Ex parte Cross, 41252
| Decision Date | 10 April 1968 |
| Docket Number | No. 41252,41252 |
| Citation | 427 S.W.2d 64 |
| Parties | Ex parte Calivin CROSS. |
| Court | Texas Court of Criminal Appeals |
Bill Palmos, Hearne, for petitioner.
Bryan F. Russ, County Atty., Hearne, for respondent.
This is an original application for Writ of Habeas Corpus brought by the applicant seeking his release from the Texas Department of Corrections. He challenges the legality of his conviction as an habitual criminal in Cause No. 10,890, in the District Court of Robertson County on July 20, 1939. His grounds are that at such time he was indigent, was not represented by counsel, that he did not waive his right to counsel, and that likewise at the time of the prior convictions alleged he was without counsel. Applicant first presented his application to the conviction court as required by Article 11.07, Vernon's Ann.C.C.P., as amended. See Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. The present trial judge, the Honorable W. C. Wallace, has made the writ returnable to this Court with his findings of facts and conclusions of law following a hearing at which the applicant was represented by counsel.
Judge Wallace's findings that the applicant was indigent and without counsel at the time of his Robertson County trial for felony theft with prior convictions alleged for enhancement under Article 63, Vernon's Ann.P.C., and that he did not waive his right to counsel are amply supported by the record. There can, therefore, be no question that the applicant is entitled to a part of the relief he seeks. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The Gideon decision has been held to apply retroactively by both the federal courts and this Court. See Ex parte Williams, Tex.Cr.App., 420 S.W.2d 931 and cases there cited.
An applicant in a habeas corpus proceeding has the burden of proving by a preponderance of the evidence that he did not competently and intelligently waive a constitutional right which he asserts was denied him. Ex parte Morgan, Tex.Cr.App., 412 S.W.2d 657. From the record we conclude applicant has not sustained his claim that at the time of his prior convictions alleged in the indictment he was indigent and without counsel, which right he did not waive.
Ex parte Gregg, Tex.Cr.App., 427 S.W.2d 66.
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