Broggi v. Curry, 59289
| Citation | 571 S.W.2d 940 |
| Decision Date | 18 October 1978 |
| Docket Number | No. 59289,59289 |
| Parties | Ernest BROGGI, Jr., Petitioner, v. Peter Michael CURRY, District Judge, Respondent. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Petitioner brought these proceedings to invoke our original jurisdiction to grant writs of habeas corpus regarding criminal law matters. Article V, Sec. 5, Texas Constitution, as amended, 1977. He contends that respondent has denied him the right to appeal from four felony convictions in an improper application of Article 44.02, V.A.C.C.P. He urges this Court to accord him the right of appeal and order respondent to see that right is carried out.
On August 8, 1978, when the habeas petition was presented to this Court, the matter was ordered filed and set for submission before the Court en banc, and the record of all the proceedings on the guilty pleas resulting in the four convictions were ordered forwarded to this Court and the petitioner's bail was set at $75,000 pending review of the matter presented by the petitioner.
After consideration, we conclude that this matter should be treated as an application for writ of mandamus rather than as an original application for writ of habeas corpus. Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774; Vance v. Clawson, Tex.Cr.App., 465 S.W.2d 164, cert. den., Pruett v. Texas,404 U.S. 996, 92 S.Ct. 529, 30 L.Ed.2d 548. This Court has the authority to issue such writs of mandamus regarding criminal law matters. Article V, Sec. 5, as amended, 1977.
From the record forwarded from the trial court, it is clear that the respondent's denial to petitioner was based on Article 44.02, V.A.C.C.P., as amended, which reads
The record further reflects that on May 30, 1978 petitioner waived trial by jury and entered guilty pleas to four felony offenses before the court. There were three second degree felony theft offenses and one sale of securities by an unregistered agent. The trial judge heard the guilty plea to the securities fraud charge first and then heard guilty pleas to the three felony theft charges. While the trial judge in each hearing inquired as to whether there was a plea bargain and was assured by the prosecutor that there was one, he did not inquire of the petitioner personally whether he had agreed to the recommended punishment.
Decker v. State, 570 S.W.2d 948 (Tex.Cr.App.1978), held that Article 44.02, supra, requires the defendant to personally consent, and where the record fails to reflect such personal consent, then the right of appeal cannot be denied under such statute.
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...criminal law matters and to enforce its own jurisdiction. Article V, § 5, Texas Constitution; Article 4.04, V.A.C.C.P.; Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978). However, traditional rules govern the issuance of any writ of mandamus. 1 Mandamus is an extraordinary writ and is never......
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...proceeding with the court of appeals requesting that the trial court be required to give him permission to appeal. Broggi v. Curry, 571 S.W.2d 940, 941 (Tex.Crim.App.1978); Smith v. State, 957 S.W.2d at 575. Second, he can file a post-conviction habeas corpus proceeding. See TEX.CODE CRIM. ......
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...but will look to the essence of the pleadings, including the prayers, as well as the record before us. See, e.g., Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978); see also Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971); and City of Dallas v. Dixon, 365 S.W.2d 919 The essential differe......
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