Ex parte Mixon
| Decision Date | 20 October 1965 |
| Docket Number | No. 38535,38535 |
| Citation | 396 S.W.2d 417 |
| Parties | Ex parte Lindy Q. MIXON. |
| Court | Texas Court of Criminal Appeals |
Lindy Q. Mixon, pro se.
Leon B. Douglas, State's Atty., Austin, for the State.
This is a habeas corpus proceeding wherein petitioner attacks the validity of a conviction for burglary of a private residence at night with two prior felony convictions alleged for enhancement. Petitioner's case was finally affirmed by this Court on March 20, 1963, and is reported in Mixon v. State, 365 S.W.2d 364.
Petitioner relies in this writ upon Douglas and Meyes v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The Supreme Court of the United States in that case firmly established the rule that 'where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.'
The petitioner here was represented by counsel at trial, and notice of appeal was given August 13, 1962, with a pauper's oath duly filed. On October 8, 1962, this Court was notified by the court appointed trial counsel that he did not intend to represent petitioner on appeal.
On December 31, 1962, this Court received a brief from petitioner, who was representing himself on appeal pro se, in which he alleged that he 'had no attorney since my trial.'
The case was submitted on January 2, 1963, and we affirmed on January 9, 1963.
On January 12, 1963, the petitioner filed an affidavit for extension of time for filing his motion for rehearing, in which he stated that he wished to stress 'that he is without an attorney and does not have access to legal information for filing his motion.'
The motion for rehearing was submitted on February 6, 1963, on which day the petitioner filed a brief asking that certain legal information be furnished him. The motion for rehearing was overruled on February 20, 1963.
Subsequently, on February 23, 1963, petitioner filed a sworn instrument with this Court in which he alleged that he 'has and is of this petition being denied his right and advice of counsel or access to advice by means of law books,' and that 'he is a pauper without counsel and funds and is entitled to advice of counsel in the protection or prosecution of his rights.' On March 13, 1963, the second motion for rehearing was submitted, and on March 20, 1963, the second motion for rehearing was overruled without written opinion.
The opinion in Douglas and Meyes, supra, was handed down by the Supreme Court of the United States on March 18, 1963, only two days prior to our decision on second motion for rehearing. The rule announced in Douglas and Meyes was the law of the land when petitioner's second motion for rehearing was overruled, whether this Court was aware of it at that time or not. The Supreme Court enumerated as the requisites for Douglas and Meyes' applicability the affirmative showing that petitioner requested, and was denied the assistance of counsel on appeal, even though it...
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Crawford v. State
...to a new trial if an out of time appeal is not available.' With reference to an out of time appeal the federal court cited Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417; Mixon v. State, Tex.Cr.App., 401 S.W.2d 806. Cr. also Ex parte Young, Tex.Cr.App., 418 S.W.2d 824; Ex parte Castanuela, Tex......
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Ex parte Davila, 50334
...120; Ex parte Hannen, 155 Tex.Cr.R. 10 (228 S.W.2d 864), 230 S.W.2d 236; Ex parte Brian, Tex.Cr.App., 389 S.W.2d 467; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417.' 'In Parris v. State, 453 S.W.2d 505, this Court "The procedure discussed in Ex parte Young, supra, was not designed to authoriz......
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Ex parte Young
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