Ex parte Roper
| Citation | 408 S.W.2d 929 |
| Decision Date | 07 December 1966 |
| Docket Number | No. 39929,39929 |
| Parties | Ex parte Jimmie Curtis ROPER. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
J. O. Duncan, Gilmer, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to the custody of Dr. George Beto, Director of the State Department of Corrections at Huntsville.
In the year 1963 appellant was convicted in the 114th Judicial District Court of Smith County of the offense of rape and assessed punishment at confinement in the penitentiary for seventy-five years.
In an appeal to this court, the judgment of conviction was affirmed in an opinion delivered January 8, 1964. Roper v. State, Tex.Cr.App., 375 S.W.2d 454, rehearing denied February 19, 1964.
On January 18, 1965, an application for writ of habeas corpus was filed on behalf of appellant with the Honorable Connally McKay, Judge of the 114th District Court of Smith County, which alleged that appellant was being illegally restrained of his liberty by virtue of the 1963 judgment of conviction. In the application it was insisted that the judgment was void because it was based in part upon a confession made by appellant after his request to see an attorney had been denied and that he was deprived of his constitutional rights to counsel and due process of law.
Judge McKay granted the writ and on May 17, 1966, conducted a hearing upon the application, appellant being present at the hearing and represented by counsel by virtue of a bench warrant issued by the judge.
At the hearing it was shown that appellant's confession introduced in evidence at the 1963 trial was made to assistant district attorney R. S. Burruss. Appellant signed the confession in the district attorney's office on the morning of October 30, 1962.
Appellant testified that before making the statement he asked if he could call his folks or an attorney and that Attorney Burruss told him after they got the matter cleared up he could call anyone he wished to. Appellant stated that he first saw an attorney in late December, 1962, or January, 1963.
R. S. Burruss, the first assistant district attorney to whom appellant made the confession and who at the time of the hearing was serving as county judge of Smith County, testified that he first gave appellant the statutory warning and that there was no mention of an attorney. The witness swore that appellant did not ask to see a lawyer and, being before the 'Escobedo case,' he did not advise appellant that he had the right to have a lawyer present.
Lt. Joe Elliott of the Tyler police department testified that he took appellant from jail to the district attorney's office and was present when he made the confession to assistant district attorney Burruss. Lt. Elliott swore that at no time, either before or after making the statement, did appell...
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Charles v. State
...that the court make an independent finding on the issue before admitting the confession in evidence was not applicable. Ex parte Roper, Tex.Cr.App., 408 S.W.2d 929. There is no evidence that appellant was in any manner denied the assistance of counsel during his interrogation and the making......
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Roper v. Beto, 31101.
...staff on the morning of his arrest." This ruling was affirmed on appeal to the Court of Criminal Appeals of Texas, Ex parte Roper, 408 S.W.2d 929 (Tex. Crim.App. 1966). The Texas Court said: "Under the evidence, the court was warranted in finding that appellant did not request to see an att......