respectable conten- his (1919) supports its tions, although Patton differ 64 L.Ed. 103 facts 21, 1968]; [May 396 F.2d 782 position. also relies Grimes, (5 Rod Newman v. Clarke Circuit cases Tenth 1967) (10 1967).1 riguez, We note the State 375 F.2d 712 recently post- Boggs Raines, F.2d broadened its Hayes remedy, corpus, 1959) v. United conviction which as well as (1957). Grundstrom, U.S.App.D.C. F.2d 516 is available to if re-convict , , , , „ , ed, any . to attack such conviction or or prolonged a much careful After l l , ,. , ,, „ presented . . issues the constitutional thought concerning issues o several t ,, n actually . us if such issues arise. r, Grundstrom, is T h e we raised feel , , „ monopoly o ... Federal have no Courts inappropriate on con- for us rule r , ,. respect corner on ... ... the market with , z.. questions not ac- are o t „ , , , deciding „. Federal Constitutional iss e , be called Though tually presented. u s ., ,, , , , Indeed, may up . strongly urges con- o to decide the us n , , he , has i-j. j.- . - to decide such often issues more than i i.- questions and raised th e ,, , judiciary, vastly . federal are forcefully the e that we have contends m o r „ _ „ , , , state courts than congtitutional and federal federal ones TT power to do under 28 U.S.C. so § issueg constantiy are aris. shall court it stated the wherein is that gtate ing proceedings.2 in court In our j'ustice dispose law and of the matter as view, good Texas has made a faith effort in- require,” in best we it is the think protect to the federal constitutional to decline relations terest of federal-state rights of its convicted defendants. See speak Payton, to supra.3 Consequently, allow of Texas and to the State Texas v. opinion of we are of initially the that under the issues. on these See (5 case, Payton, facts and it F.2d 261 Cir. circumstances this Texas premature 1968). the would but that this court to no doubt We have questions response competent protect decide the in to raised to of Texas is Although protect the adequately State’s motion. court all Grund- this and will recognized rights. prob has Peters the existence of the strom’s constitutional presented, Rutledge, F.2d 731 lem we not ruled here have 5 Cir. Dutton, upon Edge Wainwright, 1968]; it. See Moore v. [June following 2. from stated: Grundstrom’s 1. In Grimes this Court pre “Perhaps initial brief filed in this Court: therefore should suggestion Georgia will no here that courts “There that dieted case, again a ha Texas Court of in should Criminal hold this there, inhospitable corpus petition to federal be filed beas History conclusively jury claims. not con that selection jurors contrary. equally stitutionally But it mis- would void because capital suppose any special qualified taken to it has on the issue of were competence, greater opposed punishment than that of this were ex and those Court, interpreting Nevertheless, Constitution for cause. cused federalism, comity good of the United States.” and exercise of proper reía federal-state as well as Payton in 0ur recent decision we stated: Georgia should courts state twns disposition .<In our of tMs case short> opportunity to rule an first have Payton requiring reapply for relief presented question m case. as this this to ^ state which he was sys unseemly m our dual It would be strengthens convicted reaffirms and government these cir tern of policies imp]icit in 28 United States up for a federal court cumstances 22g4 § Code and in Article 11.07 Tex. without conviction a state set pf (1965) as Criminal Procedure Code opportunity state courts an to the interpreted as as both amended Fay violation. a constitutional correct jn gtate Judges sitting Federal Noia, Texas; State court in which (1963); Darr v. Bur applicant an was convicted is best able ford, L. disputed to determine issues of fact presented application (1950).” in an for a Writ Ed. 761 1965).4 (5 pre-judgment, Zaf F.2d 190 See also We make no we can but Blackwell, 719, 721 not farano v. 383 F.2d assume that the Texas courts (5 1967); fail consider Beufve United distasteful circum- 1967). Re 374 F.2d stances revealed the facts case, cently Patton in a factual situation or will fail to different consider approved respect sen rationale of that decision with this increased process, equal protection to due tence. Odom United jeopardy. dissenting (5th 1968). double Our brother is of the Patton case dissenting to have Our brother seems clearly resolved the constitutional only way concluded that issues now raised How- Grundstrom. will receive fair treatment ever, agree we do not is for him ac- courts to be authority case is conclusive re- questions quitted and thus render all quires tous consider and is- resolve the moot. We unable to follow line are sues which are Grundstrom contends reasoning. may follow Other results present, express and we no view on trial. At- The fact the District questions. merits of those torney at called the ease Dallas twice Generally do not antici pending up points for trial pate questions of serious constitutional emphasizes pertinent fact that import presented until wait case judge post- both instances the state court requires which a decision of con poned Actually may the trial. he never stitutional issue. indictment; be tried on if grasp not question a constitutional and if he is he is convicted and if that though properly presented, decision even affirmed, conviction is there is available present legiti if there also is some other new, adequate ample to him a ground upon mate which the case be can post-conviction remedy. Comity not decided. As was stated Justice Mr. only principle involved. Federal Brandéis in his well-known often pointedly courts have indicated desir- concurring opinion (dissenting cited ability having provide adequate states part) TVA, in Ashwander v. 297 U.S. post-conviction and modern remedies. 288, 346-347, 466, 483, 80 L.Ed. Many so, of them have done one and no (1936): 688 question can the fact en- that Texas has ‘anticipate ques- “The Court will procedure, acted an not a excellent which this tion of expressly approved. constitutional law in advance of necessity Payton, deciding supra. Liver- it.’ corpus Corpus obtaining prisoner, successful Habeas relief, any without credit such state the twelve at least co-equal years already with he Federal courts in served. its du- spectre responsibilities Edge’s subjected being ties and the admin- to as twenty years prison istration of federal much as law.” more such, however, that we feel con- expressly Fdge 4. The court strained observed that had served allude years problem.” year 12 of a 15 sentence and that question Subsequent argument giving of retrial and credit to the oral already against any case, for time sub- this this court has held accord sequent likely upon sentence would arise with Patton v. State of North page (4 1967), Simpson remand. The court then at stated 381 F.2d 636 Rice, 1968) (5 194 of F.2d: 396 F.2d 499 cert. question knotty 292, granted 932, “The is a one which appellant context, should be considered In the Rice L.Ed.2d 268. represent nothing principles and the counsel him who will case adds to the estab upon express Rice, Patton, remand. We no lished in Patton because like already experienced on whether it would be a denial of due what Grund process anticipate. for the State reincarcerate strom seeks to Edge offense, the same if he is Import, Emigration Cars Citroen Motor Inc. v. Star pool, P. Co. v. N. Y. & S. S. 352, 1961); Estep (5 Corp., Comrs., 288 F.2d 69 S.Ct. 113 U.S. [5 (9 ; v. Van Abrams 901] L.Ed. Heisel, 1963); 361 F.2d 581 Schaick, Bauers S.Ct. [55 293 U.S. 1965), cert. 386 U.S. 278]; den. Co. v. United Oil L.Ed. Wilshire (1967). S.Ct. S.Ct. [55 295 U.S. habit of L.Ed. ‘It is 1329]. State of Texas motion questions con of a the court to decide hereby appeal in this dismiss its absolutely unless stitutional nature granted. necessary case.’ to a decision Burton v. United Appeal dismissed. 485]. 49 L.Ed. [25 S.Ct. rule “The Court will not ‘formulate (dis- THORNBERRY, Judge Circuit of constitutional law broader than senting) : required by precise which facts to Invoking power our under 28 U.S.C. § applied.’ Liverpool, & it is to be Y.N. corpus petitions dispose 2243 to of habeas Comrs., Emigration P. S. S. Co. v. justice require,” I “as law and would dis- 113 U.S. 33 28 L.Ed. S.Ct. [5 appeal proviso miss the with the State’s 899], supra. [City Compare Ham- of] if retried it Grundstrom be Line, Schappi mond Bus original charge, subject he L.Ed. 169-172 [48 any greater first than 218, 220-222], given imposed, he time served under 1962 conviction. pass upon “The Court will not a con- respectfully I from must dissent question although properly without presented by record, Court’s' dismissal if is also qualification. present ground upon some other may disposed the This case be of. pretermit argument should that we application. rule has found most varied discussion of the constitutional issue Thus, if a can on either case be decided initial to state leave its resolution grounds, involving of two con- one a especially persuasive be- in this case is question, ques- the other a concededly appel- chance cause is a there gen- statutory tion of construction or acquitted under if retried will even lee be law, only eral decide mooting indictment, thereby the new the latter.” Nevertheless, I do not believe issue.1 comity principle on relied These classic statements have met with Clay approval majority fed- numerous instances. should decisive because be Limited, 207, v. Ins. Sun Office U.S. it clear to eral make me decisions 1222, (1960); 4 L.Ed.2d 1170 con- a new indictment conviction under a 205, Hayman, taining provision United States U.S. would an enhancement 263, (1952); Lone constitutionally 96 L.Ed. 232 impermissible. S.Ct. Where be possibility prior I find While do not to trial where the indictment acquittal compelling charged a for to be reason is under a void stat defendant avoiding issue, I would the constitutional here. ute. Such would be the case differently parte Oliver, feel about this case if I were Ex S.W.2d provided (Tex.Crim.App.1964) law Grund confident that Texas fore seems to testing procedure corpus with in strom a habeas after close the use of pri- constitutionality prior of a new indictment usual dictment and to trial suggests regularly or Ex to trial. The State an case where indictment parte 160, competent juris Sanford, presented Tex.Cr.R. in a court (1956) such an S.W.2d 776 affords ave diction and there is a valid law relief, prosecution in that case the court maintained. nue of can be which the corpus would lie after held g., Lange, parte for all issue no Ex the relevant constitutional increase. E. already 1873, 163, practical purposes Wall) been L.Ed. has resolved, 872; Sacco, no sound reason 2d United States v. 1966, 368; in later to leave for a federal 367 F.2d court United States 210; Adams, 1966, of this initial determination issue to 6th 362 F.2d 1964, Kennedy courts.2 9th v. United 26; Ekberg 330 F.2d United year, January District In of this Second, the 1st Cir. 167 F.2d 380. attempt Attorney County of Dallas twice require that to a defendant said bring a new ed to trial on price of risk an increased sentence as containing aver enhancement exercising postconviction un remedies that, conviction, amake on' would ments duly fetters use of those remedies mandatory. In view of the life sentence process. thus See Griffin violates due n State’s an in obvious to obtain desire Illinois, People of the State retrial, I do creased sentence L.Ed. premature us to consider believe it 1055; Marano also 55 A.L.R.2d see an increased sentence would whether F.2d 1st n constitutional. That appellee may ulti 583; Alstyne, Har In Gideon’s Wake: mately point: acquitted is beside sher and the “Successful” Penalties clear, If law Appellant, Yale L.J. 603 Criminal legitimate in bur no interest (1965). Finally, an holds dening him with a trial under the equal-protection increase violates my judgment, Patton v. indictment. In be amendment clause of fourteenth Carolina, State of North 4th Cir. punishment harsher cause threat of denied, 381 F.2d cert. solely correction who seek falls those 871, pre 19 L.Ed.2d by postconviction their sentences objec sents unanswerable constitutional remedies, creating irrational thus or denial tions an increased sentence on which of the class basis for selection on retrial where credit for means and an irrational the burden falls original aside conviction been set policy. effectuating any valid state because of constitu collateral attack Whaley North First, tional errors. said Whalen, 221; 4th original any increase in the Time Without Credit Resentence punishment would constitute double Laws, Unequal of the Protection Served: fifth same offense violation (1951).3 Minn.L.Rev. support conclusion amendment. This suggesting by Patton once decision in authorities The Fourth Circuit’s ed original by courts. has com echoed a number of district of the sentence service menced, case, Kelly Carolina, E.D. instant can of North v. State as Pay majority place primary reliance on of Texas v. 2. I do not read State Grimes, 1967, 1968, ton, F. F.2d to re v. 5th 5th Cir. 390 261 Clarke 374 majority. Wainwright, by 550, Edge quire result and v. 5th reached 2d repeat, 1965, 190, each in the instant case the facts F.2d but at the time To 347 decided, relevant and law are clear. was those cases at was unresolved issue Hence, Patton increase- other level. initial deter 3. cases the federal properly in Castle left area are discussed the issue was of-sentence mination of 1968, in 399 F.2d Grimes 5th Cir. to the state forum. Clarke v. v. United jurors 12, question [August did 1968]. The Court of whether 642 volved the scruples expressly approve Patton capital it was about as a who have not penalty inapplicable. We concluded can excused for to be held death simply Appellant Edge Wainwright involved Castle cause. v. subjected sentence void sen been to an increase of under a credit by tence, the district before he was resentenced but the case decided when developments in this area. court. recent

651 200; op- Admittedly, N.C.1967, F.Supp. Holland there are cases to 276 posite effect, including Boles, N.D.W.Va.1967, F.Supp. criti- the much 269 v. N.D.W.Va.1967, 1919, 221; Boles, cized v. United 251 v. Stroud Louden 103; 15, 50, 1; Gray Hocker, F.Supp. U.S. 40 64 L.Ed. D.Nev. 269 v. 1004; invalidity Gainey supporting in- 1967, F.Supp. cases of an v. 268 95; E.D.N.C.1967, F.Supp. on re- Turner, or creased denial of 266 sentence Holman, M.D.Ala.1966, original has F. trial sentence 255 Hill v. where Also, by Supp. attack are cases have been set aside collateral 924. recent state 1967, Ali, recent, numerous, impeccably People rea- a view. v. taken similar 348, 438, Cal.Rptr. P.2d clear and 424 soned. To me the trend Cal.2d 1963, strong 932; People Henderson, I intima- v. 60 Cal. correct. find 677; 77, 482, Cal.Rptr. 2d P.2d ap- Supreme tions that Court would Buchko, 624, Moore Mich. v. prove this trend United States (1967); Turner, 429 N.W.2d 437 773, Ewell, 1966, 116, 86 S.Ct. (Oregon 1967). P.2d This Circuit 627, and in v. United L.Ed.2d Green qualified adopted a version Patton by in a set forth district court My 1119. A.L.R.2d Judge Frank Johnson of the Midddle conclusion is the new Simp District of Rice Alabama. See attempted on which the State twice son, M.D.Ala.1967, F.Supp. retry Grundstrom is invalid aff’d, 5th Cir. cert. existing and should declared law be so granted, by this To avoid decision on Court. this light case, In of this I L.Ed.2d 268. ground problem either understand the rule of our Court by or resolved vanish another on an increase of retrial sentence surely day required another justification is unconstitutional unless comity.5 principles of appears for the increase in the record.4 a under certain circumstances qualified sentence courts Other have taken the inapplicable. position judge that a trial can increase original only retrial invalidity indict- provides predicate of the new 5. Since the if he rational by justify apparent articulating deci- as to ment is so increase either his rea- stage, I re- including effect at this sion to that sons or in the record the gard harmful as wasteful on which he data relied. United States it. trial on White, force him to Grundstrom to F.2d 7th Cir. if he 450; Harm will be minimal to him Patton v. North W.D.N.C. acquitted if the Court of F.Supp. or even 225. Another view is recognizes invalid- Criminal that unless can defendant establish ap- ity hostility indictment on direct personal part of the new sen- propor- peal alarming tencing assume judge but will no basis for there is dis- relief tions if he is denied allowing Boles, an increase. Shear again to fed- to resort forced once N.D.W.Va.1967, F.Supp. 855. The corpus. sitting In in habeas eral courts qualification adopted by to regard, odds are I note that Simpson Rice, 5th against appellee he is con- somewhat if 1968, 396 F.2d 499 would not affect victed, Court of Criminal instant because the it was without held against Grundstrom makes a life sentence power give un- mandatory he is event convicted at- collateral der a sentence vacated on jury. Thus, qualification parte Ferrell, tack. Ex 406 S.W.2d (Tex.Crim.App.1966). judge a trial discretion to increase

Case Details

Case Name: The State of Texas v. Daniel Grundstrom

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 25, 1968

Citation: 404 F.2d 644

Docket Number: 25423

Court Abbreviation: 5th Cir.