Ex parte Campbell, 46923
| Decision Date | 23 May 1973 |
| Docket Number | No. 46923,46923 |
| Citation | 494 S.W.2d 842 |
| Parties | Ex parte Coy Ray CAMPBELL. |
| Court | Texas Court of Criminal Appeals |
Frances T. Freeman Cruz, Houston, for appellant.
Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is a post conviction habeas corpus proceeding under the provisions of Article 11.07, Vernon's Ann.C.C.P., and in accordance with the holding in Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App., 1967).
Petitioner was convicted of the primary offense of burglary in the Criminal District Court No. 3 of Harris County (Now the 177th District Court of Harris County) in Cause Number 91,000 and was sentenced to a mandatory life term on September 26, 1960, punishment being enhanced under Article 63, Vernon's Ann.P.C. His conviction was appealed to this court and was affirmed by per curiam opinion (Cause No. 33,040) on February 22, 1961, the opinion reciting that the record on appeal contains no statement of facts or bills of exceptions.
In his habeas corpus application petitioners urges that he was deprived of an effective appeal because, although he attempted to appeal as an indigent, no counsel was appointed to represent him nor was this court afforded a statement of facts with which to determine the merits of his appeal.
A hearing was had on February 15, 1973, in the 177th District Court of Harris County, the Honorable Miron A. Love presiding. At the conclusion of the hearing, Judge Love denied the writ on the ground that there was 'no showing' that petitioner was deprived of counsel and that the petitioner's uncorroborated testimony was insufficient to grant relief. The trial court's conclusion was based on his finding that 'the Honorable Bill Dickson was appointed to represent petitioner on appeal in Cause No. 91,000 on September 9, 1960' and that 'A statement of facts . . . was provided the petitioner at State expense.'
The record reflects that petitioner was represented at trial by retained counsel, the Honorable Bill Dickson. However, Mr. Dickson testified at the hearing that he had no recollection of representing petitioner on appeal or of any direction from Judge Love to do so. A letter, dated March 9, 1971, from Mr. Dickson to Judge Love was introduced in evidence. It stated in part:
'Because of Mr. Campbell's inability to pay his attorney's fees we notified him prior to the February 16th trial that we would represent him only through that trial and not beyond, although we made another appearance in that same case on September 26, 1960, at which time Mr. Campbell was sentenced by the Court and gave notice of appeal.
To further corroborate his assertion that he was not represented on appeal, petitioner introduced into evidence the Record on Appeal in Cause No. 91,000 which was transmitted to the Court of Criminal Appeals and authenticated by the District Clerk of Harris County on December 27, 1960. The face sheet of the record reads as follows:
None'
The docket sheet of the trial court in Cause No. 91,000 is before us and we find no entry which indicates that an attorney was appointed to represent this indigent petitioner on appeal. Further, the trial court's finding that counsel was appointed states that the date of appointment was September 9, 1960. The docket entry on the other hand shows that notice of appeal was not given until September 26, 1960. September 26, 1960, is also the date that petitioner filed his motion Informa pauperis requesting a free statement of facts. This motion was granted on October 5, 1960, and although a statement of facts, in narrative form, was...
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