Ex parte Clark, 62655

• Decision Date: 28 November 1979
• Docket Number: No. 62655,62655
• Citation: 597 S.W.2d 760
• Court: Texas Court of Criminal Appeals
• Parties: Ex Parte Isom CLARK, Appellant.

Page 760

597 S.W.2d 760

Ex Parte Isom CLARK, Appellant.

No. 62655.

Court of Criminal Appeals of Texas, En Banc.

Nov. 28, 1979.

Rehearing Denied May 14, 1980.

Paul G. Johnson, Huntsville, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ROBERTS, Judge.

This applicant was convicted of burglary of a vehicle, and we affirmed in an unpublished opinion. In this application for habeas corpus relief he for the first time draws attention to the fact that the court's charge to the jury completely failed to apply the law to the facts. The charge contains only abstract statements of law.

The failure of the charge to apply the law to the facts is a fundamental error that is not waived by the failure to object at trial. Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). But not every fundamental error may be raised for the first time in habeas corpus proceedings. Ex parte Coleman, 574 S.W.2d 164 (Tex.Cr.App.1978), rehearing denied, 599 S.W.2d 305 (1979). It was held in Ex parte Coleman, supra, that errors of less than constitutional dimension in the court's charge could not be the basis of a collateral attack by way of habeas corpus. (The error in question was a jury charge that authorized conviction on more theories of robbery than were alleged in the indictment.)

The difference between Ex parte Coleman, supra, and this case is precisely the matter of constitutional dimension. We have held that the total failure of the court's charge to apply the law to the facts infringes two areas of the state and federal constitutions. First, it "goes to the very basis of the cases" and denies "the fair and impartial trial to which (defendants) are entitled under the federal and state Constitutions"; that is, under the due process provisions of the Fourteenth Amendment to the United States Constitution and the due course of law provision in Article 1, Section 19, of the Texas Constitution. Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975). Second, the failure of the charge to apply the law to the facts "impairs the right to trial by jury and, therefore, by definition, is 'calculated to injure the rights of defendant,' (V.A.C.C.P., Article 36.19) to a trial by jury," which rights are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10, of the Texas Constitution. Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977). Because these constitutional rights were violated by the trial court's total failure to apply the law to the facts in its charge to the jury, we hold that this error may be the basis of a habeas corpus attack, and that the conviction must be set aside.

Accordingly, the conviction in Cause F-76-2942 PN in the 195th Judicial District Court is set aside and the applicant is released from any restraint imposed by the judgment or sentence in that cause. By virtue of the indictment that is pending in that cause, the applicant is remanded to the custody of the Sheriff of Dallas County.

DOUGLAS, Judge, dissenting.

The majority grants relief on the ground that the trial court's instruction to the jury did not apply the law to the facts. This is apparently the first time that the Court has so held.

This is not an appeal but a habeas corpus proceeding. Clark was convicted in 1976 for burglary of a motor vehicle. Two prior convictions were alleged for enhancement.

The evidence in the case at the guilt stage of the trial was given by two witnesses. Jack Martindale testified that he was a police officer for the City of Dallas. He was driving his marked squad car on the date alleged in the indictment when he saw a man frantically waving his hands. After talking with the man, he went to a car in the parking lot next to the Drury Building. He drove directly behind the car. He saw someone in the front seat of the car "peering over the top of the seat" through the rear window. After parking the squad car, Martindale walked to the driver's side of the other car and saw Clark lying in the front seat. He arrested Clark and saw that he had been lying on a citizens band radio and an FM converter. The wires on these instruments had been pulled from the car and were wrapped around the radio and converter. He placed handcuffs on Clark and placed him in the squad car.

Earl Westmoreland, the owner of the car, arrived and Martindale released the radio and converter to him and then took Clark to jail.

Westmoreland testified that he parked and locked his car in a lot next to the Drury Building and was gone about thirty minutes. When he returned he saw a police car parked near his car. He saw the officer examining a citizens band radio and an FM converter that had been taken from Westmoreland's car. He gave no one permission to enter his car. He did not look at the person who was in the squad car nearby.

The punishment was assessed at life. On November 23, 1977, this Court affirmed the conviction in a per curiam opinion. In that appeal Clark did not complain of the court's charge. There was no objection to the charge during the trial. There was a request for a charge on circumstantial...