Ex parte Vestal
| Decision Date | 23 June 1971 |
| Docket Number | No. 44238,44238 |
| Parties | Ex parts R. A. VESTAL, Jr. |
| Court | Texas Court of Criminal Appeals |
Marion T. Key, Lubbock, for petitioner.
E. W. Boedeker, Dist. Atty., Levelland, James K. Walker, County Atty., Morton, and Jim D. Vollers, State's Atty., Austin, for the State.
This is a habeas corpus proceeding under Art. 11.07 of the Code of Criminal Procedure and in accordance with Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. The petitioner seeks his release from confinement in the Department of Corrections where he is serving a life sentence for theft enhanced under the provisions of Art. 63 of the Penal Code. The case was tried on January 19, 1962, and was not appealed.
A hearing was held before the Honorable M. C. Ledbetter, Judge of the 121st District Court of Cochran County and the writ was denied.
The petitioner alleges that his court-appointed counsel was ineffective because he did not investigate the petitioner's past mental history or obtain a separate hearing on the issue of sanity, and that he was not represented by counsel at the time of his sentencing. It was established that the petitioner was indigent both at the time of his trial in this case and at this hearing.
At the hearing, evidence was adduced which showed that the petitioner was an alcoholic and had, prior to his trial, been confined in the Big Spring State Hospital as such; that he never told his attorney about being committed to any mental institution; and that his attorney could not detect any evidence of insanity on the part of the petitioner. The evidence showed he was an alcoholic but did not show insanity. It also appears that his attorney was not aware of his commitment. We cannot conclude that counsel was ineffective for failing to further investigate the petitioner's past mental history or request a separate hearing on the issue of sanity.
It was also established that his attorney was not present at the sentencing. The attorney testified that he gave notice of appeal when the jury verdict was returned, but that he was not present when appellant was sentenced. He further testified that if was his understanding that the petitioner did not want to appeal. He had explained to the petitioner that there were no valid legal grounds for an appeal, and that if he began serving his sentence immediately he could get good time credit at the penitentiary and be eligible for parole sooner. The attorney unequivocally stated that he explained to the petitioner that he had the right to appeal and left the decision entirely up to the petitioner. The petitioner chose not to appeal, and wanted to begin serving his sentence in order to be eligible for parole.
The petitioner testified that he wanted to appeal the case and wanted to appeal at all times through the sentencing.
Art. 44.08 of the Code of Criminal Procedure provides that in cases other than death sentence and probation cases, notice of appeal must be given within 10 days after sentencing. Notice of appeal given prior to that time is invalid. Flores v. State, Tex.Cr.App., 419 S.W.2d 202; Herbort v. State, Tex.Cr.App., 422 S.W.2d 456; Smith v. State, Tex.Cr.App., 424 S.W.2d 228.
In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the United States Supreme Court held that...
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