402 F2d 294 Carrier v. J Beto

402 F.2d 294

Vasco CARRIER, Appellant,
Dr. George J. BETO, Director, Texas Department of
Corrections, Appellee.

No. 26155.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1968, Rehearing Denied Dec. 13, 1968, Certiorari
Denied March 10, 1969, See 89 S.Ct. 1025.

Vasco Carrier, pro se.

Crawford C. Martin, Atty. Gen., Allo B. Crow, Jr., Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., A. J. Carubbi, Jr., Executive Asst., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for appellee.

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.


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The District Court denied Vasco Carrier's petition for a writ of habeas corpus and he appeals. We affirm.


The appellant was convicted in a Texas state court, upon his plea of guilty, of robbery by assault and by placing the victim in fear of his life or bodily injury. Following an evidentiary trial, the jury assessed appellant's punishment at imprisonment for a term of five to ninety-nine years. The judgment was affirmed upon appeal. Carrier v. State, 1954, 159 Tex.Cr.R. 421, 264 S.W.2d 728.


The principal contention of this appeal is that the state trial court erred in admitting testimony that during the robbery the appellant said to the victim, 'I am Vasco Carrier, ex-convict,' and, 'I'm not afraid of the penitentiary, I have been there.' The Court of Criminal Appeals held that the testimony was relevant as it tended to show the intention to place the robbery victim in fear. Carrier v. State, supra.


The appellant contends that the testimony should have been excluded because he had not been represented by counsel when he pleaded guilty to cattle theft in 1936, and that thus an illegal conviction was used for enhancement of his sentence. At the hearing held in the District Court, it was shown that the appellant had also served a sentence for murder, to which he has alleged no legal invalidity. No specific reference was made to either sentence before the jury. Cf. Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).


We have found no denial of any federally protected right of appellant in the state proceedings or in the United States District Court.

The judgment of the District Court is