Carter v. State, 68485
| Decision Date | 24 November 1982 |
| Docket Number | No. 1,No. 68485,68485,1 |
| Citation | 641 S.W.2d 557 |
| Parties | Gary Steven CARTER, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Bruce V. Griffiths, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Alvin M. Titus and Palmer Kelly, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ROBERTS, CLINTON and McCORMICK, JJ.
Appellant was convicted of aggravated assault on a police officer and placed on probation. Probation was revoked for failure to report and for failure to pay restitution. Punishment was assessed at two years' confinement.
In a single ground of error, appellant complains of the refusal of the trial court to allow him during the revocation hearing to attack collaterally his initial conviction on the basis of ineffective assistance of counsel.
In Standley v. State, 517 S.W.2d 538, 541 (Tex.Cr.App.1975), a probationer at the revocation hearing contended the indictment was defective. This Court agreed that in the interest of judicial economy such an attack need not be brought in a separate writ of habeas corpus hearing. Further, the defect was not waived even though the probationer did not prosecute an appeal from his conviction. In this case, appellant sought to attack collaterally his initial conviction for lack of effective assistance of counsel. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972), which deals with a similar question, appears persuasive.
In Ramirez, we held:
(Emphasis added)
Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).
Here, appellant was expressly denied the opportunity to elicit evidence to support his contentions of ineffective assistance of counsel. This was error. The trial court should have taken the time to hear appellant's evidence, rule on his contentions and then determine whether to revoke appellant's probation.
Therefore, this appeal shall be abated and the trial court shall hold a hearing to determine the merits, if any, in app...
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