Braden v. State

395 S.W.2d 45, 1965 Tex. Crim. App. LEXIS 1222

• Court: Court of Criminal Appeals of Texas
• Decided: November 3, 1965
• Docket: 38399-38402
• Status: Published

Opinions

MORRISON, Judge.

In three of the above styled causes this appellant was charged with the unlawful sale of whiskey in a dry area and in one she was charged with the unlawful possession of whiskey in a dry area. In each ease the punishment is a fine of $200.00. The permissible punishment for each of such offenses is imprisonment in jail.

The statement of facts and bills of exception reflect that after her arrest appellant, was taken before the court where she entered a plea of not guilty to .the offenses charged. Shortly thereafter she was taken to a private room by the arresting officer and was brought back before the court a few minutes later at which time she plead guilty. Appellant was neither represented by counsel prior to nor at the time of the entry of her plea of guilty in each of the above cases on March 25, 1965, nor was she advised of her right to be represented by counsel. The bill certifying indigency is not qualified.

Appellant relies upon the writer’s dissent in Pizzitola v. State, Tex.Cr.App., 374 S.W.2d 446, and upon Harvey v. State of Mississippi, 5 Cir., 340 F.2d 263.

Since the rendition of the majority opinion in Pizzitola v. State, supra, this Court has in Ex parte Ruckman, and Ruckman, Tex.Cr.App., 392 S.W.2d 136, recognized the soundness of the holding of the Fifth Circuit Court of Appeals in Harvey v. State of Mississippi, supra, when we quoted therefrom as follows:

“The failure of notice to Harvey of his right to the assistance of counsel invalidated his guilty plea and rendered his conviction and incarceration constitutionally improper. We therefore reverse the judgment of the trial court and remand the case for the entry of judgment ordering the release of the appellant from custody on the present conviction and sentence.”

For the failure of the court to inform this appellant of her right to be represented by counsel prior to her plea of guilty, the judgment in each case is reversed and the causes are remanded.