Ex Parte Mattox, 20430.

• Decision Date: 03 May 1939
• Docket Number: No. 20430.,20430.
• Citation: 129 S.W.2d 641
• Parties: Ex parte MATTOX.
• Court: Texas Court of Criminal Appeals

Page 641

129 S.W.2d 641

Ex parte MATTOX.

No. 20430.

Court of Criminal Appeals of Texas.

May 3, 1939.

Rehearing Denied June 21, 1939.

Proceeding ex parte W. L. Mattox for original writ of habeas corpus to obtain release from Sheriff of Orange County.

Application for writ denied.

M. E. Gates, and Gordon M. Burns, both of Huntsville, for relator.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

The application together with certified copies of records attached present the following facts:

On June 14, 1937, an indictment was returned into the district court of Orange County, Texas, charging relator in the first count with robbery by "using and exhibiting a firearm, to-wit: a pistol." The second and third counts charged ordinary robbery by assault and violence and putting the injured party in fear of life and bodily injury.

On June 18th there was filed in said district court the following instrument in writing:

"The State of Texas vs. W. L. Mattox. No. 4155, In First Judicial District Court of Orange County, Texas, May Term, 1937.

"Comes now the State, in the above entitled and numbered cause, and elects to try the defendant herein upon the second and third counts in the indictment in this cause, said counts charging defendant with offenses of felony less than capital.

"I Hollis Kinard, District Attorney in and for the First Judicial District of Texas, the duly elected and acting attorney representing the State in said Cause, hereby consent and approve of the waiver of trial by jury in said cause, which said consent and approval has been made herein before the defendant has entered his plea of guilty herein.

                      "Hollis Kinard, District Attorney
                

"I, W. L. Mattox, the defendant in the above entitled and numbered cause, the same being a criminal prosecution for an offense classified as a felony less than a capital offense, having entered a plea of guilty in said cause, hereby in open court and in person waive a trial by jury.

                              "W. L. Mattox, Defendant
                

"Upon the election by the state to try the defendant herein upon the second and third counts in the indictment, said counts charging the defendant with offenses of felony less than capital, the court hereby consents and approves of the plea of guilty of the defendant herein as to said second and third counts of said indictment.

"With the consent and approval of the Court:

                         "F. P. Adams, Judge Presiding."
                

There appears in the minutes of the court a judgment entered on the same day — June 18th — which recites that relator entered a plea of guilty "to the charge in the indictment." Then appears a recital of the proper admonition to relator regarding his plea of guilty, followed by these recitals:

"* * * Thereupon the defendant requested the consent and approval of the Court to waive the right of a trial by a jury, and whereas such consent and approval, of the duly elected and acting attorney representing the State, in writing duly signed by said attorney, was filed in the papers in said cause before the defendant entered the plea of guilty, and it appears that all prerequisites required by law for the waiving of this right have been performed. Therefore the Court now gives its consent and approval for the said defendant to waive the right of a trial by jury.

"Whereupon the defendant proceeded to trial before the court, who having heard and considered the pleadings and evidence offered, is of the opinion therefrom that the defendant, W. L. Mattox, is guilty of the offense charged against him.

"It is therefore, considered and adjudged by the Court that the defendant, W. L. Mattox, is guilty of the offense of (Robbery by use of firearms) robbery, as confessed by him in his said plea of guilty herein made, and that he be punished by Confinement in the penitentiary for a term of fifteen (15) years, and that the State of Texas do have and recover of the said defendant W. L. Mattox, all costs in this prosecution expended, for which execution will issue."

On June 25th sentence was pronounced against relator which appeared in the minutes as follows (omitting the formal preliminary recitals):

"* * * It is the order of the Court that the Defendant, W. L. Mattox, who has been adjudged to be guilty of (Robbery by use of firearms) Robbery, whose punishment has been assessed by the judgment of the Court at confinement in the State Penitentiary for Fifteen (15) years, be delivered by the Sheriff of Orange County, Texas, immediately to the Superintendent of the Penitentiaries of the State of Texas, or other persons legally authorized to receive such convicts, and said W. L. Mattox shall be confined in said Penitentiary for not less than five nor more than fifteen years, in accordance with the provisions of the law governing the Penitentiaries of said State.

"And the said W. L. Mattox is remanded to jail until said Sheriff can obey the directions of this sentence and defendant is allowed credit for such time as he has been confined in jail. Twenty days."

Relator was confined in the penitentiary under the foregoing orders and proceedings. On January 27, 1939, an application for writ of habeas corpus was presented by relator to the Hon. Max M. Rogers, District Judge, 12th Judicial District, averring that relator was held by the penitentiary authorities under a void judgment and sentence of the District Court of Orange County. The writ was granted and hearing set for February 4, 1939. Upon said hearing Judge Rogers entered the following order:

"The foregoing cause coming on for trial, and all parties being present, the State being represented by its District Attorney and the defendant and his counsel being present, the Court after hearing the pleadings and the evidence, is of the opinion that said W. L. Mattox is illegally restrained of his liberty by the Respondents, O. J. S. Ellingson and W. W. Waid, same being General Manager and Warden, respectively, of the State Penitentiary of the State of Texas, and that he should be released from their custody, because the judgment and sentence and commitment by virtue of which he is held is fundamentally erroneous.

"The court is of the further opinion, however, that the judgment and sentence are such that they may be corrected in a proper proceeding, by the proper officials of Orange County, Texas, should they desire to do so.

"It is the Order, Judgment and decree of the Court that the said W. L. Mattox be released from the custody of the Respondents, Ellingson and Waid aforesaid, under and by virtue of aforesaid judgment, sentence and commitment.

"It is further ordered, adjudged and decreed by the Court that the said respondents, Ellingson and Waid, retain the custody of the said W. L. Mattox for a reasonable time; that the Sheriff and other proper authorities of Orange County, Texas may demand the custody of said Mattox, if they so desire, and upon a proper demand being made therefor the said Ellingson and Waid are directed to release the said W. L. Mattox by delivering him to the said proper authorities of Orange County, Texas.

"It is further ordered, adjudged and decreed by the Court that a certified copy of this judgment shall be the sufficient authority for the said Respondents, Ellingson and Waid, to release the said W. L. Mattox in manner and form as provided therein."

On February 6th, the District Judge of Orange County made an order reciting that relator had been released by the prison officials "without cause" and remanded him to the custody of the sheriff of Orange County. A capias was issued for relator by the clerk of the district court of said county, and he was taken into custody by the said sheriff. On February 7, 1939, a motion was filed in said district court at a regular term thereof by the district attorney alleging that on June 18, 1937, a judgment was rendered in said court against relator upon his plea of guilty to the second and third counts of the indictment, there being incorporated in the judgment a recital that "the first count having been duly dismissed" upon motion by the state, and including recitals of waiver of a jury by relator and consent thereto by the district attorney and the presiding judge, and a further recital that in said judgment rendered the court found relator guilty of robbery as charged in the third count of the indictment, and assessed his punishment at fifteen years in the penitentiary. It was further alleged in said motion that there had been a failure to enter the judgment rendered during the term and praying the court that said judgment be "now entered" upon the minutes. Upon proper notice to relator the District Court of Orange County on February 25th, 1939 entered an order sustaining the State's motion to enter a judgment nunc pro tunc, finding that the averments in the State's motion were true, and reciting as follows: "It is therefore considered, ordered and adjudged by the Court that the following sentence which was rendered on the 25th day of June, A. D. 1937, and judgment which was rendered on the 18th day of June, A. D. 1937, but which sentence and judgment was incorrectly entered upon the minutes of this Court, be now entered upon the minutes of this Court, as of said last named dates, to-wit: the sentence on the 25th day of June, A. D. 1937, and the Judgment on the 18th day of June, A. D. 1937."

After the foregoing there follows a nunc pro tunc judgment reciting all the necessary admonitions and waivers giving the court authority to receive a plea of guilty to a felony less than capital, and adjudging relator to be guilty of "robbery" and fixing the punishment at fifteen years in the penitentiary, and then follows a nunc pro tunc sentence reciting that relator had...