Mark Allen McBride v. W. J. Estelle, Director, Texas Department of Corrections

Fifth Circuit

Mark Allen McBride v. W. J. Estelle, Director, Texas Department of Corrections

507 F.2d 903, 1975 U.S. App. LEXIS 16213

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 7, 1975

Docket74-3489

StatusPublished

Cited by11 cases

This text of 507 F.2d 903 (Mark Allen McBride v. W. J. Estelle, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mark Allen McBride v. W. J. Estelle, Director, Texas Department of Corrections, 507 F.2d 903, 1975 U.S. App. LEXIS 16213 (5th Cir. 1975).

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Opinion

PER CURIAM:

McBride attacks his confinement as unconstitutional because the sentence imposed exceeds the limits of a plea bargain. The District Court dismissed this allegation without prejudice because it held this issue had never been presented to the Texas courts. 28 U.S. C.A. § 2254. McBride contends he has presented this issue to the Texas Court of Criminal Appeals because he submitted a supplemental pro se brief directed expressly to the issue. This brief was supplemental to one filed by counsel on direct appeal from his sentencing. 1 We agree this “presentation” is enough to satisfy the jurisdictional requirements of § 2254, but affirm the District Court. Alonzo v. Estelle, 5 Cir., 1974, 500 F.2d 672.

The only difference between McBride’s case and Alonzo’s is that McBride’s pro se brief in the Texas appellate court presented the plea bargain issue much more forcefully than did Alonzo’s state appellate brief. In that case, the issue we sent back to the state court was only presented in a passing reference — not otherwise set off — in the text of a brief presenting several issues. We hold this distinction does not warrant a contrary result.

Principles of comity require us to put more emphasis on two factors which are the same in McBride’s ease as in Alonzo’s, (i) the state court did not address itself to the issue in its opinion, and (ii) the state court had no factual record upon which to base any consideration of the issue. “Article 11.07 of the Texas Code of Criminal Procedure provides an ‘available State corrective process to protect the rights of the prisoner.’ 28 U.S.C.A. § 2254(b). That forum should be given the opportunity to assess the factual foundation of appellant’s claims. [Citation omitted].” 500 F.2d at 673.

Affirmed.

1

. McBride’s counsel urged the state trial Judge’s comments during the trial exceeded the bounds of propriety. McBride now asserts those comments violated his constitutional right to a fair trial. We do not think constitutional error was committed. At the very most, appellant has shown the Judge may have infringed upon Art. 38.05, Vernon’s Ann.Tex.Code of Criminal Procedure.

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PER CURIAM:

McBride attacks his confinement as unconstitutional because the sentence imposed exceeds the limits of a plea bargain. The District Court dismissed this allegation without prejudice because it held this issue had never been presented to the Texas courts. 28 U.S. C.A. § 2254. McBride contends he has presented this issue to the Texas Court of Criminal Appeals because he submitted a supplemental pro se brief directed expressly to the issue. This brief was supplemental to one filed by counsel on direct appeal from his sentencing. 1 We agree this “presentation” is enough to satisfy the jurisdictional requirements of § 2254, but affirm the District Court. Alonzo v. Estelle, 5 Cir., 1974, 500 F.2d 672.

The only difference between McBride’s case and Alonzo’s is that McBride’s pro se brief in the Texas appellate court presented the plea bargain issue much more forcefully than did Alonzo’s state appellate brief. In that case, the issue we sent back to the state court was only presented in a passing reference — not otherwise set off — in the text of a brief presenting several issues. We hold this distinction does not warrant a contrary result.

Principles of comity require us to put more emphasis on two factors which are the same in McBride’s ease as in Alonzo’s, (i) the state court did not address itself to the issue in its opinion, and (ii) the state court had no factual record upon which to base any consideration of the issue. “Article 11.07 of the Texas Code of Criminal Procedure provides an ‘available State corrective process to protect the rights of the prisoner.’ 28 U.S.C.A. § 2254(b). That forum should be given the opportunity to assess the factual foundation of appellant’s claims. [Citation omitted].” 500 F.2d at 673.

Affirmed.

1

. McBride’s counsel urged the state trial Judge’s comments during the trial exceeded the bounds of propriety. McBride now asserts those comments violated his constitutional right to a fair trial. We do not think constitutional error was committed. At the very most, appellant has shown the Judge may have infringed upon Art. 38.05, Vernon’s Ann.Tex.Code of Criminal Procedure.

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507 F.2d 903, 1975 U.S. App. LEXIS 16213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-allen-mcbride-v-w-j-estelle-director-texas-department-of-ca5-1975.

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