507 F2d 903 McBride v. W J Estelle

507 F.2d 903

Mark Allen McBRIDE, Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections,
Respondent-Appellee.

No. 74-3489

Summary Calnedar*

*Rule 18, 5 Cir.; see Isbell Enterprises, inc.

United States Court of Appeals, Fifth Circuit.

Feb. 7, 1975.

Mark Allen McBride, pro se.

John L. Hill, Atty. Gen., Austin, Tex., Randall S. Boyd, Asst. Atty. Gen., Dallas, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

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

PER CURIAM:

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1

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.

2

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.

3

Principles of comity require us to put more emphasis on two factors which are the same in McBride's case 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.' 500 F.2d at 673.

4

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