Ex parte Bowman, No. 50006
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Citation | 523 S.W.2d 677 |
| Decision Date | 04 June 1975 |
| Parties | Ex parte Olden Ben BOWMAN. |
| Docket Number | No. 50006 |
Page 677
W. John Allison, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty. and Jerome L. Croston, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.
ARCHIE BROWN, Commissioner.
This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon's Ann.C.C.P.
Appellant was convicted by a jury of assault with intent to commit murder with malice. His punishment was assessed by the court at 25 years. On direct appeal this conviction was affirmed on February 6, 1974. Bowman v. State, Tex.Cr.App., 504 S.W.2d 880.
Appellant urges that the court violated his due process rights in assessing the punishment at 25 years because he previously entered a guilty plea to the same indictment before the same judge who assessed punishment at 17 years and, when notice of appeal was given from the plea of guilty, the court granted a new trial. Appellant contends that the eight year increase in punishment on the second trial violates the rule set down in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This matter was not raised on the direct appeal.
Page 678
The trial judge has forwarded with the record in the habeas corpus proceeding his findings of fact and conclusions of law which bear a file mark of the District Clerk of Dallas County dated June 7, 1973. This instrument was not included in the record on the direct appeal approved by the trial court on July 30, 1973. This instrument received by this Court on March 11, 1975, is as follows:
'On this the 27th day of February, 1973, after the Jury has unanimously returned a Verdict of Guilty to the felony offense of an assault with intent to commit murder with malice as charged in the Indictment against this Defendant, and after the Court having heard the evidence offered by the State with regard to the proper punishment to be set, the Court this day makes the following findings of fact and conclusions of law:
'I
'The Court takes judicial knowledge of its own records, recalls and recognizes that on the 29th day of January, 1973, that this Defendant appeared before the Criminal District Court in Dallas County, Texas in person and with his attorney, Mr. Robert M. Jones.
'That at that time the Defendant in the trial before the Court entered a plea of Guilty to the allegations contained in the Indictment for the felony offense of assault with intent to commit murder with malice as charged...
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Jackson v. State, No. 115-84
...(Tex.Cr.App.1976); Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). 1 See also, Palm ......
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Ex parte Herron, No. 70028
...Appeals No. 1085-85. The Double Jeopardy claim presented in this cause was not presented on direct appeal. However, in Ex Parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court permitted the raising of a Page 632 double jeopardy claim through post-conviction habeas corpus, and granted t......
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Palm v. State, No. 67133
...possess on September 21, 1979, specifically the 1973 marihuana conviction, and, therefore, could increase punishment. In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court dealt with a similar argument as now advanced by the State. In that case it was held that in order permissib......
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Raetzsch v. State, No. 13-85-094-CR
...at 2081). See also Palm v. State, 656 S.W.2d 429 (Tex.Crim.App.1981); Ronk v. State, 578 S.W.2d 120 (Tex.Crim.App.1979); Ex parte Bowman, 523 S.W.2d 677 The presumption of vindictiveness need not be applied in this case, because the circumstances of retrial were explained by the prosecution......
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Jackson v. State, No. 115-84
...(Tex.Cr.App.1976); Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). 1 See also, Palm ......
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Ex parte Herron, No. 70028
...Appeals No. 1085-85. The Double Jeopardy claim presented in this cause was not presented on direct appeal. However, in Ex Parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court permitted the raising of a Page 632 double jeopardy claim through post-conviction habeas corpus, and granted t......
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Palm v. State, No. 67133
...possess on September 21, 1979, specifically the 1973 marihuana conviction, and, therefore, could increase punishment. In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court dealt with a similar argument as now advanced by the State. In that case it was held that in order permissib......
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Raetzsch v. State, No. 13-85-094-CR
...at 2081). See also Palm v. State, 656 S.W.2d 429 (Tex.Crim.App.1981); Ronk v. State, 578 S.W.2d 120 (Tex.Crim.App.1979); Ex parte Bowman, 523 S.W.2d 677 The presumption of vindictiveness need not be applied in this case, because the circumstances of retrial were explained by the prosecution......