Ex parte Pineda

• Decision Date: 27 November 1963
• Docket Number: No. 36338,36338
• Citation: 373 S.W.2d 689
• Court: Texas Court of Criminal Appeals
• Parties: Ex parte Antonio Parra PINEDA.

Page 689

373 S.W.2d 689

Ex parte Antonio Parra PINEDA.

No. 36338.

Court of Criminal Appeals of Texas.

Nov. 27, 1963.

Rehearing Denied Jan. 15, 1964.

Joseph A. Calamia, Edward S. Marquez, El Paso, for appellant.

Edwin F. Berliner, Dist, Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

By writ of habeas corpus the relator challenges the sentence he is serving which was pronounced against him in the 34th District Court of El Paso County and affirmed by this Court in Pineda v. State, Tex.Cr.App., 367 S.W.2d 862.

On July 10, 1963, the judge of the 34th District Court of El Paso County issued the writ, developed the facts at a hearing on July 15-16, and has certified the same to this Court in accordance with the provisions of Art. 119 V.A.C.C.P.

The grounds for relief are that the relator was denied the effective assistance of counsel in violation of due process of law in that he was an indigent person, unable to employ counsel, and that Woodrow Bean, the attorney representing him, had such unfavorable publicity caused by his failure to file income tax returns for which he was convicted in June 1962 and a petition filed in the 34th District Court in September, 1962, seeking his disbarment, that such prejudiced his rights with the jury which resulted in his conviction and an extremely severe penalty; and that said attorney failed to adequately protect his rights during the trial including the failure to present a defense of insanity and further, that he failed to represent him on appeal.

On July 12, 1962, the appellant was indicted for murder with malice allegedly committed May 13, 1962; and he has been in jail since May 13. The trial on the merits was had on October 8-9, 1962, resulting in a jury verdict of guilty with the punishment assessed at forty-three years

Sentence was pronounced on December 20, 1962. Notice of appeal was given on the same date.

Following the filing of appellant's affidavit of inability to pay costs on appeal, the record was duly and timely perfected including the filing of the statement of facts on the main trial. No brief was filed or oral argument made in this Court on appeal.

Thereafter, the case was affirmed on May 8, 1963. The relator was allowed fifteen days within which to file a motion for rehearing after May 8.

At this point, the record reveals that Joseph A. Calamia, an attorney of the El Paso Bar, by letter dated May 21, 1963, addressed to the Clerk of this Court, advised that on May 20, 1963, Honorable R. E. Thomason, U. S. District Judge, and Judge Ward of the 34th District Court of El Paso County, had appointed him and Edward S. Marquez to represent the appellant Pineda. In said letter Calamia requested that a 15 day extension of time be granted for the filing of a motion for rehearing. The Clerk, by letter dated May 22, notified Calamia that the Court had instructed him not to issue the mandate in said cause for 15 days; and further advised him that he was not filing the letter as a motion for rehearing.

Although the fifteen days allowed for filing a motion for rehearing had not expired when Calamia and Marquez were appointed, they did not at any time file such a motion in behalf of relator. Further, the fifteen day extension of time was granted as Calamia requested.

Instead of filing a motion for rehearing, the relator sought relief by preparing a petition for a writ of habeas corpus alleging the grounds above set forth, which was sworn to and presented to Judge Ward as soon as the mandate of this Court issued.

On the hearing of the writ, relator testified that he was thirty-one years of age, and had an eight grade education; that he had been in jail since May 13, 1962, and had no money to employ counsel at any time; that...