Ex parte Reece
| Decision Date | 26 July 1967 |
| Docket Number | No. 40578,40578 |
| Citation | 417 S.W.2d 587 |
| Parties | Ex parte Buddy Joe REECE. |
| Court | Texas Court of Criminal Appeals |
Alfano, Dailey & Pitchford, by Fred H. Dailey, Jr., Houston, Kiibler & Kiibler, by John S. Kiibler, Jr., La Porte, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is a habeas corpus proceeding wherein the relator seeks his release from confinement in the Texas Department of Corrections.
The record reflects that on December 28, 1961, the relator was convicted in the 16th Judicial District Court of Cooke County, in Cause No. 15537, of the offense of cattle theft and sentenced to serve not less than two nor more than ten years in the penitentiary. Trial was before the court, a jury being waived, upon relator's plea of guilty.
Relator was represented by the Honorable Shelby Fletcher, an attorney, appointed by the court on the day of trial.
Relator insists that the judgment of conviction is void for two reasons.
It is first insisted that the judgment is void because no written waiver of the ten days allowed to prepare for trial was executed by relator and his court-appointed counsel, as required by Art. 494, Vernon's Ann.C.C.P., which was in effect at the time.
The decisions of this court in Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439, Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, and other cases holding the provisions of Art. 494, supra, to be mandatory are relied upon by relator in support of his contention.
In Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666, this court in passing upon a similar contention, said:
'It does not follow that the failure of appointed counsel to waive in writing the 10 days allowed him to prepare for trial is sufficient grounds for post conviction relief, if it appears that such failure did not result in injury to the defendant such as would deprive him of a fair trial or deny him a constitutional right.
'Insofar as they hold or appear to hold that the failure of court appointed counsel, or said counsel and the accused, to waive in writing the 10 days allowed appointed counsel to prepare for trial is ground to set aside an otherwise valid conviction by habeas corpus, or other post conviction or collateral attack, Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439; Ex parte Dowden, Tex.Cr.App., 408 S.W.2d 512; Ex parte Brown, Tex.Cr.App., 404 S.W.2d 590; and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, are overruled.'
In the instant proceeding, relator makes no claim that he was not guilty of the offense charged. He pleaded guilty to the indictment. No injury to relator appears to have resulted from the failure to execute the written ten-day waiver which deprived him of a fair trial or any constitutional right.
It is next insisted that the conviction is void because the court-appointed counsel, Shelby Fletcher, was, at the time of his appointment in 1961, the duly elected county judge of Cooke County. In support of such contention, relator refers to the provisions of Art. 494b, V.A.C.C.P., in effect at the time of his trial, which read:
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