Ex parte Williams

• Decision Date: 05 February 1986
• Docket Number: No. 68970,68970
• Citation: 703 S.W.2d 674
• Parties: Ex parte Thaddeus Vandehue WILLIAMS.
• Court: Texas Court of Criminal Appeals

Page 674

703 S.W.2d 674

Ex parte Thaddeus Vandehue WILLIAMS.

No. 68970.

Court of Criminal Appeals of Texas En Banc.

Feb. 5, 1986.

Thaddeus Vandehue Williams pro se.

John B. Holmes, Jr., Dist. Atty., and Susan Spruce, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

These proceedings involve a post-conviction application for writ of habeas corpus brought under the provisions of Article 11.07, V.A.C.C.P.

Applicant seeks to set aside five (5) convictions for aggravated robbery.

On June 17, 1978, an indictment was returned against the applicant in the 178th District Court. It contained five separate counts alleging aggravated robberies committed on different dates against different victims. A prior felony conviction was alleged for enhancement of punishment in connection with the first count of the indictment only.

The basic allegations in each count were that applicant

"... on or about (date) did then and there unlawfully while in the course of committing theft of money owned by (name of Complainant) hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm."

On October 2, 1978, applicant waived trial by jury, entered a plea of guilty to all counts of the indictment, and entered an agreement to stipulate evidence on each count. Each agreement also contained a sworn stipulation by the applicant. Applicant also stipulated he had been previously convicted of a felony as alleged in connection with the first count of the indictment. The court found applicant guilty of all five counts as well as being a repeat offender as alleged and ordered a pre-sentence investigation. On November 10, 1978, the court assessed applicant's punishment at 25 years' imprisonment on each count. The applicant then waived time in which to file a motion for new trial or in arrest of judgment, and the court sentenced applicant to not less than 15 nor more than 25 years on the first count, and from 5 to 25 years in connection with each of the other counts. Separate judgments and sentences were entered on each count. Applicant did not appeal any of these convictions.

Subsequently applicant filed a pro se application for post-conviction writ of habeas corpus in the 178th District Court. In said application it was urged that the evidence was insufficient to support his guilty pleas in trial court No. 280365 on the five counts of aggravated robbery as required by Article 12, V.A.C.C.P. (1925) (obviously meaning Article 1.15, V.A.C.C.P. [1965] ) (as amended 1973). He urged the trial court was thus without jurisdiction, and he was deprived of due process under the Fourteenth Amendment. In support of his argument he calls attention to the stipulation on each count including the waiver of the appearance, confrontation and cross-examination of witnesses and the consent to stipulation which stated:

"... I waive my rights against self-incrimination and confess the following facts:

"On (date) in Harris County, Texas, I did intentionally and knowingly threaten imminent bodily injury to (name of Complainant) with the use of a deadly weapon, namely a firearm."

The stipulation was sworn to by the applicant.

In response the State answered applicant's allegations were an improper collateral attack on the sufficiency of the evidence, and without a transcript of the hearing on the guilty pleas there was no adequate showing that the written stipulations introduced at said hearing contained the only evidence submitted to support the convictions citing Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978).

The trial court found no controverted, previously unresolved facts material to the legality of the confinement requiring an evidentiary hearing and ordered the record forwarded to this Court with judgments and sentences, stipulations, jury waivers, etc.

This Court ordered the trial court to more fully develop the facts concerning applicant's allegations by affidavits, evidentiary hearing, etc., and to file findings of facts. The trial court complied with this Court's request.

The affidavit of the court reporter showed that her notes in the case in question (Trial Court No. 280365) had been destroyed. The judgment reflected that evidence was heard. The defense counsel's affidavit stated the only written material introduced at applicant's trial were the five stipulations (one for each count). He did not recall anyone asking the applicant if all the allegations in the indictment were true and did not recall any oral judicial confession or confessions by the applicant.

In his findings the trial court traced the history of the case, noted the two aforementioned affidavits, and further found the five written stipulations were the only evidence introduced to support the judgments. The trial court concluded that evidence was sufficient to show that applicant was guilty only of the lesser included offense of aggravated assault and that he had been previously convicted as alleged in connection with the first count of the indictment.

It is well established that the Court of Criminal Appeals is not bound by the findings of the trial judge in post-conviction habeas corpus proceedings under Article 11.07, V.A.C.C.P. See Ex parte Stauts, 482 S.W.2d 638 (Tex.Cr.App.1972); Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977); Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980); Ex parte Acosta, 672 S.W.2d 470 (Tex.Cr.App.1984).

It is equally well established that the burden of proof is upon the applicant in such proceedings, and includes the burden of proving his factual allegations. See Alexander v. State, 598 S.W.2d 308 (Tex.Cr.App.1980); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982), cert. den. 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Ex parte Salinas, 660 S.W.2d 97 (Tex.Cr.App.1983). See also Ex parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979). Further, there is a presumption of regularity with respect to guilty pleas under Article 1.15, V.A.C.C.P. Ex Parte Reed, 610 S.W.2d 495 (Tex.Cr.App.1981).

It is applicant's contention that the "sworn to" stipulation was the only evidence offered in each case, that while each stipulation might be a "judicial confession" as to an assault, each was not sufficient to establish the allegations of aggravated robbery as alleged in each indictment upon his plea of guilty in each case.

It is apparently his contention that, even though no effort was made to withdraw the guilty pleas, though no motion for new trial was filed, and though no appeals were taken, he may collaterally attack his convictions by post-conviction habeas corpus proceedings based on the failure of the State to comply with Article 1.15, V.A.C.C.P., and offer sufficient evidence to support the judgments in each case where he entered a plea of guilty. He makes this contention, although he waited until the court reporter's notes were destroyed. Thus applicant is attacking collaterally his conviction based on his guilty plea before the court by asserting the evidence was insufficient to support that conviction.

It has long been the general rule that the sufficiency of the evidence cannot be attacked collaterally. Ex parte Rogers, 201 S.W. 1157 (Tex.Cr.App.1919); Ex parte Banspach, 130 Tex.Cr.R. 3, 91 S.W.2d 365 (1936); Ex parte Caldwell, 383 S.W.2d 587 (Tex.Cr.App.1964); Ex parte Muro, 394 S.W.2d 174 (Tex.Cr.App.1965); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978); Ex parte Smith, 571 S.W.2d 22 (Tex.Cr.App.1978); Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978); Ex parte Dunn, 571 S.W.2d 928 (Tex.Cr.App.1978); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). See also Ex parte Easter, 615 S.W.2d 719, (Tex. Cr. App. 1981), cert. den., Easter v. Texas, 454 U.S. 943, 102 S.Ct. 481, 70 L.Ed.2d 252; 38 Tex.Jur.3rd Extraordinary Writs, § 48, p. 96.

In Ex parte Banspach, supra, it was written:

"It is well settled by the decisions of the Court of Criminal Appeals that the merits of a case involving the guilt or innocence of an accused are not a proper subject of inquiry in a habeas corpus proceeding."

It has been frequently held that the writ of habeas corpus cannot be used as substitute for or to usurp the function of an appeal. Ex parte Overstreet, 129 Tex.Cr.R. 574, 89 S.W.2d 1002 (1936); Ex parte Hubbard, 153 Tex.Cr.R. 112, 218 S.W.2d 209 (1949); Ex parte Puckett, 161 Tex.Cr.R. 51, 274 S.W.2d 696 (1954); Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219 (1955), cert. den. 350 U.S. 1002, 76 S.Ct. 553, 100 L.Ed. 866; (1956) Ex parte Lyles, 168 Tex.Cr.R. 145, 323 S.W.2d 950 (1959); Ex parte Spulreda, 172 Tex.Cr.R. 455, 358 S.W.2d 630 (1962); Ex parte Powell, 558 S.W.2d 480 (Tex.Cr.App.1977); Ex parte McGowen, 645 S.W.2d 286 (Tex.Cr.App.1983); Ex parte Gonzales, 667 S.W.2d 932 (Tex.App.--Austin 1984) (review refused).

Ex parte Burns, 133 Tex.Cr.R. 77, 109 S.W.2d 211 (1937), made clear that when the trial court has jurisdiction to render judgment and the law affords a remedy by appeal the court cannot in habeas corpus proceedings inquire into questions of the sufficiency of the evidence upon which the judgment was rendered.

A study of the cases supporting the above general rule shows that it has been applied or intended to apply across the board to all types of criminal cases, whether the offense be a felony or misdemeanor or whether the trial be before the court or jury, and whether the plea is one of not guilty, guilty, or nolo contendere.

In Ex parte Lyles, supra, the Court wrote:

"Where, however, there is no appeal or where the record on appeal is not timely filed or properly certified...