Crawford v. State

435 S.W.2d 148

• Court: Court of Criminal Appeals of Texas
• Decided: November 27, 1968
• Docket: 41466
• Status: Published

Opinions

OPINION

DICE, Judge.

This is what is referred to in the record as an out of time appeal.

In 1955 appellant was convicted in the Special Criminal District Court of Bexar County of the offense of robbery by assault. His punishment was assessed at life imprisonment, being enhanced under Art. 62, P.C., by reason of a prior conviction in the Criminal District Court of Bexar County in 1951 for the offense of assault with intent to rob.

On an original appeal the judgment of conviction was affirmed by this court in Crawford v. State, 162 Tex.Cr.R. 95, 282 S.W.2d 222.

In 1964 appellant by petition for writ of habeas corpus attacked the 1955 conviction as void on the ground that he was not represented by counsel when the probation granted to him in the 1951 conviction was revoked. The petition was denied by this court in Ex parte Crawford, Tex.Cr.App., 379 S.W.2d 663.

Thereafter, in a subsequent habeas corpus proceeding, the United States Court of Appeals for the Fifth Circuit found that appellant was denied his constitutional right to counsel on appeal, from the 1955 conviction and was “entitled to an out of time appeal, or in the alternative, to a new trial if an out of time appeal is not available.” Crawford v. Beto, 383 F.2d 604 (1967).

Pursuant to such order, appellant was brought before the 175th Judicial District Court of Bexar County and after the appointment of counsel to represent him a hearing was held in which appellant again sought to set aside the 1955 judgment of conviction upon the allegation that the conviction with punishment enhanced under Art. 62, P.C. was invalid because in the 1951 conviction used for enhancement he was neither represented by counsel at the trial nor when his probation was later revoked by the court. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, were cited by appellant in support of his contention.

Following a hearing, the proceedings were certified to this court as a delayed appeal.

In Ex parte Crawford, supra, this court found that appellant was represented by counsel at his trial in 1951 when he was granted probation, but that he was not represented by counsel when his probation was later revoked.

On this appeal we will only be concerned with the effect of the decision by the Supreme Court of the United States in Mempa v. Rhay, supra, decided November 13, 1967, on the revocation of appellant’s probation in the 1951 conviction when he was not represented by counsel.

In Mempa v. Rhay, supra, it was held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of the accused may be affected, and that as a matter of constitutional law a lawyer must be afforded an accused at a proceeding for revocation of probation or deferred sentencing.

We are cited to no holding by the Supreme Court of the United States that its opinion in Mempa v. Rhay is to be applied retroactively.

We are not inclined to so hold, especially in view of our recent holdings in Ex parte Williams, Tex.Cr.App., 414 S.W.2d 472, and Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409, that the provision of Art. 42.12, C.C.P. of 1965, relating to the appointment of counsel when probation is sought to be revoked is not retroactive.

Under the record, appellant is not entitled to a reversal.

We observe that if Mempa v. Rhay were held to be retroactive appellant would not be entitled to discharge but only to a remand to answer the indictment, because he would not have served the maximum punishment of life imprisonment to which he could be legally sentenced upon conviction for the offense of robbery. Ex parte Gregg, Tex.Cr.App., 427 S.W.2d 66.

The judgment is affirmed.