Ex parte Perry, 42980

• Decision Date: 27 May 1970
• Docket Number: No. 42980,42980
• Citation: 455 S.W.2d 214
• Parties: Ex parte Willie James PERRY.
• Court: Texas Court of Criminal Appeals

Page 214

455 S.W.2d 214

Ex parte Willie James PERRY.

No. 42980.

Court of Criminal Appeals of Texas.

May 27, 1970.

James Wedding, Marshall, for appellant.

Charles Allen, Dist. Atty., Marshall, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is a habeas corpus proceeding under Article 11.07, Vernon's Ann.C.C.P., and in accordance with Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. Willie James Perry, the applicant, seeks his release from confinement in the Department of Corrections where he is serving twelve sentences for burglary in the District Court of Harrison County.

A hearing was held before the Honorable John Furrh, Judge of the 71st Judicial District.

In the application for a writ of habeas corpus, it was alleged that the convictions were void, because the warning required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not given him prior to his confessing and that he had inadequate counsel.

The record reflects that the trials were had in October of 1961 upon pleas of guilty, each for the offense of burglary with intent to commit theft. Perry was brought into the court in the morning the day he was tried, and in answer to the docket call he informed Honorable Sam Hall, who was then the judge, that he wished to enter pleas of guilty. A pauper's oath and waivers of jury were filed. Mr. George Edwards of the Harrison County Bar was appointed in all twelve cases. Perry testified at the habeas corpus hearing that he conferred with appointed counsel for a few minutes before pleading guilty.

Perry also testified that before signing the confession he was not advised that he had a right to an attorney or that he could stop at any time he was giving the statement to consult with an attorney. On cross-examination he testified that he informed the judge that he intended to plead guilty that morning and did so that afternoon, and that after each indictment was read the court asked if he was pleading guilty because he was guilty and for no other reason, and he answered that he was. When asked if he had been in the penitentiary on 44 other burglaries he did not answer. Upon further questioning, he testified that he had an attorney and entered pleas of guilty in Wichita Falls, and further, that he had been before the judge some four or five times. It was never definitely shown how many times he had been convicted. He did admit that he was acquainted with some of the trial procedure.

Perry's reliance upon Miranda v. Arizona, supra, is misplaced, because it does not apply to confessions introduced in trials which began prior to June 13, 1966. Even if a retrial were had in his cases, the fact that the confession did not comply with Miranda would not prevent its introduction. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253. See Ex. Selby, Tex.Cr.App., 442 S.W.2d 706. The confession concerning the burglaries which was introduced at the hearing contained the warning required by the then Article 727, V.A.C.C.P., and Perry admitted that he was warned accordingly.

In Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, delivered May 4, 1970, it was assumed that Parker's confession was inadmissible by having been a product of coercion. The Supreme Court of the United States, in an opinion by Mr. Justice White, held that '(e)ven if Parker's counsel was wrong in his assessment of Parker's confession, it does not follow that his error was sufficient to render his plea unintelligent and entitle him to disavow his admission in open court that he committed the offense with which he was charged.' The Court further stated: 'Parker's plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker's confession.'

Applicant next contends that he had inadequate counsel.

Mr. Charles Allen, the district attorney, testified that Mr. Edwards was between sixty-five and seventy years of age when he represented the applicant and that he was appointed on numerous cases where an accused indicated at the docket call that he wished to enter a plea of guilty; and that Mr. Edwards was rather thorough in most instances with his interrogation of those desiring to plead guilty, and if a person indicated that he wished to enter a plea of not guilty, counsel would not have represented him.

The record further shows that Mr. Edwards had been a district attorney and had much experience in the practice of law. There was no testimony that he was incompetent, but it was shown that because of his poor eyesight he did not have the opportunity to brief and keep abreast with the current law and that he had not been appointed in cases where a contest was likely. Mr. Edwards had died before the habeas corpus hearing.

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