379 F2d 329 Carroll v. J Beto

379 F.2d 329

Clifford Darrell CARROLL, Appellant,
v.
Dr. George J. BETO, Director, Texas Department of
Corrections, Appellee.

Misc. No. 746.

United States Court of Appeals Fifth Circuit.

June 22, 1967.

Clifford Darrell Carroll, pro se.

Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellee.

Before RIVES and DYER, Circuit Judges, and JOHNSON, District Judge.

PER CURIAM:

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1

This is an appeal from the denial of a petition for a writ of habeas corpus filed by a Texas prisoner convicted of murder with malice. The trial began on September 21, 1964, and the jury found applicant guilty and recommended the death penalty. His execution has been stayed pending the disposition of this appeal.

2

Applicant contends that he was affirmatively denied the right to counsel when a confession was elicited from him which was later admitted at trial. He also contends that the presence of still and television cameras in the courtroom resulted in the deprivation of a fair trial.

3

Appelicant had failed to present these contentions to the Texas courts in a state habeas corpus proceeding pursuant to Article 11.07 of the new Texas Code of Criminal Procedure. This article provides for an evidentiary hearing and factual determination by the Texas courts in a state habeas corpus proceeding.

4

Therefore, it is ordered that the application for a certificate of probable cause, for leave to appeal in forma pauperis and for appointment of counsel be denied. 28 U.S.C.A. 2254.

5

It is further ordered that the execution be stayed for sixty days so that the remedy available by virtue of Article 11.07 of the Texas Code of Criminal Procedure can be exhausted.

6

In all other respects the order of the District Court is

7

Affirmed.