Ex parte Sanders

• Decision Date: 24 October 1979
• Docket Number: No. 60221,60221
• Citation: 588 S.W.2d 383
• Parties: Ex parte Larry James SANDERS.
• Court: Texas Court of Criminal Appeals

Page 383

588 S.W.2d 383

Ex parte Larry James SANDERS.

No. 60221.

Court of Criminal Appeals of Texas, En Banc.

Oct. 24, 1979.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Petitioner seeks relief under a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. Petitioner was convicted of the offense of robbery in Cause No. 76734 in Criminal District Court No. 3 of Tarrant County. Punishment, enhanced by a prior felony conviction of like character, was life (See Art. 62 of the former Penal Code).

On original submission, the panel concluded that at the time petitioner's prior conviction (made final at a revocation of probation proceeding) was proved at his robbery trial, the denial of counsel at a probation revocation hearing had not yet been established as a defect of constitutional magnitude and that his failure to object to its introduction did not constitute waiver. The panel found that our opinion in Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.), making the right to counsel at a revocation hearing retroactive being delivered 13 days prior to petitioner's trial was not enough time to put petitioner's counsel on notice that a valid objection existed to the use of the prior conviction for enhancement and, hence, there should be no waiver of a right that was unknown.

Failure to object to proof of a void conviction has been held to constitute waiver. Ex parte Gill, 509 S.W.2d 357 (Tex.Cr.App.). Where the defect which renders the conviction void has not been established as a defect of constitutional magnitude the failure of counsel to object does not constitute waiver. Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.); Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.).

In its Motion for Rehearing, the State contends that the panel opinion erroneously placed the burden of proof upon the State. Specifically, the State complains of the following portion of the original opinion:

". . . A waiver of constitutional rights will not be lightly inferred, and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458 (, 58 S.Ct. 1019, 82 L.Ed. 1461) (1938). In cases involving the right to counsel, a heavy burden rests on the prosecution to show an intelligent, knowing, and voluntary waiver. Miranda v. Arizona, 384 U.S. 436 (, 86 S.Ct. 1602, 16 L.Ed.2d 694) (1966). Here the State offered no proof that the applicant or his counsel knew of a valid objection and waived it. Given the particular time sequence involved, we will not hold that the applicant waived his right to object to proof of the void prior conviction."

We have held that in a habeas corpus action the petitioner has the burden of proof. See, Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.); Ex parte Clark, 537 S.W.2d 40 (Tex.Cr.App.). We conclude that in the instant cause petitioner had the burden of proving why his failure to object to the use of the prior conviction did not constitute a waiver. No such proof was offered at the evidentiary hearing held in the trial court. The panel found that because of the time sequence involved, petitioner was excused from voicing an objection.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 it was held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of the accused may be affected and that such a stage includes a proceeding for revocation of probation. The opinion in Mempa was delivered by the Supreme Court on November 13, 1967. Thus, this opinion was delivered approximately 13 months before petitioner's trial at which the void prior conviction was used for enhancement.

In McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 the Supreme Court held that its decision in Mempa v. Rhay, supra, was to be given full retroactive application. The opinion in McConnell was delivered on October 14, 1968, approximately two months before petitioner's trial.

Our original opinion in Crawford v. State, supra, holding that Mempa v. Rhay was not to be applied retroactively was delivered on September 16, 1968. On November 27, 1968, the opinion on Appellant's Motion for Rehearing in Crawford v. State, supra, recognized that Mempa v. Rhay, supra, was to be given retroactive application. The opinion on rehearing was delivered almost two weeks prior to petitioner's trial. ¹

We hold that petitioner's failure to object when the complained of prior conviction was offered into evidence constituted a waiver of the claimed right.

The State's Motion for Rehearing is granted and the relief sought by petitioner is denied.

CLINTON, Judge, dissenting.

In per curiam opinion delivered February 28, 1978 in this very case the Court ordered the trial court to hold a habeas corpus evidentiary hearing. To the argument of the State that Sanders "was not constitutionally entitled to counsel during the probation revocation proceedings in 1965," the Court wrote:

"We further note that at the time of petitioner's conviction in 1968, the law as to whether defendants were entitled to counsel during probation revocation proceedings was So unsettled ¹ as to hold that there was an intentional and knowing waiver of this contention due to trial counsel's failure to object. See Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974). We are, therefore, of the opinion that petitioner's application states facts which, if true, may entitle him to relief. . . ."

Essentially the same facts remain before us after the evidentiary hearing and its record with findings of fact and order below, was recertified and transmitted to the Court. Why, then, is our applicant not entitled to relief today just as the Court said he was almost two years ago? The majority must believe that things have changed for the better since their February 28, 1978 appraisal of the situation. But they have not and because they have not, I respectfully dissent and, in doing so, propose to demonstrate that failure of trial counsel to object to admission of the prior conviction cannot reasonably constitute an intentional and knowing waiver of the contention now made.

June 3, 1964, analogizing it to an earlier holding that a probationer is not entitled to a jury trial on the issues of revocation, the Court held in Ex parte Crawford, 379 S.W.2d 663 (Tex.Cr.App.1964) that an indigent probationer was neither entitled to an appointed counsel during revocation proceedings. Perhaps in response to Crawford, Article 42.12, § 3b, V.A.C.C.P., effective January 1, 1966, mandated appointment of counsel upon request. ² However, the Court refused to find the requirement was to be applied retroactively, holding that Crawford "still applies to hearing on motions to revoke probation held prior to January 1, 1966," Ex parte Williams, 414 S.W.2d 472, 474 (Tex.Cr.App.1967). The view was reaffirmed in Ex parte McCarter, 415 S.W.2d 409, 411 (Tex.Cr.App.1967), and there the Court also pointed out the distinction between initial suspension of imposition of sentence and suspension of execution of an imposed sentence when one is placed on probation, ³ noting that the 1965 Code of Criminal Procedure provided Only for suspension of imposition of sentence when probation is granted.

Decided November 13, 1967 were Mempa v. Rhay and Walkling v. Washington State Board of Prison Terms and Paroles, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Because the majority pointedly notes that "this opinion was delivered approximately 13 months before petitioner's trial at which the void prior conviction was used for enhancement," a closer look at that opinion is instructive on the issue now before us. Mempa pled guilty and was "placed on probation . . . and the Imposition of sentence was deferred " pursuant to Washington law, Id. at 130, 88 S.Ct. at 255; at the subsequent revocation hearing without counsel the trial court "immediately entered an order revoking petitioner's probation and then Sentenced him to 10 years in the penitentiary," Id. at 131, 88 S.Ct. at 255. Walkling likewise pled guilty and "was placed on probation . . . and the Imposition of sentence was deferred," Id. at 132, 88 S.Ct. at 255; at the later counselless hearing the trial court "revoked probation and Imposed the maximum Sentence of 15 years," ⁴ Id. at 133, 88 S.Ct. at 255. Relying on earlier principles concerning right to counsel, ⁵ "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected," Id. at 134, 88 S.Ct. at 257, the Supreme Court alluded to several substantial factors and then concluded and held, Id. at 137, 88 S.Ct. at 258:

"In sum, we do not question the authority of the State of Washington to provide for a deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be an enlightened step forward. All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing."

Thus, each case presented an original procedure in which the guilty pleading defendant was placed on probation and imposition of sentence was deferred much as our own procedure now is to suspend and, at the subsequent revocation hearing, was afforded an opportunity to influence a determination of the length of time he might have to serve, to effectuate his right of appeal from the original conviction and, perhaps, manage to withdraw his initial plea of guilty none of which was legally available to a similarly situated probationer in Texas in 1967, certainly not for one whose sentence had been Imposed but execution suspended. ⁶

At this point in the chronological development of the right of an indigent probationer to appointed counsel in revocation proceedings the questions that become pertinent to a competent lawyer ⁷ handling such a case are,...