Ex parte McDonald

• Citation: 469 S.W.2d 173
• Decision Date: 14 July 1971
• Docket Number: No. 44302,44302
• Parties: Ex parte Roy McDONALD.
• Court: Texas Court of Criminal Appeals

Page 173

469 S.W.2d 173

Ex parte Roy McDONALD.

No. 44302.

Court of Criminal Appeals of Texas.

July 14, 1971.

Allison, Maddin, White & Brin, Corpus Christi, for appellant.

Crawford C. Martin, Atty. Gen. Roland Daniel Green, Asst. Atty. Gen., Austin, W. B. Mobley, Jr., Dist. Atty., and Thomas D. McDowell, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a habeas corpus proceeding brought under the provisions of Article 11.07, Vernon's Ann.C.C.P. See Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

The petitioner seeks his release from the Department of Corrections where he is serving a life sentence. Petitioner was convicted of felony theft in Cause No. 3017 of the 36th District Court of San Patricio County on October 30, 1963. By virtue of two prior noncapital felony convictions of felony theft (1961) and of burglary (1953) alleged and proved for the purpose of enhancement of punishment, a life sentence was imposed. See Article 63, Vernon's Ann.P.C. The conviction was affirmed on appeal. McDonald v. State, Tex.Cr.App., 379 S.W.2d 349.

Without reciting prior habeas history, it is observed that petitioner now complains that his 1953 burglary conviction was void and not available for enhancement of punishment. He claims that at the time of the revocation of probation in the burglary conviction he was indigent, without counsel and did not waive the same. He further urges that the district attorney who actively prosecuted the burglary case was the trial judge at the time of his revocation in the same case.

His instant post conviction habeas corpus petition making these allegations was filed, not in the convicting court, but in the court where the prior burglary conviction occurred, the 105th District Court of Nueces County, Texas. See Article 11.07, supra; Ex parte Young, supra. See also Ex parte Smith, Tex.Cr.App., 449 S.W.2d 266.

After an evidentiary hearing the Nueces County trial judge dictated findings of fact and conclusions of law into the record favorable to both of petitioner's contentions. The formal order entered was based, however, upon the disqualification of the trial judge at the time of revocation. The record has been transmitted to this Court.

We have examined the record and find the evidence supports the trial court's oral findings at the hearing, the limited formal order as well as the petitioner's allegations.

Article V, Sec. 11 of the State Constitution, Vernon's Ann.St., reads in part as follows: 'No judge shall sit in any case wherein * * * he shall have been counsel in the case.'

Article 30.01, V.A.C.C.P., provides in part: 'No judge * * * shall sit in any case * * * where he has been of counsel for the State or the accused. * * *'

These provisions have been construed to be mandatory, see Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569 (reversed on other grounds); Hathorne v. State, Tex.Cr.App., 459 S.W.2d 826.

The fact that the trial judge at the time of the revocaton of probation was the district attorney who had actively prosecuted the petitioner and obtained a conviction for burglary in the same cause rendered such conviction void and unavailable for enhancement.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the United States Supreme Court held the appointment of counsel for an indigent is required at every stage of a criminal proceeding Where substantial rights may be affected, and as a matter of federal constitutional law a lawyer must be afforded such accused at a proceeding for revocation of probation or deferred sentencing where substantial rights may be affected. Such decision was held to have full retroactive application. McConnell v. Rhay (Stiltner v. Rhay) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Crawford v. State, Tex.Cr.App., 435 S.W.2d 148 (where the nature of a Texas revocation proceeding was discussed).

And this Court has had occasion to apply these decisions where it was shown that the defendant at the time of the revocation was indigent, without counsel and had not waived the right to counsel. Crawford v. State, supra; Ex parte Fletcher, Tex.Cr.App., 442 S.W.2d 705; Ex parte Fuller, Tex.Cr.App., 435 S.W.2d 515; Eiland v. State, Tex.Cr.App., 437 S.W.2d 551; Ex parte Buffington, Tex.Cr.App., 439 S.W.2d 345; Ex parte Allen, Tex.Cr.App., 452 S.W.2d 472; Ex parte Bird, Tex.Cr.App., 457 S.W.2d 559.

And in Ex parte Bird, supra, we concluded that the fact the execution of the sentence was suspended rather than the imposition thereof when the petitioner was placed on probation under the former Code of Criminal Procedure (See Articles 781b and 781d, V.A.C.C.P., 1925, and Ex parte March, Tex.Cr.App., 423 S.W.2d 916) does not call for a different result than we eventually reached in Crawford v. State, supra, and related cases, particularly in light of the holding in Mempa v. Rhay, supra.

Since it was undisputed that the petitioner was indigent, without counsel and did not waive counsel at the time of the revocation proceeding, another reason exists as to why the 1953 burglary conviction...