Ex Parte Traxler

• Decision Date: 20 December 1944
• Docket Number: No. 22980.,22980.
• Citation: 184 S.W.2d 286
• Parties: Ex parte TRAXLER.
• Court: Texas Court of Criminal Appeals

184 S.W.2d 286

Ex parte TRAXLER.

No. 22980.

Court of Criminal Appeals of Texas.

December 20, 1944.

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

Habeas corpus proceedings on the petition of Roy "Pete" Traxler to secure his release from the penitentiary, wherein application for writ was made to judge of criminal district court, and after hearing writ issued returnable to Court of Criminal Appeals.

Relator discharged in accordance with opinion.

J. S. Bracewell and Fentress Bracewell, both of Houston, for appellant.

A. C. Winborn, Dist. Atty., and E. T. Branch, Asst. Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Relator seeks release from the penitentiary, having made application for writ of habeas corpus to the judge of the Criminal District Court of Harris County. A hearing was had upon said application and the writ issued returnable to this court as provided by Act of the 48th Legislature, Ch. 233, p. 354, Vernon's Ann.C.C.P. art. 119.

It is shown that relator was indicted in the District Court of Lipscomb County, it being charged in the indictment that he had robbed a named party by assault, and by violence to the said party, and by putting him in fear of life and bodily injury, and "by using and exhibiting a firearm, to-wit: a pistol." By the averments quoted the offense as charged became a capital felony under Article 1408, P.C., authorizing the punishment of death if a firearm is used in perpetrating robbery.

On the 16th day of February, 1936, relator appeared in court with his attorney, waived a trial by jury and entered his plea of guilty before the judge, who found him guilty "of the charge in said indictment filed herein, to which the defendant entered his plea of guilty and finds the defendant to be guilty of the offense of robbery," and assesses his punishment at confinement in the penitentiary "for a term of not less than five years nor more than life." (Italics ours, but are recitals from the judgment.) In pronouncing sentence against appellant the court directed that he be imprisoned not less than five years nor more than life. It is recited in the sentence that appellant's punishment had been "adjudged at confinement in the penitentiary for life;" this recital being contradictory to those in the judgment as to the punishment assessed.

The 42d Leg., p. 65, Ch. 43, Art. 10a, Vernon's Tex.C.C.P., Vol. 1, provided that:

"The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury" upon complying with certain conditions therein specified. The recitals in the judgment show compliance with those conditions, save any recital that relieves the offense of being that of a capital felony.

It is admitted in the application for the writ of habeas corpus as well as in relator's brief that at the time relator entered his plea of guilty the District Attorney "orally stated to the court that he was reducing the charge of robbery by firearms to robbery by assault, but there was no docket entry or order of any kind thereon." Upon a hearing of the application for the writ of habeas corpus it was shown from a letter of the District Clerk that there was "nothing in the files or on the docket * * * showing that the charge (against relator) was reduced."

It is relator's contention that under the circumstances stated, in the absence of any order in the court minutes or recital in the judgment to the contrary, the record shows that the court accepted a plea of guilty in a capital felony, which he was without jurisdiction to do, and therefore, the judgment of conviction is void.

This contention brings in review Art. 577, C.C.P., which reads as follows:

"The district or county attorney may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge."

We have had occasion heretofore to deal with a situation similar to that here presented. See Gentry v. State, 68 Tex.Cr.R. 567, 152 S.W. 635, Clay v. State, 70 Tex. Cr.R. 451, 157 S.W. 164 (reducing offense from murder in first to murder in second degree); Sweeney v. State, 103 Tex.Cr. R. 393, 281 S.W. 571, a robbery case in which that portion of the charge in the indictment relating to the use of firearms was abandoned. It will be noted that in the two cases first mentioned the district attorney filed written motions dismissing as to murder in the first degree, which motions were sustained by the court and record of such action entered in the minutes of the court. In the case last mentioned it does not appear from the opinion whether the district attorney filed a motion to dismiss the capital feature of the case, or whether the docket entry was carried into the minutes. In Adams v. State, 96 Tex. Cr.R. 242, 257 S.W. 249, we assume the district attorney orally waived the death penalty in a case of robbery which alleged the use of firearms. We note this language in the opinion on rehearing:

"The indictment charged a capital offense, to wit, robbery with firearms * * *" and the jury was told they could inflict the death penalty.

Quoting further:

"There is on file no statement or agreement on the part of any one authorized to bind the state, waiving the death penalty. * * * In no event would such agreement be binding unless with the sanction of the trial court, and if it be claimed that there was any waiver or attempted waiver, same does not...