Brown v. Board of Education Brief of John Ben Shepperd, Attorney General of Texas, Amicus Curiae

    NO. 22,809

IN THE

UNITED STATES COURT OF APPEALS
FOE THE 

FIFTH  CIRCUIT

W ILLIE  B. BROOKS,

vs.
Appellant

DR. GEORGE J. BETO, DIRECTOR, 
TEXAS DEPARTMENT OF CORRECTIONS,

Appellee

APPELLEE’S BRIEF

W aggoner Carr 
Attorney General of Texas
H awthorne P hillips
First Assistant Attorney General
T. B. W eight
Executive Assistant Attorney General
H oward M. F ender 
Assistant Attorney General
Charles B. Swanner 
Assistant Attorney General
Attorneys for Appellee 
Capitol Station 
Austin, Texas 78711



TABLE OF CONTENTS

STATEMENT

A. Procedural History .....................................................  1

B. Factual History ...........................................................  2

REPLY TO SPECIFICATION OF ERRORS

I ............................................................................................  5

II ..........................................................................................  5

ARGUMENT AND AUTHORITIES

I. (RESTATED) ...............................................................  5

A. The decisions of the United States
Supreme Court .......................................................  5

B. The Decision of This Court in
Collins v. Walker ...................................................  11

C. The findings of the District Court that there
was no “ intentional inclusion” are fully sup­
ported by the record and are not clear and 
erroneous ...................................................................  15

II. (RESTATED) .............................................................  18

CONCLUSION AND PRAYER ............................................. 22

Page

CERTIFICATE OF SERVICE 23



LIST OF AUTHORITIES

Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276,
89 L. Ed. 1692 (1945) .................. 8, 9, 10, 11, 12, 14, 18

Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891,
97 L.Ed. 1244 (1953) ......................................................  8

Bailey v. Henslee, 287 F. 2d 936, 943 (1961) ..................  21
Bowland v. Tinsley, 268 F. 2d 666 (10th Cir) ..................  17
Brooks v. State, 342 S.W. 2d 439 (1961)

(on rehearing) ...................................................................  2
Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397,

97 L.Ed. 469 (1953) ...........................................6, 8, 10, 21
Brunson v. North Carolina, 333 U.S. 851,

68 S. Ct. 634, 92 L.Ed. 1132 (1948) ..........................  8
Bush v. Kentucky, 107 U.S. 110,1 S. Ct. 625,

27 L.Ed. 354 (1883) ........................................................  8
Carter v. Texas, 177 U.S. 442, 20 S. Ct. 687,

44 L.Ed. 839 (1900) .......................................................  8
Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 629,

94 L.Ed. 839 (1950)..............8, 12, 13, 14, 16, 17, 18, 19
Coleman v. Alabama, 377 U.S. 129, 84 S. Ct. 1152 (1964) . 8
Collins v. Walker, 329 F. 2d 100 (1963)

on rehearing 335 F. 2d 417 (1964) .............. 11, 12, 13, 14
Cranow v. Gonzalez, 226 F. 2d 83 (C.A. Wash. 1955)

cert. den. 350 U.S. 935, 76 S. Ct. 307, 100 L.Ed. 816 . . 17
Eubanks v. Louisiana, 356 U.S. 584, 78 S. Ct. 970,

2 L.Ed. 2d 991 (1958) ................................................... 8
Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904,

40 L.Ed. 1075 (1896) .....................................................  8
Hale v. Kentucky, 303 U.S. 613, 58 S. Ct. 753,

82 L.Ed. 1050 (1938) ......................................................... 8
Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667,

98 L.Ed. 866 (1954) .......................................................  8
Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159,

86 L.Ed. 1559 (1942) .......................................................  8
Hollins v. Oklahoma, 295 U.S. 394, 55 S. Ct. 784,

79 L.Ed. 1500 (1935) .......................................................  8
Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338,

50 L.Ed. 497 (1906) .........................

Page

8



Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1880)..........  7
Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579,

79 L.Ed. 1074 (1935) .......................................................  8
O’Keith v. Johnson (C. A. Cal. 1944), cert. den.

324 U.S. 873, 65 S. Ct. 1016, 89 L.Ed. (1957) ............  18
Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184,

92 L.Ed. 76 (1947) ...........................................................  8
Pierre v. Louisiana, 306 U.S. 354, 59 S. Ct. 536,

83 L.Ed. 757 (1939) .........................................................  8
Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167,

100 L.Ed. 77 (1955) ...........................................................  8
Rogers v. Alabama, 192 U.S. 226, 24 S. Ct. 257,

48 L.Ed. 417 (1904) .........................................................  8
Ross v. Texas, 341 U.S. 918, 71 S. Ct. 742,

95 L.Ed. 1352 (1 9 5 1 ).........................................................  8
Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164,

85 L.Ed. 84 (1940) .....................................................8, 18
Strauder v. West Virginia, 100 U.S. 303,

25 L.Ed. 664 (1879) .....................................................5, 7
Swain v. Alabama, 380 U.S. 202,

85 S. Ct. 824 (1965) ...........................................11, 12, 13
U. S. v. Walker, 231 F.Sup. 819, 821 ..................................  13
Virginia v. Rives, 100 U.S. 313, 322-323,

25 L.Ed. 667 (1879) .........................................................  7
In Re Wood, 140 U.S. 278, 11 S. Ct. 738,

35 L.Ed. 505 (1891) .........................................................  8

LIST OF AUTHORITIES —  Continued
Page

CONSTITUTIONS 

United States
Fourteenth Amendment .................................................5, 10, 18

STATUTES

Texas

Article 81, Texas Code of Criminal Procedure ..................  19
Articles 333-372, Texas Code of Criminal Procedure . . .  2



NO. 22,809

IN THE

UNITED STATES COURT OF APPEALS
FOR THE 

FIFTH  CIRCUIT

W ILLIE  B. BROOKS,

VS.
Appellant

DR. GEORGE J. BETO, DIRECTOR, 
TEXAS DEPARTMENT OF CORRECTIONS,

Appellee

APPELLEE’S BRIEF

To the H onorable J udges of Said Court:

STATEMENT
A. Procedural History

This is an appeal from the United States District 
Court for the Southern District of Texas, Houston 
Division, of a Judgment by BEN 0. CONN ALLY, 
United States District Judge, denying and dismissing 
an application for the writ of habeas corpus filed in 
said court by Appellant herein, Willie B. Brooks. 
Brooks, a Negro, was convicted on April 27, 1960, in 
the District Court of Van Zandt County, Texas, 86th 
Judicial District, of rape of a white woman, and pur­
suant to the verdict of the jury, was sentenced to im­
prisonment in the custody of Appellee for a term of



not less than five nor more than fifty years. Appellant’s 
sole contention in the court below was that the grand 
jury which returned the indictment upon which he was 
tried was not constituted in accordance with constitu­
tional standards, the members thereof who were of the 
colored race being intentionally included thereon be­
cause of their race. These matters were raised in the 
state trial court by motion to quash the indictment, 
a full hearing was granted Appellant therein, and said 
motion was denied. On appeal to the Court of Criminal 
Appeals of Texas, the court of last resort in Texas hav­
ing jurisdiction of criminal cases, said contention was 
again considered and denied in Brooks v. State, 342 
S.W. 2d 439 (1961) (on rehearing). Thereafter, on 
August 12, 1964, in the Southern District, Appellant 
filed his petition for writ of habeas corpus. Appellee 
responded thereto, attorneys were appointed to repre­
sent Appellant in said court; and on March 29, 1965, 
Appellant was given an evidentiary hearing. Prom the 
final judgment entered by JUDGE CONN ALLY May 
27, 1965, Appellant appeals to this Court.

B. Factual History

As noted above, this appeal concerns whether the 
grand jury was constituted according to constitutional 
standards or whether the indictment is invalid by rea­
son of members of the colored race assertedly being 
intentionally included thereon. The Texas statutes, Ar­
ticles 333-372, Texas Code of Criminal Procedure, re­
lating to the organization of the grand jury, do not 
discriminate on the basis of race. At the beginning of 
the term of court at which Appellant was indicted, 
JUDGE DAWSON, the District Judge of the 86th 
Judicial District, selected, in accordance with such

—  2 —



statutes, five qualified persons to act as jury commis­
sioners for the purpose of selecting a grand jury for 
that term. After proper instructions by the judge (set 
out more fully below), the commissioners selected a 
grand jury panel of sixteen persons. The selections 
were listed and the list sealed to be opened by the judge 
for the purpose of summoning these sixteen persons 
selected by the commissioners. The first twelve who 
were found qualified by the court were impaneled as 
a grand jury and the remainder excused. Van Zandt 
is a small county located in the northeastern parTof-  
the State, containingli^iop 11 latidirbf about twenty-five 
thousand persons, approximately IQ per ceht of whom 
arreV^gTiVsrTt is 'trueT'as Appellant points out, tEaT 
Van Zandt County had, prior to the grand jury com­
plained of, never had a Negro serve as a member of 
a jury. Appellant was first indicted by such an all- 
white grand jury following the commission of the of­
fense. Thereafter, A. A. DAWSON, the District Judge, 
realized that by reason of this practice of exclusion, 
its indictments would be subject to attack. Therefore, 
at the beginning of the next succeeding term of court, 
JUDGE DAWSON appointed five new jury commis­
sioners, one of whom was a member of the Negro race. 
These new commissioners were instructed by JUDGE 
DAWSON that the practice of excluding Negroes by 
reason of race must not continue and that Negroes 
should not be put on or kept off of the grand jury list 
because of race and that race should play no part in the 
selection of the grand jurors. Pursuant thereto, the 
names of two Negroes were among the sixteen placed 
upon the list and ultimately were among the twelve cho­
sen by the Judge from the list of sixteen to compose a 
grand jury. This grand jury re-indicted Appellant;

3 —



and upon this indictment, rather than the previous one, 
Appellant was brought to trial. After the evidentiary 
hearing before JUDGE COUNALLY, and as part of 
his memorandum of May 27, he found that the instruc­
tions of JUDGE DA WSON, as testified by him, were 
accurate, and that he did not instruct the commission­
ers that N egroes should he included upon the grand 
jury. JUDGE CONNALLY further found that the 
commissioners were instructed not to discriminate with 
regard to race or nationality of the individuals con­
cerned, and that they should not purposely include or 
exclude members of the colored race from grand-jury 
service for racial reasons. He further found that :

. . some, if not all, of the five jury commis­
sioners were acquainted with the persons compos­
ing the list of sixteen, and knew that two were of 
the colored, and fourteen of the white race; that 
two of the five commissioners misconstrued the 
instructions of the trial court and felt that one or 
more negroes should of necessity be included, and 
may have been influenced to an unknown extent 
by reason of this fact; that two of the five commis­
sioners properly construed the trial court’s in­
struction and selected the two colored members, 
as well as the fourteen white members, solely be­
cause of their qualification, free of any racial con­
sideration; and that there is no evidence tending 
to show that the fifth commissioner was influenced 
by any improper consideration, whether of race 
of otherwise.

“ I find that there was no ‘ systematic’ and ‘pur­
poseful’ inclusion of a ‘ fa ir ’ or otherwise prede­
termined number of negroes by the commission, 
as is proscribed by Collins; but that the practice 
here followed was in complete conformity with 
approved Texas procedure.”

— 4 —-



REPLY TO SPECIFICATION OF ERRORS

I.
THE INDICTMENT OF APPELLANT IS 

NOT VOID UNDER THE FOURTEENTH 
AMENDMENT TO THE CONSTITUTION OF 
THE UNITED STATES BECAUSE NEGROES 
W ERE NEITHER PURPOSELY INCLUDED 
NOR EXCLUDED AS MEMBERS OP THE 
GRAND JURY.

II.
THE INDICTMENT OF APPELLANT IS 

NOT VOID BECAUSE THE TEXAS SCHEME 
FOR APPLYIN G  THE SELECTION OF 
GRAND JURORS IS CONSTITUTIONAL UN­
DER THE FOURTEENTH AMENDMENT TO 
THE CONSTITUTION OF THE UNITED 
STATES.

ARGUMENT AND AUTHORITIES

I. (RESTATED)
THE INDICTMENT OF APPELLANT IS 

NOT VOID UNDER THE FOURTEENTH 
AMENDMENT TO THE CONSTITUTION OF 
THE UNITED STATES BECAUSE NEGROES 
W ERE NEITHER PURPOSELY INCLUDED 
NOR EXCLUDED AS MEMBERS OF THE 
GRAND JURY.

A. The decisions of the United States Supreme 
Court.

Appellant prefaces Ms brief with a lengthy histori­
cal introduction intended to set forth the rule formu­
lated by the Supreme Court in the exclusion cases de­
cided by it commencing with Strauder v. West Vir­

5



ginia, 100 U.S. 303, 25 L. Ed. 664 (1879) to the present 
date. Appellee will be content to state to the Court the 
rule as finally formulated by the Supreme Court and 
announced in Brown v. Allen, 344 U.S. 443, 73 S. Ct. 
397, 97 L. Ed. 469 (1953). At 344 U.S. 470, 471, the 
rule was announced as follows:

“ Discriminations against a race by barring or 
limiting citizens of that race from participation 
in jury service are odious to our thought and our 
Constitution. This has long been accepted as the 
law. Brunson v. North Carolina, 333 US 851, 92 
L ed 1132, 68 S Ct 634; Cassell v. Texas, 339 
US 282, 286, 287, 94 L ed 839, 846, 847, 70 S 
Ct 629; State v. Peoples, 131 NC 784, 42 SE 
814. Such discrimination is forbidden by stat­
ute, 18 USC § 243, and has been treated as a denial 
of equal protection under the Fourteenth Amend­
ment to an accused, of the race against which such 
discrimination is directed. Neal v. Delaware, 103 
US 370, 390, 26 L ed 567, 571. The discrimination 
forbidden is racial discrimination, however, di­
rected to accomplish the result of eliminating or 
limiting the service of the proscribed race by stat­
ute or by practice. Smith v. Texas, 311 US 128, 85 
L ed 84, 61 S Ct 164; Patton v. Mississippi, 332 
US 463, 92 L ed 76, 68 S Ct 184, 1 ALR2d 1286. 
It was explained in 1880 by this Court, when com­
posed of justices familiar with the evils the 
Amendment sought to remedy, as permitting a 
state to ‘ confine the selection (o f jurors) to males, 
to freeholders, to citizens, to persons within cer­
tain ages or to persons having educational quali­
fications.’ Strauder v. West Virginia, 100 US 303, 
310, 25 L ed 664, 666. Cf. Franklin v. South Caro­
lina, 218 US 161, 167, 168, 54 L ed 980, 984, 985, 
30 S Ct 640; Fay v. New York, 332 US 261, 268- 
272, 91 L ed 2043, 2048-2050, 67 S Ct 1613. While 
discriminations worked by consistent exclusion

— 6 —



have been rigorously dealt with, Neal v. Dela­
ware, 103 US 370, 26 L ed 567; Carter v. Texas, 
177 US 442, 44 L ed 839, 20 S Ct 687; Norris v. 
Alabama, 294 US 587, 79 L ed 1074, 55 S Ct 579; 
Pierre v. Louisiana, 305 US 586, 83 L ed 370, 59 
S Ct 100; Hill v. Texas, 316 US 400, 86 L ed 1559, 
62 S Ct 1159; Patton v. Mississippi, 332 US 463, 
92 L ed 76, 68 S Ct 184, 1 ALR2d 1286, variations 
in proportions of Negroes and whites on jury lists 
from racial proportions in the population have 
not been considered violative o f the Constitution 
where they are explained and not long continued. 
Akins v. Texas, 325 US 398, 403, 89 L ed 1692, 
1696, 65 S Ct 1276. Of course, token summoning 
of Negroes for jury service does not comply with 
equal protection, Smith v. Texas, 311 US 128, 85 
L ed 84, 61 S Ct 164. Nor can a race be proscribed 
as incompetent for service, Hill v. Texas, 316 US 
400, 86 L ed 1559, 62 S Ct 1159.”  (Emphasis 
added)

As is pointed out in Appellant’s brief and in the 
memorandum of the court below, this appeal is con­
cerned not with the question of exclusion, or even of 
the limiting of Negroes from or on the grand jury, 
but rather is concerned with the question of 'whether 
Negroes were “ systematically and purposefully in­
cluded”  on the grand jury and wdiether such inclusion 
constitutes a violation of the Constitution of the United 
States such as to render the indictment void.

The Supreme Court of the United States, beginning 
with Strauder, above, has dealt with a long line of 
cases concerned only with the question of exclusion of 
members of the Negro race from, grand juries. These 
cases, relied upon by Appellant herein, are as follows: 
Virginia v. Rives, 100 U.S. 313, 322-323, 25 L. Ed. 667 
(1879) ; Neal v. Delaware, 103 U.S. 370, 26 L. Ed. 567

—  7



(1880); Bush v. Kentucky, 107 U.S. 110, 1 S. Ct. 625, 
27 L. Ed. 354 (1883) ; In Be Wood, 140 U.S. 278, 11 
S. Ct. 738, 35 L. Ed. 505 (1891); Gibson v. Mississippi, 
162 U.S. 565,16 S. Ct. 904, 40 L. Ed. 1075 (1896) ; Car­
ter v. Texas, 177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839 
(1900) ; Rogers v. Alabama, 192 U.S. 226, 24 S. Ct. 257, 
48 L. Ed. 417 (1904) ; Martin v. Texas, 200 U.S. 316, 
26 S. Ct. 338, 50 L. Ed. 497 (1906) ; Norris v. Alabama, 
294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935) ; 
Rollins v. Oklahoma, 295 U.S. 394, 55 S. Ct. 784, 79 
L. Ed. 1500 (1935) ; Hale v. Kentucky, 303 U.S. 613, 
58 S. Ct. 753,82 L. Ed. 1050 (1938); Pierre v. Louisiana, 
306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757 (1939); Smith 
v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 
(1940); Rill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 
L. Ed. 1559 (1942); Patton v. Mississippi, 332 U.S. 
463, 68 S. Ct. 184, 92 L. Ed. 76 (1947) ; Brunson v. 
North Carolina, 333 U.S. 851, 68 S. Ct. 634, 92 L. Ed. 
1132 (1948) ; Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 
629, 94 L. Ed. 839 (1950) ; Boss v. Texas, 341 U.S. 918, 
71 S. Ct. 742, 95 L. Ed. 1352 (1951); Avery v. Georgia, 
345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953) ; Her­
nandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 
866 (1954) ; Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 
167, 100 L. Ed. 77 (1955); Eubanks v. Louisiana, 356 
U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991 (1958) ; Cole­
man v. Alabama, 377 U.S. 129, 84 S. Ct. 1152 (1964).

All these cases involved, and only involved, the de­
liberate and complete exclusion of Negroes from the 
grand jury.

Only two eases, Akins v. Texas, 325 U.S. 398, 65 S. 
Ct. 1276, 89 L. Ed. 1692 (1945) and Brown v. Allen, 
supra, have been in any way concerned with the ques­

—  8 —



tion of deliberate or systematic inclusion of Negroes 
on a grand jury. In Akins, the question before the 
court, as stated by MR. JUSTICE REED, consisted 
of an arbitrary and purposeful limitation by the grand 
jury commissioners of the number of Negroes to one 
who were to be placed upon the grand jury panel of 
sixteen for the term of court at which the indictment 
against the Petitioner Akins was found. In the foot­
note to the opinion at 325 U.S. 404, 405, the Court sets 
out in considerable detail the testimony of the three 
grand jury commissioners as to their method used in 
selecting the panel of sixteen from whom the grand 
jury was chosen. These commissioners stated in turn:

• • The Supreme Court had ruled that we 
could not discriminate against anyone because of 
his color, as I  recall, they had not been discrimi­
nating for selection on the grand jury panel; and 
in turn they said they were sixteen, and it would 
be further evident if  we placed one among the 
twelve so as to make it clear.”

Another commissioner stated:

“ . . . He said he thought it would be well to 
select a Negro on the grand jury. There was no 
further discussion about that. We did select a Ne­
gro on the grand jury. All three of us went out 
there to see him. We all went and talked to just 
one Negro and that is the one that we selected.”

Again, in the body of the opinion, the commissioners 
are further quoted as saying:

“ We had no intention of placing more than one 
Negro on the panel. When we did that we had fin­
ished with the Negro . . .  I  did not have any in­
tention of putting more than one on the list. ’. . .”

—  9 —



“ Our intentions were to get just one Negro on 
the grand jury . . .  no, I  did not have any inten­
tion of placing more than one Negro on the grand 
jury.”

The Supreme Court affirmed the Court of Criminal 
Appeals of Texas, observing that this evidence left 
them unconvinced that the commissioners deliberately 
and intentionally limited the number of Negroes on 
the grand jury list. It should be noted that even under 
these facts, the Supreme Court made no mention of 
Appellant’s complaint in the case at bar, i.e., that Ne­
groes were intentionally included upon the grand jury. 
The decision in the case rested on the fact that Negroes 
had not been excluded.

By taking all the decisions of the Supreme Court 
together, it seems plain that they have rejected the 
rule sought to be advanced by Appellant herein, that 
so-called “ intentional inclusions”  would void the in­
dictment under the terms of the Fourteenth Amend­
ment. The Supreme Court rather has adhered to its 
rule as announced in Brown v. Allen, above, and Akins 
v. Texas, supra, that the “ discrimination forbidden is 
racial discrimination, however directed to accomplish 
the result of eliminating or limiting the service of the 
proscribed race by statute or practice.”  (Emphasis 
added.) In the case at bar, there is of course, not even 
a contention by Appellant herein, that Negroes were 
in any way barred nor their number limited from serv­
ice on the grand jury.

Therefore, it is plain that Appellant’s contention 
herein has no support in the decisions of the Supreme 
Court of the United States. To demonstrate that by 
virtue of the passage of time or for other reasons, the

10



doctrines announced in Akins have not lost their vi­
tality, we would point out to the Court that in nearly 
every racial-exclusion case decided by the Supreme 
Court since Akins, including Swain v. Alabama, 380 
U.S. 202, 85 S. Ct. 824 (1965), the case has been cited 
approvingly. Indeed, in Swain, decided at the last term 
of the Supreme Court, the court again refused to ac­
cept the far-fetched proposition now advanced by Ap­
pellant that intentional inclusion was per se unlawful 
and the court in announcing its rule in racial-exclusion 
cases concerned itself only with (1) whether the State 
has totally excluded a racial group or (2) whether the 
inclusion of the racial group on the panel constituted 
mere token inclusion. See 85 S. Ct. at page 828.

So much for the decisions of the United States Su­
preme Court.

B. The decision of this Court in Collins v. Walker.

Appellant next bases his attack upon the holding of 
this Court in Collins v. Walker, 329 P. 2d 100 (1963) ; 
on rehearing, 335 P. 2d 417 (1964). With due respect 
to the decisions of this Court, it is Appellee’s position 
herein that Collins v. Walker was wrongly decided and 
should be overruled by this Court; and, second, that 
the case may be distinguished on the facts from the 
one at bar and Collins v. Walker should be limited in 
its application.

Before proceeding into a discussion of Collins, it 
would be well, as JUDGE CONN ALLY did in the 
court below, to point out once again what this ease does 
not involve:

(1) There is no question here of the exclusion of 
Negroes from the grand jury, as was the ease in 
the decisions of the Supreme Court cited above.

—  11 —



(2) There is no evidence, nor does Appellant even 
claim, that this is a case involving merely token 
representation, as is condemned hy the Supreme 
Court in Swain v. Alabama, above.
(3) Again, there is no claim nor evidence that this 
is a case of limited proportional representation as 
if the grand jury commission had undertaken to 
maintain on the grand jury the same ratio between 
colored and white citizens as existed throughout 
the county.
(4) There is no contention nor claim, again, that 
the commissioners had determined in advance to 
place a certain number of Negroes on the grand 
jury. Cf. Akins v. Texas (above).
(5) There is no contention nor evidence that in 
this case the grand jury was hand-picked to con­
sider a pending indictment against a single col­
ored defendant. The memorandum of the court be­
low points out that this grand jury was one regu­
larly chosen at the beginning of the term of court 
for the purposes of considering indictments against 
all accused of crimes during such term. C f. Collins 
v. Walker (above).

As was pointed out above, the Supreme Court has 
never voided an indictment or a conviction by reason 
of so-called “ purposeful inclusion”  of Negroes on a 
grand or petit jury. Therefore, the opinion of the ma­
jority of this court in Collins v. Walker rests, as it 
must, upon the dicta in Cassell v. Texas, 339 TT.S. 282, 
70 S. Ct. 629, 94 L. Ed. 839 (1950), to the effect that 
in the selection of the jury there must have been “ nei­
ther inclusion nor exclusion”  because of race. On the 
facts of the case alone, it is obvious that Cassell was, 
purely and simply, a case of complete exclusion of 
Negroes from the grand jury. Indeed, as late as March 
of this year, the Supreme Court was citing Cassell, not

12 —



for the proposition advanced by Appellant herein nor 
that relied upon by this Court in Collins v. Walker, 
but merely for the proposition that “ obviously the 
number of races and nationalities appearing in the 
ancestry of our citizens would make it impossible to 
meet a requirement of proportional representation. 
Similarly, since there can be no exclusion of Negroes 
as a race and no discrimination because of color, pro­
portional limitation is not permissible. Cassell v. State 
of Texas.”  See Swain v. Alabama, supra. We contend 
that this language by the Supreme Court indicates that 
it feels that the relied-upon language in Cassell was 
mere dicta.

Moreover, shortly before Collins v. Walker was de­
cided on rehearing, but after the rendition of the orig­
inal opinion at 329 F. 2d 100 (1964), JUDGE W EST 
of the Eastern District of Louisiana in U. S. v. Walker, 
231 F. Sup. 819, 821, relied upon Cassell as only for­
bidding “ proportional racial limitations.”  Later, in 
the same opinion, the court states:

“ W e do not understand the law to be that an 
indictment, which is an accusation only, must be 
set aside because members of a defendant’s race 
have been intentionally included in the grand jury 
list. Such a rule would make it virtually impossi­
ble to legally impanel a grand jury under a system 
of selection which requires an investigation of 
competency and a weighing of qualifications. Un­
der such a system, knowledge of a prospective 
juror’s race on the part of the jury commission is 
inevitable. ’ ’

Indeed, as was pointed out by JUDGE CONN ALLY 
in the opinion below, the same situation existed in the 
selection of the grand jury under consideration.

—  13 —



JUDGE CONN A LLY in Ms memorandum (Record, 
page 29) stated:

“ In making tMs selection, it is contemplated— 
indeed, commanded—that the commissioners will 
acquaint themselves with the qualifications of 
many potential jurors—both Negro and white— 
in order to afford opportunity for selection from 
the members of both races. Swain v. Alabama; 
Cassell v. Texas; Hill v. Texas; Smith v. Texas; 
[citations omitted] Addison v. State, Tex. Crim. 
App., 271 S.W. 2d 947.”

As was pointed out by JUDGE DAW KINS in Col­
lins v. Walker, it is difficult to reconcile the dicta in 
Cassell with the very following sentence therein, hold­
ing that the grand jury commissioners must make a 
conscious effort to acquaint themselves with qualified 
Negroes and other minority groups.

Finally, as JUDGE DAW KINS pointed out in his 
dissent in Collins v. Walker, the majority in the orig­
inal Collins case adopted the same view of the law as 
did the dissenting justices in Akins, saying that “ sys­
tematic inclusion of any limited number of Negroes 
because of race, means, however, a corresponding sys­
tematic exclusion of Negroes of the remaining number 
on the venire.”  However, this language was deleted 
from the substitute opinion of the majority on rehear­
ing at which time, as JUDGE CONN ALLY also points 
out, the Court instead placed extreme emphasis on the 
fact that the grand jury was chosen in that fashion for 
the express purpose of considering an indictment 
against Collins alone. As was found by the court be­
low, this was not the fact at the case at bar. Collins 
may further be distinguished from the instant case on 
the facts as found by the Court below since JUDGE

-— 14 —



CONN ALLY found that Negroes were not selected 
purposefully by virtue of a practice to include them in 
a “ fa ir”  proportion and that the particular grand jury 
in question was not picked, and heavily salted with 
Negroes, for the consideration of one particular ease.

C. The findings of the District Court that there was 
no “ intentional inclusion”  are fully supported 
by the record and are not clear and erroneous.

Appellant next contends that the factual determina­
tions of the Court below are clear and erroneous. The 
court below on pages 38, 39 and 40 of the record found 
as follows:

“ While I do not doubt that Judge Dawson was 
hopeful that one or more Negroes would be in­
cluded on this grand jury, for the reasons herein­
above stated, from his testimony, supported by 
that of Commissioners Persons and Cox, I  find 
that he did not instruct the commissioners that 
that must be done. I  accept Judge Dawson’s tes­
timony as to his instruction as being entirely ac­
curate. . . .  It is not surprising that Commission­
ers Bailey and Cooley, laymen unacquainted with 
the refined distinctions drawn by the appellate 
courts in this area of the law today, might well 
have misconstrued an instruction ‘ not to exclude’ 
as meaning ‘ to include.’ ”

The court further found that the commissioners were 
instructed not to discriminate with regard to race or 
nationality of the individuals concerned and that they 
should not purposely include or exclude members of 
the colored race from grand jury service for racial 
reasons. The Court further found that Cox, by reason 
of his wide acquaintance in the county, knew the col­
ored jurors who ultimately were included and knew

-— 15



that they were colored; hut included them by reason 
of their good citizenship and qualifications. His addi­
tional findings have been quoted herein at page 4 and 
appear on page 40 of the Record.

Appellant contends that the testimony of the wit­
nesses taken at the habeas corpus hearing should not 
be given credence for the reason that they were not 
contemporaneous with the events under inquiry. What 
he has neglected to inform us is that the testimony at 
the state district court was taken on April 26, 1960, 
four and one-half months after the impaneling of the 
grand jury under question (Record, page 106). The 
grand jury term began January 11, 1960, and Appel­
lant was indicted March 9, 1960 (Record, page 58).

It is interesting to note that Appellant, in urging 
upon this court that JUDGE CONN A L L Y ’S factual 
determinations have no clear basis in the record, relies 
on Cassell v. Texas, which was, as the court recalls, a 
case dependent upon systematic exclusion continuing 
over a long period and practiced by a succession of 
jury commissioners. The court therein relied upon the 
statements of the jury commissioners that they had 
chosen only those whom they knew, and that they knew 
no eligible Negroes in the area where Negroes made 
up a substantial proportion of the population; and that 
this evidence was sufficient to convince the court that 
there had, in fact, been a systematic exclusion of Ne­
groes in that case. The affidavits of Commissioners 
Persons and Cox (Record, pages 51-54) show that Cox 
was acquainted with “ most all”  of the names consid­
ered for the various jurors and had personal knowl­
edge whether or not the individual was or was not col­
ored. This knowledge enabled him to be familiar with

—  16



and to know something about a very large percentage 
of all the residents in Van Zandt County; and although 
he disclaimed any intent to include or exclude any 
members of the colored race, by virtue of his acquaint­
ance, he was able to tell something about his good cit­
izenship or qualifications which were considered in 
his selections; that when placing Negroes on the jury 
panels it was for the simple reason that he was ac­
quainted with these citizens as a result of his associa­
tion with them. Commissioner Persons likewise testi­
fied that he had a wide acquaintance among people from 
both races in his community and this was his sole basis 
for selection of the jurors and that Mrs. Smith, the 
colored lady on the commission, was also familiar with 
most of the colored people in her community.

Thus, it is obvious that Appellant’s efforts to apply 
Cassell to the court’s findings in this case cannot stand.

Therefore, since the court has made the above find­
ings, they should not be disturbed unless they are clear­
ly erroneous. Bowland v. Tinsley, 268 P. 2d 666 (10th 
Cir.).

In Cranow v. Gonzalez, 226 P. 2d 83 (C. A. Wash. 
1955), cert. den. 350 TJ.S. 935, 76 S. Ct. 307, 100 L. Ed. 
816, the court stated at page 94:

“ . • • The District Court here promptly enter­
tained and heard the application of Gonzalez for 
Writ of Habeas Corpus, Rule 52(a), Ped. Rule 
Civ. Pro. 128 U.S.C.A. prohibits us from disturb­
ing the findings of that court unless they are clear­
ly erroneous; . . . that they are not so erroneous 
must be manifest when it is borne in mind that 
the trial judge heard and observed the witnesses 
and noted of their demeanor and manner of tes­
tifying, and had full opportunity to judge of the

—  17 —



probability of their respective stories and to ar­
rive at a conclusion as to the credibility of those 
who testified before them.”

The Court in O’Keith v. Johnston, (C.A. Cal. 1944), 
cert. den. 324 U.S. 873, 65 S. Ct. 1016, 89 L. Ed. 1957, 
held that where evidence in habeas corpus proceedings 
was conflicting, the findings of the District Court would 
not be disturbed in the absence of clear error. The rec­
ord in the instant case clearly supports the findings of 
fact herein.

II. (RESTATED)
THE INDICTMENT OF APPELLANT IS 

NOT VOID BECAUSE THE TEXAS SCHEME 
FOR APPLYIN G  THE SELECTION OF 
GRAND JURORS IS CONSTITUTIONAL UN­
DER THE FOURTEENTH AMENDMENT TO 
THE CONSTITUTION OF THE UNITED 
STATES.

Appellant’s second specification of error urges the 
court to hold for naught the Texas method of selecting 
grand jurors. This, in spite of the fact that on at least 
three occasions, the very statutes and system of selec­
tion now under attack have been specifically approved, 
by the Supreme Court of the United States. Smith v. 
Texas, supra, Akins v. Texas, supra, and Cassell v. 
Texas, supra. Counsel would have the court decree by 
ukase a system whereby, without regard to individual 
qualifications, citizenship, etc., a completely random 
list of jurors is selected by lot from such sources as city 
directories or utilities registration lists and the first 
twelve names picked to be constituted into the grand 
jury. This is absurd. The grand jury in Texas, as in 
nearly every other English-speaking jurisdiction, ful­
fills none of the functions of the petit jury. The dis­

—  18



tinction between a grand and petit jury is perhaps most 
aptly illustrated by the dissenting opinion of MR. JUS­
TICE JACKSON in Cassell v. Texas, above, at 339 
U.S. 282, 302, in which he states:

“ The grand jury is a very different institu­
tion. The States are not required to use it at all. 
Hurtado v. California, 100 U.S. 516. Its power is 
only to accuse, not to convict. Its indictment does 
not even create a presumption of guilt; all that it 
charges must later be proved before the trial jury, 
and then beyond a reasonable doubt. The grand 
jury need not be unanimous. It does not hear both 
sides but only the prosecution’s evidence, and does 
not face the problem of a choice between two ad­
versaries. Its duty is to indict if  the prosecution’s 
evidence, unexplained, uncontradicted and unsup­
plemented, would warrant a conviction. I f  so, its 
indictment merely puts the accused to trial. The 
difference between the function of the trial jury 
and the function of the grand jury is all the dif­
ference between deciding a case and merely decid­
ing that a case should be tried.”

The origin of the grand jury system is ancient and 
obscure, but the fact remains that its principles are 
not so antiquated that its usefulness no longer exists. 
The Texas Code of Criminal Procedure, Article 81, 
defines the duties of the grand jury as follows:

“ The Grand Jury shall inquire into all offenses 
liable to indictment of which any member may 
have knowledge or of which they shall be informed 
by the attorney representing the State or any other 
credible person.”

Certainly the impelling reason for the establishment 
of the grand jury system remains with us and continues 
to be an indispensable part of the processes essential 
to a self-governed people. The basic principle, of course,

—  19



is to protect the individual against trial on unfounded 
charges, for the reason that the accusation itself and 
the public trial itself would be of irrevocable damage 
to the reputation and standing of the accused even 
though he is found “ not guilty”  by a trial jury.

Historically in Texas, in addition to considering in­
dictments on what may be referred to as routine crimes, 
the grand jury has always fulfilled a rather special 
function in other types of offenses. These related to 
alleged misconduct of state or county officials. In these 
cases, it is often difficult for law-enforcement agencies 
to make investigations into complaints charging this 
sort of misconduct; and accordingly, these matters 
should be and are, referred to the grand jury so that 
they may conduct an investigation. The same is true 
in cases where misconduct is alleged against police 
officers. Historically, the grand jury has performed a 
very valuable function in investigating this type of 
complaint.

On numerous occasions, grand juries have been called 
upon to investigate schemes involving large sums of 
money and swindles by promoters wherein the proof 
of any crime entails examination of numerous records 
and interrogation of a multitude of witnesses. The con­
stituted law-enforcement agencies are ordinarily not 
prepared by virtue of time nor training to arrive at 
the facts nor to know should crimes, if  any, have been 
committed. It has been customary in these instances 
for a district judge to impanel a grand jury contain­
ing several people with a specialized knowledge of the 
financial world.

In many of our large counties, a youthful offender 
may be charged with several offenses at once; and the

20 —



grand jury, after hearing his testimony and all of the 
facts, might not feel that he should be sent to the pen­
itentiary but rather should be granted some type of 
leniency. Since in a case of this sort a suspended sen­
tence or probation would not be possible under Texas 
law, it has become a general practice for our grand 
juries to no bill one of these youthful offenders on all 
of his offenses but one and to recommend to the district 
attorney’s office that the defendant be given probation. 
This recommendation in writing is made available to 
the defense at the time of the trial.

These are but a few illustrations of the discretion 
and confidence placed in our system of grand juries, 
and we must reiterate that such a system would hardly 
be feasible under one o f the schemes of grand-jury 
selection argued for by Appellant herein.

Appellant further seeks to invalidate the Texas sys­
tem by virtue of Van Zandt County’s practice in the 
past of excluding Negroes from its grand jury. The 
answer to this is found in 1Brown v. Allen, above, in 
which it was said that a history of discriminatory se­
lection in prior years will not suffice to nullify a pres­
ent conviction if  the selection of the jury for the cur­
rent term is on a proper basis. Former errors cannot 
invalidate future trials. See Bailey v. Henslee, 287 F. 
2d 936, 943 (1961). Appellee therefore contends that 
Appellant’s point that this Court should invalidate the 
entire Texas system of selection of grand juries is 
frivolous.

—  21



CONCLUSION AND PRAYER

Appellee prays that this Honorable Court affirm the 
judgment of the United States District Court for the 
Southern District of Texas, Houston Division, deny­
ing and dismissing Appellant’s Application for writ 
of Habeas Corpus.

Respectfully submitted,

W aggoner Carr
Attorney General of Texas

H awthorne P hillips
First Assistant Attorney General

T. B. W right
Executive Assistant Attorney General

H oward M. F ender
Assistant Attorney General

Charles B. Swanner 
Assistant Attorney General

Attorneys for Appellee 
Capitol Station 
Austin, Texas 78711

—  22



CERTIFICATE OF SERVICE

I, Charles B. S wanner, certifiv that a copy of the 
above and foregoing Appellee’s Brief has been served 
on Appellant by mailing same to the following address: 
William Vandercreek, Southern Methodist University 
Law School, Dallas, Texas, Attorney for Appellant, 
and all other counsel whose names appear in the orders 
of the Court of September 24, 1965, and November 4, 
1965, this th e ------day of December, 1965,

Assistant Attorney General