Ex Parte Martinez

• Citation: 145 S.W. 959
• Parties: Ex parte MARTINEZ.
• Decision Date: 27 March 1912
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

145 S.W. 959

Ex parte MARTINEZ.

Court of Criminal Appeals of Texas.

March 27, 1912.

Rehearing Denied April 10, 1912.

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Original application by Leon Cardenas Martinez, Jr., for a writ of habeas corpus. Relator remanded to custody and ordered to be delivered to the Sheriff of Reeves County, Texas.

J. F. Cunningham, Robert P. Coon, and George Estes, for appellant. Will P. Brady, Dist. Atty., Charles Rogan, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case it appears from the record on file that relator was on July 29, 1911, adjudged guilty of murder, and his punishment assessed at death, in the district court of Reeves county, and in accordance with the verdict of the jury and the judgment of the court he was sentenced to death on Friday, the 1st day of September, 1911. Subsequent to the date of conviction an application for a writ of habeas corpus was granted by Hon. W. L. DAVIDSON, presiding judge of this court, which writ was made returnable on October 4, 1911. By agreement of the parties the cause was set for hearing before this court on November 3, 1911, on which date the application came on to be heard, and on which said date was filed with the papers in the case a petition for certiorari by relator. No order was made granting leave to file this petition and none requested by relator.

The petition for a habeas corpus reads as follows: "Your petitioner, Leon Cardenas Martinez, Jr., makes this his application for a writ of habeas corpus, and for that purpose shows to the court that petitioner is held in custody by Sheriff T. C. Weir on commitment or other process to this affiant unknown, charging this affiant with murder. And this affiant further shows to the court: That heretofore on the ____ day of July, 1911, this affiant was tried in the District Court in the county of Reeves on a charge of murder. That the verdict of the jury assessed the punishment of death against this affiant. That this affiant was represented by counsel appointed by the court, and employed by affiant's father and friends. That the attorney appointed was Judge Parker of Pecos, Tex., and the attorney employed was Judge Estes of El Paso, Tex.; the initials of said attorneys being unknown to affiant. That when the jury returned the verdict of guilty assessing the death penalty, this affiant told his attorney that he wanted his case appealed to your honorable court, to wit, the court of Criminal Appeals of the state of Texas. That this affiant was at once caused to be put in jail, and about two hours thereafter on the same day on which the jury returned the verdict as aforesaid, this affiant was brought back into court, and was required to stand up and be sentenced. That when the judge, to wit, Judge Isaacks, pronounced the death sentence on this affiant, he asked affiant in substance if he had anything to say why the sentence of the law should not be pronounced on him, and this affiant replied thereto that he desired that the case be appealed to the Court of Criminal Appeals of Texas, and instructed affiant's attorneys to give notice of appeal and perfect the same, which they promised to do. That affiant was at once carried back to jail, and thereafter on the same day was carried by the sheriff to Midland county, and thence to Abilene, Taylor county, Tex., where he now is in custody. That affiant was not given an opportunity of the two days provided by law in which to file written pleadings, make a motion for a new trial, or otherwise perfect his appeal. That affiant never in any way in person waived said right, and never in any way agreed that the sentence might be at once passed upon him, as was done by the court, never in person waived his right of appeal, and never consented to the waiver by his attorneys. This affiant further states that he has been informed by his father, Leon Cardenas Martinez, Sr., a creditable person, and believes the facts to be true, to wit, that said attorneys representing this affiant gave notice of appeal in open court as provided by law in said court in which this affiant was tried as aforesaid, and thereby perfected said appeal to the Court of Criminal Appeals of the state of Texas. And this affiant was further informed by his father that a crowd of angry and murderous men gathered around this affiant's said attorneys, and told them in substance that, if they did not withdraw said appeal, it would not be the Mexican who would be hung, but his two lawyers, and in this way intimidated and put said attorneys in fear of life to such an extent that they withdrew said notice of appeal, and waived the two days' notice given by law in which to prepare motion for a new trial and perfect the appeal, and agreed that this affiant might be at once sentenced, which was done by said court on the same day on which the verdict of the jury was rendered. This affiant further states that he was on the night following the conviction hurried off by the sheriff of Reeves county to Midland county and thence to Taylor county to keep a mob of angry citizens in Reeves county from killing this affiant, and he never had any opportunity to appear before the district court of Reeves county and perfect his appeal, or take an appeal in the way provided by law, further than was done by his attorneys as heretofore stated on information. This affiant further states to the court: That he is only a little past 15 years of age, that he is not 17 years of age, that he is not guilty of the charge preferred against him, and is not the person who committed the deed charged against this affiant in the bill of indictment on which this affiant was tried and convicted as aforesaid. That by mob violence he has been denied the right of perfecting his appeal to this court as he has been informed and believes to be. That by mob violence the appeal which his attorneys perfected for him was caused to be dismissed without this affiant's consent or knowledge. That this affiant, a young and innocent Mexican, will be executed without a hearing on appeal unless this court enforces its jurisdiction in the way and manner provided by law. Wherefore this affiant prays that your honor grant him a writ of habeas corpus, commanding T. C. Weir, the sheriff of Taylor county, Tex, who now holds this affiant in custody, to bring affiant before your honorable body, that you may hear and determine whether or not your honorable body has jurisdiction by reason of the facts aforesaid, and to further determine whether or not this affiant is lawfully held in custody and restrained of his liberty by said sheriff; that affiant is unable by reason of his confinement to present a writ for habeas corpus to Judge Isaacks, judge of the district court of Reeves county, by reason of his confinement aforesaid, and by reason of a fear of being lynched by mob violence should he attempt so to do."

Upon a hearing of the writ of habeas corpus it was shown affirmatively that no notice of appeal was given. In fact, it was affirmatively shown that, when the motion for a new trial was overruled by the court, the district judge asked applicant's counsel, Judge Parker, if he desired to give notice of appeal, when the judge was notified by the attorney that no notice of appeal would be given. Our Code Cr. Proc. art. 883, provides: "An appeal is taken by giving notice thereof in open court and having same entered of record." In construing this article as early as 1859, in the case of Fairchild v. State, 23 Tex. 176, Judge Roberts held that, unless this notice was given in open court and entered of record, the appeal could not be entertained. This has been followed in an unbroken line of decisions from that day until this; the last case in which this matter was passed on by this court being the case of Offield v. State, 135 S. W. 566, and 568, in which the authorities are partially collated. In the case of Roan v. State, 65 S. W. 1068, this court says: "In death penalty cases, in order to clothe this court with jurisdiction, the appeal must be taken at the term at which defendant is tried and convicted. Having failed to give notice of appeal during the term, appellant has forfeited his right of appeal to this court"—citing authorities.

Appellant's counsel, the district judge, the district attorney, and the sheriff of the county all concur in the statement that no notice of appeal was given by relator or his counsel, and the record in this case shows affirmatively no notice of appeal was entered of record at the term at which he was tried. As shown above, the only grounds in the application for habeas corpus alleged for the writ were that notice of appeal had been given, and that without notice to this relator his attorneys had withdrawn the notice of appeal, and dismissed same without his consent. By the evidence adduced on the hearing in this court, this is shown not to be true. No other reason is assigned in the application why the writ should be granted, but in argument on the day of hearing relator's counsel suggested other reasons, which we will hereinafter consider.

Whatever may be the rule of procedure in other jurisdictions, in this state it has been and is the rule that the writ of habeas corpus cannot serve the office of an appeal; it was not designed to operate as a writ of error or certiorari, and does not have their force and effect. The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void. Such has been the established rule in this court from its inception. In the case of Ex parte Scwartz, 2 Tex. App. 81, this court quotes approvingly the following from Hurd on Habeas Corpus: "A proceeding defective for irregularity and one void for illegality may be revised upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus. An irregularity is defined to be a want of adherence to some...