Maddox v. State, 58402

• Citation: 591 S.W.2d 898
• Decision Date: 19 December 1979
• Docket Number: No. 58402,No. 2,58402,2
• Parties: John Newton MADDOX, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 898

591 S.W.2d 898

John Newton MADDOX, Appellant, v. The STATE of Texas, Appellee.

No. 58402.

Court of Criminal Appeals of Texas, Panel No. 2.

Dec. 19, 1979.

E. R. Norwood, C. T. Hight, Liberty, for appellant.

Carroll E. Wilborn, Jr., Dist. Atty. and Elliott Knott, Asst. Dist. Atty., Liberty, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal follows conviction for the offense of murder wherein the jury assessed appellant's punishment at confinement for life in the Texas Department of Corrections.

Appellant presents six grounds of error, five of which attack the validity of his prior convictions on the ground that he was an indigent at the time of conviction in each prior cause, did not have counsel and did not intelligently waive his right to same; and, further, that the trial court erred in failing to grant his timely motion for a mistrial after the prosecutor asked appellant a manifestly improper question on cross examination. For reasons more fully developed below, we overrule these contentions and, accordingly, affirm the judgment of conviction.

In grounds of error one through five, appellant advances the contention that the trial court erred in allowing the State to introduce evidence of his 1960 felony convictions in Frio, Atascosa, and Medina counties inasmuch as he, at the time of said convictions, was indigent, did not have counsel present and did not intelligently waive his right to same.

The record reflects that the trial court held a hearing outside of the presence of the jury to determine if appellant's allegations that he was uncounselled at his prior felony convictions were substantiated. Appellant testified at this hearing that he pled guilty to several assaultive and theft offenses in Frio, Medina, and Atascosa counties in 1960 and that he was, at that time, indigent and unrepresented by counsel. He recounted that a man visited him in jail and told him he was going to be his attorney and represent him, and informed appellant he would take the latter's suit to have it pressed. Appellant asserted that that was the last time he saw either the man or his suit. He further testified that counsel was not present at any stage of the proceedings and that he had recently turned twenty at the time he entered pleas.

To rebut his assertion that appellant had not been represented by counsel, the State cross examined him further about the circumstances and introduced several exhibits, including a pen packet, consisting of papers in the various causes. Against a background of undisputed facts, certain admissions by appellant and other material, we now develop a factual situation that justified the rulings of the trial court.

Until he changed it the surname of appellant was Huddleston, and the papers in the 1960 causes bear that name. His partner in one or more of these crimes was Richard Wayne Jacobsen. ¹ On or about April 14, 1960, in Frio County one R. E. Malone was assaulted with intent to murder and his 1960 model automobile was taken from him at the point of a pistol; also on the same day in Medina County one Marvin Hass was assaulted and four hundred dollars was taken from him at the point of presumably the same pistol. About six days later in Frio County an automobile was stolen from another party. On a day not revealed in the record in Atascosa County something of value in excess of fifty dollars was taken from someone. We do not know when appellant was apprehended, but he recalled that he was first incarcerated in Pearsall, which is the county seat of Frio County.

Frio and Atascosa counties were then, and still are, in the 81st Judicial District; ² the duly elected and presiding judge of which was, until his recent retirement, Honorable John F. May; Honorable J. Taylor Brite was the District Attorney. Medina County was then, and still is, in the 38th Judicial District; ³ the duly elected and presiding judge of which was, until his appointment to the Supreme Court of Texas, Honorable Ross E. Doughty; Honorable R. S. Crawford, Jr. was the District Attorney. On all but the Atascosa County papers, their respective signatures appear in appropriate places.

May 24, 1960, indictments were returned against appellant by the Frio County grand jury as follows:

No. 2315: Robbery by Assault, use of Firearm (Malone)

No. 2316: Assault with Intent to Murder (Malone)

No. 2317: Theft of Property over Fifty Dollars (Jorgensen)

May 30, 1960 is the common date on the docket sheet and plea papers in each case. On each docket sheet in the space for name of attorney for defendant is entered "George Middaugh;" each waiver of ten days to prepare for trial bears, just below that of appellant, what purports to be the signature of "George I. Middaugh." From the Texas Legal Directory we know that presently an attorney by that name is listed in Cuero, DeWitt County. ⁴

In No. 2315, the robbery by assault with firearm, the first entry on the docket sheet recites that granted was the motion of District Attorney Brite to delete from the indictment the allegation of aggravation by exhibiting a pistol; that done appellant, having executed a written statement of desire to enter a plea of guilty and waive trial by jury, plead guilty. He and his attorney previously waiving ten days for preparation in writing, it stretches credulity to suggest that Middaugh then left the courtroom without further ado and was not standing with appellant as the trial court took his plea. Indeed, to the contrary, the judgment reports "his counsel also being present." We are satisfied beyond any reasonable doubt that the Frio County guilty pleas and convictions were had with assistance of counsel, namely, George I. Middaugh, Esq. Thus were the three Frio County cases disposed of by Judge May, all on May 30, 1960. Appellant was remanded to custody of the sheriff.

June 7, 1960 the Medina County grand jury returned its indictment against appellant and his companion for robbery of Marvin Hass by firearm. A bench warrant addressed to the sheriff of Frio County was issued by Judge Doughty to the end that they be produced for trial on Friday, June 10, 1960; it was executed June 7, 1960 by transferring them to the Medina County Jail in Hondo. June 8, 1960 appellant was served with the indictment in Cause No. 3855. All further proceedings in the cause were held on the date set for trial, June 10, 1960. The first docket sheet entry was made that same day and reads, in pertinent part "Francis Richter, ⁵ Esq., Appointed to represent Jacobsen and appeared and announced ready, Huddleston in person and by attorney announced ready . . ." ⁶

Here again, as in Frio County the week before, but with a different district attorney, appellant executed a written notification of his desire to plead guilty and waive trial by jury, ⁷ and District Attorney Crawford then waived in writing that portion of the indictment alleging aggravation by using and exhibiting a pistol. Appellant and Jacobsen both pled guilty and Judge Doughty accepted the pleas, heard evidence, adjudged each guilty and assessed identical punishment. Acknowledging in his testimony given in the instant case that Jacobsen entered a guilty plea at the same time, appellant nevertheless professed not to know whether Jacobsen was represented by counsel. We are persuaded that a trial judge careful enough to appoint counsel for Jacobsen did not name one for appellant because he already was represented by one. ⁸ Indeed, in addition to the docket recitation that he was, both the judgment and sentence report "his counsel also being present." In the latter Judge Doughty also noted May 30, 1960 as the date of confinement with respect to that offense and gave credit of 12 days.

Admittedly, documentation of the Atascosa County conviction for theft over fifty dollars is slim. In the record before us there are the judgment and sentence in Cause No. 4027, and though neither bears a name or signature of a presiding judge, appellant provided enough information in his testimony for a deduction that Judge May was in Jourdanton, as he had been earlier in Pearsall. ⁹ June 13, 1960 is the date of the judgment and of the sentence, which would be the Monday following the Medina County proceedings the Friday before, and some two weeks since appellant had appeared and plead in front of Judge May in Medina County, in the presence of District Attorney Brite. In other words, all the players were the same except, appellant would have it, his attorney. Yet, the judgment reports his appearance "by counsel" and twice more that he was duly or properly "represented by counsel," although the space for the name of the lawyer is blank; the sentence, which does not contain similar recitations, shows clearly that it was imposed the same day.

Appellant was received at the Texas Department of Corrections the following day, June 14, 1960, his sentences to begin May 30, 1960.

It is in the face of the evidence detailed above and deductions and permissible inferences therefrom that appellant insists the five pleas in three counties were uncounselled.

The mere fact that the form recitals in those judgments and sentences note that he was "duly represented by counsel," reasons appellant, in no way rebuts his own showing that counsel was not present. There is no showing, he continues, that counsel was present at the Atascosa County hearing especially given the absence of counsel's name in the blank therefor. Moreover, it is argued, more likely than not appellant was not furnished appointed counsel on an undisclosed showing of indigency some three years before the seminal decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) required it. ¹⁰

It is, of course, well settled that the testimony of an appellant is insufficient to overcome either the presumption of regularity of public records or the recitations contained in the...