Ex Parte Thorbus

• Decision Date: 29 April 1970
• Docket Number: No. 42901,42901
• Parties: Ex parte Richard Dean THORBUS.
• Court: Texas Court of Criminal Appeals

Page 756

455 S.W.2d 756

Ex parte Richard Dean THORBUS.

No. 42901.

Court of Criminal Appeals of Texas.

April 29, 1970.

Rehearing Denied July 15, 1970.

Stewart J. Alexander, San Antonio, Edmund N. Anderson, Forth Worth, Carolyn F. Hartmann, San Antonio, for appellant.

James E. Barlow, Dist. Atty., and Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is a habeas corpus proceeding by an inmate of the Texas Department of Corrections attacking the murder conviction under which he is confined. Such conviction with the punishment assessed at life was affirmed by this court in Thorbus v. State, Tex.Cr.App., 243 S.W.2d 840. See the companion case of Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404.

Acting pursuant to Article 11.07, Vernon's Ann.C.C.P., and Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, the petitioner represented by retained counsel filed his post conviction habeas corpus application in the convicting court. Said application, among other things, alleged the ineffective assistance of counsel at the trial and on appeal and that petitioner had been deprived of a statement of facts on appeal. At a hearing before the Judge of the 144th District Court (formerly the Criminal District Court of Bexar County) the petitioner offered only evidence as to the deprivation of a statement of facts on appeal.

At such hearing it was established that while appellant had retained counsel at his 1951 trial and apparently on appeal, ¹ as our original opinion reflects, he did file a pauper's oath in the trial court to secure a statement of facts for the purpose of appeal. No statement of facts accompanied the appellate record.

The trial judge found that no statement of facts was ever transcribed in the case; that the court reporter and the judge who presided at the trial are now deceased and there exists no means by which a statement of facts can be reproduced at this time; that an out of time appeal is thus rendered impossible.

He concluded that this indigent petitioner was deprived of a valuable constitutional right through no fault of his own, and that his application for writ of habeas corpus should be granted.

The record reflects that the petitioner was sentenced on May 4, 1951, no motion for new trial having been filed. Notice of appeal was given and the appellant was granted 90 days from the date of sentence to prepare and have filed a statement of facts and bills of exception.

On August 1, 1951, 89 days later, the petitioner filed a pauper's oath (executed on July 31, 1951) alleging that he did not have sufficient funds to pay for a statement of facts and requesting the court to order the court reporter to prepare such a statement of facts. The record does not reflect that such pauper's oath was ever called to the trial judge's attention or that any order concerning the same was ever entered. A supplemental transcript contained a filed statement of the court reporter dated August 1, 1951, certifying the failure to prepare a statement of facts had not been due to his negligence or default; that he learned of the pauper's oath filed that very day and would as soon as possible prepare the same for approval and transmission to the Court of Criminal Appeals. As earlier noted, no such statement of facts was, however, transcribed.

Article 760, Sec. 6, V.A.C.C.P., in effect at the time, provided in part:

'When defendant cannot pay.--When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant. * * *' ²

To bring himself within the scope of the statute the indigent must not only file the pauper's affidavit but must bring the affidavit to the trial court's attention. Pedroza v. State, 97 Tex.Cr.R. 621, 263 S.W. 283; Stockman v. State, 135 Tex.Cr.R. 337, 120 S.W.2d 267; Brown v. State, 136 Tex.Cr.R. 521, 126 S.W.2d 992; Moody v. State, Tex.Cr.App., 219 S.W.2d 90. See 55 A.L.R.2d 1072, 1109 and cases collated there.

It is also well established that an indigent seeking to avail himself of the benefits of the statute must act with diligence to comply with the statute's requirements.

In Freeman v. State, 135 Tex.Cr.R. 50, 117 S.W.2d 93, it was held the defendant could not complain he had been denied a statement of facts on appeal where he had not filed his pauper's affidavit until the 85th day after the overruling of the motion for a new trial, and according to the affidavit of the court reporter and written statement of the trial judge, it was physically impossible for the court reporter to prepare the statement of facts within the time (90 days) prescribed by law. The court also noted the defendant had given no reason for his failure to file the affidavit early enough so as to enable the court reporter to prepare the statement of facts within the 90 days required by law. See also Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738.

A similar result was reached in Francis v. State, 132 Tex.Cr.R. 591, 106 S.W.2d 279 and Capps v. State, 130 Tex.Cr.R. 166, 93 S.W.2d 407, where the pauper's affidavit was not filed until the 89th day as in the case at bar. See also Woods v. State, 134 Tex.Cr.R. 206, 114 S.W.2d 551.

While a compliance with the statute followed by a wrongful denial of the statutory benefits would have caused a reversal, 55 A.L.R.2d 1072, 1113, it does not appear that petitioner brought his pauper's oath to the attention of the trial judge or that he or his attorney exercised due diligence in seeking the benefits under the statute. No reason for the delay appears. At no time pending the appeal did the appellant or his counsel contend he had been wrongfully deprived of such statement of facts or that in absence of the same he had not been able to properly prepare the appeal, or if prepared the same would have reflected reversible error.

In addition to securing a free statement of facts the statute in effect at the time afforded the indigent accused as well as the affluent accused the opportunity to submit his appeal by an agreed statement of facts where that was possible and to present matters on appeal by formal bills of exception. The court on appeal did consider appellant's sole bill of exception. See Thorbus v. State, Tex.Cr.App., 243 S.W.2d 840. Even at this late date petitioner does not point out what error he could have presented to the court even if he had been afforded the statement of facts.

It is clear then that the petitioner is not entitled to any post conviction relief as a result of any violation of the Texas statutory provisions in effect at the time. We must next consider whether a federal constitutional mandate requires a different result.

In 1956, some years after petitioner's conviction, the United States Supreme Court held in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055, that the due process and equal protection clauses of the Fourteenth Amendment are violated where a state statute providing for writs of error in all criminal cases as a matter of right is so administered as to deny full appellate review to an indigent defendant solely because of his inability to pay for a transcript of the record, while granting such review to all other defendants.

The court acknowledged a state was not required by the Federal Constitution to provide appellate courts or a right to an appellate review, but only when it does provide such review it cannot be done in a way that discriminates against some appellants on account of their poverty.

Under Illinois law at the time, indigent defendants under a sentence of death were provided with a free and full transcript while other indigent defendants could obtain a free transcript for appellate review of constitutional questions only but not for other alleged trial errors such as admissibility and sufficiency of evidence.

In reaching their decision it is interesting to note that the court said:

'Counsel for Illinois concedes that these petitioners Needed a transcript in order to get adequate appellate review of Their alleged trial errors. There is no contention that petitioners were dilatory in their efforts to get appellate review, or that the Illinois Supreme Court denied review on the ground that the allegations of trial court were insufficient. We must therefore assume for purposes of this decision that errors were committed in the trial that would merit reversal, but that the petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript.' (Emphasis supplied.)

After stating its holding the court also said:

'We do not hold, however, that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court (Illinois) may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders' bills of exception or other methods of reporting trial proceedings could be used in some cases.'

The Griffin decision has been held to be fully retroactive, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, and it has been followed in such decisions as Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164...