Lynnwell Smith v. W. J. Estelle, Director, Texas Department of Corrections

AINSWORTH, Circuit Judge

(specially concurring):

I concur fully in the opinion of Chief Judge Brown insofar as it responds to appellant’s miscontention that harmless error is never applicable to rectify involuntary confessions erroneously admitted into evidence.

As to appellant’s second point, that his trial testimony is induced by his erroneously admitted pretrial confession, it is my view that Chief Judge Brown’s original opinion in this case, 5 Cir., 519 F.2d 1267, adequately considered the facts and circumstances upon which we predicated our denial of petition for habeas corpus. It is with considerable reluctance that I concur in the result herein remanding this case for further supplement of the record. I doubt that we should reward the excellence of the brief of petitioner’s counsel with another evidentiary hearing when, as we have pointed out, what we now order will be the ninth post-conviction proceeding.