Ex parte Garcia
Decision Date | 23 March 1977 |
Docket Number | No. 53484,53484 |
Citation | 548 S.W.2d 405 |
Parties | Ex parte Carlos GARCIA. |
Court | Texas Court of Criminal Appeals |
DALLY, Commissioner.
This is a post conviction habeas corpus proceeding. See Article 11.07, V.A.C.C.P. and Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).
Pursuant to an order of this Court petitioner was granted an evidentiary hearing in the convicting court to determine whether he had been denied the right of appeal. The hearing has now been held, and that record is before this Court. It contains the findings of fact and conclusions of law made in the trial court.
The court's findings of fact and conclusions of law are as follows:
The findings of fact and conclusions of law were conscientiously made by the trial court. However, this Court is not bound by the findings of the trial court in a habeas corpus proceeding such as this. Ex parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975); Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App.1972), and the cases there cited.
From our review of the evidence we find that the court's finding number eleven, that the petitioner was not indigent at the time he gave notice of appeal, is not supported by the evidence. The petitioner testified that he was indigent at the time he gave notice of appeal. The petitioner's counsel, who was retained for the trial of the case, stated that he would only be guessing, but that he thought the petitioner was indigent at the time notice of appeal was given. The evidence shows that retained counsel was paid considerably less than one-half of the fee which he had set for the trial of the case, and this amount of the fee was paid in installments by the petitioner and by members of his family over a period of time prior to trial. The record also reflects that the petitioner was in jail at the time of giving notice of appeal. There is no evidence in the record concerning the petitioner's employment or that he had any property whatsoever at the...
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