Crawford v. State

• Decision Date: 16 September 1968
• Docket Number: No. 41466,41466
• Citation: 435 S.W.2d 148
• Parties: Johnny CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 148

435 S.W.2d 148

Johnny CRAWFORD, Appellant, v. The STATE of Texas, Appellee.

No. 41466.

Court of Criminal Appeals of Texas.

Sept. 16, 1968.

On Rehearing Nov. 27, 1968.

Franklin S. Spears, Michael B. Hunter, San Antonio, for appellant.

James E. Barlow, Dist. Atty., Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

This is what is referred to in the record as an out of time appeal.

In 1955 appellant was convicted in the Special Criminal District Court of Bexar County of the offense of robbery by assault. His punishment was assessed at life imprisonment, being enhanced under Art. 62, P.C., by reason of a prior conviction in the Criminal District Court of Bexar County in 1951 for the offense of assault with intent to rob.

On an original appeal the judgment of conviction was affirmed by this court in Crawford v. State, 162 Tex.Cr.R. 95, 282 S.W.2d 222.

In 1964 appellant by petition for writ of habeas corpus attacked the 1955 conviction as void on the ground that he was not represented by counsel when the probation granted to him in the 1951 conviction was revoked. The petition was denied by this court in Ex parte Crawford, Tex.Cr.App., 379 S.W.2d 663.

Thereafter, in a subsequent habeas corpus proceeding, the United States Court of Appeals for the Fifth Circuit found that appellant was denied his constitutional right to counsel on appeal, from the 1955 conviction and was 'entitled to an out of time appeal, or in the alternative, to a new trial if an out of time appeal is not available.' Crawford v. Beto, 383 F.2d 604 (1967).

Pursuant to such order, appellant was brought before the 175th Judicial District Court of Bexar County and after the appointment of counsel to represent him a hearing was held in which appellant again sought to set aside the 1955 judgment of conviction upon the allegation that the conviction with punishment enhanced under Art. 62, P.C. was invalid because in the 1951 conviction used for enhancement he was neither represented by counsel at the trial nor when his probation was later revoked by the court. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, were cited by appellant in support of his contention.

Following a hearing, the proceedings were certified to this court as a delayed appeal.

In Ex parte Crawford, supra, this court found that appellant was represented by counsel at his trial in 1951 when he was granted probation, but that he was not represented by counsel when his probation was later revoked.

On this appeal we will only be concerned with the effect of the decision by the Supreme Court of the United States in Mempa v. Rhay, supra, decided November 13, 1967, on the revocation of appellant's probation in the 1951 conviction when he was not represented by counsel.

In Mempa v. Rhay, supra, it was held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of the accused may be affected, and that as a matter of constitutional law a lawyer must be afforded an accused at a proceeding for revocation of probation or deferred sentencing.

We are cited to no holding by the Supreme Court of the United States that its opinion in Mempa v. Rhay is to be applied retroactively.

We are not inclined to so hold, especially in view of our recent holdings in Ex parte Williams, Tex.Cr.App., 414 S.W.2d 472, and Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409, that the provision of Art. 42.12, C.C.P. of 1965, relating to the appointment of counsel when probation is sought to be revoked is not retroactive.

Under the record, appellant is not entitled to a reversal.

We observe that if Mempa v. Rhay were held to be retroactive appellant would not be entitled to discharge but only to a remand to answer the indictment, because he would not have served the maximum punishment of life imprisonment to which he could be legally sentenced upon conviction for the offense of robbery. Ex parte Gregg, Tex.Cr.App., 427 S.W.2d 66.

The judgment is affirmed.

DISSENTING OPINION

ONION, Judge.

This case presents the question of the retroactivity of the holding in Mempa v. Rhay (Walkling v. Washington), 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. In Mempa, which involved the revocation of probation in the State of Washington, the United States Supreme Court held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights may be affected, and as a matter of federal constitutional law, a lawyer must be afforded such accused at a proceeding for revocation of probation or deferred sentencing.

This current appeal from a 1955 conviction has an interesting history. In that year the appellant was convicted of robbery by assault in the Special Criminal District Court of Bexar County (now the 175th District Court) with punishment assessed at life imprisonment under the provisions of Article 62, V.A.P.C., by reason of a prior conviction for assault with intent to rob in the Criminal District Court of Bexar County (now the 144th District Court). The record as to the prior conviction reflects that the appellant entered a plea of guilty of January 27, 1950; that the imposition of the sentence was suspended and the appellant granted probation; that subsequently on January 2, 1951, appellant's probation was revoked and for the first time sentence was imposed.

The 1955 judgment of conviction for the offense of robbery was originally affirmed by this Court in 282 S.W.2d 222.

Subsequently, by habeas corpus petition this appellant, in 1964, attacked the same conviction as void, contending that he was without counsel when the 4-year probation granted him following his conviction for assault with intent to rob was revoked in 1951 by the said Criminal District Court. Such petition was denied in Ex parte Crawford, Tex.Cr.App., 379 S.W.2d 663.

In Crawford v. Beto, 383 F.2d 604, a subsequent habeas corpus proceeding, the Fifth Circuit Court of Appeals found that the appellant was denied his constitutional right to counsel on appeal from his 1955 conviction for robbery by assault and was therefore 'entitled to an out of time appeal, or in the alternative, to a new trial if an out of time appeal is not available.'

With reference to an out of time appeal the federal court cited Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417; Mixon v. State, Tex.Cr.App., 401 S.W.2d 806. Cr. also Ex parte Young, Tex.Cr.App., 418 S.W.2d 824; Ex parte Castanuela, Tex.Cr.App., 435 S.W.2d 145; Castanuela v. State, Tex.Cr.App., 435 S.W.2d 146.

In Ex parte Mixon, supra, a habeas corpus proceeding, this Court set aside its order affirming Mixon's conviction (365 S.W.2d 364) and ordered the trial court to appoint counsel to represent him on appeal, or, in the alternative, to release him from custody. An out of time appeal with counsel was subsequently granted on the record already on file in this Court. Mixon v. State, supra.

In the case at bar, pursuant to the order of the federal court, the trial court appointed counsel on appeal for the appellant Crawford, and then proceeded to hear and overrule a 'motion for new trial' filed by such counsel, apparently on the belief that the 1965 Code of Criminal Procedure was applicable. See Article 40.09, V.A.C.C.P. It is observed, however, that the law in force at the time of the giving of the notice of appeal furnishes the rule by which an appeal in a criminal case is governed. Ross v. State, Tex.Cr.App., 403 S.W.2d 138; Rivera v. State, Tex.Cr.App., 403 S.W.2d 130; Jones v. State, Tex.Cr.App., 406 S.W.2d 451; Carter v. State, Tex.Cr.App., 408 S.W.2d 507. Therefore, the 1925 Code of Criminal Procedure is applicable to this out of time appeal in view of the 1955 notice of appeal. The action of the federal court did not constitute a new notice of appeal. The out of time appeal being an available procedure, there was no authority for the court, while in the process of granting an out of time appeal, to also grant a new trial and set aside a conviction where notice of appeal was given under the said 1925 Code. Cf. Article 11.07, V.A.C.C.P. This, of course, would not be true where the notice of appeal is given after the effective date of the 1965 Code of Criminal Procedure.

Upon this appeal appellant urges that the 1955 robbery conviction with punishment enhanced as a repeater was invalid because at the time of his plea of guilty to the prior conviction, which was used for enhancement, he was indigent and not represented by counsel and that he did not waive such constitutional right. He relies upon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526; Ex parte Greer, Tex.Cr.App., 408 S.W.2d 711; Ex parte Hammonds, Tex.Cr.App., 407 S.W.2d 779. This claim is without merit. Though unnamed, the judgment entered in the prior conviction reflects that appellant was represented by counsel and the court's case jacket reflects the name of the attorney. Further, at the time of the 1955 trial from which this appeal is prosecuted, the assistant district attorney who represented the State at the time of appellant's prior conviction testified that the appellant had counsel at the time of his guilty plea. Still further, in his 1964 pro se petition for habeas corpus appellant himself swore he was represented by counsel at the time of his guilty plea. This petition was considered in Ex parte Crawford, Tex.Cr.App., 379 S.W.2d 663, in which this Court found that he was represented by counsel when he entered a plea of guilty to assault with intent to rob and was granted probation.

In that same proceeding, however, this Court concluded that appellant was not represented by counsel when his probation was subsequently revoked on January 2, 1951. This is appellant's second...