Ex parte King
| Decision Date | 18 May 1977 |
| Docket Number | No. 54340,54340 |
| Citation | 550 S.W.2d 691 |
| Parties | Ex parte Willie Ray KING. |
| Court | Texas Court of Criminal Appeals |
Stanley G. Schneider, Huntsville, for appellant.
Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
In this habeas corpus proceeding, King seeks to set aside his conviction for felony theft in Cause No. 1750 in the 154th Judicial District Court of Lamb County where the punishment was assessed at four years.
After the hearing, the Judge of that court found that on February 23, 1976 King was without counsel during the trial of such cause. However, he found that King was not indigent and that he had voluntarily, knowingly and intelligently waived his right to be represented by counsel.
On January 9, 1976 King appeared before the Judge in the cause and the following transpired:
"THE COURT: Mr. King, I need to talk to you now. Come on up.
I haven't heard from a lawyer on your case. Who do you have hired?
You are out on bond; you ought to be able to work and hire you a lawyer.
Petitioner's next appearance before the court in the cause was on February 3, 1976, when the following occurred:
"THE COURT: Come up, Mr. King, and have a seat at the counsel table there.
Members of the jury panel, there will be somewhat unusual proceedings here today. We will be trying this case in which Willie Ray King stands charged by indictment.
Mr. King has not employed an attorney to represent him, and I have not seen fit to appoint an attorney to represent him, so he will be representing himself in the trial before the jury here in the District Court.
If you are ready, Mr. Young, (prosecutor), we will proceed to pick a jury to try the case."
After the prosecutor had conducted his voir dire of the jury panel, the following colloquy took place:
The court then recessed the jury panel and explained to petitioner the procedure used for selecting a jury, the rule of evidence, the reading of the indictment, and the entry of a plea to the indictment. Following the explanation of the foregoing to petitioner, the court inquired of him whether he would plead guilty or not guilty. King said he would plead "guilty." As to the court's inquiry on whom he wanted to assess punishment, the court or the jury, King replied: "It don't really matter, I don't guess." The court then informed King that he had had sufficient time to find employment and hire counsel, therefore, he would proceed to trial without counsel. The prosecutor prepared a written waiver of jury and stipulation of evidence, explained them to King and had King sign them. The jury panel was discharged and the court admonished King pursuant to Article 26.13, V.A.C.C.P. The State put on evidence of a prior conviction at the punishment stage. King did not present any evidence.
On December 27, 1976, an evidentiary hearing was held on King's petition. The evidence adduced at that hearing showed that Jerrell Haberer had made bond for King following his arrest in late August, 1975. King's brother-in-law, Preysol Hodge, a longtime employee of Haberer had obtained his help. King also worked parttime for Haberer cleaning trailers and digging ditches. Through Johnnie Lee Hodge, King's sister, it was developed that King had lived with her and her husband. Prior to going to prison he was a farm worker who did odd jobs and was out of work whenever the weather was bad. She said that her brother had little education. King contributed $20-$25 a week toward groceries while living with his sister. Following his arrest his contribution dropped to $5-$10 a week because he had even more difficulty finding employment. The need for counsel was discussed but she and her husband were without funds to assist him and he did not have funds.
Petitioner testified that he did not have an attorney, could not afford an attorney, and was released on bond without having to put up any money. He stated that he had tried to find employment and did work for Curtis Williams for $1.75 per hour. The amount of hours was dependent on the weather and availability of equipment. Williams, called by the State, verified King's testimony and said the most King would make in a month would be $300.00. King testified that he had gone through the seventh grade in school and had no vocational training.
As to the trial itself, King admitted that he really didn't want a jury trial because He testified that he had no knowledge of the law nor of his right to appeal and that the only thing he understood of his trial was that " . . . I was going to the penitentiary."
The evidence also showed that King had difficulty reading and that he was an illiterate with an IQ of 80. Cuyler G. Thompson, Assistant Principal of Windham School District, Walls Unit, testified that King was classified as an illiterate and had barely achieved a second grade understanding of such basic educational skills as reading, writing and arithmetic. Roy H. Wilson, manager of the Texas Employment Commission office in Littlefield, testified that while there were many jobs in the area during the period from September, 1975 through February, 1976, he had placed King only on seasonal or spot jobs. King had been in his office on numerous occasions, but he had classified him as a seasonal farm worker who had no skills. Wilson stated that it would be very difficult for a person with an IQ of 80 and who could not read or write to obtain a good paying job.
There is evidence that King attempted to locate an older brother in Dallas to obtain funds to hire counsel.
From the record before us it appears that he did not have funds to pay for his own attorney to represent him in the trial.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused shall have the assistance of counsel for his defense. Article 1, Section 10, Texas Constitution, also provides that an accused shall have the right to counsel.
The record does not show that there was a hearing on indigency prior to the trial. We are unable to conclude that because King was free on bond and making at times $70.00 a week warranted the trial court in refusing to appoint counsel.
Article 26.04(a), V.A.C.C.P., provides:
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