Ex parte Mitchell

• Decision Date: 20 January 1971
• Docket Number: No. 43816,43816
• Citation: 462 S.W.2d 28
• Parties: Ex parte Alexander MITCHELL, Appellant.
• Court: Texas Court of Criminal Appeals

Page 28

462 S.W.2d 28

Ex parte Alexander MITCHELL, Appellant.

No. 43816.

Court of Criminal Appeals of Texas.

Jan. 20, 1971.

M. M. Ottea, Hearne, for appellant.

Bryan F. Russ, County Atty., Hearne and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Justice.

On October 5, 1970, the convicting court conducted an evidentiary hearing on petitioner's post conviction application for writ of habeas corpus. See Article 11.07, Vernon's Ann.C.C.P., 1967; Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

The record is before us with the statement of facts in narrative form.

The record reflects petitioner was arrested on May 23, 1956, for a robbery committed that date when he was found hiding in his aunt's house. He was 16 years old at the time. Subsequently, he was caused to don some clothing found in his aunt's house and there was a one-to-one confrontation with a witness to the flight from the scene of the robbery. The petitioner was then placed in the Robertson County jail and later gave a written statement or confession. He became 17 years old on July 28, 1956, and was indicted on July 30, 1956, for the robbery. He remained in jail until his trial on June 6, 1957. Approximately four months prior to trial and after petitioner had been confined for eight months, counsel was appointed for him.

At his trial petitioner entered a plea of guilty before the jury. While the court reporter's notes could not be found, it was stipulated that a tire tool, the written statement and certain monies were introduced into evidence. The jury assessed his punishment at 30 years.

Following the evidentiary hearing the trial court concluded petitioner's privilege against self incrimination had been denied when he was forced to participate in the one-to-one confrontation with the witness to the flight and that there was no affirmative waiver of his rights. The court also concluded he was denied the effective assistance of counsel by the failure of the court to seasonably appoint counsel.

We do not agree and are not bound by the trial court's findings of fact and conclusions of law. Phillips v. State, Tex.Cr.App., 440 S.W.2d 857.

The petitioner entered a plea of guilty before the jury. In Darden v. State, Tex.Cr.App., 430 S.W.2d 494, this court discussed a well settled rule in this state. There it was written:

'It is well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Miller v. State, Tex.Cr.App., 412 S.W.2d 650; Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460; Grounds v. State, 140 Tex.Cr.R. 209, 144 S.W.2d 276; Hawkins v. State, 158 Tex.Cr.R. 406, 255 S.W.2d 875; Vance v. State, 122 Tex.Cr.R. 157, 54 S.W.2d 118; Aills v. State, 114 Tex.Cr.R. 345, 24 S.W.2d 1097; Crumbley v. State, 103 Tex.Cr.R. 391, 280 S.W. 1064.'

Thus, when the guilty plea is before the jury the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Darden v. State, supra. By his plea the petitioner admitted his guilt and his identification as the perpetrator of the crime. The only issue before the jury was that of punishment. The question of possible mistaken identification became irrelevant. Glenn v. State, Tex.Cr.App., 442 S.W.2d 360.

Further, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, are not applicable to confrontations, show ups or lineups conducted prior to June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Therefore, petitioner would be relegated to a claim that the confrontation resulted in such unfairness that it infringed upon his right...