Ex parte Caldwell
| Decision Date | 14 October 1964 |
| Docket Number | No. 37007,37007 |
| Citation | 383 S.W.2d 587 |
| Parties | Ex parte Oliver CALDWELL. |
| Court | Texas Court of Criminal Appeals |
Emmett Colvin, Jr., Dallas, for relator.
Henry Wade, Dist. Atty., A. D. Jim Bowie, William F. Alexander, Edwin L. Davis, and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
On March 5, 1964, this Court received the record of a death penalty conviction against relatory, but such record contained no notice of appeal. After the expiration of the term of the trial court in which relator was convicted, we received an application for writ of habeas corpus prepared by an attorney other than the one who represented relator at his trial, which alleged that relator was illegally restrained in that he had been denied the right of appeal to this Court from such death penalty conviction because of the inexperience of relator's court appointed attorney, who failed to give notice of appeal during the term of court in which such death penalty had been assessed, thereby depriving this Court of the right to consider the record before us as an appeal.
In response to such application this Court entered an order requiring the trial judge to hold a hearing and ascertain the facts relating to the allegations in the application. Such hearing was held, and we learn therefrom that relator was indigent, that his court appointed attorney represented relator without the assistance of other counsel, and that such attorney had never before represented an accused in a case in which the death penalty was sought and, in fact, had been licensed to practice only a few years and had been engaged in the practice of criminal law a much shorter length of time.
We quote from his testimony at the hearing:
'Q Now, from that time on, did you ever file a motion for a new trial?
'A No, sir.
'Q Did you ever file or announce in open court or give a notice of appeal?
'A No, sir.'
The term of court and the time for giving notice of appeal had expired before other counsel was appointed to represent the relator on appeal or review of the conviction.
From the above it is apparent that relator was deprived of his right to a review of his conviction on appeal.
Where it appears that the rights of an indigent accused were not properly safeguarded, a conviction with the death penalty should be reversed. 14 American Jurisprudence, p. 888, Sec. 174.
The writ of habeas corpus is granted, the judgment of conviction set aside and relator is ordered to stand trial on the indictment pending against him in the Criminal District Court # 3 of Dallas County.
It is so ordered.
ON STATE'S MOTION FOR REHEARING
The State moves for rehearing in this cause and in cause No. 36,882, Caldwell v. State of Texas, Tex.Cr.App., 383 S.W.2d 590, in which the appeal was dismissed for want of jurisdiction.
We treat the State's...
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