Ex parte Gomez, 37930

• Citation: 389 S.W.2d 308
• Decision Date: 31 March 1965
• Docket Number: No. 37930,37930
• Parties: Ex parte Arturo GOMEZ.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 308

389 S.W.2d 308

Ex parte Arturo GOMEZ.

No. 37930.

Court of Criminal Appeals of Texas.

March 31, 1965.

Maury Maverick, Jr., San Antonio, court appointed counsel, for petitioner.

James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

This is an original application for writ of habeas corpus presented to the Honorable John F. Onion, Jr., Judge of the 175th Judicial District Court of Bexar County, in which petitioner alleges that he is being illegally confined and restrained of his liberty in the Texas Department of Corrections under a void judgment of conviction rendered against him in said court.

Acting under Art. 119, Vernon's Ann.C.C.P., Judge Onion proceeded to hear the petition and, at the conclusion of the hearing, granted the writ and made the same returnable to this court, together with the facts, for final determination.

The record reflects that petitioner was convicted on May 23, 1962, in the 175th Judicial District Court of Bexar County, of the offense of unlawful possession of narcotic paraphernalia (second offense) and his punishment was assessed at confinement in the penitentiary for thirty years. At the trial, petitioner was represented by courtappointed counsel and on appeal, in which the judgment was affirmed by this court, he was represented by counsel of his own selection. Gomez v. State, Tex.Cr.App., 365 S.W.2d 165.

In his original and supplemental petitions for writ of habeas corpus, petitioner alleged that he was denied a fair trial and due process of law under the Sixth and Fourteenth Amendments to the Constitution of the United States in the following particulars:

1. That he was represented by incompetent counsel.

2. The portion of the indictment alleging the prior conviction was read to the jury before the question of his guilt or innocence was determined.

3. The conviction was upon evidence obtained under an invalid search warrant.

4. A defect in the court's charge.

5. His confession was admitted into evidence without an order by the trial judge declaring it to have been voluntarily made.

We have carefully reviewed the petitions in the light of the facts ascertained at the hearing and conclude that petitioner is not entitled to discharge.

The record reflects that petitioner was represented at the trial by counsel who was a duly licensed attorney with several years' experience in the general practice of criminal law. While testimony was offered that counsel had the reputation of being incompetent and also the user of barbiturates, there is no proof that on the occasion of his representation of petitioner he was incompetent.

The contention that reading to the jury the portion of the indictment alleging the prior conviction, before a determination of guilt of the primary offense, constitutes a denial of due process has been rejected by this court. See: Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also, Breen v. Beto, January 28, 1965, Fifth Circuit Court of Appeals, 341 F.2d 96.

The writ of habeas corpus cannot be utilized, after conviction, to point out alleged errors in a court's charge, as these are matters which should be urged on appeal after timely objection made in the trial court.

While we are aware of no authority which authorizes an attack upon a search warrant by writ of habeas corpus after conviction, we have examined the search warrant in question in view of petitioner's claim that it is invalid under the decision of the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The search warrant issued by the justice of the peace upon the affidavit of Officer Pat Dotson, omitting the formal parts, reads:

'Whereas, a complaint on oath and in writing, in accordance with law, has this day been made before me alleging that the premises described as a two story frame house painted white located at 1720 Buena Vista, the apartment to be searched being the upstairs apartment on the west side of the house, and known as 1720 Buena Vista, and any and all outhouses, garages, edifices, structures, openings and enclosures, and any and all automobiles or trucks found parked ator in front of 1720 Buena Vista, in the City of San Antonio, Bexar County, Texas, and being the premises under the control of a_ unknown Latin American Male whose name, age, and description are unknown_ is a place where Narcotic Drugs and Narcotic Paraphernalia are unlawfully possessed in violation of The Uniform Narcotic Drug act, being Article 725b of Vernon's Annotated Penal Code, of the State of Texas.

'You are therefore hereby commanded to enter immediately and search the above described premises for such Narcotic Drugs and Narcotic Paraphernalia unlawfully possessed in violation of the uniform Narcotic Drug act, being Article 725b of Vernon's Annotated Penal Code, State of Texas,...