Ex parte Ross

• Decision Date: 16 April 1975
• Docket Number: No. 49856,49856
• Citation: 522 S.W.2d 214
• Parties: Ex parte Jerry Lee ROSS.
• Court: Texas Court of Criminal Appeals

Page 214

522 S.W.2d 214

Ex parte Jerry Lee ROSS.

No. 49856.

Court of Criminal Appeals of Texas.

April 16, 1975.

Rehearing Denied May 14, 1975.

Billy Britt Jarvis, Spearman, for appellant.

Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus application.

The petitioner was convicted upon his plea of guilty on September 26, 1974, in the County Court of Hansford County for the misdemeanor offense of driving an automobile upon a public highway while under the influence of intoxicating liquor. ¹ The petitioner filed his habeas corpus application in the 84th Judicial District Court of Hansford County, alleging that the manner in which his trial was conducted deprived him of his due process and equal protection constitutional safeguards.

Following an evidentiary hearing the district court entered findings of fact and conclusions of law.

The court found that although the petitioner was indigent at the time of his conviction and was not represented by counsel, he voluntarily waived his right to counsel and proceeded to trial unrepresented. The court further found that the petitioner orally waived his right to trial by jury, and prior to trial was fully advised of the nature and consequences of his plea and the possible punishment. The court also made a finding that the judicial officer who tried the petitioner's case, a non-attorney judge, was fair and impartial and did not conduct his court in such a way as to deny the petitioner a fair and impartial hearing or to discourage him from exercising his right to assistance of counsel. The court found that the complaint upon which the petitioner was tried did not contain any specific allegations concerning the mental state of the petitioner at the time of the commission of the offense. Finally, the court found that sworn testimony was introduced to support the allegations made against the petitioner.

The district court denied the habeas corpus application on the ground that the petitioner was tried in accordance with the applicable constitutional and statutory provisions of law. It concluded that the petitioner failed to establish by a preponderance of the evidence the actionable portions of his application.

The petitioner urges five (5) grounds of error.

In his first ground of error the petitioner contends that the district court erred in concluding that he received a fair and impartial trial before a disinterested hearing officer. The petitioner complains that since the trial judge was also the chief administrator for the county, as well as the presiding officer of the county commissioner's court, he was vitally interested in county expenditures, including the appointment of counsel for indigents. Contending that an alleged conflict between the judge's executive and judicial functions existed, the petitioner claims that such conflict prevented the judge from being impartial and disinterested in the outcome of the case.

Where a judge has a direct, personal, and substantial pecuniary interest in reaching a verdict against the defendant, due process of law is deprived. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). However, the mere union of executive and judicial power in him cannot be said to violate due process of law. Tumey v. Ohio, supra, 273 U.S. at 534, 47 S.Ct. 437; Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 60, 93 S.Ct 80, 34 L.Ed.2d 267 (1972). The test used to determine whether due process is offended is whether the judge's situation is one 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.' Ward, supra, 409 U.S. at 60, 93 S.Ct. at 83, quoting from Tumey, supra, 273 U.S. at 532, 47 S.Ct. 437.

The petitioner contends that the facts of his case show a deprivation of due process under authority of Ward, supra. In the Ward case, a major part of the village's income was derived from fines, forfeitures, costs, and fees imposed by the mayor in the mayor's court. As well as wide executive authority, the mayor had limited judicial authority to sit in cases of ordinance violations and certain traffic offenses. The record disclosed that yearly from 35% To 50% Of the total village revenue was contributed as fines from the mayor's court. Therefore, the Supreme Court concluded that since the mayor's executive responsibilities for village finances might make him partisan to maintain the high level of contribution of the mayor's court, the petitioner's due process right to a fair and impartial hearing before a disinterested hearing officer had been violated.

The petitioner's reliance on Ward, supra, is misplaced. Not only does the record in the present case fail to establish a fact situation similar with that in Ward, ² but the very proposition upon which Ward and Tumey are based, i.e., the possibility that the judge has a direct, personal, and substantial interest in reaching a conclusion adverse to the defendant, is absent. The petitioner does not allege that the judge's alleged financial interest in county affairs affects his determinations of guilt or innocence, but rather that his interest in saving the county money leads him to discourage or deny the appointment of counsel to indigents. As can be seen, the crux of his argument goes not to the impartiality of the hearing officer, but rather to the possibility of denial of effective assistance of counsel.

We find that the petitioner has failed to show a reasonable probability that the judge's interest in the economic and financial affairs of the county caused him to deny the petitioner effective assistance of counsel. As will be discussed later in this opinion, there is ample proof in this case that the petitioner was informed of both his right to counsel and his right to appointed counsel if he were indigent.

In his second ground of error the petitioner contends that the district court erred in concluding that he was tried in accordance with applicable statutory law, and urges that the complaint upon which his conviction was founded failed to allege his culpable mental state, thereby making his conviction void.

The offense for which the petitioner was convicted, driving an automobile upon a public highway while under the influence of intoxicating liquor, is contained in Article 6701l--1, Vernon's Ann.C.S. This statute was transferred verbatim and without reenactment from Article 802, Vernon's Ann.P.C., pursuant to the authority granted by Section 5 of Acts, 63rd Leg., Ch. 399. This court has held that the offense of 'driving an automobile upon a public highway while intoxicated' consists of two elements; intoxication and driving upon a highway in such condition. Snider v. State, 165 S.W.2d 904 (Tex.Cr.App.1942). A criminal or unlawful intent is not an essential element of the offense. Joiner v. State, 161 Tex.Cr.App. 526, 279 S.W.2d 333 (1955).

The petitioner argues that a reading of Section 1.03(b) ³ in conjunction with Section 6.02, ⁴ Vernon's Ann.P.C., makes it clear that the strict liability offenses are eliminated except where '. . . the definition plainly dispenses with any mental element,' and therefore the failure of the State to plead and prove his culpable mental state renders his conviction void.

The issue which must be resolved is whether the Legislature through enactment of Sections 6.02 and 1.03(b) of the new Texas Penal Code intended to require proof of a culpable mental state in the offense of driving while intoxicated. First of all, if such was their intention, it seems strange that they would implement the same in the awkward manner the petitioner suggests. It would have been much easier to merely include the requirement of proof of a culpable mental state by amending the statute when it was transferred from Article 802, Vernon's Ann.P.C., to Article 6701l--1, Vernon's Ann.C.S.

In addition to the above observation, there is another reason why we find no merit in the petitioner's argument. An examination of other sections of the Penal Code gives one insight into the Legislature's attitude concerning intoxication. Section 8.04 deals with intoxication, defining such as 'disturbance of mental or physical Capacity resulting from the introduction of any substance into the body.' ⁵ (Emphasis Added). Voluntary intoxication does not constitute a defense to the commission of a crime, ⁶ but evidence of temporary insanity caused by such intoxication may be introduced by the accused in mitigation of the penalty attached to the offense for which he is being tried. ⁷ Section 19.05, creating the offense of Involuntary Manslaughter, provides that a person may commit such offense in either of two ways: either he recklessly causes the death of another individual; or by accident or mistake when operating a motor vehicle while intoxicated, he causes the death of another person by reason of such intoxication. As defined in Section 19.05(b), 'intoxication' means 'that the actor does not have the Normal use of his Mental or physical Faculties by reason of the voluntary introduction of any substance into his body.' (Emphasis Added).

By consideration of Sections 8.04 and 19.05 of the new Penal Code, it is apparent that the Legislature never intended to require proof of the culpable mental state of a person charged with an offense where one of the essential elements is voluntary intoxication. As can be seen by reviewing Section 19.05, involuntary manslaughter can be established without proof of a culpable mental state; proof that the accused caused the death of a person by reason of operating a motor vehicle while intoxicated is sufficient.

It is common knowledge that intoxication temporarily destroys faculties essential to safe driving, Schiller v. Rice, 151 Tex. 116, 246...