Ex parte Breen

• Decision Date: 22 November 1967
• Docket Number: No. 40884,40884
• Court: Texas Court of Criminal Appeals
• Parties: Ex parte John J. BREEN

Page 932

420 S.W.2d 932

Ex parte John J. BREEN

No. 40884.

Court of Criminal Appeals of Texas.

Nov. 22, 1967.

Grady Hight, Arlington, for relator.

Frank Coffey, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The petition for writ of habeas corpus was filed October 27, 1967, and set for submission.

The facts set out in support of the allegation that he is unlawfully restrained of his liberty by the Texas Department of Corrections and upon which he requests that, after hearing, this court order his release from his present confinement are:

'Petitioner is incarcerated as a result of a 1954 robbery conviction in the Criminal District Court of Tarrant County, Texas. Petitioner was an indigent defendant at the time and had made this fact known to the Court. After sentencing, petitioner gave notice of appeal to The Court of Criminal Appeals and did not waive the appointment of an attorney. No attorney was appointed for petitioner and no statement of facts was prepared for petitioner's appeal.'

The petition has not been presented to the judge of the trial court and does not reflect a compliance with Art. 11.07 of the 1965 Code of Criminal Procedure as amended, which this court construed in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

A petition was presented to this court prior to the enactment of Art. 11.07 Vernon's Ann.C.C.P. attacking the 1954 life sentence for robbery by assault under which petitioner is confined, upon similar grounds, which has been misplaced. Said petition resulted in a hearing before the present judge of the convicting court on August 30, 1967, at which petitioner was represented by court appointed counsel.

The facts ascertained by this court from prior petitions attacking the life sentence; court records; the evidence adduced at the hearing and the findings and conclusions of Judge Byron Matthews, who conducted the hearing, reflect the following:

Petitioner was convicted of felony theft in Tarrant County on September 19, 1939, and for forgery in Dallas County on May 8, 1948. He was indicted in Tarrant County on November 2, 1954, for the offense of robbery and the prior convictions for felony theft and for forgery were alleged for enhancement.

On November 16, 1954, petitioner's affidavit that he was without counsel and wholly destitute of means to provide counsel, and praying that counsel be appointed to represent him, was filed.

Although Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, had not been written and there was no Texas Statute requiring appointment of counsel for an indigent other than in capital cases at the time, the able District Judge Willis McGregor, now deceased, appointed Hon. Joe Shannon of the Fort Worth Bar to represent petitioner and the case was called for trial on December 1, 1954.

It is apparent that petitioner not only asserted in the trial court his constitutional right to counsel, but also asserted his constitutional right to refuse counsel and to represent himself. He refused to permit his court appointed counsel Joe Shannon to conduct the case, ask the questions or make the oral argument before the jury. Mr. Shannon obtained process for his witnesses and was allowed to remain at his side in the courtroom during the trial of the case on its merits, but petitioner 'told him what I wanted to challenge in this trial,' and petitioner examined the witnesses and argued his case before the jury.

The jury having returned its verdict and judgment having been pronounced thereon, a motion for new trial was filed. Hon. John E. McLean, of the Fort Worth Bar, acted as counsel for petitioner at the time the motion for new trial was overruled and notice of appeal was given.

Petitioner testified at the hearing before Judge Matthews, in part, as follows:

'Q. In any event, Mr. Shannon was there with you during the entire course of that trial, was he not?

'A. During the trial. Yes.

'Q. He was there the date you were sentenced, was he not?

'A. I am not positive whether he was there or not. Personally I don't think he was at the sentencing.

'Q. Was Mr. McLean present at the time you were sentenced?

'A. Mr. McLean was there.

'Q. At that time you gave notice of appeal?

'A. Mr. McLean gave notice of appeal.

'Q. The attorney. How did Mr. McLean get into this lawsuit?

'A. To be honest, I don't know. I never spoke to him before the hearing, during the hearing or after the hearing.

'Q. As a matter of fact, hadn't your sister employed Mr. McLean to represent you at that time?

'A. That, I don't know.

'Q. And a written Motion for New Trial was filed?

'A. I have no way of knowing that; only the oral notice.

'Q. You were there when the Court overruled it and Mr. McLean gave notice of appeal at that time?

'A. Yes, sir.

'Q. At that time when Mr. McLean appeared into that lawsuit did you request or make any request of the Court that an attorney be appointed on the appeal?

'A. I don't recall. I am not sure.'

Mr. McLean testified that he had no recollection of representing petitioner but his signature was on the motion for new trial and on the affidavit signed by Mrs. May Vaughn on December 30, 1954, that he (Breen) was of unsound mind. He further testified: 'Q. Do you recall whether the court appointed or directed you to do any work on the appeal? A. No, sir, but in answer to that question I can say if I had been appointed, I would have perfected the appeal.'

Judge Matthews, who conducted the hearing directed by this court, found 'That at the time of the appeal from said conviction the record shows that John E. McLean was not appointed by the court but acted as counsel for the petitioner at the time the petitioner was present when his motion for new trial was overruled and notice of appeal was given * * *,' and concluded that Mr. McLean 'appeared at the request of someone other than petitioner or the court * * * and determined that the record did not contain sufficient error upon which to appeal.'

Paul F. Burris, official court reporter since 1951 for the court in which petitioner was tried and the hearing was had, testified at the hearing that he certainly did recall reporting the trial in December 1954 and that he knew for a fact that no one requested a statement of facts on that trial. He further testified that it had always been his practice, when notice of appeal was given and a transcript was not ordered at the time, to contact the attorney or litigant either personally or by telephone to determine if he wanted a statement of facts, and that in this case he was not requested and did not prepare a statement of facts and it would be impossible to do so now.

The fact that the notice of appeal was given by counsel for petitioner who was not court appointed disposes of any contention that he was denied any constitutional right by the failure of the trial court to appoint counsel to represent him on appeal. The failure of petitioner or his counsel to request that a statement of facts be prepared while the court reporter's notes were available forecloses a delayed consideration of the appeal and any valid claim as to the denial of appellant's rights to a record on appeal.

In the recent case of Evans v. State, 401 S.W.2d 602, we held that the state was not bound to prove that the attorney who entered a plea of guilty for the defendant in a misdemeanor case was authorized by his client to do so.

Applying the same rule and reasoning, the burden was on petitioner and not the state to prove that Mr. McLean, who was not court appointed, who presented his motion for new trial and gave notice of appeal for him, was not authorized by petitioner to do so.

Competent counsel was appointed by the court to represent petitioner at his trial and competent counsel who was not court appointed represented him in presenting his motion for new trial and gave notice of appeal for him. This counsel not being court appointed, any incompetency or lack of effective assistance on the part of such counsel cannot be imputed to the state. Howard v. Beto, 375 F.2d 441 (5th Circuit); Breedlove v. Beto (U.S. District Court Southern District of Texas), 276 F.Supp. 635, decided August 30, 1967.

The Supreme Court held, in Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, that a state may avoid the obligation of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, where, without fault of the state, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time, and that where transcripts are no longer available Illinois might rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.

A much stronger case is made here than in Norvell v. State of Illinois, supra. Norvell's petition was denied though he and his counsel attempted to obtain a transcript and to appeal but were unable to do so because of the death of the court reporter, whereas neither petitioner nor his counsel requested that a statement of facts be prepared and the state did nothing to hinder.

Judge Taylor's opinion in Turman v. Beto, 271 F.Supp. 808, dated August 2, 1967 (U.S. District Court for Northern District of Texas) construing Norvell v. State of Illinois, supra, supports our conclusion that the state was not at fault in regard to the failure of petitioner or his counsel who gave notice of appeal to obtain a statement of facts.

There are other facts which sustain the conclusion that petitioner was not denied effective aid of counsel or a review of his claim of error on appeal.

The life sentence under attack is the same that was before this court in Ex parte Breen, 171 Tex.Cr.R. 669, 353 S.W.2d 233 cert. denied, 375 U.S. 841, 84 S.Ct. 89, 11 L.Ed.2d 69; before the United States District Court for the Southern District of Texas in In re Breen's Petition...