Sifford v. State, 48780

• Citation: 511 S.W.2d 526
• Decision Date: 17 July 1974
• Docket Number: No. 48780,48780
• Parties: Joe Henry SIFFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 526

511 S.W.2d 526

Joe Henry SIFFORD, Appellant, v. The STATE of Texas, Appellee.

No. 48780.

Court of Criminal Appeals of Texas.

July 17, 1974.

L. Bruce Roberson, Perryton, for appellant.

Otis C. Shearer, County Atty., Booker, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

The offense is driving while intoxicated, a felony; the punishment, four years, probated.

By his first ground of error, appellant contends the prior misdemeanor conviction is void because he did not have counsel at that time, and was indigent and had not waived counsel. The prior conviction was had March 27, 1972, and the punishment assessed included jail confinement. Accordingly, appellant was entitled to appointed counsel if he was indigent and did not waive same. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373.

A review of the record reflects that the following findings of the trial court are supported thereby:

'. . . that the Defendant, Joe Henry Sifford, on March 27, 1972, was not an indigent person, but together with his wife was the operator of a small trucking business. The testimony of Mr. and Mrs. Sifford is that in about August of 1971, the Defendant and his wife owned a three bedroom home in Hammond, Oklahoma, and at that time, did borrow about $4800.00, to go into the trucking business. With these proceeds, the Defendant purchased a truck for $2,000.00 and paid $800.00 down on two trailers for the truck.

'Also at this time, the Defendant owned a 1971 Ford pickup, that was purchased on time payments, and an old passenger car that was later junked.

'On March 27, 1972, the Defendant and his wife were engaged in the trucking business with the above mentioned equipment, and did shortly before this time pay License Fees in approximately the amount of $600.00, together with monthly payments on the two trailers. At a later period of time, the Defendant employed two different firms of attorneys to represent him in the present action in Lipscomb County, making part payments periodically in this connection. The Court finds that the Defendant had a going business on March 27, 1972. And, although the equipment was mortgaged, that there was a net worth in the trucking business, and that the Defendant was not an indigent person on this date.'

The trial court, after judging the credibility of the witnesses and weighing the evidence before it, having found appellant was not indigent...