Ex Parte Johnson, 24568.

• Decision Date: 09 November 1949
• Docket Number: No. 24568.,24568.
• Citation: 224 S.W.2d 240
• Parties: Ex parte JOHNSON.
• Court: Texas Court of Criminal Appeals

224 S.W.2d 240

Ex parte JOHNSON.

No. 24568.

Court of Criminal Appeals of Texas.

November 9, 1949.

Vickers & Vickers, of Lubbock, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Relator was convicted in Hale County, Texas on a charge of burglary, by a jury on the 17th day of September, 1945.

On April 26, 1949, the Presiding Judge of this Court, acting on relator's petition for writ of habeas corpus, transmitted the same to the Honorable C. D. Russell, District Judge of Hale County, with the request and direction that he cause relator to be brought before him and that the facts regarding the averments in the petition be developed. The District Judge was further directed to make return of all papers and transmit to the Court of Criminal Appeals the evidence elicited on the hearing "* * * and the court's findings thereon." This procedure was taken in accordance with the provisions of Article 119, C. C.P., Vernon's Ann.C.C.P. art. 119.

Judge Russell complied with the directions and request and the evidence so taken, together with Judge Russell's conclusion thereon, are now before us in considering relator's application for release from the penitentiary.

The petition beginning this action is quite voluminous and might be questioned on the grounds of insufficiency. This, however, was considered before the matter was referred to the District Judge to develop the evidence. It is our conclusion now, and was then, that enough facts are alleged to entitle him to a hearing. The substance of the entire petition is a complaint that he was not furnished with "competent and able counsel to represent him" at his trial. He further says that he did not have funds or means to secure an attorney; that he is not versed in the law and did not understand court procedure; that the trial judge refused to appoint counsel upon petitioner's request. He now invokes the provisions of the 6th and 14th Amendments to the Constitution of the United States. This, in our opinion, summarizes all of the allegations made by him requiring the attention of this Court.

A quite lengthy hearing was had before Judge Russell, in which relator was represented by the Honorable J. E. Vickers, a former district judge and distinguished lawyer of Lubbock, Texas. The facts obtained have been properly transmitted to this Court for our consideration. In addition, Judge Russell includes his findings of fact. If we were required to accept these findings of fact as stated, under all circumstances, it would practically nullify the purpose of Art. 119, C.C.P. and might result in the finding of the district judge, indirectly if not directly, turning one out of the penitentiary contrary to said Article. Much of the very able brief of appellant's counsel is devoted to a discussion of the correctness of these findings of fact. This calls for the explanation that such findings were requested by this Court for whatever assistance they might give in passing on the fact issues raised by the evidence, should there be any. In this case, as always, the findings are appreciated and, in fact, helpful, but not binding on us. We do not consider it necessary to discuss the various opinions of relator's counsel and that of Judge Russell as to the correctness of the conclusions. We consider it all together.

Upon reviewing the record with regard to the charge brought that relator was denied counsel, we find that the evidence wholly fails to substantiate such claim. Prior to the date of his trial he had discussed with two well known attorneys employment for the defense of his case. He agreed to pay one a fee of $500, $150 cash and the balance later. This attorney performed some service and, when the relator failed to comply with his contract to pay the balance of the fee, the attorney charged him $50 for what he had already done and returned to him, prior to the trial, $100 in cash. The evidence...