Phillips v. State, 42065
| Decision Date | 07 May 1969 |
| Docket Number | No. 42065,42065 |
| Citation | 440 S.W.2d 857 |
| Parties | Claude Walter PHILLIPS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Grady Hight, Fort Worth, court-appointed, for appellant.
Frank Coffey, Dist. Atty., Roger Crampton, John A. Brady and Truman Power, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
Claude Walter Phillips was convicted in Cause No. 69584 in Criminal District Court No. 1 of Tarrant County for the offense of murder and on September 29, 1964, was sentenced in said cause to a term of not less than 2 years nor more than 40 years.
No notice of appeal was given or entered.
The record before us reflects the proceedings in said Cause No. 69584, styled The State of Texas vs. Claude Walter Phillips, and also the habeas corpus proceedings in Cause No. C--2134 styled Ex Parte Claude Walter Phillips.
The habeas corpus application in Cause No. C--2134 was sworn to on February 21, 1967, Claude Walter Phillips stating under oath 'that the information therein is true and correct to the best of his knowledge and belief.'
The application for the writ recites that the applicant did not appeal from the judgment of conviction or the imposition of sentence and that he was represented by an attorney at his trial and his sentencing. The application was denied without an evidentiary hearing.
As to Cause No. 69584, styled The State of Texas v. Claude Walter Phillips, the record before us includes: (1) an order dated August 21, 1967, directing the Court Reporter to prepare and furnish a statement of facts 'to be used in perfecting the appeal of this cause.'
(2) An order dated November 15, 1967, appointing Hon. Grady Hight, a regular licensed and practicing attorney of the Fort Worth Bar, 'to represent the Defendant as his attorney, and said attorney is hereby authorized to proceed to perform the duties of the attorney, in perfecting the appeal to the Court of Criminal Appeals of Texas.'
The only other reference to counsel to represent Claude Walter Phillips before this court is found in the order entered in Cause No. C--2134 denying the application for writ of habeas corpus and reads: 'However, the record and transcript in this case have been ordered prepared and sent with this order to the Court of Criminal Appeals of Texas and Grady Hight, a duly licensed attorney of Fort Worth, Texas, has been appointed to represent this defendant in such court.'
Because of the recitation in the order of the court dated August 21, 1967, that the defendant had given notice of appeal to this court, the case was docketed and set for submission as an appeal.
Cause No. 69584, in which appellant was convicted, was tried and sentence pronounced prior to the effective date of the 1965 Code of Criminal Procedure (January 1, 1966).
Art. 826 C.C.P. (1925) in effect prior to said date, provided that '(a)n appeal may be taken by the defendant at any time during the term of the court at which the conviction is had.' Art. 827 C.C.P. (1925) provided that appeal is taken by giving notice thereof in open court at the term of court at which the conviction was had, and having the same entered of record.
The record does not reflect that notice of appeal was given or entered of record in Cause No. 69584 at any time.
The 1965 Code of Criminal Procedure makes it necessary for the defendant, as a condition of perfecting an appeal to this court, to give notice of appeal. (Art. 44.08 Vernon's Ann.C.C.P.) Under the 1965 Code, in cases other than those where the death penalty has been assessed or in probation cases where the imposition of sentence is suspended, the notice of appeal is to be given or filed within ten days after sentence is pronounced. However, Art. 44.08, Sec. (e), provides '(f)or good cause shown, the trial court may permit the giving of notice of...
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Ex parte Mitchell
...appoint counsel. We do not agree and are not bound by the trial court's findings of fact and conclusions of law. Phillips v. State, Tex.Cr.App., 440 S.W.2d 857. The petitioner entered a plea of guilty before the jury. In Darden v. State, Tex.Cr.App., 430 S.W.2d 494, this court discussed a w......
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Ex parte Marez
...the findings of the trial court that petitioner was deprived of a fair trial and that he is now unlawfully confined. See Phillips v. State, Tex.Cr.App., 440 S.W.2d 857; Ex parte Bazemore, Tex.Cr.App., 430 S.W.2d 205; Ex parte Carpenter, Tex.Cr.App., 425 S.W.2d 821; Ex parte Young, Tex.Cr.Ap......