John Alton Smith v. W. J. Estelle, Jr., Director, Texas Department of Corrections

498 F.2d 631

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 16, 1974
• Docket: 631
• Status: Published

Opinion

498 F.2d 631

John Alton SMITH, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee.

No. 74-1601 Summary Calendar.*
*Rule 18, 5 Cir.; see Isbell Enterprises, Inc.
v.
Citizens Casualty Company of New York et al., 5 Cir., 1970,

431 F.2d 409, PartI.

United States Court of Appeals, Fifth Circuit.

Aug. 2, 1974, Rehearing and Rehearing En Banc Denied Oct. 16, 1974.

Donald L. Kraemer, Staff Counsel, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Sarah Shirley, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit judges.

PER CURIAM:

Appellant was tried and convicted in Texas state court for assault with intent to murder. He seeks federal habeas corpus relief on the grounds he was tried in prison garb, rather than in civilian clothing, which we have granted on a number of occasions. Hernandez v. Beto, 5 Cir., 1971, 443 F.2d 634, Brooks v. State of Texas, 5 Cir., 1967, 381 F.2d 619, accord, Gaito v. Brierley, 3 Cir., 1973, 485 F.2d 86.

However, an examination of the evidentiary record in this case reflects beyond a reasonable doubt appellant's guilt. We therefore hold the infraction to be harmless error. Thomas v. Beto, 5 Cir., 1973, 474 F.2d 981.

Affirmed.