Ex parte Strother

• Decision Date: 27 October 1965
• Docket Number: No. 38282,38282
• Citation: 395 S.W.2d 629
• Parties: Ex parte Robert STROTHER.
• Court: Texas Court of Criminal Appeals

Page 629

395 S.W.2d 629

Ex parte Robert STROTHER.

No. 38282.

Court of Criminal Appeals of Texas.

Oct. 27, 1965.

Rehearing Denied Dec. 1, 1965.

Clyde W. Woody, John P. Farra, Houston, for relator.

Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

This is a habeas corpus proceeding filed originally in the 3rd Judicial District Court of Houston County where petitioner alleged that two convictions by which he is confined are void, Following a hearing before that court, a writ of habeas corpus was issued returnable to this court. For the purpose of further developing the facts relative to one of these convictions, the Judge of the 26th Judicial District Court of Williamson County was directed to hold a hearing.

Records of the Houston County and Williamson County proceedings are before this court, and reveal that on November 2, 1943, petitioner was convicted of assault with intent to murder and, having previously been convicted of two felonies less than capital, sentenced to life imprisonment. Less than a month later, in McLennan County petitioner was sentenced to 60 years following his conviction for robbery by assault. Both causes were tried without a jury upon a plea of guilty. We shall first consider the Williamson County conviction.

Petitioner alleges that he was not represented by counsel at the time he waived trial by jury, and that his conviction is therefore void, citing Article 10a, Vernon's Ann.C.C.P., which provides, in part, '* * * that before a defendant who has no attorney can agree to waive a jury, the Court must appoint an attorney to represent him.'

It is undisputed that counsel was appointed for petitioner on November 2, 1943. To substantiate his allegation that he waived his right to a jury trial prior to that date, petitioner relies upon a document in the record entitled 'Defendant's Application for Consent of Attorney Representing State to Waive Jury Trial.' This instrument dated November 1--one day prior to the date of appointment of counsel--is signed by petitioner and states:

'It is my desire to enter a plea of guilty and waive the right of a trial by a jury in the above entitled and numbered cause. I hereby request your consent and approval in waiving the right of trial by jury.'

It is well settled that the provisions of Article 10a are mandatory, and failure of the trial court to appoint counsel for petitioner prior to accepting his waiver for trial by jury would be reversible error. Ex parte Prestridge, Tex.Cr.App., 373 S.W.2d 494; Ex parte Williams, 169 Tex.Cr.R. 565, 336 S.W.2d 429; Ex parte Washington, 168 Tex.Cr.R. 366, 328 S.W.2d 188. The document relied upon by relator, however, was not a waiver of the right to trial by jury, but rather, as its title indicates, was a request that the prosecutor give his consent to such a waiver and was notification to the court and the prosecution that it was the intention of the applicant to waive such right at the proper time.

The...