Ex parte Bowman, 50006
| Decision Date | 04 June 1975 |
| Docket Number | No. 50006,50006 |
| Citation | 523 S.W.2d 677 |
| Parties | Ex parte Olden Ben BOWMAN. |
| Court | Texas Court of Criminal Appeals |
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.
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 in the Indictment.
'And further, that the Defendant testified in the case where under oath he admitted his identity as being Olden Ben Bowman, Junior, being the same man charged with a Bill of Indictment in this case.
'And further, that each and all of the allegations contained in the Indictment were true, and in response to a question by the State acknowledged that his judicial confession that he admitted this offense offered into evidence by the State, State's Exhibit Number one was true.
'After which the Court found the accused Guilty of the offense charged, and upon recommendation of the attorneys, fixed his punishment at 17 years confinement in the Texas Department of Corrections.
'The Court finds that after having heard the evidence in the case, which was not adduced at the trial before the Court, that this Defendant committed the crime of assault with intent to commit murder while in the perpetration of a criminal offense in that he was attempting to commit the crime of theft against the...
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Jackson v. State
...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 v. State, 656 S.W.2......
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