concurring specially.
I concur in affirming the grant of habeas corpus because the trial court finding that the prosecutor’s promise in argument to talk later with the jury about White’s prior conviction for attempted murder and prosecutor’s repeated argument references to matters outside the record deprived the trial of fundamental fairness is not clearly erroneous. I cannot concur in predicating habeas corpus relief on the trial court’s denial of White’s motion for continuance.
Set out below is the entire transcript of what occurred between lawyer Szekely and the state trial judge who refused to continue the case:
MR. SZEKELY: This is No. 186,106, entitled the State of Texas vs. Elliott Wayne White, in the Criminal District Court of Harris County, Texas, 178th District Court Annex A. This is a defense motion for continuation.
Comes now Elliott Wayne White, the Defendant in the above and numbered cause, together with his attorney of record, Charles S. Szekely, Jr., and makes this motion for continuation and would request and pray to the Court — to this Honorable Court that it go from its present trial setting of the 15th day of August, 1973. In support of this motion, the Defendant and his attorney of record, would show the Court that it was not until the 2nd day of August, 1973, that the Defendant through his wife and friends, retained their present counsel of record, Charles Szekely. That prior to this time, the Defendant had a Court-appointed lawyer. The Defendant was not satisfied with his lawyer and the representation he was receiving. And with the help of his relatives and friends, he was able to raise enough money to retain the services of his present counsel. At that time, his present lawyer, Charles Szekely, was only aware of one cause pending against the Defendant, that being Cause No. 187,503, also for the offense of felony theft. On the 3rd day of August, 1973, after having spoken with the Assistant District Attorney who was then representing the State in this cause, Burt Graham, the Defendant’s attorney of record filed a motion for continuation requesting that the case be continued from its present trial setting or from its then trial setting of the 13th of August, 1973. It was only until that date that the Defendant’s present counsel learned of the case now pending against him, the auto theft case, which is the instant cause. For this reason, the Defendant orally moves to the Court to continue this cause from its present trial setting until such time as the Defendant has had adequate time to prepare his defense in this cause. The Defendant’s counsel of record, Charles Szekely, would also offer to the Court that he has been on vacation since the afternoon of the 3rd day of August until the evening of the 11th day of August, during which time he has not had time to prepare any defense in this cause or the other cause. Wherefore premises considered, the Defendant prays that this Honorable Court continue this cause from its present trial setting of the 15th day of August, 1973 and for such other and further relief which he shows himself justly entitled. Respectfully submitted, Charles Szekely, Attorney for the Defendant.
THE COURT: Anything you want to say before I start talking?
MR. YOUNG: No, Your Honor.
THE COURT: You have had the period the law allows. The motion is denied. Take your exception.
*505MR. SZEKELY: Please note my exception.
THE COURT: You had more than 10 days. It is up to you. Nobody has to serve it for you that I know of. The motion to quash is denied.
The judge could have concluded that Szekely’s comment about the date he first learned of the case pending against his client was ambiguous. “That date” could have referred to the August 3 conversation with Assistant Attorney Graham or to the trial setting date of August 13. Two subsequent statements clearly resolved this possible ambiguity. First, another ground urged by Szekely was that he had been on vacation from August 3 to August 11 which had prevented the preparation of White’s defenses in both cases. Obviously, such a ground would have been wholly irrelevant to the subject auto theft ease if Szekely was urging that his first knowledge of the auto theft case came on August 13. Second, in ruling on Szekely’s motion, the court stated, “You had more than 10 days. It is up to you.” And Szekely never advised the court that this impression was incorrect. Only Szekely’s habeas corpus testimony as to his present recall of his past subjective state of mind supports habeas relief based on the failure to grant a continuance. This testimony is at odds with every bit of documentary record. It is also contradicted by the fact that those records do not contain any statement or even implication that he was misled as to which of the two parallel cases would be set for trial. (The August 13 docket entry in both cases is identical: “Hold for trial.”)
Given the strong presumption of regularity which attends court proceedings, the entire record compels me to the conclusion that the federal habeas court was clearly erroneous in its factual conclusions that White or Szekely were misled or were the victims of administrative mistake or confusion. If Szekely was forced to try White’s case without adequate time to investigate and prepare, this condition was never made known to or participated in by the trial court.