Ex parte Brown, 39771

• Decision Date: 22 June 1966
• Docket Number: No. 39771,39771
• Citation: 404 S.W.2d 590
• Parties: Ex parte Mickey Eugene BROWN.
• Court: Texas Court of Criminal Appeals

Page 590

404 S.W.2d 590

Ex parte Mickey Eugene BROWN.

No. 39771.

Court of Criminal Appeals of Texas.

June 22, 1966.

S. John Odom, Houston, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION.

MORRISON, Judge.

This is a proceeding under Article 11.07, Vernon's Ann.C.C.P. (1965).

The Honorable Sam Hall, Sr., Judge of the 71st Judicial District Court, conducted a hearing and certified the facts to this Court. In his certificate Judge Hall recites that the statutory requirements of taking a plea of guilty were not complied with when relator entered his plea of guilty before Judge Hall in 1960.

The record supports the certificate in that it is shown that the court appointed attorney was not allowed ten days to prepare for trial, and that there was no waiver of his right accorded him by Article 494 V.A.C.C.P., which was in effect at the time of relator's plea. Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939 and the cases there cited are authority for granting the writ.

It is ordered, therefore, that relator be released from custody by the Texas Depaertment of Corrections and delivered into the custody fo the sheriff of Harrison County to stand trial on the original indictment in Cause No. 19,429 pending in said Court.

It is so ordered.

DISSENTING OPINION

WOODLEY, Judge.

The unsworn petition upon which the writ of habeas corpus was granted and made returnable to this Court alleged:

'1. Petitioner entered a plea of guilty before this Honorable Court on July 15, 1960, and was placed on probation.

2. On September 19, 1960, the probation was revoked, and Petitioner was sentenced to ten (10) years in the State Prison.

3. On March 8, 1962, this Court entered an Order reducing Petitioner's sentence from ten (10) years to five (5) years confinement in the State Penitentiary. This Order was not executed by the State Prison in that they claimed that this Honorable Court did not have the authority to so reduce the sentence.

4. Petitioner has now served a period of five (5) years in actual imprisonment.'

As grounds for such writ the petition alleged:

'1. Upon the plea of guilty there were no witnesses called, nor evidence introduced, to prove the guilt of accused, as is required by Article 12, VACCP and Section 501--503 CCP.

2. Petitioner was not represented by counsel at the time of his trial, as required by due process of law, 14th Amendment of the United States Constitution.'

At the hearing petitioner introduced no testimony in support of his allegation that 'no witnesses were called, nor evidence introduced' other than testimony to the effect that the record contained no statement of facts and did not reflect any stipulation as to evidence.

This was not proof that the requirements of Art. 12 V.A.C.C.P. were not complied with.

Petitioner elicited testimony at the hearing which directly contradicted his second ground for relief, and proved that he was in fact represented by counsel appointed on the day of the trial.

The trial judge's certificate reads as follows:

'I, Sam Hall, Sr., Judge of the 71st Judicial District of Texas; conducted the trial in the Cause of Mickey Eugene Brown, in 1960, and upon his Guilty Plea, Branted Probation.

'Thereafter, I transfered the matter to Odessa, Ector County, Texas, for Probation Supervision. I did not transfer Jurisdiction of the Cause, only that of Supervision.

'In September of 1960, the Court in Ector County revoked the Probation...