405 F2d 884 McDonald v. J Beto

405 F.2d 884

Daniel Odell McDONALD, Plaintiff-Appellant,
Dr. George J. BETO, Director, Texas Department of Corrections, Defendant-Appellee.

No. 26646.

United States Court of Appeals Fifth Circuit.

January 13, 1969.

Daniel Odell McDonald, pro se.

Crawford C. Martin, Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for defendant-appellee.

Before TUTTLE and GEWIN, Circuit Judges, and PITTMAN, District Judge.


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This is an appeal from the denial of a writ of habeas corpus to a prisoner of the State of Texas, who is serving a sentence for the murder of his grandmother. The trial occurred after Escobedo but prior to Miranda.


The appellant's sole contention is that his inculpatory statements should not have been admitted in evidence at his trial because they were inadmissible under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). This contention was rejected by the Texas Court of Criminal Appeals in a comprehensive opinion. McDonald v. State, Tex.Cr.App.1965, 395 S.W.2d 48.


The United States District Court denied the petition for habeas corpus on the basis of the state record and judicial opinion, as authorized by 28 U.S.C. § 2254 as amended in 1966. The appellant has not alleged controverting facts; but he contends that he is entitled to relief because the officer who took his statements failed to advise him of his right to counsel or to remain silent, prior thereto. The state court held that the statements were free and voluntary and distinguished the case from Escobedo on the facts that the appellant had not asked for a lawyer and no lawyer was attempting to contact him.


Careful examination of the trial transcript, in the light of the applicable law, has convinced us that the district court did not err in denying habeas corpus relief.


The judgment of the district court is affirmed.